FIRST DIVISION [G.R. No.

86695, September 03, 1992] MARIA ELENA MALAGA, DOING BUSINESS UNDER THE NAME B.E. CONSTRUCTION; JOSIELEEN NAJARRO, DOING BUSINESS UNDER THE NAME BEST BUILT CONSTRUCTION; JOSE N. OCCEA, DOING BUSINESS UNDER THE NAME THE FIRM OF JOSE N. OCCEA; AND THE ILOILO BUILDERS CORPORATION, PETITIONERS, VS. MANUEL R. PENACHOS, JR., ALFREDO MATANGGA, ENRICO TICAR AND TERESITA VILLANUEVA, IN THEIR RESPECTIVE CAPACITIES AS CHAIRMAN AND MEMBERS OF THE PRE-QUALIFICATION BIDS AND AWARDS COMMITTEE (PBAC) - BENIGNO PANISTANTE, IN HIS CAPACITY AS PRESIDENT OF ILOILO STATE COLLEGE OF FISHERIES, AS WELL AS IN THEIR RESPECTIVE PERSONAL CAPACITIES; AND HON. LODRIGIO L. LEBAQUIN, RESPONDENTS. DECISION

CRUZ, J.:

This controversy involves the extent and applicability of P.D. 1818, which prohibits any court from issuing injunctions in cases involving infrastructure projects of the government. The facts are not disputed. The Iloilo State College of Fisheries (henceforth ISCOF) through its Pre-qualification, Bids and Awards Committee (henceforth PBAC) caused the publication in the November 25, 26, 28, 1988 issues of the Western Visayas Daily an Invitation to Bid for the construction of a Micro Laboratory Building at ISCOF. The notice announced that the last day for the submission of pre-qualification requirements (PRE C-1)* was December 2, 1988, and that the bids would be received and opened on December 12, 1988, at 3 o'clock in the afternoon.[1] Petitioners Maria Elena Malaga and Josieleen Najarro, respectively doing business under the name of B.E. Construction and Best Built Construction, submitted their pre-qualification documents at two o'clock in the afternoon of December 2, 1988. Petitioner Jose Occea submitted his own PRE-C1 on December 5, 1988. All three of them were not allowed to participate in the bidding because their documents were considered late, having been submitted after the cut-off time of ten o'clock in the morning of December 2, 1988. On December 12, 1988, the petitioners filed a complaint with the Regional Trial Court of Iloilo against the chairman and members of PBAC in their official and personal capacities. The plaintiffs claimed that although they had submitted their PRE-C1 on time, the PBAC refused without just cause to accept them. As a result, they were not included in the list of pre-qualified bidders, could not secure the needed plans and other documents, and were unable to participate in the scheduled bidding. In their prayer, they sought the resetting of the December 12, 1988 bidding and the acceptance of their PRE-C1 documents. They also asked that if the bidding had already been conducted, the defendants be directed not to award the project pending resolution of their complaint. On the same date, Judge Lodrigio L. Lebaquin issued a restraining order prohibiting PBAC from conducting the bidding and awarding the project.[2] On December 16, 1988, the defendants filed a motion to lift the restraining order on the ground that the court was prohibited from issuing restraining orders, preliminary injunctions and preliminary mandatory injunctions by P.D. 1818. The decree reads pertinently as follows: Section 1. No Court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or amining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation. The movants also contended that the question of the propriety of a preliminary injunction had become moot and academic because the restraining order was received late, at 2 o'clock in the afternoon of December 12, 1988, after the bidding had been conducted and closed at eleven thirty in the morning of that date. In their opposition to the motion, the plaintiffs argued against the applicability of P.D. 1818, pointing out that while ISCOF was a state college, it had its own charter and separate existence and was not part of the national government or of any local political subdivision. Even if P.D.1818 were applicable, the prohibition presumed a valid and legal government project, not one tainted with anomalies like the project at bar. They also cited Filipinas Marble Corp. vs. IAC,[3] where the Court allowed the issuance of a writ of preliminary injunction despite a similar prohibition found in P.D. 385. The Court therein stated that: The government, however, is bound by basic principles of fairness and decency under the due process clause of the Bill of Rights. P.D. 385 was never meant to protect officials of government-lending institutions who take over the management of a borrower corporation, lead that corporation to bankruptcy through mismanagement or misappropriation of its funds, and who, after ruining it, use the mandatory provisions of the decree to avoid the consequences of their misdeeds (p. 188, underscoring supplied). On January 2, 1989, the trial court lifted the restraining order and denied the petition for preliminary injunction. It declared that the building sought to be constructed at the ISCOF was an infrastructure project of the government falling within the coverage of P.D. 1818. Even if it were not, the petition for the issuance of a writ of preliminary injunction would still fail because the sheriff's return showed that PBAC was served a copy of the restraining order after the bidding sought to be restrained had already been held. Furthermore, the members of the PBAC could not be restrained from awarding the project because the authority to do so was lodged in the President of the ISCOF, who was not a party to the case.[4] In the petition now before us, it is reiterated that P.D. 1818 does not cover the ISCOF because of its separate and distinct corporate personality. It is also stressed again that the prohibition under P.D. 1818 could not apply to the present controversy because the project was vitiated with irregularities, to wit:

1. The invitation to bid as published fixed the deadline of submission of pre-qualification document on December 2, 1988 without indicating any time, yet after 10:00 o'clock of the given date, the PBAC already refused to accept petitioners' documents. 2. The time and date of bidding was published as December 12, 1988 at 3:00 p.m. yet it was held at 10:00 o'clock in the morning. 3. Private respondents, for the purpose of inviting bidders to participate, issued a mimeographed "Invitation to Bid" form, which by law (P.D. 1594 and Implementing Rules, Exh. B-1) is to contain the particulars of the project subject of bidding for the purposes of (i) enabling bidders to make an intelligent and accurate bids; (ii) for PBAC to have a uniform basis for evaluating the bids; (iii) to prevent collusion between a bidder and the PBAC, by opening to all the particulars of a project. Additionally, the Invitation to Bid prepared by the respondents and the Itemized Bill of Quantities therein were left blank.[5] And although the project in question was a "Construction," the private respondents used an Invitation to Bid form for "Materials."[6] The petitioners also point out that the validity of the writ of preliminary injunction had not yet become moot and academic because even if the bids had been opened before the restraining order was issued, the project itself had not yet been awarded. The ISCOF president was not an indispensable party because the signing of the award was merely a ministerial function which he could perform only upon the recommendation of the Award Committee. At any rate, the complaint had already been duly amended to include him as a party defendant. In their Comment, the private respondents maintain that since the members of the board of trustees of the ISCOF are all government officials under Section 7 of P.D. 1523 and since the operations and maintenance of the ISCOF are provided for in the General Appropriations Law, it should be considered a government institution whose infrastructure project is covered by P.D. 1818. Regarding the schedule for pre-qualification, the private respondents insist that PBAC posted on the ISCOF bulletin board an announcement that the deadline for the submission of pre-qualification documents was at 10 o'clock of December 2, 1988, and the opening of bids would be held at 1 o'clock in the afternoon of December 12, 1988. As of ten o'clock in the morning of December 2, 1988, B.E. Construction and Best Built Construction had filed only their letters of intent. At two o'clock in the afternoon, B.E. and Best Built file through their common representative, Nenette Garuello, their prequalification documents which were admitted but stamped "submitted late." The petitioners were informed of their disqualification on the same date, and the disqualification became final on December 6, 1988. Having failed to take immediate action to compel PBAC to pre-qualify them despite their notice of disqualification, they cannot now come to this Court to question the bidding proper in which they had not participated. In the petitioners' Reply, they raise as an additional irregularity the violation of the rule that where the estimated project cost is from P1M to P5M, the issuance of plans, specifications and proposal book forms should be made thirty days before the date of bidding.[7] They point out that these forms were issued only on December 2, 1988, and not at the latest on November 12, 1988, the beginning of the 30-day period prior to the scheduled bidding. In their Rejoinder, the private respondents aver that the documents of B.E. and Best Built were received although filed late and were reviewed by the Award Committee, which discovered that the contractors had expired licenses. B.E.'s temporary certificate of Renewal of Contractor's License was valid only until September 30, 1988, while Best Built's license was valid only up to June 30, 1988. The Court has considered the arguments of the parties in light of their testimonial and documentary evidence and the applicable laws and jurisprudence. It finds for the petitioners. The 1987 Administrative Code defines a government instrumentality as follows: Instrumentality refers to any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions, and government-owned or controlled corporations. (Sec. 2 (5) Introductory Provisions). The same Code describes a chartered institution thus: Chartered institution - refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes the state universities and colleges, and the monetary authority of the state. (Sec. 2 (12) Introductory Provisions). It is clear from the above definitions that ISCOF is a chartered institution and is therefore covered by P.D. 1818. There are also indications in its charter that ISCOF is a government instrumentality. First, it was created in pursuance of the integrated fisheries development policy of the State, a priority program of the government to effect the socio-economic life of the nation. Second, the Treasurer of the Republic of the Philippines shall also be the ex-officio Treasurer of the state college with its accounts and expenses to be audited by the Commission on Audit or its duly authorized representative. Third, heads of bureaus and offices of the National Government are authorized to loan or transfer to it, upon request of the president of the state college, such apparatus, equipment, or supplies and even the services of such employees as can be spared without serious detriment to public service. Lastly, an additional amount of P1.5M had been appropriated out of the funds of the National Treasury and it was also decreed in its charter that the funds and maintenance of the state college would henceforth be included in the General Appropriations Law.[8] Nevertheless, it does not automatically follow that ISCOF is covered by the prohibition in the said decree. In the case of Datiles and Co. vs. Sucaldito,[9] this Court interpreted a similar prohibition contained in P.D. 605, the law after which P.D. 1818 was patterned. It was there declared that the prohibition pertained to the issuance of injunctions or restraining orders by courts against administrative acts in controversies involving facts or the exercise of discretion in technical cases. The Court observed that to allow the courts to judge these matters would disturb the smooth functioning of the administrative machinery. Justice Teodoro Padilla made it clear, however, that on issues definitely outside of this dimension and involving questions of law, courts could not be prevented by P.D. No. 605 from exercising their power to restrain or prohibit administrative acts. We see no reason why the above ruling should not apply to P.D. 1818. There are at least two irregularities committed by PBAC that justified injunction of the bidding and the award of the project. First, PBAC set deadlines for the filing of the PRE-C1 and the opening of bids and then changed these deadlines without prior notice to prospective participants.

Under the Rules Implementing P.D. 1594, prescribing policies and guidelines for government infrastructure contracts, PBAC shall provide prospective bidders with the Notice to Pre-qualification and other relevant information regarding the proposed work. Prospective contractors shall be required to file their ARC-Contractors Confidential Application for Registration & Classifications & the PRE-C2 Confidential Pre-qualification Statement for the Project (prior to the amendment of the rules, this was referred to as Pre-C1) not later than the deadline set in the published Invitation to Bid, after which date no PRE-C2 shall be submitted and received. Invitations to Bid shall be advertised for at least three times within a reasonable period but in no case less than two weeks in at least two newspapers of general circulations.[10] PBAC advertised the pre-qualification deadline as December 2, 1988, without stating the hour thereof, and announced that the opening of bids would be at 3 o'clock in the afternoon of December 12, 1988. This schedule was changed and a notice of such change was merely posted at the ISCOF bulletin board. The notice advanced the cut-off time for the submission of pre-qualification documents to 10 o'clock in the morning of December 2, 1988, and the opening of bids to 1 o'clock in the afternoon of December 12, 1988. The new schedule caused the pre-disqualification of the petitioners as recorded in the minutes of the PBAC meeting held on December 6, 1988. While it may be true that there were fourteen contractors who were pre-qualified despite the change in schedule, this fact did not cure the defect of the irregular notice. Notably, the petitioners were disqualified because they failed to meet the new deadline and not because of their expired licenses.** We have held that where the law requires a previous advertisement before government contracts can be awarded, non-compliance with the requirement will, as a general rule, render the same void and of no effect.[11] The fact that an invitation for bids has been communicated to a number of possible bidders is not necessarily sufficient to establish compliance with the requirements of the law if it is shown that other possible bidders have not been similarly notified.[12] Second, PBAC was required to issue to pre-qualified applicants the plans, specifications and proposal book forms for the project to be bid thirty days before the date of bidding if the estimated project cost was between P1M and P5M. PBAC has not denied that these forms were issued only on December 2, 1988, or only ten days before the bidding scheduled for December 12, 1988. At the very latest, PBAC should have issued them on November 12, 1988, or 30 days before the scheduled bidding. It is apparent that the present controversy did not arise from the discretionary acts of the administrative body nor does it involve merely technical matters. What is involved here is non-compliance with the procedural rules on bidding which required strict observance. The purpose of the rules implementing P.D. 1594 is to secure competitive bidding and to prevent favoritism, collusion and fraud in the award of these contracts to the detriment of the public. This purpose was defeated by the irregularities committed by PBAC. It has been held that the three principles in public bidding are the offer to the public, an opportunity for competition and a basis for exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the distinctive character of the system and thwarts the purpose of its adoption.[13] In the case at bar, it was the lack of proper notice regarding the pre-qualification requirement and the bidding that caused the elimination of petitioners B.E. and Best Built. It was not because of their expired licenses, as private respondents now claim. Moreover, the plans and specifications which are the contractors' guide to an intelligent bid, were not issued on time, thus defeating the guaranty that contractors be placed on equal footing when they submit their bids. The purpose of competitive bidding is negated if some contractors are informed ahead of their rivals of the plans and specifications that are to be the subject of their bids. P.D. 1818 was not intended to shield from judicial scrutiny irregularites committed by administrative agencies such as the anomalies above described. Hence, the challenged restraining order was not improperly issued by the respondent judge and the writ of preliminary injunction should not have been denied. We note from Annex Q of the private respondent's memorandum, however, that the subject project has already been "100% completed as to the Engineering Standard." This fait accompli has made the petition for a writ of preliminary injunction moot and academic. We come now to the liabilities of the private respondents. It has been held in a long line of cases that a contract granted without the competitive bidding required by law is void, and the party to whom it is awarded cannot benefit from it.[14] It has not been shown that the irregularities committed by PBAC were induced by or participated in by any of the contractors. Hence, liability shall attach only to the private respondents for the prejudice sustained by the petitioners as a result of the anomalies described above. As there is no evidence of the actual loss suffered by the petitioners, compensatory damage may not be awarded to them. Moral damages do not appear to be due either. Even so, the Court cannot close its eyes to the evident bad faith that characterized the conduct of the private respondents, including the irregularities in the announcement of the bidding and their efforts to persuade the ISCOF president to award the project after two days from receipt of the restraining order and before they moved to lift such order. For such questionable acts, they are liable in nominal damages at least in accordance with Article 2221 of the Civil Code, which states: Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant may be vindicated or, recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. These damages are to be assessed against the private respondents in the amount of P10,000.00 each, to be paid separately for each of petitioners B.E. Construction and Best Built Construction. The other petitioner, Occea Builders, is not entitled to relief because it admittedly submitted its prequalification documents on December 5, 1988, or three days after the deadline. WHEREFORE, judgment is hereby rendered: a) upholding the restraining order dated December 12, 1988, as not covered by the prohibition in P.D. 1818; b) ordering the chairman and the members of the PBAC board of trustees, namely, Manuel R. Penachos, Jr., Alfredo Matangga, Enrico Ticar, and Teresita Villanueva, to each pay separately to petitioners Maria Elena Malaga and Josieleen Najarro nominal damages of P10,000.00 each; and c) removing the said chairman and members from the PBAC board of trustees, or whoever among them is still incumbent therein, for their malfeasance in office. Costs against PBAC. Let a copy of this decision be sent to the Office of the Ombudsman. SO ORDERED.Grio-Aquino, Medialdea, and Bellosillo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 97149 March 31, 1992 FIDENCIO Y. BEJA, SR., petitioner, vs. COURT OF APPEALS, HONORABLE REINERIO O. REYES, in his capacity as Secretary of the Department of Transportation and Communications; COMMODORE ROGELIO A. DAYAN, in his capacity as General Manager of the Philippine Ports Authority; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, ADMINISTRATIVE ACTION BOARD; and JUSTICE ONOFRE A. VILLALUZ, in his capacity as Chairman of the Administrative Action Board, DOTC, respondents.

