G.R. No. L-34150, October 16, 1971 ARTURO M. TOLENTINO v.

COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION Facts: A petition for prohibition was filed by Arturo Tolentino against COMELEC to enjoin the latter from holding a plebiscite called by the Constitutional Convention for the purpose of ratifying an amendment to the Constitution which lowers the voting age from 21 to 18. The Supreme Court granted the petition because the manner by which the plebiscite is being called was found to be unconstitutional where Article XV, Section 1 limits the number of election or plebiscite to one only. A Constitutional Convention (ConCon) was convened by Congress (acting as a Constitutional Assembly or ConAss) for the purpose of amending the Constitution (see Imbong v. COMELEC). Under Resolution No. 2, Section 7 of the ConAss, the amendments proposed by the ConCon shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution. Article XV, Section 1 of the Constitution provides: SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments (plural) to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election (singular) at which the amendments are submitted to the people for their ratification. Emphasis supplied by me :p By virtue of its authority, the ConCon enacted Organic Resolution No. 1, amending Art. V, Section 1 of the Constitution by lowering the voting age from 21 to 18 and changing male to citizen to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the ConCon. Organic Resolution 1, Sec. 3 explicitly provides that [t]his partial amendment, which refers only to the age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution. On the other hand, Section 4 set aside P75,000from its funds for the expense of the plebiscite. ConCon President Diosdado Macapagal then wrote the COMELEC to assist them in the plebiscite and created an Ad Hoc Committee to implement Organic Reso. No. 1. The plebiscite was scheduled on November 8, 1971. The petition for prohibition was consequently filed by Tolentino, challenging the constitutionality of Organic Reso. No. 1 and its implementing resolutions in so far as they provide for the holding of a plebiscite. At the outset, he is not against the constitutional extension of the right of suffrage to the eighteen-year-olds, having himself advocated or sponsored in Congress such a proposal. His only purpose in filing the petition being to question whether or not it is within the power of the Convention to call for a plebiscite for the ratification by the people of the constitutional amendment proposed in the Organic Resolution No. 1 in the manner and form provided in the resolution, because: (a) the calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be exercised by the Convention; and (b) under Section 1, Article XV of the Constitution, the proposed amendment in question cannot be presented to the people for ratification separately from each and all of the other amendments to be drafted and proposed by the Convention. On the other hand, respondents posit that the power to provide for, fix the date and lay down the details of the plebiscite for the ratification of any amendment the Convention may deem proper to propose is within the authority of the Convention as a necessary consequence and part of its power to propose amendments and that this power includes that of submitting such amendments either individually or jointly at such time and manner as the Convention may direct in discretion. They also challenged the jurisdiction of the Supreme Court by raising the political question doctrine that the Convention, being legislative body of the highest order, is sovereign, and as such, its acts are beyond the control of the Congress and the courts. Issues: 1) WON the Supreme Court has jurisdiction to entertain the petition Y

2) WON Organic Resolution No. 1 is constitutional N

Held: The manner by which the plebiscite is being called is unconstitutional where Article XV, Section 1 of the Constitution limits the number of election or plebiscite to one only.

1. The Supreme Court exercises jurisdiction over the constitutionality of the acts of the Constitutional Convention
The Constitutional Convention of 1971 owes its existence and derives all its authority and power from the existing Constitution of the Philippines, and thus, the acts of the convention, its officers and members are not immune from attack on constitutional grounds. The power to amend the Constitution or to propose amendments thereto is not within the general grant of legislative powers to Congress (under Art. VI.1) but it is part of the inherent powers of the people as the repository sovereignty in a republican state to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the Constitution explicitly grants such power under Section 1, Art. XV. Hence, the ConCon cannot invoke the political question doctrine because when exercising their power to amend the Constitution, it is