ROMERO, J.: The instant petition for certiorari questions the jurisdiction of the Secretary of the Department of Transportation and Communications (DOTC) and/or its Administrative Action Board (AAB) over administrative cases involving personnel below the rank of Assistant General Manager of the Philippine Ports Authority (PPA), an agency attached to the said Department. Petitioner Fidencio Y. Beja, Sr. 1 was first employed by the PPA as arrastre supervisor in 1975. He became Assistant Port Operations Officer in 1976 and Port Operations Officer in 1977. In February 1988, as a result of the reorganization of the PPA, he was appointed Terminal Supervisor. On October 21, 1988, the PPA General Manager, Rogelio A. Dayan, filed Administrative Case No. 11-04-88 against petitioner Beja and Hernando G. Villaluz for grave dishonesty, grave misconduct, willful violation of reasonable office rules and regulations and conduct prejudicial to the best interest of the service. Beja and Villaluz allegedly erroneously assessed storage fees resulting in the loss of P38,150.77 on the part of the PPA. Consequently, they were preventively suspended for the charges. After a preliminary investigation conducted by the district attorney for Region X, Administrative Case No. 11-04-88 was "considered closed for lack of merit." On December 13, 1988, another charge sheet, docketed as Administrative Case No. 12-01-88, was filed against Beja by the PPA General Manager also for dishonesty, grave misconduct, violation of reasonable office rules and regulations, conduct prejudicial to the best interest of the service and for being notoriously undesirable. The charge consisted of six (6) different specifications of administrative offenses including fraud against the PPA in the total amount of P218,000.00. Beja was also placed under preventive suspension pursuant to Sec. 41 of P.D. No. 807. The case was redocketed as Administrative Case No. PPA-AAB-1-049-89 and thereafter, the PPA general manager indorsed it to the AAB for "appropriate action." At the scheduled hearing, Beja asked for continuance on the ground that he needed time to study the charges against him. The AAB proceeded to hear the case and gave Beja an opportunity to present evidence. However, on February 20, 1989, Beja filed a petition for certiorari with preliminary injunction before the Regional Trial Court of Misamis Oriental. 2 Two days later, he filed with the AAB a manifestation and motion to suspend the hearing of Administrative Case No. PPA-AAB-1-049-89 on account of the pendency of the certiorari proceeding before the court. AAB denied the motion and continued with the hearing of the administrative case. Thereafter, Beja moved for the dismissal of the certiorari case below and proceeded to file before this Court a petition for certiorari with preliminary injunction and/or temporary restraining order. The case was docketed as G.R. No. 87352 captioned "Fidencio Y. Beja v. Hon. Reinerio 0. Reyes, etc., et al." In the en banc resolution of March 30, 1989, this Court referred the case to the Court of Appeals for "appropriate action." 3 G.R. No. 87352 was docketed in the Court of Appeals as CA-G.R. SP No. 17270. Meanwhile, a decision was rendered by the AAB in Administrative Case No. PPA-AAB-049-89. Its dispositive portion reads: WHEREFORE, judgment is hereby rendered, adjudging the following, namely: a) That respondents Geronimo Beja, Jr. and Hernando Villaluz are exonerated from the charge against them; b) That respondent Fidencio Y. Beja be dismissed from the service; c) That his leave credits and retirement benefits are declared forfeited; d) That he be disqualified from re-employment in the government service; e) That his eligibility is recommended to be cancelled. Pasig, Metro Manila, February 28, 1989.

On December 10, 1990, after appropriate proceedings, the Court of Appeals also rendered a decision 4 in CA-G.R. SP No. 17270 dismissing the petition for certiorari for lack of merit. Hence, Beja elevated the case back to this Court through an "appeal by certiorari with preliminary injunction and/or temporary restraining order." We find the pleadings filed in this case to be sufficient bases for arriving at a decision and hence, the filing of memoranda has been dispensed with. In his petition, Beja assails the Court of Appeals for having "decided questions of substance in a way probably not in accord with law or with the applicable decisions" of this Court. 5 Specifically, Beja contends that the Court of Appeals failed to declare that: (a) he was denied due process; (b) the PPA general manager has no power to issue a preventive suspension order without the necessary approval of the PPA board of directors; (c) the PPA general manager has no power to refer the administrative case filed against him to the DOTC-AAB, and (d) the DOTC Secretary, the Chairman of the DOTC-AAB and DOTC-AAB itself as an adjudicatory body, have no jurisdiction to try the administrative case against him. Simply put, Beja challenges the legality of the preventive suspension and the jurisdiction of the DOTC Secretary and/or the AAB to initiate and hear administrative cases against PPA personnel below the rank of Assistant General Manager. Petitioner anchors his contention that the PPA general manager cannot subject him to a preventive suspension on the following provision of Sec. 8, Art. V of Presidential Decree No. 857 reorganizing the PPA: (d) the General Manager shall, subject to the approval of the Board, appoint and remove personnel below the rank of Assistant General Manager. (Emphasis supplied.) Petitioner contends that under this provision, the PPA Board of Directors and not the PPA General Manager is the "proper disciplining authority. 6 As correctly observed by the Solicitor General, the petitioner erroneously equates "preventive suspension" as a remedial measure with "suspension" as a penalty for administrative dereliction. The imposition of preventive suspension on a government employee charged with an administrative offense is subject to the following provision of the Civil Service Law, P.D. No. 807: Sec. 41. Preventive Suspension. The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. 7 Thus, preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No 857. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. The PPA general manager is the disciplining authority who may, by himself and without the approval of the PPA Board of Directors, subject a respondent in an administrative case to preventive suspension. His disciplinary powers are sanctioned, not only by Sec. 8 of P.D. No. 857 aforequoted, but also by Sec. 37 of P.D. No. 807 granting heads of agencies the "jurisdiction to investigate and decide matters involving disciplinary actions against officers and employees" in the PPA. Parenthetically, the period of preventive suspension is limited. It may be lifted even if the disciplining authority has not finally decided the administrative case provided the ninety-day period from the effectivity of the preventive suspension has been exhausted. The employee concerned may then be reinstated. 8 However, the said ninety-day period may be interrupted. Section 42 of P.D. No. 807 also mandates that any fault, negligence or petition of a suspended employee may not be considered in the computation of the said period. Thus, when a suspended employee obtains from a court of justice a restraining order or a preliminary injunction inhibiting proceedings in an administrative case, the lifespan of such court order should be excluded in the reckoning of the permissible period of the preventive suspension. 9 With respect to the issue of whether or not the DOTC Secretary and/or the AAB may initiate and hear administrative cases against PPA Personnel below the rank of Assistant General Manager, the Court qualifiedlyrules in favor of petitioner. The PPA was created through P.D. No. 505 dated July 11, 1974. Under that Law, the corporate powers of the PPA were vested in a governing Board of Directors known as the Philippine Port Authority Council. Sec. 5(i) of the same decree gave the Council the power "to appoint, discipline and remove, and determine the composition of the technical staff of the Authority and other personnel." On December 23, 1975, P.D. No. 505 was substituted by P.D. No. 857, See. 4(a) thereof created the Philippine Ports Authority which would be "attached" to the then Department of Public Works, Transportation and Communication. When Executive Order No. 125 dated January 30, 1987 reorganizing the Ministry of Transportation and Communications was issued, the PPA retained its "attached" status. 10 Even Executive Order No. 292 or the Administrative Code of 1987 classified the PPA as an agency "attached" to the Department of Transportation and Communications (DOTC). Sec. 24 of Book IV, Title XV, Chapter 6 of the same Code provides that the agencies attached to the DOTC "shall continue to operate and function in accordance with the respective charters or laws creating them, except when they conflict with this Code." Attachment of an agency to a Department is one of the three administrative relationships mentioned in Book IV, Chapter 7 of the Administrative Code of 1987, the other two being supervision and control and administrative supervision. "Attachment" is defined in Sec. 38 thereof as follows: (3) Attachment. (a) This refers to the lateral relationship between the Department or its equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination shall be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which

shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency; (b) Matters of day-to-day administration or all those pertaining to internal operations shall he left to the discretion or judgment of the executive officer of the agency or corporation. In the event that the Secretary and the head of the board or the attached agency or corporation strongly disagree on the interpretation and application of policies, and the Secretary is unable to resolve the disagreement, he shall bring the matter to the President for resolution and direction; (c) Government-owned or controlled corporations attached to a department shall submit to the Secretary concerned their audited financial statements within sixty (60) days after the close of the fiscal year; and (d) Pending submission of the required financial statements, the corporation shall continue to operate on the basis of the preceding year's budget until the financial statements shall have been submitted. Should any government-owned or controlled corporation incur an operation deficit at the close of its fiscal year, it shall be subject to administrative supervision of the department; and the corporation's operating and capital budget shall be subject to the department's examination, review, modification and approval. (emphasis supplied.) An attached agency has a larger measure of independence from the Department to which it is attached than one which is under departmental supervision and control or administrative supervision. This is borne out by the "lateral relationship" between the Department and the attached agency. The attachment is merely for "policy and program coordination." With respect to administrative matters, the independence of an attached agency from Departmental control and supervision is further reinforced by the fact that even an agency under a Department's administrative supervision is free from Departmental interference with respect to appointments and other personnel actions "in accordance with the decentralization of personnel functions" under the Administrative Code of 1987. 11 Moreover, the Administrative Code explicitly provides that Chapter 8 of Book IV on supervision and control shall not apply to chartered institutions attached to a Department. 12 Hence, the inescapable conclusion is that with respect to the management of personnel, an attached agency is, to a certain extent, free from Departmental interference and control. This is more explicitly shown by P.D. No. 857 which provides: Sec. 8. Management and Staff. a) The President shall, upon the recommendation of the Board, appoint the General Manager and the Assistant General Managers. (b) All other officials and employees of the Authority shall be selected and appointed on the basis of merit and fitness based on a comprehensive and progressive merit system to be established by the Authority immediately upon its organization and consistent with Civil Service rules and regulations.The recruitment, transfer, promotion, and dismissal of all personnel of the Authority, including temporary workers, shall be governed by such merit system. (c) The General Manager shall, subject to the approval of the Board, determine the staffing pattern and the number of personnel of the Authority, define their duties and responsibilities, and fix their salaries and emoluments. For professional and technical positions, the General Manager shall recommend salaries and emoluments that are comparable to those of similar positions in other government-owned corporations, the provisions of existing rules and regulations on wage and position classification notwithstanding. (d) The General Manager shall, subject to the approval by the Board, appoint and remove personnel below the rank of Assistant General Manager. xxx xxx xxx (emphasis supplied.) Although the foregoing section does not expressly provide for a mechanism for an administrative investigation of personnel, by vesting the power to remove erring employees on the General Manager, with the approval of the PPA Board of Directors, the law impliedly grants said officials the power to investigate its personnel below the rank of Assistant Manager who may be charged with an administrative offense. During such investigation, the PPA General Manager, as earlier stated, may subject the employee concerned to preventive suspension. The investigation should be conducted in accordance with the procedure set out in Sec. 38 of P.D. No. 807. 13 Only after gathering sufficient facts may the PPA General Manager impose the proper penalty in accordance with law. It is the latter action which requires the approval of the PPA Board of Directors. 14 From an adverse decision of the PPA General Manager and the Board of Directors, the employee concerned mayelevate the matter to the Department Head or Secretary. Otherwise, he may appeal directly to the Civil Service Commission. The permissive recourse to the Department Secretary is sanctioned by the Civil Service Law (P.D. No. 807) under the following provisions: Sec. 37. Disciplinary Jurisdiction. (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. The decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days'

salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the department head. xxx xxx xxx (Emphasis supplied.) It is, therefore, clear that the transmittal of the complaint by the PPA General Manager to the AAB was premature. The PPA General Manager should have first conducted an investigation, made the proper recommendation for the imposable penalty and sought its approval by the PPA Board of Directors. It was discretionary on the part of the herein petitioner to elevate the case to the then DOTC Secretary Reyes. Only then could the AAB take jurisdiction of the case. The AAB, which was created during the tenure of Secretary Reyes under Office Order No. 88-318 dated July 1, 1988, was designed to act, decide and recommend to him "all cases of administrative malfeasance, irregularities, grafts and acts of corruption in the Department." Composed of a Chairman and two (2) members, the AAB came into being pursuant to Administrative Order No. 25 issued by the President on May 25, 1987. 15 Its special nature as a quasi-judicial administrative body notwithstanding, the AAB is not exempt from the observance of due process in its proceedings. 16 We are not satisfied that it did so in this case the respondents protestation that petitioner waived his right to be heard notwithstanding. It should be observed that petitioner was precisely questioning the AAB's jurisdiction when it sought judicial recourse. WHEREFORE, the decision of the Court of Appeals is AFFIRMED insofar as it upholds the power of the PPA General Manager to subject petitioner to preventive suspension and REVERSED insofar as it validates the jurisdiction of the DOTC and/or the AAB to act on Administrative Case No. PPA-AAB1-049-89 and rules that due process has been accorded the petitioner. The AAB decision in said case is hereby declared NULL and VOID and the case in REMANDED to the PPA whose General Manager shall conduct with dispatch its reinvestigation. The preventive suspension of petitioner shall continue unless after a determination of its duration, it is found that he had served the total of ninety (90) days in which case he shall be reinstated immediately. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Nocon JJ., concur. Padilla and Bellosillo, JJ., took no part. Feliciano, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 17122 February 27, 1922

THE UNITED STATES, plaintiff-appellee, vs. ANG TANG HO, defendant-appellant. Williams & Ferrier for appellant. Acting Attorney-General Tuason for appellee. JOHNS, J.: At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances, regulating the distribution and sale thereof, and authorizing the Governor-General, with the consent of the Council of State, to issue the necessary rules and regulations therefor, and making an appropriation for this purpose," the material provisions of which are as follows: Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit: (a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn. (b) To establish and maintain a government control of the distribution or sale of the commodities referred to or have such distribution or sale made by the Government itself. (c) To fix, from time to time the quantities of palay rice, or corn that a company or individual may acquire, and the maximum sale price that the industrial or merchant may demand. (d) . . . SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the production or milling of palay, rice or corn for the purpose of raising the prices thereof; to corner or hoard said products as defined in section three of this Act; . . . Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the meaning of this Act, but does not specify the price of rice or define any basic for fixing the price. SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and decrees promulgated in accordance therewith shall be punished by a fine of not more than five thousands pesos, or by imprisonment for not more than two years, or both, in the discretion of the court: Provided, That in the case of companies or corporations the manager or administrator shall be criminally liable. SEC. 7. At any time that the Governor-General, with the consent of the Council of State, shall consider that the public interest requires the application of the provisions of this Act, he shall so declare by proclamation, and any provisions of other laws inconsistent herewith shall from then on be temporarily suspended. Upon the cessation of the reasons for which such proclamation was issued, the Governor-General, with the consent of the Council of State, shall declare the application of this Act to have likewise terminated, and all laws temporarily suspended by virtue of the same shall again take effect, but such termination shall not prevent the prosecution of any proceedings or cause begun prior to such termination, nor the filing of any proceedings for an offense committed during the period covered by the Governor-General's proclamation. August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold. August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of rice at an excessive price as follows: The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows: That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty centavos (P.80), which is a price greater than that fixed by Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine of P500, from which he appealed to this court, claiming that the lower court erred in finding Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the offense charged, and in imposing the sentence. The official records show that the Act was to take effect on its approval; that it was approved July 30, 1919; that the 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 and promulgate temporary rules and emergency measures for carrying out the purposes of the Act. By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the Governor-General. The Legislature does not undertake to specify or define under what conditions or for what reasons the Governor-General shall issue the proclamation, but says that it may be issued "for any cause," and leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also says: "For any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not specify or define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act also says that the Governor-General, "with the consent of the Council of State," is authorized to issue and promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does not specify or define what is a temporary rule or an emergency measure, or how long such temporary rules or emergency measures shall remain in force and effect, or when they shall take effect. That is to say, the Legislature itself has not in any manner specified or defined any basis for the order, but has left it to the sole judgement and discretion of the Governor-General to say what is or what is not "a cause," and what is or what is not "an extraordinary rise in the price of rice," and as to what is a temporary rule or an emergency measure for the carrying out the purposes of the Act. Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing the minimum price at which rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal. There may not have been any cause, and the price may not have been extraordinary, and there may not have been an emergency, but, if the Governor-General found the existence of such facts and issued a proclamation, and rice is sold at any higher price, the seller commits a crime. By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power to another, and, if so, was that power legally delegated by Act No. 2868? In other words, does the Act delegate legislative power to the 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 the administration of the law, and with no other power. The delegation of legislative power was before the Supreme Court of Wisconsin in Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The opinion says: "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to maters involving the exercise of a legislative discretion that could not be delegated, and without which the act could not possibly be put in use as an act in confirmity to which all fire insurance policies were required to be issued. The result of all the cases on this subject is that a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgement of the electors or other appointee or delegate of the legislature, so that, in form and substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event. The delegation of legislative power was before the Supreme Court in United States vs. Grimaud (220 U.S., 506; 55 L. ed., 563), where it was held that the rules and regulations of the Secretary of Agriculture as to a trespass on government land in a forest reserve were valid constitutional. The Act there provided that the Secretary of Agriculture ". . . may make such rules and regulations and establish such service as will insure the object of such reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction;and any violation of the provisions of this act or such rules and regulations shall be punished, . . ." The brief of the United States Solicitor-General says: In refusing permits to use a forest reservation for stock grazing, except upon stated terms or in stated ways, the Secretary of Agriculture merely assert and enforces the proprietary right of the United States over land which it owns. The regulation of the Secretary, therefore, is not an exercise of legislative, or even of administrative, power; but is an ordinary and legitimate refusal of the landowner's authorized agent to allow person having no right in the land to use it as they will. The right of proprietary control is altogether different from governmental authority. The opinion says: From the beginning of the government, various acts have been passed conferring upon executive officers power to make rules and regulations, not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions "power to fill up the details" by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done. That "Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the government's property. In doing so they thereby made themselves liable to the penalty imposed by Congress. The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest reserve. He is required to make provisions to protect them from depredations and from harmful uses. He is authorized 'to regulate the occupancy and use and to preserve the forests from destruction.' A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress." The above are leading cases in the United States on the question of delegating legislative power. It will be noted that in the "Granger Cases," it was held that a railroad company was a public corporation, and that a railroad was a public utility, and that, for such reasons, the legislature had the power to fix and determine just and reasonable rates for freight and passengers. The Minnesota case held that, so long as the rates were just and reasonable, the legislature could delegate the power to ascertain the facts and determine from the facts what were just and reasonable rates,. and that in vesting the commission with such power was not a delegation of legislative power.

The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire insurance," and the court held that "the act, . . . wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to matters involving the exercise of a legislative discretion that could not be delegated." The case of the United States Supreme Court, supra dealt with rules and regulations which were promulgated by the Secretary of Agriculture for Government land in the forest reserve. These decisions hold that the legislative only can enact a law, and that it cannot delegate it legislative authority. 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., 1100,1 the Supreme Court of that State says: We regard the ordinance as void for two reasons; First, because it attempts to confer arbitrary power upon an executive officer, and allows him, in executing the ordinance, to make unjust and groundless discriminations among persons similarly situated; second, because the power to regulate saloons is a law-making power vested in the village board, which cannot be delegated. A legislative body cannot delegate to a mere administrative officer power to make a law, but it can make a law with provisions that it shall go into effect or be suspended in its operations upon the ascertainment of a fact or state of facts by an administrative officer or board. In the present case the ordinance by its terms gives power to the president to decide arbitrary, and in the exercise of his own discretion, when a saloon shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained. The legal principle involved there is squarely in point here. It must be conceded that, after the passage of act No. 2868, and before any rules and regulations were promulgated by the Governor-General, a dealer in rice could sell it at any price, even at a peso per "ganta," and that he would not commit a crime, because there would be no law fixing the price of rice, and the sale of it at any price would not be a crime. That is to say, in the absence of a proclamation, it was not a crime to sell rice at any price. Hence, it must follow that, if the defendant committed a crime, it was because the Governor-General issued the proclamation. There was no act of the Legislature making it a crime to sell rice at any price, and without the proclamation, the sale of it at any price was to a crime. The Executive order2 provides: (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 a wide range in the price, which varies with the grade and quality. Act No. 2868 makes no distinction in price for the grade or quality of the rice, and the proclamation, upon which the defendant was tried and convicted, fixes the selling price of rice in Manila "at P15 per sack of 57 kilos, or 63 centavos per ganta," and is uniform as to all grades of rice, and says nothing about grade or quality. Again, it will be noted that the law is confined to palay, rice and corn. They are products of the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs, and many other things are also products. Any law which single out palay, rice or corn from the numerous other products of the Islands is not general or uniform, but is a local or special law. If such a law is valid, then by the same principle, the Governor-General could be authorized by proclamation to fix the price of meat, eggs, chickens, coconut, hemp, and tobacco, or any other product of the Islands. In the very nature of things, all of that class of laws should be general and uniform. Otherwise, there would be an unjust discrimination of property rights, which, under the law, must be equal and inform. Act No. 2868 is nothing more than a floating law, which, in the discretion and by a proclamation of the Governor-General, makes it a floating crime to sell rice at a price in excess of the proclamation, without regard to grade or quality. When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General which constitutes the crime. Without that proclamation, it was no crime to sell rice at any price. In other words, the Legislature left it to the sole discretion of the Governor-General to say what was and what was not "any cause" for enforcing the act, and what was and what was not "an extraordinary rise in the price of palay, rice or corn," and under certain undefined conditions to fix the price at which rice should be sold, without regard to grade or quality, also to say whether a proclamation should be issued, if so, when, and whether or not the law should be enforced, how long it should be enforced, and when the law should be suspended. The Legislature did not specify or define what was "any cause," or what was "an extraordinary rise in the price of rice, palay or corn," Neither did it specify or define the conditions upon which the proclamation should be issued. In the absence of the proclamation no crime was committed. The alleged sale was made a crime, if at all, because the Governor-General issued the proclamation. The act or proclamation does not say anything about the different grades or qualities of rice, and the defendant is charged with the sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a price greater than that fixed by Executive order No. 53." We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized the Governor-General in his discretion to issue a proclamation, fixing the price of rice, and to make the sale of rice in violation of the price of rice, and to make the sale of rice in violation of the proclamation a crime, is unconstitutional and void. It may be urged that there was an extraordinary rise in the price of rice and profiteering, which worked a severe hardship on the poorer classes, and that an emergency existed, but the question here presented is the constitutionality of a particular portion of a statute, and none of such matters is an argument for, or against, its constitutionality. The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty and property rights of the rich and the poor alike, and that protection ought not to change with the wind or any emergency condition. The fundamental question involved in this case is the right of the people of the Philippine Islands to be and live under a republican form of government. We make the broad statement that no state or nation, living under republican form of government, under the terms and conditions specified in Act No. 2868, has ever enacted a law delegating the power to any one, to fix the price at which rice should be sold. That power can never be delegated under a republican form of government. In the fixing of the price at which the defendant should sell his rice, the law was not dealing with government property. It was dealing with private property and private rights, which are sacred under the Constitution. If this law should be sustained, upon the same principle and for the same reason, the Legislature could authorize the Governor-General to fix the price of every product or commodity in the Philippine Islands, and empower him to make it a crime to sell any product at any other or different price. It may be said that this was a war measure, and that for such reason the provision of the Constitution should be suspended. But the Stubborn fact remains that at all times the judicial power was in full force and effect, and that while that power was in force and effect, such a provision of the Constitution could not be, and was not, suspended even in times of war. It may be claimed that during the war, the United States Government undertook to, and did, fix the price at which wheat and flour should be bought and sold, and that is true. There, the United States had declared war, and at the time was at war with other nations, and it was a war measure, but it is also true that in doing so, and as a part of the same act, the United States commandeered all the wheat and flour, and took possession of it, either actual or constructive, and the government itself became the owner of the wheat and flour, and fixed the price to be paid for it. That is not this case. Here the rice sold was the personal and private property of the defendant, who sold it to one of his customers. The government had not bought and did not claim to own the rice, or have any interest in it, and at the time of the alleged sale, it was the personal, private property of the defendant. It may be that the law was passed in the interest of the public, but the members of this court have taken on solemn oath to uphold and defend the Constitution, and it ought not to be construed to meet the changing winds or emergency conditions. Again, we say that no state or nation under a republican form of government ever enacted a law authorizing any executive, under the conditions states, to fix the price at which a price person would sell his own rice, and make the broad statement that no decision of any court, on principle or by analogy, will ever be found which sustains the constitutionality of the particular portion of Act No. 2868 here in question. By the terms of the Organic Act, subject only to constitutional limitations, the power to legislate and enact laws is vested exclusively in the Legislative, which is elected by a direct vote of the people of the Philippine Islands. As to the question here involved, the authority of the Governor-General to fix the maximum price at which palay, rice and corn may be sold in the manner power in violation of the organic law.

This opinion is confined to the particular question here involved, which is the right of the Governor-General, upon the terms and conditions stated in the Act, to fix the price of rice and make it a crime to sell it at a higher price, and which holds that portions of the Act unconstitutional. It does not decide or undertake to construe the constitutionality of any of the remaining portions of the Act. The judgment of the lower court is reversed, and the defendant discharged. So ordered. Araullo, C.J., Johnson, Street and Ostrand, JJ., concur. Romualdez, J., concurs in the result.

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

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

CRUZ, J.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against interprovincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following: SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. SECTION 2. This Executive Order shall take effect immediately. Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty. (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 of Pesigan v. Angeles 5 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. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among 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 his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require. Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection 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 nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger. The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number. It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them. A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ... From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion. But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat. Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government. In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when

ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play. It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not 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 immediacy of the problem sought to be corrected and the urgency of the need to correct it. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we 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, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become afait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur. Melencio-Herrera and Feliciano, JJ., are on leave.

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 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 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 (GovernorGeneral) 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 delegate2 and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. 2a Indeed, without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system. Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard 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 topromote 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 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 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 Order No. 93 94 95 96 97 99 100 101 102 103 104 105 106 107 108 109 110 111 112 117 113 114 115 116P 118 119 120 121 Nilo

Municipality

Province Zamboanga del Sur " " " " Antique Misamis Oriental Surigao del Sur Davao " " Iloilo " Lanao del Sur " " " " " " " " " " " " " " " " "

Date Promulgated Sept. 4, 1964 A " " " " " " " " " " " " " " " 26 " 28 " " " " "B "C "D "E "F "G "H "I "J "K "L

Annex (Original Petition) " " " " " " " " " " " " " " " " " " (Attached hereto)

Midsalip Pitogo Maruing Naga Sebaste Molugan Malixi Roxas Magsaysay Sta. Maria Badiangan Mina Andong San Alonto Maguing Dianaton Elpidio Quirino Bayog Gloria Maasin Siayan Roxas Panganuran Kalilangan Lantapan Libertad General Aguinaldo

Oct. 1, "M " " " " " " " " " " " " " " " " " " " " " " " " " " " " " " "N "O "P "Q "R "S "GG "T "LC "V "W "X "Y "Z "AA

Mt. Province Zamboanga del Sur Oriental Mindoro Cotabato Zamboanga del Norte " " Bukidnon " Zamboanga del Sur " " " " " " "

124 126 127 128 129

Rizal Tigno Tampakan Maco New Corella

Surigao del Norte Surigao del Sur Cotabato Davao "

" " " " "

3 23 26 29 "

"BB "CC "DD "EE "FF

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners, vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents. Office of the Solicitor General Tuason and City Fiscal Diaz for the Government. De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation. Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng. No appearance for respondent Judge.

LAUREL, J.: This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorariand of prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1 Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case. The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied the petition forcertiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment. The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937. On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221. On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that: . . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminal

perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial. On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)." On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment. On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng." The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this court on August 21, 1937. To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction: I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason: (1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila. (2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a probation officer. (3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act. II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that: (1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for probation. (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and executory at the moment of its rendition. (3) No right on appeal exists in such cases. (4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same. III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first instance. IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law. In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings. Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every one of the foregoing proposition raised by the petitioners. As special defenses, respondents allege: (1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of prohibition. (2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for by them before the trial court and was still pending resolution before the trial court when the present petition was filed with this court. (3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is unappealable. (4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves. (5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity." (6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court. (7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the same had not become final and executory for the reason that the said respondent had filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this court.lawphi1.net (8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of the hearing of the said motion. (9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the accused to file an action for the issuance of the writ ofcertiorari with mandamus, it appearing that the trial court, although it believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure the same. (10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827). In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners. In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the intergrated judicial system of the nation. After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised by the parties. To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.) The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner inmandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said: By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute . (50 C. J., 670; Ex parte Round tree [1874, 51 Ala.,

42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.) Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become final and before they have served their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White: Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive department. Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action

of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.) In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said: . . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved. "It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.) Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122). Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said: It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of a party litigant. Stateex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional. It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a

plea, that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal laws. The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.) The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases. It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." ( Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed. Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found. We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional? Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities. One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions,

undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws. 1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States ( Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act? As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not, therefore, be vested in anyone else. ". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of government have nothing to do with the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it? In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.) In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement: Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future . . . Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably reported a probation bill to the House, but it was never reached for definite action. If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said: Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act. We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases. We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.) Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79). But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." ( Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.) Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; Stateex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said: . . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.) The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.) In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.) The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of their contention that the power to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper, J.: That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment, for a commutations is not but to change the punishment assessed to a less punishment. In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, the court said: . . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that phrase is employed in sections 1207812086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373). Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined; but the same objections have been urged against parole statutes which vest the power to parole in persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.) We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926], 14 F. [2d], 5, 7.) 2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power? Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.) The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the same relation to Congress

as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself. The case before us does not fall under any of the exceptions hereinabove mentioned. The challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.) In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.) For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendiis at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. ( See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards. "The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) andCruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands." It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs.

Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself. The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said: By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of the articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a power of dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160. The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted. To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it

is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.) True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of small communities to pass upon, we believe that in matters of general of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void. 3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.) This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.) In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer which is the situation now and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct.

Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year and have probation during that year and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself. Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction. We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection clause of our Constitution. Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the entire Act should be avoided. In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the following language: . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.) It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system. Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the following are enumerated in section 3 of the Act: That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character; (c) Shall report to the probation officer as directed by the court or probation officers; (d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere; (e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality; (f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; (g) Shall comply with such orders as the court may from time to time make; and (h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with law. The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court that the probationer has complied with the conditions of probation that probation may be definitely terminated and the probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation." It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows: There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall have been included in the Appropriation Act. But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 abovequoted are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not there. Not for any purpose not even to save a statute from the doom of invalidity. Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law. In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because: (a) The constitutional relations between the Federal and the State governments of the United States and the dual character of the American Government is a situation which does not obtain in the Philippines; (b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871), (c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317); (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment. Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur. Villa-real and Abad Santos, JJ., concur in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17821 November 29, 1963

PRIMITIVO LOVINA, and NELLY MONTILLA, plaintiffs-appellees, vs. HON. FLORENCIO MORENO, as Secretary of Public Works and Communications, and BENJAMIN YONZON, defendants-appellants. Gil R. Carlos and Associates for plaintiffs-appellees. Office of the Solicitor General for defendants-appellants. REYES, J.B.L., J.: This is an appeal from a decision of the Court of First Instance of Manila (Branch X), in its Civil Case No. 41639, enjoining the Secretary of Public Works and Communications from causing the removal of certain dams and dikes in a fishpond owned by Primitivo and Nelly Lovina in the Municipality of Macabebe Province of Pampanga, covered by T.C.T. No. 15905. The cause started by a petition of numerous residents of the said municipality to the Secretary of Public Works and Communications, complaining that appellees had blocked the "Sapang Bulati", a navigable river in Macabebe, Pampanga, and asking that the obstructions be ordered removed, under the provisions of Republic Act No. 2056. After notice and hearing to the parties, the said Secretary found the constructions to be a public nuisance in navigable waters, and, in his decision dated 11 August 1959, ordered the land owners, spouses Lovina, to remove five (5) closures of Sapang Bulati; otherwise, the Secretary would order their removal at the expense of the respondent. After receipt of the decision, the respondent filed a petition in the Court of First Instance of Manila to restrain the Secretary from enforcing his decision. The trial court, after due hearing, granted a permanent injunction, which is now the subject of the present appeal. The respondents-appellants, Florencio Moreno, Secretary of Public Works and Communications, and Benjamin Yonzon, investigator, question the jurisdiction of the trial court, and attribute to it the following errors: 1. The trial court erred in holding in effect, that Republic Act No. 2056 is unconstitutional: 2. The trial court erred in receiving evidence de novo at the trial of the case; 3. The trial court erred in substituting its judgment for that of defendant Secretary of Public Works and Communications and in reversing the latter's finding that the stream in question is a navigable river which was illegally closed by plaintiffs; 4. The trial court erred in holding that the Sapang Bulati is a private stream; and 5. The lower court erred in not holding that plaintiffs should first exhaust administrative remedy before filing the instant petition. The position of the plaintiffs-appellees in the court below was that Republic Act No. 2056 is unconstitutional because it invests the Secretary of Public Works and Communications with sweeping, unrestrained, final and unappealable authority to pass upon the issues of whether a river or stream is public and navigable, whether a dam encroaches upon such waters and is constitutive as a public nuisance, and whether the law applies to the state of facts, thereby Constituting an alleged unlawful delegation of judicial power to the Secretary of Public Works and Communications. Sections 1 and 2 of Republic Act 2056 provides: Section 1. Any provision or provisions of law to the contrary notwithstanding, the construction or building of dams, dikes or any other works which encroaches into any public navigable river, stream, coastal waters and any other navigable public waters or waterways as well as the construction or building of dams, dikes or any other works in areas declared as communal fishing grounds, shall be ordered removed as public nuisances or a prohibited constructions as herein provided: Provided, however, That the Secretary of Public Works and Communications may authorize the construction of any such work when public interest or safety so requires or when it is absolutely necessary for the protection of private property. Section 2. When it is found by the Secretary of Public Works and Communications, after due notice and hearing, that any dam, dike or any other works now existing or may there after be constructed encroaches into any public navigable waters, or that they are constructed in areas declared as communal fishing grounds, he shall have the authority to order the removal of any such works and shall give the party concerned a period not to exceed thirty days for the removal of the same: Provided, That fishpond constructions or works on communal fishing grounds introduced in good faith before the areas we proclaimed as fishing grounds shall be exempted from the provisions of this Act, provided such constructions or works do not obstruct or impede the free passage of any navigable river, stream, or would not cause inundations of agricultural areas: Provided, further, That should the party concerned fail to comply with the order of the Secretary of Public Works and Communications within the period so stated in the order, such removal shall be effected by the Secretary of Public Works and Communications at the expense of the said party within ten days following the expiration of the period given the party concerned:Provided, furthermore, That the investigation and hearing to be conducted by the Secretary of Public Works and Communications under this section shall be terminated and decided by him within a period which shall not exceed ninety days from the time he shall have been notified in writing or a written complaint shall have been filed with him by any interested party apprising him of the existence of a dam, dike or any other works