said that Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution. It follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. In fact, any of its proposals cannot have any effect as part of the Constitution until the same are duly ratified by the people. The appropriate body who can decide whether an act of the Convention is or is not among those granted to or inherent in it, according to the existing Constitution is the Court. The power and duty to resolve such a grave constitutional question must be lodged on some authority. And according to Angara vs. Electoral Commission: The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. Under the Constitution, Angara continues, the judiciary is tasked with judicial review or judicial supremacy, i.e. to determine the nature, scope and extent of the powers of the government. But when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature. The judiciary does not pass upon questions of wisdom, justice or expediency of legislation because of the presumption of constitutionality to legislative enactments. Rather, the court only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. Otherwise, were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. The manner by which the plebiscite is called is unconstitutional. While the Convention should be untrammeled and unrestrained in the performance of its constitutionally assigned mission in the manner and form it may conceive best, and while the Court must accord respect to the acts of the other coordinate departments of the government, the Convention is still subject to the provisions of Article XV, Sec. 1 for having came into being by a call of a joint session of Congress pursuant to the Constitution. Original constitutions carry with them limitations and conditions, more or less stringent, more so by the people themselves in regard to the process of their amendment to insulate the constitution against precipitate and hasty actions motivated by more or less passing political moods or fancies. In this case, the plebiscite being called for the purpose of submitting the amendment for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the Convention and the COMEELC in that direction are null and void for the following reasons: First, the language of the Constitution is sufficiently clear: ARTICLE XV, SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments (plural) to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election (singular) at which the amendments are submitted to the people for their ratification. It says distinctly that Congress may propose amendments to this Constitution, thus placing no limit as to the number of amendments that Congress or the Convention may propose. The same provision also provides that such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. It leaves no room for doubt as to how many elections or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocably says "an election" which means only one. Second, the voters must have a fixed frame of reference, an ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea? Amending the Constitution is as serious and important an undertaking as constitution making itself. Indeed, any amendment of the Constitution is as important as the whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the other. 2.

G.R. No. L-23127, April 29, 1971 FRANCISCO SERRANO DE AGBAYANI v. PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, Facts: An injunction was issued by the lower court, enjoining the extrajudicial foreclosure of a real estate mortgage by creditor PNB against debtor Serrano de Agbayani. Agbayani contended and the lower court ruled that the prescription period of 15 years for collection of the loan had already expired and thus the loan had become unenforceable. PNB appealed, contending that the period covering the effectivity of the Moratorium Law should be deducted. Agbayani contended that the Moratorium Law was subsequently declared void and thus, no official act can be justified under it. The Supreme Court upheld the contention of PNB, thus lifting the injunction, because the existence of the Moratorium Law and its effects are operative facts which cannot be ignored. Serrano de Agbayani obtained a loan from PNB and secured it with a real estate mortgage on her Pangasinan lot. The maturity of the loan was on July 19, 1944. On March 10, 1945 to July 26, 1948, however, Executive Order No. 32 (Moratorium Law) took effect, suspending the enforcement of payment of monetary obligations payable by war sufferers. E.O. 32 was extended by R.A. 342, until it was subsequently declared void by the Court in Rutter v. Esteban, dated July 26, 1948. Subsequently on July 13, 1959, PNB instituted extrajudicial foreclosure proceedings against the REM of Agbayani for the payment of her loan balance. Agbayani filed an injunction suit against PNB on August 10, 1959 on the ground of prescription, that 15 years had already passed from the loans maturity. PNB, on the other hand, contended that the period of the Moratorium Law should have been deducted in the counting of the prescription. The lower court and the Court of Appeals upheld Agbayanis stance. An unconstitutional act is not a law, creating no rights and imposing no duties, and thus as inoperative as if it had never been. Issue: Whether or not the effect of the Moratorium Law (suspending enforcement of payment by creditors) should be considered in counting the prescription period despite its nullity Y Held: The Supreme Court reversed the lower courts and dismissed the injunction. 1. There are two views as to the effect of an unconstitutional act. The orthodox view provides that an unconstitutional act cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. But while such view is simplistic, it may not however be sufficiently realistic. That is why the U.S. Court, in Chicot County Drainage Dist. v. Baxter States Bank, recognized that: The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. This doctrine has been recognized by the Philippine Court in Araneta v. Hill, Manila Motor Co., Inc. v. Flores, and in Fernandez v. Cuerva and Co. Therefore, while a statutes repugnancy to the fundamental law deprives it of its character as a juridical norm, its having been operative prior to its being nullified is a fact that is not devoid of legal consequences. This is because prior to the declaration of nullity, such challenged legislative or executive act must have been in force and had to be complied with. Parties may have acted under it and may have changed their positions. In the normal course of things, it has been acted upon by the public and accepted as valid. To ignore such a fact would indeed be the fruitful parent of injustice. Its practical effect, therefore, is that prior to its being nullified, its existence as a fact must be reckoned with. Otherwise, it would be to deprive the law of its quality of fairness and justice. In the case of PNB, its compliance with the Moratorium Law was reasonably expected as there was a factual justification for the moratorium at the time of the issuance of the E.O. 32 in 1945. The Philippines was confronted with an emergency where business was at a standstill and the economy lay prostrate. The moratorium was a valid governmental response to the plight of the debtors who were war sufferers. Time passed however, and conditions did change. The relief accorded to debtors subsequently worked injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice became more patent when, under the law the debtor is not even required to pay interest during the operation of the relief. Thus in 1948, the time of adjudication in Rutter v. Esteban, it was apparent that the Moratorium Law could not survive the test of validity. The effect of such declaration is that during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. Thus, eight years, two months and eight days must be deducted from the years that had already lapsed.

2. Also, from July 19, 1944, when her loan matured, to July 13, 1959, when extrajudicial foreclosure proceedings were started
by PNB, the time consumed is six days short of fifteen years.

G.R. No. L-23825, December 24, 1965 EMMANUEL PELAEZ v. THE AUDITOR GENERAL Facts: President Diosdado Macapagal created 33 municipalities pursuant to Section 68 of the Revised Administrative Code. The constitutionality of these executive orders were challenged by Vice President Pelaez, contending that RAC Sec. 68 had already been repealed by Republic Act No. 2370 (which denied the President the power to create barrios) and that RAC Sec. 68 constituted undue delegation of legislative power. The Supreme Court declared the executive orders as null and void ab initio. From September 4 to October 29, 1964 President Macapagal issued Executive Orders Nos. 93 to 121, 124 and 126 to 129, creating 33 municipalities. He purportedly acted pursuant to Section 68 of the Revised Administrative Code: 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. Vice President Pelaez instituted a petition for prohibition and preliminary injunction against the Auditor General, to restrain him from passing in audit any expenditure of public funds in the implementation of the EOs and/or any disbursement by the 33 municipalities. Pelaez alleged that the Eos were null and void because: (a) they were issued without authority by the President where RAC, Sec. 68 had already been repealed by R.A. No. 2370; and (b) RAC, Sec. 68 constitutes an undue delegation of legislative power. Issue: WON the Executive Orders are constitutional N Held: No, the President had no power to create municipalities. 1. Sec. 68, RAC is an undue delegation of legislative powers. The authority to create municipal corporations is essentially legislative in nature. It is strictly a legislative function and municipal corporations are purely the creatures of statutes. Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. This is to prevent the delegate from making or formulating policies which is the essence of every law, and to prevent the lack of means by which to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Section 68 of the RAC does not meet the requirements for a valid delegation of the power. For one, the creation of municipalities is not an administrative function, but one which is essentially and eminently legislative in character. 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. Thus, the decision is for Congress alone to decide. Second, assuming that Congress had delegated, not the discretion to create but, the execution and enforcement of the creation of municipalities, Sec. 68 of the RAC does not enunciate any policy to be carried out or implemented by the President and neither does it give a standard. Although the last clause of the first sentence of Section 68 provides that the President may change the seat of the government within any subdivision to such place therein as the public welfare may require, it qualified only the place to which the seat of the government may be transferred. Assuming that public welfare extends to the entire section, "public welfare" still cannot pass as a sufficient standard under Schechter Poultry Corporation vs. U.S. The case ruled that unfair competition is so broad as to vest in the President a discretion that is virtually unfettered, thus consequently, tantamount to a delegation of legislative power. In the case at bar, public welfare has even a broader connotation and thus leads to the same result.