that encroaches into any other public navigable river, stream, coastal waters or any other public navigable waters or waterways and in areas declared as communal fishing grounds: Provided, still furthermore, That the failure on the part of the Secretary of Public Works and Communications without justifiable or valid reason to terminate and decide a case or effect the removal of any such works, as provided for in this section, shall constitute an offense punishable under section three of this Act: And provided, finally, That the removal of any such works shall not impair fishponds completed or about to be completed which do not encroach or obstruct any public navigable river or stream and/or which would not cause inundations of agricultural areas and which have been constructed in good faith before the area was declared communal fishing grounds. The objections of the appellees to the constitutionality of Republic Act No. 2056, not only as an undue delegation of judicial power to the Secretary of Public Works but also for being unreasonable and arbitrary, are not tenable. It will be noted that the Act (R.A. 2056) merely empowers the Secretary to remove unauthorized obstructions or encroachments upon public streams, constructions that no private person was anyway entitled to make, because the bed of navigable streams is public property, and ownership thereof is not acquirable by adverse possession (Palanca vs. Commonwealth, 69 Phil. 449). It is true that the exercise of the Secretary's power under the Act necessarily involves the determination of some questions of fact, such as the existence of the stream and its previous navigable character; but these functions, whether judicial or quasi-judicial, are merely incidental to the exercise of the power granted by law to clear navigable streams of unauthorized obstructions or encroachments, and authorities are clear that they are, validly conferable upon executive officials provided the party affected is given opportunity to be heard, as is expressly required by Republic Act No. 2056, section 2. It thus appears that the delegation by Congress to executive or administrative agencies of functions of judicial, or at least, quasi-judicial functions is incidental to the exercise by such agencies of their executive or administrative powers, is not in violation of the Separation of Powers so far as that principle is recognized by the Federal Constitution nor is it in violation of due process of law. (3 Willoughby on the Const. of the U.S., pp. 1654-1655) The mere fact that an officer is required by law to inquire the existence of certain facts and to apply the law thereto in order to determine what his official conduct shall be and the fact that these acts may affect private, rights do not constitute an exercise of judicial powers. Accordingly, a statute may give to non-judicial officers the power to declare the existence of facts which call into operation its provisions, and similarly may grant to commissioners and other subordinate officer, power to ascertain and determine appropriate facts as a basis for procedure in the enforcement of particular laws. (11 Am. Jur., Const. Law, p. 950, sec. 235) s. 237. Powers to determine cases within Statute. One important class of cases in which discretion may properly be vested in administrative officers, which class is almost an operation of the general rule relating to the ascertainment of facts, consists of those cases in which a general rule or prohibition is laid down and power is vested in an executive officer to determine when particular cases do or do not fall within such rule or prohibition. Power exercised under such statutes, calling for the exercise of judgment in the execution of a ministerial act, is never judicial in nature within the sense prohibited by the Constitution. (11 Am. Jur., Const. Law, sec. 237, p. 952) A direct precedent can be found in the "Bridge cases" upholding the constitutionality of the U.S. River and Harbor Act of March 3, 1899, that empowered (sec. 18) the Secretary of War to take action, after hearing, for the removal or alteration of bridges unreasonably obstructing navigation. On the issue of undue delegation of power, the U.S. Supreme Court ruled as follows: Congress thereby declared that whenever the Secretary of War should find any bridge theretofore or thereafter constructed over any of the navigable waterways of the United States to be an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, it should be the duty of the Secretary, after hearing the parties concerned, to take action looking to the removal or alteration of the bridge, so as to render navigation through or under it reasonably free, easy, and unobstructed. As this court repeatedly has held, this is not an unconstitutional delegation of legislative or judicial power to the Secretary . Union Bridge Co. vs. United States, 204 U.S. 364, 385, 51 L. ed. 523, 533, 27 Sup. Ct. Rep. 367; Monongahela Bridge Co. v. United States, 216 U.S. 177, 192,54 L. ed. 435, 441, 30 Sup. Ct. Rep. 356; Hannibal Bridge Co. v. United States, 221 U.S. 194. 205, 55 L. ed. 699, 703, 31 Sup. Ct. Rep. 603. The statute itself prescribes the general rule applicable to all navigable waters, and merely charged the Secretary of War with the duty of ascertaining in each case, upon notice to the parties concerned, whether the particular bridge came within the general rule. Of course, the Secretary's finding must be based upon the conditions as they exist at the time he acts. But the law imposing this duty upon him speaks from the time of its enactment. (Louisville Bridge Co. v. U.S., 61 L. ed. 395). (Emphasis supplied) Appellees invoke American rulings that abatement as nuisances of properties of great value can not be done except through court proceedings; but these rulings refer to summary abatements without previous hearing, and are inapplicable to the case before us where the law provides, and the investigator actually held, a hearing with notice to the complainants and the, appellees, who appeared therein. It is noteworthy that Republic Act 2605 authorizes removal of the unauthorized dikes either as "public nuisances or as prohibited constructions" on public navigable streams, and those of appellees clearly are in the latter class. It may not be amiss to state that the power of the Secretary of Public Works to investigate and clear public streams free from unauthorized encroachments and obstructions was granted as far back as Act 3208 of the old Philippine Legislature, and has been upheld by this Court (Palanca vs. Commonwealth, supra; Meneses vs. Commonwealth, 69 Phil. 647). We do not believe that the absence of an express appeal to the courts under the present Republic Act 2056 is a substantial difference, so far as the Constitution is concerned, for it is a well-known rule that due process does not have to be judicial process; and moreover, the judicial review of the Secretary's decision would always remain, even if not expressly granted, whenever his act violates the law or the Constitution, or imports abuse of discretion amounting to excess of jurisdiction. The argument that the action of the Secretary amounts to a confiscation of private property leads us directly to the issue of fact whether a navigable portion of the Bulati creek had once traversed the registered lot of the appellees Lovina and connected with Manampil creek that borders said lot on the northwest before it was closed by Jose de Leon, Lovina's predecessor. The Secretary of Public Works has found from the evidence before him that, originally, the sapang (creek) Bulati flowed across the property in question, and connected the Nasi river withsapang Manampil; that in 1926 or thereabouts, the Bulati creek was 2 meters deep at high tide and 1/2 meter deep at low tide, and the people used it as fishing grounds and as a communication way, navigating along its length in bancas; that former registered owner, Jose de Jesus, closed about meters of the course of the sapangBulati that lay within the lot in question by constructing dams or dikes at both sides and converting the lot into a fishpond.

The appellees, on the other hand, rely on the 1916 registration plan of the property (Exh. C), showing it to be merely bounded by the Bulati creek on the southeast, as well as on the testimony introduced at the hearing of prohibition case (over the objection of the Government counsel) that the Bulati creek did not enter the property. The Court of First Instance found that "according to the location plan, Exhibit "C", the "Bulati creek, on which dikes and dams in question were constructed was a mere estero and could not be considered a navigable stream then." It is not explained how such fact could appear solely from the plan Exhibit "C" (no other proof being referred to), unless indeed the court below so concluded from the fact that in said plan the Bulati creek does not appear to run within the registered lot. The conclusion of lower court is not supported by its premises, because by law, the issuance of a Torrens title does not confer title navigable streams (which are fluvial highways) within registered property, nor is it conclusive on their non-existence, unless the boundaries of such streams had been expressly delimited in the registration plan (Act 496, sec. 39 cf. Palanca vs. Commonwealth, 69 Phil. 449; Meneses Commonwealth, 69 Phil. 647), so that delimitation of their course may be made even after the decree of registration has become final. In the present case, in truth the very plan of the appellees, Exhibit "C", shows parallel reentrant lines, around its point 65 and between points 44 and that indicate the existence of a stream connecting the sapang Bulati on the southeast and the sapang Manampil on the northwest, and which the surveyor apparently failed delimit for some undisclosed reason. That the stream was the prolongation of the sapang Bulati, that formerly flow across the registered lot, is also shown by the fact that appellees' plan Exhibit "C", the westward continuation the Bulati creek (west of point 65), which bounds the registered lot, is labelled "Etero Mabao". The plan thus corroborates the previously summarized testimony laid before investigator Yonzon and relied upon by the Secretary in his administrative decision. Even more, appellees' own caretaker, Yambao, showed investigator Yonzon the old course of the Bulati within the fishpond itself; and this evidence is, likewise, confirmed by the cross-section profile of the ground near the dams in question (See plan Annex "AA" of Yonzon's Report), where the old channel of the creek is clearly discernible. To be sure, appellees contend that they were not shown this plan; but in their evidence before the court of first instance, they never attempted, or offered, to prove that said plan is incorrect. That the creek was navigable in fact before it was closed was also testified to by the government witnesses, whose version is corroborated as we have seen. Considering the well-established rule that findings of fact in executive decisions in matters within their jurisdiction are entitled to respect from the courts in the absence of fraud, collusion, or grave abuse of discretion (Com. of Customs vs. Valencia, 54 O.G. 3505), none of which has been shown to exist in this case, we agree with appellant that the court below erred in rejecting the findings of fact of the Secretary of Public Works. The findings of the Secretary can not be enervated by new evidence not laid down before him, for that would be tantamount to holding a new investigation, and to substitute for the discretion and judgment of the Secretary the discretion and judgment of the court, to whom the statute had entrusted the case. It is immaterial that the present action should be one for prohibition or injunction and not one for certiorari, in either event the case must be resolved upon the evidence submitted to the Secretary, since a judicial review of executive decisions does not import a trial de novo, but only an ascertainment of whether the executive findings are not in violation of the constitution or of the laws, and are free from fraud or imposition, and whether they find reasonable support in the evidence.1 Here, the proof preponderates in favor of the Secretary's decision. Nevertheless, we, agree with appellees that they can not be charged with failure to exhaust administrative remedies, for the Secretary's decision is that of the President, in the absence of disapproval (Villena vs. Secretary of the interior, 67 Phil. 451). Finally, there being a possibility that when they purchased the property in question the appellees Lovina were not informed of the illegal closure of the Bulati creek, their action, if any, against their vendor, should be, and is hereby, reserved. In resume, we rule: (1) That Republic Act No. 2056 does not constitute an unlawful delegation of judicial power to the Secretary of Public Works; (2) That absence of any mention of a navigable stream within a property covered by Torrens title does not confer title to it nor preclude a subsequent investigation and determination of its existence; (3) That the findings of fact of the Secretary of Public Works under Republic Act No. 2056 should be respected in the absence of illegality, error of law, fraud, or imposition, so long as the said, findings are supported by substantial evidence submitted to him. (4) That ownership of a navigable stream or of its bed is not acquirable by prescription. WHEREFORE, the decision appealed from is reversed, and the writs of injunction issued therein are annulled and set aside. Costs against appellees Lovina. Bengzon, C.J., Padilla, Bautista Angelo, Barrera, Paredes, Regala and Makalintal, JJ., concur. Dizon, J., took no part.

Footnotes
1

Cf. Manabat vs. Cruz, L-11228, Apr. 30, 1958; Lao Tan Bun vs. Fabre, 81 Phil. 682; Ortua vs. Singson, 59 Phil. 440 Julian vs. Apostol, 52 Phil. 422.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-9553 May 13, 1959

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIAM ERNEST JOLLIFFE, defendant-appellant. Benedicto C.Balderama and Mabanta and Ysip for appellant. Assistant Solicitor General Ramon L. Avancea and Solicitor Isidro C. Borromeo for appellee. CONCEPCION, J.: This is an appeal taken by defendant William Ernest Jolliffe from a decision of the Court of First Instance of Rizal, convicting him of a violation of Republic Act No. 256, and sentencing him to imprisonment for one (1) year, and to pay a fine of P2,000 and the costs, as well as decreeing the forfeiture, in favor of the Government, of four (4) pieces of gold bullion valued P35,305.46, and a travellers' check in the sum of $100.00. There is no dispute about the main facts, which are set forth in the decision appealed in the following language: The accused, Mr. William Ernest Jolliffe is a Canadian subject, born in china and residing permanently in Hongkong. He is the son of a former Chancellor of the West China Union University and had been Trade Commissioner for Canada in Shanghai and Hongkong, until 1948. The accused to a good reputable family is quite well-known. The accused had made several trips to Manila, sometimes on business and three times to meet his wife and children passing thru Manila. He also came to collect the debt owed to him by one T. W. Woo, a prominent businessman in Hongkong. He came back to Manila on December 4, 1953 to try to collect the debt owed him by T. Y. Woo. although he had no idea how said debt was to be paid, whether in peso or in gold. He was paid in good which be brought with him by messenger to his room in the Bay View Hotel. At about plane time he went to his hotel room and carried his gold around his body underneath his shirt. When he was going towards the door leading to the runway he was accosted by a woman, Amanda Arimbay, a secret service agent, and was told to go the search room (Quoted from the statement of facts in the memorandum for the accused.) When the accused was searched four pieces of gold bullion were found tied to his body a few inches above the waist. There was also found in his possession a $100.00 travelers check issued by R. McGinty. While he was under arrest made an offer to settle the case by offering to pay the agents who were then arresting him. He stated also that Mr. Manikan, Deputy Collector of Customs, told him during the search that the case could have been fixed had he told him before hand of his desire to export gold from the Philippines. Mr. Manikan, on the other hand, said that when the accused was about to be searched he offered him P30,000.00 provided the case be settled and forgotten. The Court accepts the testimony of Mr, Manikan as the true version of the incident because the accused himself said in the course of is testimony the Mr. Manikan told him that he could say anything in private to him after he (accused) had signed the written statement, Exhibit I, certifying to the things found in the possession of the accused, among which, were the four pieces of gold bullion. These facts shows that when Mr. Manikan consented to allow the accused to talk with him about the case after signing Exhibit I, there was no other desire on the part of Mr. Manikan but to give the accused every opportunity to explain his side of the case but not for any illegitimate purpose. Mr. Manikan's acts in this case are above board and the only logical steps that an honest official could take in the present case. But these minor incident relating to the case are of no importance, taking into consideration the fact that the accused himself had admitted that on December 7, 1953 when he was about to board in one of the planes of the Pan American World Airway he had with him four pieces of gold bullion of the approximate value P35,305.46. This being a fact, the only question before the Court is purely a question of law. Appellant alleges that: 1. That the trial court erred in not ruling that Circular 21 of the Central Bank is the only law in point, and that, being special law, it does not penalize attempted or frustrated violation thereof, but merely consummated violations and, therefore, under the facts of this case, the accused cannot be held liable; 2. That the trial court erred in not ruling that even attempted violation of Circular 21 punishable, still the accused is not criminally liable because there was no wilful violation of said circular; 3. That the trial erred in ruling that mere possession of gold is made illegal by Circular 21 of the Central Bank, the truth being that the said circular in fact specially authorizes sales gold within the Philippines even without the benefit of license; 4. That the trial court erred in not ruling Circular 21 of the Central Bank is not a valid law, because it did not comply with the provisions of section 74 of Republic Act 265, in that: (a) It was approved by the President of the Philippines; (b) In its promulgation, the Momentary Board exceeded the authority granted it by the Central Bank Act, because the context of the circular does not indicate that it was a temporary emergency measure;

(c) It can only be issued as an emergency measure or during crisis, and as issued, has no force and effect, because the emergency it seeks to remedy never existed or no longer exists; (d) That the publication of the circular (original and amended) in the November 1951 and October 1952 issues of the Official Gazette are not the adequate publications required by law, because said publications on their faces showed them to be incomplete and defective; (e) That granting, without admitting, that the power to promulgate it was granted to the Monetary Board by Republic Act 265, and granting without admitting, that the power to so promulgate was validly exercised, still it is invalid because it constitutes an invalid delegation of legislative power and, therefore, unconstitutional and void. 5. That the trial court erred in ordering forfeiture of the four (4) packages of gold, Exhibit G-1, G-2, G-3 and G-4, in favor of the Government. 6. That the trial court erred in ordering the forfeiture of the travellers' check for $100, Exhibit K, in favor of the Government, in spite of the fact that the accused was acquitted on the charge of illegal possession of dollars under Circular 20 and 42. Appellant does not deny that he had no license to export the gold bullions above referred to. Under his first assignment of error, he maintains, however, that Central Bank Circular No. 21 requiring said license and section 34 of Republic Act No. 265, prescribing the penalty for violations of said Circular, refer to consummated exportation, not to "attempted or frustrated exportation." Section 4 of said Circular provides: Any person desiring to export gold in any form, including jewelry, whether for refining abroad or otherwise, must obtain a license from the Central Bank. Applicant for export license must present satisfactory evidence that the import of the gold into the country of the importer will not be in violation of the rules and regulations of such country. This section explicity applies to "any person desiring to export gold" and, hence, it contemplates the situation existing prior to the consummation of the exportation. Indeed, its purpose would be deferred if the penal sanction were deferred until after the article in question had left the Philippines, for jurisdiction over it, and over the guilty party, would be lost thereby. Appellant's avowed ignorance of the necessity of license and of the illegality of the act performed by him, alleged in support of the second assignment of error, is belied by the fact that he had the gold bullions under his shirt; that by objecting, at first, to being searched, he tried to prevent that the presence of said articles upon his person be discovered; and he tried to bribe the public officers who searched him. As regards the third assignment of error, it is not necessary for us to determine whether mere possession of gold bullion is illegal under Circular No. 21, for his conviction was due, not to such possession alone, but to the fact that appellant tried to export said gold bullions without the requisite license. Let us now consider the fourth assignment of error which is based upon several grounds. The first is that the aforementioned circular has not merited the approval of the President of the Philippines, which is required in section 74 of Republic Act No. 265. This pretense is untenable. It would appear from Exhibit S and S-1 that the practice of the Monetary Board was to obtain said approval before the formal enactment and promulgation of circulars necessitating presidential sanction. Indeed, since it has no authority to subject transactions in gold to license, unless the President agrees thereto, it is, in effect, the duty of the Board to obtain the assent of the Executive to the policy of requiring said license at a particular time, either upon adoption of the resolution of this effect, or prior thereto. As a consequence, it must be presumed in the absence of proof to the contrary, which is wanting that such duty has been fulfilled in the case at bar. It is frequently said that a presumption of regularity the performance of administrative duties. That is, when an act has been completed, it is to be supposed that the act was done in the manner prescribed and by an officer authorized by law to do it. The presumption is of course a rebuttable one, but the bare allegation that there has been a failure to observe statutory requirements has been regarded as a mere conclusion of the pleader; where the administrative order is accompanied by a statement that there has been compliance and there is no showing of fact to the contrary, the presumption of regularity is ordinarily sufficient to support the official act of a public officer. (Administrative Law Cases and Comments by Gellhorn, pp. 315-316.) Contrary to appellant's pretense, it is not essential that the administrative acts of the President be made in writing, unless the law says so. Thus, for instance, in Ykalina vs. Oricio, (93 Phil., 1076; 49 Off. Gaz., [12], 5431), this Court quoted approvingly the following passage from Corpus Juris Secundum: While the appointment of an officer is usually evidenced by a commission, as a general rule it is not essential to the validity of an appointment that a commission issue, and an appointment may be made by an oral announcement of his determination by the appointing power. In U.S. vs. Fletcher (148 U.S. 84, 89-90, 37 Law Ed. 387, 379-380), the Federal Supreme Court said: The presumption is that the Secretary and the President performed the duties developed upon them respectively, and it would be unreasonable to construe the Secretary's indorsement as meaning that he had reviewed the proceedings for the action of the President in conformity with Article 65, and had approved them himself and ordered execution of the sentence in contravention of the article. . . . While in the case on hand it is said that the proceedings were submitted to the President, it is stated that they had been forwarded to the Secretary of War for the action of the President, and as that is followed by an approval and the direction of the execution of the sentence, which approval and sentence could only emanate from the President, the conclusion follows that the action taken was the action of the President. We regard the certification of the Secretary of War . . . as perceive no ground upon which the order of that date can be a sufficient certification of the judgment of the President, and treated as null and void for want of the required approval. What is more, in Villena vs. Secretary of the Interior (67 Phil., 451, 463), the majority of the members of this Court expressed the view that:

After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the department organization established and continued in force by paragraph 1, section 21, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistant and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive, presumptively the acts of the Chief Executive. (Runkle vs. United States [1887], 122 U.S. 543; 30 Law ed. 1167; 7 Sup. Ct. Rep. 1141; see also U.S. vs. Eliason [1839], 16 Pet. 291; 10 Law ed. 968; Pones vs. U.S. [1890], 137 U.S. 202; 34 Law ed. 691; 11 Supp. Ct. Rep. 80; Wolsey vs. Chapman [1880] 101 U.S. 755; 25 Law ed. 916; Wilcox vs. Jackson [1836], 13 Pet. 498; 10 Law ed. 264.) Needless to say, the case cited by appellant herein refer to the presidential approval of legislative enactments, which the Constitution explicity requires to be evidenced by the signatures of the Executive (Art. VI, section 20 [1]) There is no similar provision in Republic Act No. 265. It is urged, however, that the authority of the Monetary Board to suspend or restrict the sales of exchange by the Central Bank and to subject all transactions involving foreign exchange to license, is temporary in nature and may be exercised only during an exchange crisis, as an emergency measure to combat such crisis, and that the context of the circular in question, as amended, does not indicate that it was a temporary emergency measure. It is not necessary, however, for the legality of said circular that its temporary character be stated on its face, so long as the circular has been issued during an exchange crisis, for the purpose of combating the same. In the absence of evidence to the contrary, which has not been introduced or offered in the present case, it is presumed that the provision of section 74 of Republic Act No. 265, under the authority of which the aforementioned circular was issued, has authority of which the aforementioned circular was issued, has been complied with. Besides, the fact that there has been an exchange crisis in the Philippines and that such crisis, not only existed at the time of the issuance of said circular in 1949 and 1950, but, also, remained in existence up to the present, may be taken judicial cognizance of. Although, from a purely theoretical and legal viewpoint, the Monetary Board and the President could have specified in Circular 21 the period of its effectivity, their failure to do so did not necessarily impair its validity. As a measure taken under the police power of the state, said period had to be commensurate with the crisis that led to its adoption, and the duration of said crisis could not be anticipated with reasonable certainly. Upon the termination of the aforementioned crisis, as determined by competent authority, the circular would become inoperative. Thus, in Rutter vs. Esteban, (49 Off. Gaz., 1807), Commercial Investment vs. Garcia (49 Off. Gaz., 1801), Salvador vs. Locsin, (93 Phil., 225), and Nicolas vs. Matias, L-5250 (May 29, 1953), we held that, although the moratorium laws enacted in the Philippines, upon its liberation from the Japanese forces, could not be permanent in character and did not specify the duration thereof, it was valid and effective until the emergency for which it was intended had already disappeared. It is further argued that, as published in the Official Gazette, Circular No. 21, in its original, as well as in its amended form, did not bear the approval of the President and that, accordingly, said publication was not sufficient to give the effect contemplated by law therefore. This pretense is based upon false promise. The original circular subjecting to licensing by the Central Bank "all transaction in gold and foreign exchange", Circular No. 20, which, as approved and published, states, that, "pursuant to the provisions of Republic Act No. 265", it had been adopted by "the Monetary Board, by unanimous vote and with the approval of the President of the Philippines." What is more, the last paragraph of Circular No. 20, provides that "further regulations in respect to transactions covered by this circular will be issued separately." Thus, the President had approved not only the licensing by the Central Bank" of "all transactions in gold and foreign exchange," but, also, the issuance, subsequently to the promulgation of Circular No. 20, of "further regulations in respect" of such transactions. Said further regulations were incorporated into Circular No. 21, which thus bears the stamp of presidential sanction, although this is not specifically required by law. It is only the decision of the Monetary Board to subject to license by the Central Bank all transactions in gold and foreign exchange that needs the approval of the President. Once the same has been given, the details in the implementation of said decision may be determined by said Board, through such regulations as may be promulgated from time to time. The assent of the President is not a prerequisite to the validity and effectivity of these regulations, as distinguished from the aforementioned decision thereby sought to be enforced or executed. The authority of the Monetary Board to make regulations is governed, not by section 74 of Republic Act No. 265, but by section 14 thereof, in the language of which: In order to exercise the authority granted to it under this Act the Monetary Board shall: (a) Prepare and issue such rules and regulations as it considers necessary for the effective discharge of the responsibilities and exercise of the power assigned to the Monetary Board and to the Central Bank under this Act. Lastly, the legality of Circular No. 21 is assailed upon the ground that the grant of authority to issue the same constitutes an undue delegation of legislative power. It is true that, under our system of government, said power may not be delegated except to local governments. However, one thing is to delegate the power to determine whatthe law shall be and another thing to delegate the authority to fix the details in the execution or enforcement of apolicy set out in the law itself. Briefly stated, the rule is that the delegated powers fall under the second category, if the law authorizing the delegation furnishes a reasonable standard which "sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will." (Yakus vs. United Sates, 88 L. ed. 848.) Referring the case at bar, section 74 of Republic Act No. 265 conferred upon the Monetary Board and the President the power to subject to licensing all transactions in gold and foreign exchange "in order to protect the international reserve of the Central Bank during an exchange crisis and to give the Monetary Board and the Government time in which to take constructive measures to combat such crisis." The Board is, likewise, authorized "to take such appropriate remedial measures" to protect the international stability of the peso, "whether the international reserve is falling, as a result of payment or remittances abroad which, in the opinion of the Monetary Board, are contrary to the national welfare" (section 70, Rep. Act No. 265). It should be noted, furthermore, that these powers must be construed and exercised in relation to the objectives of the law creating the Central Bank, which are, among others, "to maintain monetary stability in the Philippines," and "to promote a rising level of production, employment and real income in the Philippines." (Section 2, Rep. Act No. 265.) These standards are sufficiently concrete and definite to vest in the delegated authority the character ofadministrative details in the enforcement of the law and to place the grant of said authority beyond the category of a delegation of legislative powers (Cardon vs. Municipality of Binangonan, 36 Phil., 547; Compaia General de Tabacos vs. Board of Utility, 34, Phil., 136; Rubi vs. Board of Mindoro, 39 Phil., 660; Alegre vs. Collector of Customs, 53 Phil., 394; People vs. Rosentral, 63 Phil., 328; Antamok Gold vs. C.I.R., 68 Phil., 340; Calang vs. Williams, 70 Phil., 276; Cervantes vs. Auditor General, 91 Phil., 359; Phil., Association of Colleges & Universities vs. Sec. of Education, 97 Phil., 806; 51 Off. Gaz., (12) 6230; Mutual Films Corp. vs. Industrial Commission, 276 U.S. 230; Mulford vs. Smith, 307 U.S. 48; National Broadcasting Co. vs. U.S. 319 U.S. 225; Yakus vs. White, 321 U.S. 414; Ammann vs. Mallonee, 332 U.S. 245). Under the fifth assignment of error, appellant maintains that Article 45 of the Revised Penal Code authorizing the forfeiture of the proceeds of a crime and the instruments or tools with which it was committed, does not apply to the case at bar, the crime involved herein being covered by a special law.

However, pursuant to section 10 of the Revised Penal Code, the provisions of said Code shall be "supplementary" to special laws, "unless the latter should specifically provide the contrary", and there is no such provision to the contrary in Republic Act No. 265 (U.S. vs. Parrone, 24 Phil., 29; People vs. Moreno, 60 Phil., 712; People vs. Ramayo, 61 Phil., 225; Copiaco vs. Luzon Brokerage, 66 Phil., 184). The last assignment of error refers to the propriety of the order of confiscation of the traveller's check for $100, the lower court having found that the accused had no knowledge of the fact that it was in his physical possession, and that therefore, he had no criminal intent in connection therewith. We feel that this point is well taken, and that, accordingly, said travellers' check should not be forfeited to the Government. With this modification, the decision, appealed from should be, as it is hereby affirmed, in all other respects, with costs against the defendant-appellant. It is so ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador and Endencia, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 95832 August 10, 1992 MAYNARD R. PERALTA, petitioner, vs. CIVIL SERVICE COMMISSION, respondent. Tranquilino F. Meris Law Office for petitioner.

PADILLA, J.: Petitioner was appointed Trade-Specialist II on 25 September 1989 in the Department of Trade and Industry (DTI). His appointment was classified as "Reinstatement/Permanent". Before said appointment, he was working at the Philippine Cotton Corporation, a government-owned and controlled corporation under the Department of Agriculture. On 8 December 1989, petitioner received his initial salary, covering the period from 25 September to 31 October 1989. Since he had no accumulated leave credits, DTI deducted from his salary the amount corresponding to his absences during the covered period, namely, 29 September 1989 and 20 October 1989, inclusive of Saturdays and Sundays. More specifically, the dates of said absences for which salary deductions were made, are as follows: 1. 29 September 1989 Friday 2. 30 September 1989 Saturday 3. 01 October 1989 Sunday 4. 20 October 1989 Friday 5. 21 October 1989 Saturday 6. 22 October 1989 Sunday Petitioner sent a memorandum to Amando T. Alvis (Chief, General Administrative Service) on 15 December 1989 inquiring as to the law on salary deductions, if the employee has no leave credits. Amando T. Alvis answered petitioner's query in a memorandum dated 30 January 1990 citing Chapter 5.49 of the Handbook of Information on the Philippine Civil Service which states that "when an employee is on leave without pay on a day before or on a day immediately preceding a Saturday, Sunday or Holiday, such Saturday, Sunday, or Holiday shall also be without pay (CSC, 2nd Ind., February 12, 1965)." Petitioner then sent a latter dated 20 February 1990 addressed to Civil Service Commission (CSC) Chairman Patricia A. Sto. Tomas raising the following question: Is an employee who was on leave of absence without pay on a day before or on a day time immediately preceding a Saturday, Sunday or Holiday, also considered on leave of absence without pay on such Saturday, Sunday or Holiday? 1 Petitioner in his said letter to the CSC Chairman argued that a reading of the General Leave Law as contained in the Revised Administrative Code, as well as the old Civil Service Law (Republic Act No. 2260), the Civil Service Decree (Presidential Decree No. 807), and the Civil Service Rules and Regulation fails to disclose a specific provision which supports the CSC rule at issue. That being the case, the petitioner contented that he cannot be deprived of his pay or salary corresponding to the intervening Saturdays, Sundays or Holidays (in the factual situation posed), and that the withholding (or deduction) of the same is tantamount to a deprivation of property without due process of law. On 25 May 1990, respondent Commission promulgated Resolution No. 90-497, ruling that the action of the DTI in deducting from the salary of petitioner, a part thereof corresponding to six (6) days (September 29, 30, October 1, 20, 21, 22, 1989) is in order. 2 The CSC stated that: In a 2nd Indorsement dated February 12, 1965 of this Commission, which embodies the policy on leave of absence without pay incurred on a Friday and Monday, reads:

Mrs. Rosalinda Gonzales is not entitled to payment of salary corresponding to January 23 and 24, 1965, Saturday and Sunday, respectively, it appearing that she was present on Friday, January 22, 1965 but was on leave without pay beginning January 25, the succeeding Monday. It is the view of this Office that an employee who has no more leave credit in his favor is not entitled to the payment of salary on Saturdays, Sundays or holidays unless such non-working days occur within the period of service actually rendered. (Emphasis supplied) The rationale for the above ruling which applies only to those employees who are being paid on monthly basis, rests on the assumption that having been absent on either Monday or Friday, one who has no leave credits, could not be favorably credited with intervening days had the same been working days. Hence, the above policy that for an employee on leave without pay to be entitled to salary on Saturdays, Sundays or holidays, the same must occur between the dates where the said employee actually renders service. To rule otherwise would allow an employee who is on leave of absent (sic) without pay for a long period of time to be entitled to payment of his salary corresponding to Saturdays, Sundays or holidays. It also discourages the employees who have exhausted their leave credits from absenting themselves on a Friday or Monday in order to have a prolonged weekend, resulting in the prejudice of the government and the public in general. 3 Petitioner filed a motion for reconsideration and in Resolution No. 90-797, the respondent Commission denied said motion for lack of merit. The respondent Commission in explaining its action held: The Primer on the Civil Service dated February 21, 1978, embodies the Civil Service Commission rulings to be observed whenever an employee of the government who has no more leave credits, is absent on a Friday and/or a Monday is enough basis for the deduction of his salaries corresponding to the intervening Saturdays and Sundays. What the Commission perceived to be without basis is the demand of Peralta for the payment of his salaries corresponding to Saturdays and Sundays when he was in fact on leave of absence without pay on a Friday prior to the said days. A reading of Republic Act No. 2260 (sic) does not show that a government employee who is on leave of absence without pay on a day before or immediately preceding Saturdays, Sunday or legal holiday is entitled to payment of his salary for said days. Further, a reading of Senate Journal No. 67 dated May 4, 1960 of House Bill No. 41 (Republic Act No. 2625) reveals that while the law excludes Saturdays, Sundays and holidays in the computation of leave credits, it does not, however, include a case where the leave of absence is without pay. Hence, applying the principle of inclusio unius est exclusio alterius, the claim of Peralta has no merit. Moreover, to take a different posture would be in effect giving more premium to employees who are frequently on leave of absence without pay, instead of discouraging them from incurring further absence without pay. 4 Petitioner's motion for reconsideration having been denied, petitioner filed the present petition. What is primarily questioned by the petitioner is the validity of the respondent Commission's policy mandating salary deductions corresponding to the intervening Saturdays, Sundays or Holidays where an employee without leave credits was absent on the immediately preceding working day. During the pendency of this petition, the respondent Commission promulgated Resolution No. 91-540 dated 23 April 1991 amending the questioned policy, considering that employees paid on a monthly basis are not required to work on Saturdays, Sunday or Holidays. In said amendatory Resolution, the respondent Commission resolved "to adopt the policy that when an employee, regardless of whether he has leave credits or not, is absent without pay on day immediately preceding or succeeding Saturday, Sunday or holiday, he shall not be considered absent on those days." Memorandum Circular No. 16 Series of 1991 dated 26 April 1991, was also issued by CSC Chairman Sto. Tomas adopting and promulgating the new policy and directing the Heads of Departments, Bureaus and Agencies in the national and local governments, including government-owned or controlled corporations with original charters, to oversee the strict implementation of the circular. Because of these developments, it would seem at first blush that this petition has become moot and academic since the very CSC policy being questioned has already been amended and, in effect, Resolutions No. 90-497 and 90-797, subject of this petition for certiorari, have already been set aside and superseded. But the issue of whether or not the policy that had been adopted and in force since 1965 is valid or not, remains unresolved. Thus, for reasons of public interest and public policy, it is the duty of the Court to make a formal ruling on the validity or invalidity of such questioned policy. The Civil Service Act of 1959 (R.A. No. 2260) conferred upon the Commissioner of Civil Service the following powers and duties: Sec. 16 (e) with the approval by the President to prescribe, amend and enforce suitable rules and regulations for carrying into effect the provisions of this Civil Service Law, and the rules prescribed pursuant to the provisions of this law shall become effective thirty days after publication in the Official Gazette; xxx xxx xxx (k) To perform other functions that properly belong to a central personnel agency.
5

Pursuant to the foregoing provisions, the Commission promulgated the herein challenged policy. Said policy was embodied in a 2nd Indorsement dated 12 February 1965 of the respondent Commission involving the case of a Mrs. Rosalinda Gonzales. The respondent Commission ruled that an employee who has no leave credits in his favor is not entitled to the payment of salary on Saturdays, Sundays or Holidays unless such non-working days occur within the period of service actually rendered. The same policy is reiterated in the Handbook of Information on the Philippine Civil Service. 6 Chapter Five on leave of absence provides that: 5.51. When intervening Saturday, Sunday or holiday considered as leave without pay when an employee is on leave without pay on a day before or on a day immediately preceding a Saturday, Sunday or holiday, such Saturday, Sunday or holiday shall also be without pay. (CSC, 2nd Ind., Feb. 12, 1965).