2. Sec. 68, RAC had been repealed by R.A. No. 2370 on the ground of incompatibility.
Section 3, RA 2370 provides that: 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. 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. 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." The President, under the new law, cannot even create a barrio. Thus, he cannot create a municipality which is composed of several barrios, since barrios are units of municipalities. The statutory denial of the presidential authority to create a new barrio implied a negation of the bigger power to create municipalities, each of which consists of several barrios. 3. only: 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. This power of control implies the right of the President to interfere in the exercise of 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. However, 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. 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. More importantly, while the Presidents control over the executive department consists merely of substituting his judgment over the officers, the Presidents control over LGUs would be greater as it covers the creation and abolition of municipal corporations. Such power is not even present in terms of the executive department as the President cannot create or abolish positions therein. Impleading the Auditor General was proper. The Court took judicial notice of the fact that the President has, for many years, issued executive orders creating municipal corporations and that the same have been organized and in actual operation. It thus indicates, 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 the Auditor General 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. 4. Sec. 68, RAC is unconstitutional. Section 10 (1) of Article VII of the Constitution limits the control power of the President over the executive branch

G.R. No. 74457, March 20, 1987 RESTITUTO YNOT v. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY Facts: Six carabaos of Ynot were confiscated by the Station Commander of the Police in Iloilo for violating E.O. 626-A, prohibiting the inter-province transport of carabaos. Ynot filed a suit against the Police, et al to recover the carabaos, to challenge the constitutionality of the law, and to recover damages from the Police Commander. The Supreme Court declared E.O. 626-A as an unconstitutional exercise of police power but absolved the Police Commander of any liability for damages in enforcing E.O. 626-A. In order to address the indiscriminate killing of carabaos which were then badly needed by farmers, President Marcos issued Executive Order No. 626-A. The law prohibited interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626. Violators will suffer the confiscation of their carabaos. Section 1, E.O. 626-A provides: 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. Ynot violated the law when he transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984. They were confiscated by the Police Station Commander of Barotac Nuevo, Iloilo. Consequently, Ynot sued for recovery of the carabaos, for damages, and for the declaration of unconstitutionality of the law. The RTC issued a writ of replevin upon his filing of a supersedeas bond of P12,000, but after considering the merits of the case, the RTC sustained the confiscation of the carabaos. The Court declined to rule on the constitutionality of the executive order for lack of authority and also for its presumed validity. Since the carabaos could no longer be produced, the RTC ordered the confiscation of the bond. Ynot thus appealed, but the IAC upheld the RTC. Issue: WON E.O. 626-A is constitutional N WON Police Station Commander is liable for enforcing an unconstitutional law N

1. E.O. 626-A is unconstitutional for violating due process.

For a valid exercise of police power, the two-tier test must be met: 1) that the interest of the public generally requires interference; and b) the means are reasonably necessary for the accomplishment of the purpose. Here, the purpose of the law is to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. The 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. Nevertheless, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on their movement where there is no clear showing 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. In addition to, the law authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. Executive Order No. 626-A is penal in nature, yet the penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. No 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. The law does not give the violator a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play. The manner of disposition of the confiscated property is also questionable. The seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. The phrase "may see fit" is an extremely generous and dangerous condition. It is laden with perilous opportunities for partiality and abuse, and even corruption.

2. The police station commander who confiscated the 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.