It is likewise illustrated in the Primer on the Civil Service 7 in the section referring to Questions and Answers on Leave of Absences, which states the following: 27. How is leave of an employee who has no more leave credits computed if: (1) he is absent on a Friday and the following Monday? (2) if he is absent on Friday but reports to work the following Monday? (3) if he is absent on a Monday but present the preceding Friday? - (1) He is considered on leave without pay for 4 days covering Friday to Monday; - (2) He is considered on leave without pay for 3 days from Friday to Sunday; - (3) He is considered on leave without pay for 3 days from Saturday to Monday. When an administrative or executive agency renders an opinion or issues a statement of policy, it merely interprets a pre-existing law; and the administrative interpretation of the law is at best advisory, for it is the courts that finally determine what the law means. 8 It has also been held that interpretative regulations need not be published. 9 In promulgating as early as 12 February 1965 the questioned policy, the Civil Service Commission interpreted the provisions of Republic Act No. 2625 (which took effect on 17 June 1960) amending the Revised Administrative Code, and which stated as follows: Sec. 1. Sections two hundred eighty-four and two hundred eighty-five-A of the Administrative Code, as amended, are further amended to read as follows: Sec. 284. After at least six months' continues (sic) faithful, and satisfactory service, the President or proper head of department, or the chief of office in the case of municipal employees may, in his discretion, grant to an employee or laborer, whether permanent or temporary, of the national government, the provincial government, the government of a chartered city, of a municipality, of a municipal district or of government-owned or controlled corporations other than those mentioned in Section two hundred sixty-eight, two hundred seventyone and two hundred seventy-four hereof, fifteen days vacation leave of absence with full pay, exclusive of Saturdays, Sundays and holidays, for each calendar year of service. Sec. 285-A. In addition to the vacation leave provided in the two preceding sections each employee or laborer, whether permanent or temporary, of the national government, the provincial government, the government of a chartered city, of a municipality or municipal district in any regularly and specially organized province, other than those mentioned in Section two hundred sixty-eight, two hundred seventy-one and two hundred seventy-four hereof, shall be entitled to fifteen days of sick leave for each year of service with full pay, exclusive of Saturdays, Sundays and holidays: Provided, That such sick leave will be granted by the President, Head of Department or independent office concerned, or the chief of office in case of municipal employees, only on account of sickness on the part of the employee or laborer concerned or of any member of his immediate family. The Civil Service Commission in its here questioned Resolution No. 90-797 construed R.A. 2625 as referring only to government employees who have earned leave credits against which their absences may be charged with pay, as its letters speak only of leaves of absence with full pay. The respondent Commission ruled that a reading of R.A. 2625 does not show that a government employee who is on leave of absence without pay on a day before or immediately preceding a Saturday, Sunday or legal holiday is entitled to payment of his salary for said days. Administrative construction, if we may repeat, is not necessarily binding upon the courts. Action of an administrative agency may be disturbed or set aside by the judicial department if there is an error of law, or abuse of power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of a legislative enactment. 10 We find this petition to be impressed with merit. As held in Hidalgo vs. Hidalgo: 11 . . . . where the true intent of the law is clear that calls for the application of the cardinal rule of statutory construction that such intent or spirit must prevail over the letter thereof, for whatever is within the spirit of a statute is within the statute, since adherence to the letter would result in absurdity, injustice and contradictions and would defeat the plain and vital purpose of the statute. The intention of the legislature in the enactment of R.A. 2625 may be gleaned from, among others, the sponsorship speech of Senator Arturo M. Tolentino during the second reading of House Bill No. 41 (which became R.A. 2625). He said:

The law actually provides for sick leave and vacation leave of 15 days each year of service to be with full pay. But under the present law, in computing these periods of leaves, Saturday, Sunday and holidays are included in the computation so that if an employee should become sick and absent himself on a Friday and then he reports for work on a Tuesday, in the computation of the leave the Saturday and Sunday will be included, so that he will be considered as having had a leave of Friday, Saturday, Sunday and Monday, or four days. The purpose of the present bill is to exclude from the computation of the leave those days, Saturdays and Sundays, as well as holidays, because actually the employee is entitled not to go to office during those days. And it is unfair and unjust to him that those days should be counted in the computation of leaves. 12 With this in mind, the construction by the respondent Commission of R.A. 2625 is not in accordance with the legislative intent. R.A. 2625 specifically provides that government employees are entitled to fifteen (15) days vacation leave of absence with full pay and fifteen (15) days sick leave with full pay, exclusive of Saturdays, Sundays and Holidays in both cases . Thus, the law speaks of the granting of a right and the law does not provide for a distinction between those who have accumulated leave credits and those who have exhausted their leave credits in order to enjoy such right. Ubi lex non distinguit nec nos distinguere debemus. The fact remains that government employees, whether or not they have accumulated leave credits, are not required by law to work on Saturdays, Sundays and Holidays and thus they can not be declared absent on such non-working days. They cannot be or are not considered absent on non-working days; they cannot and should not be deprived of their salary corresponding to said non-working days just because they were absent without pay on the day immediately prior to, or after said non-working days. A different rule would constitute a deprivation of property without due process. Furthermore, before their amendment by R.A. 2625, Sections 284 and 285-A of the Revised Administrative Code applied to all government employee without any distinction. It follows that the effect of the amendment similarly applies to all employees enumerated in Sections 284 and 285-A, whether or not they have accumulated leave credits. As the questioned CSC policy is here declared invalid, we are next confronted with the question of what effect such invalidity will have. Will all government employees on a monthly salary basis, deprived of their salaries corresponding to Saturdays, Sundays or legal holidays (as herein petitioner was so deprived) since 12 February 1965, be entitled to recover the amounts corresponding to such non-working days? The general rule vis-a-vis legislation is that an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed. 13 But, as held in Chicot County Drainage District vs. Baxter State Bank: 14 . . . . It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such determination is an operative fact and may have consequences which cannot always 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. To allow all the affected government employees, similarly situated as petitioner herein, to claim their deducted salaries resulting from the past enforcement of the herein invalidated CSC policy, would cause quite a heavy financial burden on the national and local governments considering the length of time that such policy has been effective. Also, administrative and practical considerations must be taken into account if this ruling will have a strict restrospective application. The Court, in this connection, calls upon the respondent Commission and the Congress of the Philippines, if necessary, to handle this problem with justice and equity to all affected government employees. It must be pointed out, however, that after CSC Memorandum Circular No. 16 Series of 1991 amending the herein invalidated policy was promulgated on 26 April 1991, deductions from salaries made after said date in contravention of the new CSC policy must be restored to the government employees concerned. WHEREFORE, the petition is GRANTED, CSC Resolutions No. 90-497 and 90-797 are declared NULL and VOID. The respondent Commission is directed to take the appropriate action so that petitioner shall be paid the amounts previously but unlawfully deducted from his monthly salary as above indicated. No costs. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. L-32370 & 32767 April 20, 1983 SIERRA MADRE TRUST, petitioner, vs. HONORABLE SECRETARY OF AGRICULTURE AND NATURAL RESOURCES, DIRECTOR OF MINES, JUSAN TRUST MINING COMPANY, and J & S PARTNERSHIP, respondents. Lobruga Rondoz & Cardenas Law Offices for petitioner. Fortunato de Leon for respondents.

ABAD SANTOS, J.: This is a petition to review a decision of the Secretary of Agriculture and Natural Resources dated July 8, 1970, in DANR Cases Numbered 3502 and 3502-A. The decision affirmed a decision of the Director of Mines dated November 6, 1969. The appeal was made pursuant to Sec. 61 of the Mining Law (C.A. No. 137, as amended) which provides: "... Findings of facts in the decision or order of the Director of Mines when affirmed by the Secretary of Agriculture and Natural Resources shall be final and conclusive, and the aggrieved party or parties desiring to appeal from such decision or order shall file in the Supreme Court a petition for review wherein only questions of law may be raised." The factual background is given in the brief of the petitioner-appellant which has not been contradicted by the respondents-appellees and is as follows: On July 26, 1962, the Sierra Madre Trust filed with the Bureau of Mines an Adverse Claim against LLA No. V-7872 (Amd) of the Jusan Trust Mining Company over six (6) lode mineral claims, viz.: (1) Finland 2, (2) Finland 3, (3) Finland 5, (4) Finland 6, (5) Finland 8 and (6) Finland 9, all registered on December 11, 1964 with the office of the Mining Recorder of Nueva Vizcaya, and all situated in Sitio Maghanay, Barrio Abaca Municipality of Dupax, Province of Nueva Vizcaya. The adverse claim alleged that the aforementioned six (6) lode minerals claims covered by LLA No. V-7872 (Amd) encroached and overlapped the eleven (11) lode mineral claims of the herein petitioner Sierra Madre Trust, viz., (1) A-12, (2) H-12, (3) JC-11, (4) W11, (5) JN-11, (6)WM-11, (7) F-10, (8) A-9, (9) N-9, (10) W-8, and (11) JN-8, all situated in Sitio Taduan Barrio of Abaca, Municipality of Dupax, Province of Nueva Vizcaya, and duly registered with the office of the Mining Recorder at Bayombong, Nueva Vizcaya on May 14, 1965. The adverse claim prayed for an order or decision declaring the above- mentioned six (6) lode mineral claims of respondent Jusan Trust Mining Company, null, void, and illegal; and denying lode lease application LLA No. V-7872 over said claims. Further, the adverse claimant prayed for such other reliefs and remedies available in the premises. This adverse claim was docketed in the Bureau of Mines as Mines Administrative Case No. V-404, and on appeal to the Department of Agriculture and Natural Resources as DANR Case No. 3502. Likewise, on the same date July 26, 1966, the same Sierra Madre Trust filed with the Bureau of Mines an Adverse Claim against LLA No. V-9028 of the J & S Partnership over six (6) lode mineral claims viz.: (1) A-19, (2) A-20, (3) A-24, (4) A-25, (5) A-29, and (6) A-30, all registered on March 30, 1965 and amended August 5, 1965, with the office of the Mining Recorder of Nueva Vizcaya, and situated in Sitio Gatid, Barrio of Abaca Municipality of Dupax, Province of Nueva Vizcaya. The adverse claim alleged that the aforementioned six (6) lode mineral claim covered by LLA No. V-9028, encroached and overlapped the thirteen (13) lode mineral claims of herein petitioner Sierra Madre Trust, viz.: (1) Wm-14, (2) F-14, (3) A-13, (4) H-12 (5) Jc-12, (6) W-12, (7) Jn-11, (8) Wm-11, (9) F-11, (10) Wm-11, (11) F-11; (12) H-9 and (13) Jc-9, all situated in Sitio Taduan, Barrio of Abaca Municipality of Dupax, Province of Nueva Vizcaya and duly registered with the office of the Mining Recorder at Bayombong, Nueva Vizcaya, on May 14,1965. The adverse claim prayed for an order or decision declaring the above- mentioned six (6) claims of respondent J & S Partnership, null void, and illegal; and denying lode lease application LLA No. V-9028 over the said claims. Further, the adverse claimant prayed for such other reliefs and remedies available in the premises. This adverse claim was docketed in the Bureau of Mines as Mines Administrative Case No. V-404, and on appeal to the Department of Agriculture and Natural Resources as DANR Case No. 3502A. These two (2) adverse claims, MAC Nos. V-403 and V-404 were jointly heard in the Bureau of Mines, and also jointly considered in the appeal in the Department of Agriculture and Natural Resources.

The dispositive portion of the decision rendered by the Director of Mines reads: IN VIEW OF THE FOREGOING, this Office believes and so holds that the respondents have the preferential right over their "Finland-2", "Finland- 3", "Finland-5", "Finland-6", "Finland-8", "Finland-9", "A-19", "A-20", "A-24", "A-25", "A-29" and "A-30" mining claims. Accordingly, the protests (adverse claims) filed by protestant Sierra Madre Trust should be, as hereby they are, DISMISSED. And that of the Secretary of Agriculture and Natural Resources reads: IN THE LIGHT OF ALL THE FOREGOING, the appeal interposed by the appellant, Sierra Madre Trust is hereby dismissed and the decision of the Director of Mines dated November 6, 1969, affirmed. " The adverse claims of Sierra Madre Trust against Jusan Trust Mining Company and J and S Partnership were based on the allegation that the lode lease applications (LLA) of the latter "encroached and overlapped" the former's mineral claims, However, acting on the adverse claims, the Director of Mines found that, "By sheer force of evidence, this Office is constrained to believe that there exists no conflict or overlapping between the protestant's and respondents' mining claims. " And this finding was affirmed by the Secretary of Agriculture and Natural Resources thus: "Anent the first allegation, this Office finds that the Director of Mines did not err when he found that the twelve (12) claims of respondents Jusan Trust Mining Company and J & S Partnership did not encroach and overlap the eighteen (18) lode mineral claims of the appellant Sierra Madre Trust. For this fact has been incotrovertibly proven by the records appertaining to the case." It should be noted that according to the Director of Mines in his decision, "during the intervening period from the 31st day after the discovery [by the respondents] to the date of location nobody else located the area covered thereby. ... the protestant [petitioner herein] did not establish any intervening right as it is our findings that their mining claims do not overlap respondents' mining claims." After the Secretary of Agriculture and Natural Resources had affirmed the factual findings of the Director of Mines to the effect that there was no overlapping of claims and which findings were final and conclusive, Sierra Madre Trust should have kept its peace for obviously it suffered no material injury and had no pecuniary interest to protect. But it was obstinate and raised this legal question before Us: "May there be a valid location of mining claims after the lapse of thirty (30) days from date of discovery, in contravention to the mandatory provision of Section 33 of the New Mining Law (Com. Act No. 137, as amended)?" It also raised ancillary questions. We see no reason why We have to answer the questions in this petition considering that there is no justiciable issue between the parties. The officers of the Executive Department tasked with administering the Mining Law have found that there is neither encroachment nor overlapping in respect of the claims involved. Accordingly, whatever may be the answers to the questions will not materially serve the interests of the petitioner. In closing it is useful to remind litigation prone individuals that the interpretation by officers of laws which are entrusted to their administration is entitled to great respect.' In his decision, the Secretary of Agriculture and Natural Resources said: "This Office is in conformity with the findings of the Director of Mines that the mining claims of the appellees were validly located, surveyed and registered." Finally, the petitioner also asks: "May an association and/or partnership registered with the Mining Recorder of a province, but not registered with the Securities and Exchange Commission, be vested with juridical personality to enable it to locate and then lease mining claims from the government?" Suffice it to state that this question was not raised before the Director of Mines and the Secretary of Agriculture and Natural Resources. There is also nothing in the record to indicate whether or not the appellees are registered with the Securities and Exchange Commission. For these reasons, even assuming that there is a justiciable issue between the parties, this question cannot be passed upon. WHEREFORE, the petition for review is hereby dismissed for lack of merit. Costs against the petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-34674 October 26, 1931

MAURICIO CRUZ, petitioner-appellant, vs. STANTON YOUNGBERG, Director of the Bureau of Animal Industry, respondent-appellee. Jose Yulo for appellant. Office of the Solicitor-General Reyes for appellee.

OSTRAND, J.: This is a petition brought originally before the Court of First Instance of Manila for the issuance of a writ of mandatory injunction against the respondent, Stanton Youngberg, as Director of the Bureau of Animal Industry, requiring him to issue a permit for the landing of ten large cattle imported

by the petitioner and for the slaughter thereof. The petitioner attacked the constitutionality of Act No. 3155, which at present prohibits the importation of cattle from foreign countries into the Philippine Islands. Among other things in the allegation of the petition, it is asserted that "Act No. 3155 of the Philippine Legislature was enacted for the sole purpose of preventing the introduction of cattle diseases into the Philippine Islands from foreign countries, as shown by an explanatory note and text of Senate Bill No. 328 as introduced in the Philippine Legislature, ... ." The Act in question reads as follows: SECTION 1. After March thirty-first, nineteen hundred and twenty-five existing contracts for the importation of cattle into this country to the contrary notwithstanding, it shall be strictly prohibited to import, bring or introduce into the Philippine Islands any cattle from foreign countries: Provided, however, That at any time after said date, the Governor-General, with the concurrence of the presiding officers of both Houses, may raise such prohibition entirely or in part if the conditions of the country make this advisable or if decease among foreign cattle has ceased to be a menace to the agriculture and live stock of the lands. SEC. 2. All acts or parts of acts inconsistent with this Act are hereby repealed. SEC. 3. This Act shall take effect on its approval. Approved, March 8, 1924. The respondent demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was based on two reasons, namely, (1) that if Act No. 3155 were declared unconstitutional and void, the petitioner would not be entitled to the relief demanded because Act No. 3052 would automatically become effective and would prohibit the respondent from giving the permit prayed for; and (2) that Act No. 3155 was constitutional and, therefore, valid. The court sustained the demurrer and the complaint was dismissed by reason of the failure of the petitioner to file another complaint. From that order of dismissal, the petitioner appealed to this court. The appellee contends that even if Act No. 3155 be declared unconstitutional by the fact alleged by the petitioner in his complaint, still the petitioner can not be allowed to import cattle from Australia for the reason that, while Act No. 3155 were declared unconstitutional, Act No. 3052 would automatically become effective. Act No. 3052 reads as follows: SECTION 1. Section seventeen hundred and sixty-two of Act Numbered Twenty-seven hundred and eleven, known as the Administrative Code, is hereby amended to read as follows: "SEC. 1762. Bringing of animals imported from foreign countries into the Philippine Islands . It shall be unlawful for any person or corporation to import, bring or introduce live cattle into the Philippine Islands from any foreign country. The Director of Agriculture may, with the approval of the head of the department first had, authorize the importation, bringing or introduction of various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these Islands, and such as may be necessary for the improvement of the breed, not to exceed five hundred head per annum: Provided, however, That the Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine cattle for the manufacture of serum:Provided, further, That all live cattle from foreign countries the importation, bringing or introduction of which into the Islands is authorized by this Act, shall be submitted to regulations issued by the Director of Agriculture, with the approval of the head of the department, prior to authorizing its transfer to other provinces. "At the time of the approval of this Act, the Governor-General shall issue regulations and others to provide against a raising of the price of both fresh and refrigerated meat. The Governor-General also may, by executive order, suspend, this prohibition for a fixed period in case local conditions require it." SEC. 2. This Act shall take effect six months after approval. Approved, March 14, 1922. The petitioner does not present any allegations in regard to Act No. 3052 to show its nullity or unconstitutionality though it appears clearly that in the absence of Act No. 3155 the former act would make it impossible for the Director of the Bureau of Animal Industry to grant the petitioner a permit for the importation of the cattle without the approval of the head of the corresponding department. An unconstitutional statute can have no effect to repeal former laws or parts of laws by implication, since, being void, it is not inconsistent with such former laws. (I Lewis Sutherland, Statutory Construction 2nd ed., p. 458, citing McAllister vs. Hamlin, 83 Cal., 361; 23 Pac., 357; Orange Country vs. Harris, 97 Cal., 600; 32 Pac., 594; Carr vs. State, 127 Ind., 204; 11 L.R.A., 370, etc.) This court has several times declared that it will not pass upon the constitutionality of statutes unless it is necessary to do so (McGirr vs. Hamilton and Abreu, 30 Phil., 563, 568; Walter E. Olsen & Co. vs. Aldanese and Trinidad, 43 Phil., 259) but in this case it is not necessary to pass upon the validity of the statute attacked by the petitioner because even if it were declared unconstitutional, the petitioner would not be entitled to relief inasmuch as Act No. 3052 is not in issue. But aside from the provisions of Act No. 3052, we are of the opinion that Act No. 3155 is entirely valid. As shown in paragraph 8 of the amended petition, the Legislature passed Act No. 3155 to protect the cattle industry of the country and to prevent the introduction of cattle diseases through importation of foreign cattle. It is now generally recognized that the promotion of industries affecting the public welfare and the development of the resources of the country are objects within the scope of the police power (12 C.J., 927; 6 R.C.L., 203-206 and decisions cited therein; Reid vs. Colorado,

187 U.S., 137, 147, 152; Yeazel vs. Alexander, 58 Ill., 254). In this connection it is said in the case of Punzalan vs. Ferriols and Provincial Board of Batangas (19 Phil., 214), that the provisions of the Act of Congress of July 1, 1902, did not have the effect of denying to the Government of the Philippine Islands the right to the exercise of the sovereign police power in the promotion of the general welfare and the public interest. The facts recited in paragraph 8 of the amended petition shows that at the time the Act No. 3155 was promulgated there was reasonable necessity therefor and it cannot be said that the Legislature exceeded its power in passing the Act. That being so, it is not for this court to avoid or vacate the Act upon constitutional grounds nor will it assume to determine whether the measures are wise or the best that might have been adopted. (6 R.C.L., 243 and decisions cited therein.)1awphil.net In his third assignment of error the petitioner claims that "The lower court erred in not holding that the power given by Act No. 3155 to the Governor-General to suspend or not, at his discretion, the prohibition provided in the act constitutes an unlawful delegation of the legislative powers." We do not think that such is the case; as Judge Ranney of the Ohio Supreme Court in Cincinnati, Wilmington and Zanesville Railroad Co. vs. Commissioners of Clinton County (1 Ohio St., 77, 88) said in such case: The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. Under his fourth assignment of error the appellant argues that Act No. 3155 amends section 3 of the Tariff Law, but it will be noted that Act No. 3155 is not an absolute prohibition of the importation of cattle and it does not add any provision to section 3 of the Tariff Law. As stated in the brief of the Attorney-General: "It is a complete statute in itself. It does not make any reference to the Tariff Law. It does not permit the importation of articles, whose importation is prohibited by the Tariff Law. It is not a tariff measure but a quarantine measure, a statute adopted under the police power of the Philippine Government. It is at most a `supplement' or an `addition' to the Tariff Law. (See MacLeary vs. Babcock, 82 N.E., 453, 455; 169 Ind., 228 for distinction between `supplemental' and `amendatory' and O'Pry vs. U.S., 249 U.S., 323; 63 Law. ed., 626, for distinction between `addition' and `amendment.')" The decision appealed from is affirmed with the costs against the appellant. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Villamor, Romualdez, Villa-Real, and Imperial, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-34674 October 26, 1931

MAURICIO CRUZ, petitioner-appellant, vs. STANTON YOUNGBERG, Director of the Bureau of Animal Industry, respondent-appellee. Jose Yulo for appellant. Office of the Solicitor-General Reyes for appellee.

OSTRAND, J.: This is a petition brought originally before the Court of First Instance of Manila for the issuance of a writ of mandatory injunction against the respondent, Stanton Youngberg, as Director of the Bureau of Animal Industry, requiring him to issue a permit for the landing of ten large cattle imported by the petitioner and for the slaughter thereof. The petitioner attacked the constitutionality of Act No. 3155, which at present prohibits the importation of cattle from foreign countries into the Philippine Islands. Among other things in the allegation of the petition, it is asserted that "Act No. 3155 of the Philippine Legislature was enacted for the sole purpose of preventing the introduction of cattle diseases into the Philippine Islands from foreign countries, as shown by an explanatory note and text of Senate Bill No. 328 as introduced in the Philippine Legislature, ... ." The Act in question reads as follows: SECTION 1. After March thirty-first, nineteen hundred and twenty-five existing contracts for the importation of cattle into this country to the contrary notwithstanding, it shall be strictly prohibited to import, bring or introduce into the Philippine Islands any cattle from foreign countries: Provided, however, That at any time after said date, the Governor-General, with the concurrence of the presiding officers of both Houses, may raise such prohibition entirely or in part if the conditions of the country make this advisable or if decease among foreign cattle has ceased to be a menace to the agriculture and live stock of the lands. SEC. 2. All acts or parts of acts inconsistent with this Act are hereby repealed. SEC. 3. This Act shall take effect on its approval. Approved, March 8, 1924.

The respondent demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was based on two reasons, namely, (1) that if Act No. 3155 were declared unconstitutional and void, the petitioner would not be entitled to the relief demanded because Act No. 3052 would automatically become effective and would prohibit the respondent from giving the permit prayed for; and (2) that Act No. 3155 was constitutional and, therefore, valid. The court sustained the demurrer and the complaint was dismissed by reason of the failure of the petitioner to file another complaint. From that order of dismissal, the petitioner appealed to this court. The appellee contends that even if Act No. 3155 be declared unconstitutional by the fact alleged by the petitioner in his complaint, still the petitioner can not be allowed to import cattle from Australia for the reason that, while Act No. 3155 were declared unconstitutional, Act No. 3052 would automatically become effective. Act No. 3052 reads as follows: SECTION 1. Section seventeen hundred and sixty-two of Act Numbered Twenty-seven hundred and eleven, known as the Administrative Code, is hereby amended to read as follows: "SEC. 1762. Bringing of animals imported from foreign countries into the Philippine Islands. It shall be unlawful for any person or corporation to import, bring or introduce live cattle into the Philippine Islands from any foreign country. The Director of Agriculture may, with the approval of the head of the department first had, authorize the importation, bringing or introduction of various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these Islands, and such as may be necessary for the improvement of the breed, not to exceed five hundred head per annum: Provided, however, That the Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine cattle for the manufacture of serum:Provided, further, That all live cattle from foreign countries the importation, bringing or introduction of which into the Islands is authorized by this Act, shall be submitted to regulations issued by the Director of Agriculture, with the approval of the head of the department, prior to authorizing its transfer to other provinces. "At the time of the approval of this Act, the Governor-General shall issue regulations and others to provide against a raising of the price of both fresh and refrigerated meat. The Governor-General also may, by executive order, suspend, this prohibition for a fixed period in case local conditions require it." SEC. 2. This Act shall take effect six months after approval. Approved, March 14, 1922. The petitioner does not present any allegations in regard to Act No. 3052 to show its nullity or unconstitutionality though it appears clearly that in the absence of Act No. 3155 the former act would make it impossible for the Director of the Bureau of Animal Industry to grant the petitioner a permit for the importation of the cattle without the approval of the head of the corresponding department. An unconstitutional statute can have no effect to repeal former laws or parts of laws by implication, since, being void, it is not inconsistent with such former laws. (I Lewis Sutherland, Statutory Construction 2nd ed., p. 458, citing McAllister vs. Hamlin, 83 Cal., 361; 23 Pac., 357; Orange Country vs. Harris, 97 Cal., 600; 32 Pac., 594; Carr vs. State, 127 Ind., 204; 11 L.R.A., 370, etc.) This court has several times declared that it will not pass upon the constitutionality of statutes unless it is necessary to do so (McGirr vs. Hamilton and Abreu, 30 Phil., 563, 568; Walter E. Olsen & Co. vs. Aldanese and Trinidad, 43 Phil., 259) but in this case it is not necessary to pass upon the validity of the statute attacked by the petitioner because even if it were declared unconstitutional, the petitioner would not be entitled to relief inasmuch as Act No. 3052 is not in issue. But aside from the provisions of Act No. 3052, we are of the opinion that Act No. 3155 is entirely valid. As shown in paragraph 8 of the amended petition, the Legislature passed Act No. 3155 to protect the cattle industry of the country and to prevent the introduction of cattle diseases through importation of foreign cattle. It is now generally recognized that the promotion of industries affecting the public welfare and the development of the resources of the country are objects within the scope of the police power (12 C.J., 927; 6 R.C.L., 203-206 and decisions cited therein; Reid vs. Colorado, 187 U.S., 137, 147, 152; Yeazel vs. Alexander, 58 Ill., 254). In this connection it is said in the case of Punzalan vs. Ferriols and Provincial Board of Batangas (19 Phil., 214), that the provisions of the Act of Congress of July 1, 1902, did not have the effect of denying to the Government of the Philippine Islands the right to the exercise of the sovereign police power in the promotion of the general welfare and the public interest. The facts recited in paragraph 8 of the amended petition shows that at the time the Act No. 3155 was promulgated there was reasonable necessity therefor and it cannot be said that the Legislature exceeded its power in passing the Act. That being so, it is not for this court to avoid or vacate the Act upon constitutional grounds nor will it assume to determine whether the measures are wise or the best that might have been adopted. (6 R.C.L., 243 and decisions cited therein.)1awphil.net In his third assignment of error the petitioner claims that "The lower court erred in not holding that the power given by Act No. 3155 to the Governor-General to suspend or not, at his discretion, the prohibition provided in the act constitutes an unlawful delegation of the legislative powers." We do not think that such is the case; as Judge Ranney of the Ohio Supreme Court in Cincinnati, Wilmington and Zanesville Railroad Co. vs. Commissioners of Clinton County (1 Ohio St., 77, 88) said in such case: The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. Under his fourth assignment of error the appellant argues that Act No. 3155 amends section 3 of the Tariff Law, but it will be noted that Act No. 3155 is not an absolute prohibition of the importation of cattle and it does not add any provision to section 3 of the Tariff Law. As stated in the brief of the Attorney-General: "It is a complete statute in itself. It does not make any reference to the Tariff Law. It does not permit the importation of articles, whose

importation is prohibited by the Tariff Law. It is not a tariff measure but a quarantine measure, a statute adopted under the police power of the Philippine Government. It is at most a `supplement' or an `addition' to the Tariff Law. (See MacLeary vs. Babcock, 82 N.E., 453, 455; 169 Ind., 228 for distinction between `supplemental' and `amendatory' and O'Pry vs. U.S., 249 U.S., 323; 63 Law. ed., 626, for distinction between `addition' and `amendment.')" The decision appealed from is affirmed with the costs against the appellant. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Villamor, Romualdez, Villa-Real, and Imperial, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-46158 November 28, 1986 TAYUG RURAL BANK, plaintiff-appellee, vs. CENTRAL BANK OF THE PHILIPPINES, defendant-appellant. Bengzon, Bengzon, Villaroman & De Vera Law Office for plaintiff-appellee. Evangelista, Bautista & Valdehuesa Law Office for defendant-appellant.

PARAS, J.:p Submitted on May 20, 1977 for decision by this Court is this appeal from the decision dated January 6, 1971 rendered by the Court of First Instance of Manila, Branch III in Civil Case No. 76920, the decretal portion of which states as follows: WHEREFORE, judgment is rendered for the plaintiff on the complaint and the defendant is ordered to further credit the plaintiff the amounts collected as 10% penalty in the sum of P19,335.88 or up to July 15, 1969 and to refrain from collecting the said 10% penalty on the remaining past due loans of plaintiff with the defendant. With respect to defendant's counterclaim, judgment is hereby rendered against the plaintiff and the defendant is ordered to pay the Central Bank of the Philippines the outstanding balance of its past overdue accounts in the sum of P444,809,45 plus accrued interest at the rate of 1/2 of 1 % per annum with respect to the promissory notes (Annexes 1 to 1-E of defendant's Answer) and 21/2% per annum with respect to the promissory notes (Annexes 1-f to 1-i of the Answer). From this amount shall be deducted the sum of P19,335.88 collected as 10% penalty. The facts of the case based on the parties' stipulation of facts (Record on Appeal p. 67), are as follows: Plaintiff-Appellee, Tayug Rural Bank, Inc., is a banking corporation in Tayug, Pangasinan. During the period from December 28, 1962 to July 30, 1963, it obtained thirteen (13) loans from Defendant-Appellant, Central Bank of the Philippines, by way of rediscounting, at the rate of 1/2 of 1% per annum from 1962 to March 28, 1963 and thereafter at the rate of 2-1/2% per anum. The loans, amounting to P813,000.00 as of July 30, 1963, were all covered by corresponding promissory notes prescribing the terms and conditions of the aforesaid loans (Record on Appea, pp. 15-53). As of July 15, 1969, the outstanding balance was P 444,809.45 (Record on Appeal, p. 56). On December 23, 1964, Appellant, thru the Director of the Department of Loans and Credit, issued Memorandum Circular No. DLC-8, informing all rural banks that an additional penalty interest rate of ten per cent (10%) per annum would be assessed on all past due loans beginning January 4, 1965. Said Memorandum Circular was actually enforced on all rural banks effective July 4, 1965. On June 27, 1969, Appellee Rural Bank sued Appellant in the Court of First Instance of Manila, Branch III, to recover the 10% penalty imposed by Appellant amounting to P16,874.97, as of September 27, 1968 and to restrain Appellant from continuing the imposition of the penalty. Appellant filed a counterclaim for the outstanding balance and overdue accounts of Appellee in the total amount of P444,809.45 plus accrued interest and penalty at 10% per annum on the outstanding balance until full payment. (Record on Appeal, p. 13). Appellant justified the imposition of the penalty by way of affirmative and special defenses, stating that it was legally imposed under the provisions of Section 147 and 148 of the Rules and Regulations Governing Rural Banks promulgated by the Monetary Board on September 5, 1958, under authority of Section 3 of Republic Act No. 720, as amended (Record on Appeal, p. 8, Affirmative and Special Defenses Nos. 2 and 3). In its answer to the counterclaim, Appellee prayed for the dismissal of the counterclaim, denying Appellant's allegations stating that if Appellee has any unpaid obligations with Appellant, it was due to the latter's fault on account of its flexible and double standard policy in the granting of rediscounting privileges to Appellee and its subsequent arbitrary and illegal imposition of the 10% penalty (Record on Appeal, p. 57). In its Memorandum filed on November 11, 1970, Appellee also asserts that Appellant had no basis to impose the penalty interest inasmuch as the promissory notes covering the loans executed by Appellee in favor of Appellants do not provide for penalty interest rate of 10% per annum on just due loans beginning January 4, 1965 (Record on Appeal p. 96). The lower court, in its Order dated March 3, 1970, stated that "only a legal question has been raised in the pleadings" and upholding the stand of plaintiff Rural Bank, decided the case in its favor. (Rollo, p. 34). Appellant appealed the decision of the trial court to the Court of Appeals, for determination of questions of facts and of law. However, in its decision promulgated April 13, 1977, the Court of Appeals, finding no controverted facts and taking note of the statement of the lower court in its pre-trial Order dated March 3, 1970 that only a legal question has been raised in the pleadings, (Record on Appeal, p. 61), ruled that the resolution of the appeal will solely depend on the legal issue of whether or not the Monetary Board had authority to authorize Appellant Central Bank to impose a penalty rate of 10% per annum on past due loans of rural banks which had failed to pay their accounts on time and ordered the certification of this case to this Court for proper determination (Rollo, pp. 34-35).

On April 20, 1977, the entire record of the case was forwarded to this Court (Rollo, p. 36). In the resolution of May 20, 1977, the First Division of this Court, ordered the case docketed and as already stated declared the same submitted for decision (Rollo, p. 38). In its Brief, Appellant assigns the following errors: I. THE LOWER COURT ERRED IN HOLDING THAT IT IS BEYOND THE REACH OF THE MONETARY BOARD TO METE OUT PENALTIES ON PAST DUE LOANS OF RURAL BANKS ESPECIALLY SINCE NO PENAL CLAUSE HAS BEEN INCLUDED IN THE PROMISSORY NOTES. II. THE LOWER COURT ERRED IN HOLDING THAT THE IMPOSITION OF THE PENALTY IS AN IMPAIRMENT OF THE OBLIGATION OF CONTRACT WITHOUT DUE PROCESS. III. THE LOWER COURT ERRED IN NOT FINDING JUDGMENT AGAINST PLAINTIFF FOR 10% COST OF COLLECTION OF THE PROMISSORY NOTE AS PROVIDED THEREIN. It is undisputed that no penal clause has been included in the promissory notes. For this reason, the trial court is of the view that Memorandum Circular DLC-8 issued on December 23, 1964 prescribing retroactive effect on all past due loans, impairs the obligation of contract and deprives the plaintiff of its property without due process of law. (Record on Appel, p. 40). On the other hand appellant without opposing appellee's right against impairment of contracts, contends that when the promissory notes were signed by appellee, it was chargeable with knowledge of Sections 147 and 148 of the rules and regulations authorizing the Central Bank to impose additional reasonable penalties, which became part of the agreement. (ibid). Accordingly, the issue is reduced to the sole question as to whether or not the Central Bank can validly impose the 10% penalty on Appellee's past overdue loans beginning July 4, 1965, by virtue of Memorandum Circular No. DLC-8 dated December 23, 1964. The answer is in the negative. Memorandum Circular No. DLC-8 issued by the Director of Appellant's Department of Loans and Credit on December 23, 1964, reads as follows: Pursuant to Monetary Board Resolution No. 1813 dated December 18, 1964, and in consonance with Section 147 and 148 of the Rules and Regulations Governing Rural Banks concerning the responsibility of a rural bank to remit immediately to the Central Bank payments received on papers rediscounted with the latter including the loan value of rediscounted papers as they mature, and to liquidate fully its maturing loan obligations with the Central Bank, personal checks, for purposes of repayment, shall considered only after such personal checks shall have been honored at clearing. In addition, rural banks which shall default in their loan obligations, thus incurring past due accounts with the Central Bank, shall be assessed an additional penalty interest rate of ten per cent (10%) per annum on such past due accounts with the Central Bank over and above the customary interest rate(s) at which such loans were originally secured from the Central Bank. (Record on Appeal, p. 135). The above-quoted Memorandum Circular was issued on the basis of Sections 147 and 148 of the Rules and Regulations Governing Rural Banks of the Philippines approved on September 5, 1958, which provide: Section 147. Duty of Rural Bank to turn over payment received for papers discounted or used for collateral. A Rural Bank receiving any payment on account of papers discounted or used for collateral must turn the same over to the creditor bank before the close of the banking day next following the receipt of payment, as long as the aggregate discounting on loan amount is not fully paid, unless the Rural Bank substitutes the same with another eligible paper with at least the same or earlier maturity and the same or greater value. A Rural Bank failing to comply with the provisions of the preceding paragraph shall ipso facto lose its right to the rediscounting or loan period, without prejudice to the Central Bank imposing additional reasonable penalties, including curtailment or withdrawal of financial assistance. Sec. 148. Default and other violations of obligation by Rural Bank, effect. A Rural Bank becomes in default upon the expiration of the maturity period of its note, or that of the papers discounted or used as collateral, without the necessity of demand. A Rural Bank incurring default, or in any other manner, violating any of the stipulations in its note, shall suffer the consequences provided in the second paragraph of the preceding section. (Record on Appeal, p. 136.) The "Rules and Regulations Governing Rural Banks" was published in the Official Gazette, 55 O.G., on June 13, 1959, pp. 5186-5289. It is by virtue of these same Rules that Rural Banks re-discount their loan papers with the Central Bank at 2-1/2% interest per annum and in turn lend the money to the public at 12% interest per annum (Defendant's Reply to Plaintiff's Memorandum, Record on Appeal, p. 130). Appellant maintains that it is pursuant to Section 3 of R.A. No. 720, as amended, that the Monetary Board has adopted the set of Rules and Regulations Governing Rural Banks. It reads:

SEC. 3. In furtherance of this policy, the Monetary Board of the Central Bank of the Philippines shall formulate the necessary rules and regulations governing the establishment and operatives of Rural Banks for the purpose of providing adequate credit facilities to small farmers and merchants, or to cooperatives of such farmers or merchants and to supervise the operation of such banks. The specific provision under the law claimed as basis for Sections 147 and 148 of the Rules and Regulations Governing Rural Banks, that is, on Appellant's authority to extend loans to Rural Banks by way of rediscounting is Section 13 of R.A. 720, as amended, which provides: SEC. 13. In an emergency or when a financial crisis is imminent the Central Bank may give a loan to any Rural Bank against assets of the Rural Bank which may be considered acceptable by a concurrent vote of at least, five members of the Monetary Board. In normal times, the Central Bank may re-discount against papers evidencing a loan granted by a Rural Bank to any of its customers which can be liquefied within a period of two hundred and seventy days: PROVIDED, HOWEVER, That for the purpose of implementing a nationwide program of agricultural and industrial development, Rural Banks are hereby authorized under such terms and conditions as the Central Bank shall prescribe to borrow on a medium or long term basis, funds that the Central Bank or any other government financing institutions shall borrow from the International Bank for Reconstruction and Development or other international or foreign lending institutions for the specific purpose of financing the above stated agricultural and industrial program. Repayment of loans obtained by the Central Bank of the Philippines or any other government financing institution from said foreign lending institutions under this section shall be guaranteed by the Republic of the Philippines. As to the supervising authority of the Monetary Board of the Central Bank over Rural Banks, the same is spelled-out under Section 10 of R.A. 720, as follows: SEC. 10. The power to supervise the operation of any Rural Bank by the Monetary Board of the Central Bank as herein indicated, shall consist in placing limits to the maximum credit allowed any individual borrower; in prescribing the interest rate; in determining the loan period and loan procedure; in indicating the manner in which technical assistance shall be extended to Rural Banks; in imposing a uniform accounting system and manner of keeping the accounts and records of the Rural Banks; in undertaking regular credit examination of the Rural Banks: in instituting periodic surveys of loan and lending procedures, audits, test check of cash and other transactions of the Rural Banks; in conducting training courses for personnel of Rural Banks; and, in general in supervising the business operation of the Rural Banks. Nowhere in any of the above-quoted pertinent provisions of R.A. 720 nor in any other provision of R.A. 720 for that matter, is the monetary Board authorized to mete out on rural banks an additional penalty rate on their past due accounts with Appellant. As correctly stated by the trial court, while the Monetary Board possesses broad supervisory powers, nonetheless, the retroactive imposition of administrative penalties cannot be taken as a measure supervisory in character. (Record on Appeal, p. 141). Administrative rules and regulations have the force and effect of law (Valerio v. Hon. Secretary of Agriculture and Natural Resources, 7 SCRA 719; Commissioner of Civil Service v. Cruz, 15 SCRA 638; R.B. Industrial Development Company, Ltd. v. Enage, 24 SCRA 365; Director of Forestry v. Munoz, 23 SCRA 1183; Gonzalo Sy v. Central Bank of the Philippines, 70 SCRA 570). There are, however, limitations to the rule-making power of administrative agencies. A rule shaped out by jurisprudence is that when Congress authorizes promulgation of administrative rules and regulations to implement given legislation, all that is required is that the regulation be not in contradiction with it, but conform to the standards that the law prescribes (Director of Forestry v. Munoz, 23 SCRA 1183). The rule delineating the extent of the binding force to be given to administrative rules and regulations was explained by the Court in Teoxon v. Member of the Board of Administrators (33 SCRA 588), thus: "The recognition of the power of administrative officials to promulgate rules in the implementation of the statute, as necessarily limited to what is provided for in the legislative enactment, may be found as early as 1908 in the case of United States v. Barrias (11 Phil. 327) in 1914 U.S. v. Tupasi Molina (29 Phil. 119), in 1936 People v. Santos (63 Phil. 300), in 1951 Chinese Flour Importers Ass. v. Price Stabilization Board (89 Phil. 439), and in 1962 Victorias Milling Co., Inc. v. Social Security Commission (4 SCRA 627). The Court held in the same case that "A rule is binding on the courts so long as the procedure fixed for its promulgation is followed and its scope is within the statute granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom ...." On the other hand, "administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means." Indeed, it cannot be otherwise as the Constitution limits the authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser administrative, executive office, or agency then can, contrary to the express language of the Constitution, assert for itself a more extensive prerogative. Necessarily, it is bound to observe the constitutional mandate. There must be strict compliance with the legislative enactment. The rule has prevailed over the years, the latest restatement of which was made by the Court in the case of Bautista v. Junio (L-50908, January 31, 1984, 127 SCRA 342). In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091). Rules that subvert the statute cannot be sanctioned (University of St. Tomas v. Board of Tax Appeals, 93 Phil. 376; Del Mar v. Phil. Veterans Administration, 51 SCRA 340). Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate in the statute relied upon a grant of power before he can exercise it. Department zeal may not be permitted to outrun the authority conferred by statute (Radio Communications of the Philippines, Inc. v. Santiago, L-29236, August 21, 1974, 58 SCRA 493). When promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, the rules and regulations partake of the nature of a statute, and compliance therewith may be enforced by a penal sanction provided in the law (Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555; People v. Maceren, L-32166, October 18, 1977, 79 SCRA 462; Daza v. Republic, L-43276, September 28, 1984, 132 SCRA 267). Conversely, the rule is likewise clear. Hence an administrative agency cannot impose a penalty not so provided in the law authorizing the promulgation of the rules and regulations, much less one that is applied retroactively. The records show that DLC Form No. 11 (Folder of Exhibits, p. 16) was revised December 23, 1964 to include the penal clause, as follows: In the event that this note becomes past due, the undersigned shall pay a penalty at the rate of _____ per cent ( ) per annum on such past due account over and above the interest rate at which such loan was originally secured from the Central Bank.

Such clause was not a part of the promissory notes executed by Appellee to secure its loans. Appellant inserted the clause in the revised DLC Form No. 11 to make it a part of the contractual obligation of rural banks securing loans from the Central Bank, after December 23, 1964. Thus, while there is now a basis for the imposition of the 10% penalty rate on overdue accounts of rural banks, there was none during the period that Appellee contracted its loans from Appellant, the last of which loan was on July 30, 1963. Surely, the rule cannot be given retroactive effect. Finally, on March 31, 1970, the Monetary Board in its Resolution No. 475 effective April 1, 1970, revoked its Resolution No. 1813, dated December 18, 1964 imposing the questioned 10% per annum penalty rate on past due loans of rural banks and amended sub-paragraph (a), Section 10 of the existing guidelines governing rural banks' applications for a loan or rediscount, dated May 7, 1969 (Folder of Exhibits, p. 19). As stated by the trial court, this move on the part of the Monetary Board clearly shows an admission that it has no power to impose the 10% penalty interest through its rules and regulations but only through the terms and conditions of the promissory notes executed by the borrowing rural banks. Appellant evidently hoped that the defect could be adequately accomplished by the revision of DLC Form No. 11. The contention that Appellant is entitled to the 10% cost of collection in case of suit and should therefore, have been awarded the same by the court below, is well taken. It is provided in all the promissory notes signed by Appellee that in case of suit for the collection of the amount of the note or any unpaid balance thereof, the Appellee Rural Bank shall pay the Central Bank of the Philippines a sum equivalent to ten (10%) per cent of the amount unpaid not in any case less than five hundred (P500.00) pesos as attorney's fees and costs of suit and collection. Thus, Appellee cannot be allowed to come to Court seeking redress for an wrong done against it and then be allowed to renege on its corresponding obligations. PREMISES CONSIDERED, the decision of the trial court is hereby AFFIRMED with modification that Appellee Rural Bank is ordered to pay a sum equivalent to 10% of the outstanding balance of its past overdue accounts, but not in any case less than P500.00 as attorney's fees and costs of suit and collection. SO ORDERED. Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-32166 October 18, 1977 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLO DEL ROSARIO, accused-appellees. Office of the Solicitor General for appellant. Rustics F. de los Reyes, Jr. for appellees.

AQUINO, J.:t.hqw This is a case involving the validity of a 1967 regulation, penalizing electro fishing in fresh water fisheries, promulgated by the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries under the old Fisheries Law and the law creating the Fisheries Commission. On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and Carlito del Rosario were charged by a Constabulary investigator in the municipal court of Sta. Cruz, Laguna with having violated Fisheries Administrative Order No. 84-1. It was alleged in the complaint that the five accused in the morning of March 1, 1969 resorted to electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by "using their own motor banca, equipped with motor; with a generator colored green with attached dynamo colored gray or somewhat white; and electrocuting device locally known as sensored with a somewhat webbed copper wire on the tip or other end of a bamboo pole with electric wire attachment which was attached to the dynamo direct and with the use of these devices or equipments catches fish thru electric current, which destroy any aquatic animals within its cuffed reach, to the detriment and prejudice of the populace" (Criminal Case No. 5429). Upon motion of the accused, the municipal court quashed the complaint. The prosecution appealed. The Court of First Instance of Laguna affirmed the order of dismissal (Civil Case No. SC-36). The case is now before this Court on appeal by the prosecution under Republic Act No. 5440. The lower court held that electro fishing cannot be penalize because electric current is not an obnoxious or poisonous substance as contemplated in section I I of the Fisheries Law and that it is not a substance at all but a form of energy conducted or transmitted by substances. The lower court further held that, since the law does not clearly prohibit electro fishing, the executive and judicial departments cannot consider it unlawful. As legal background, it should be stated that section 11 of the Fisheries Law prohibits "the use of any obnoxious or poisonous substance" in fishing. Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance in fishing with a fine of not more than five hundred pesos nor more than five thousand, and by imprisonment for not less than six months nor more than five years. It is noteworthy that the Fisheries Law does not expressly punish .electro fishing." Notwithstanding the silence of the law, the Secretary of Agriculture and Natural Resources, upon the recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative Order No. 84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters. The order is quoted below: +.wph!1 SUBJECT: PROHIBITING ELECTRO FISHING IN ALL WATERS +.wph!1 OF THE PHILIPPINES. Pursuant to Section 4 of Act No. 4003, as amended, and Section 4 of R.A. No. 3512, the following rules and regulations regarding the prohibition of electro fishing in all waters of the Philippines are promulgated for the information and guidance of all concerned.+.wph!1 SECTION 1. Definition. Words and terms used in this Order 11 construed as follows: (a) Philippine waters or territorial waters of the Philippines' includes all waters of the Philippine Archipelago, as defined in the t between the United States and Spain, dated respectively the tenth of December, eighteen hundred ninety eight and the seventh of November, nineteen hundred. For the purpose of this order, rivers, lakes and other bodies of fresh waters are included. (b) Electro Fishing. Electro fishing is the catching of fish with the use of electric current. The equipment used are of many electrical devices which may be battery or generator-operated and from and available source of electric current. (c) 'Persons' includes firm, corporation, association, agent or employee.

(d) 'Fish' includes other aquatic products. SEC. 2. Prohibition. It shall be unlawful for any person to engage in electro fishing or to catch fish by the use of electric current in any portion of the Philippine waters except for research, educational and scientific purposes which must be covered by a permit issued by the Secretary of Agriculture and Natural Resources which shall be carried at all times. SEC. 3. Penalty. Any violation of the provisions of this Administrative Order shall subject the offender to a fine of not exceeding five hundred pesos (P500.00) or imprisonment of not extending six (6) months or both at the discretion of the Court. SEC. 4. Repealing Provisions. All administrative orders or parts thereof inconsistent with the provisions of this Administrative Order are hereby revoked. SEC. 5. Effectivity. This Administrative Order shall take effect six (60) days after its publication in the Office Gazette. On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation of the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section 2 of Administrative Order No. 84, by restricting the ban against electro fishing to fresh water fisheries (63 O.G. 9963). Thus, the phrase "in any portion of the Philippine waters" found in section 2, was changed by the amendatory order to read as follows: "in fresh water fisheries in the Philippines, such as rivers, lakes, swamps, dams, irrigation canals and other bodies of fresh water." The Court of First Instance and the prosecution (p. 11 of brief) assumed that electro fishing is punishable under section 83 of the Fisheries Law (not under section 76 thereof), which provides that any other violation of that law "or of any rules and regulations promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos (P200), or in t for not more than six months, or both, in the discretion of the court." That assumption is incorrect because 3 of the aforequoted Administrative Order No. 84 imposes a fm of not exceeding P500 on a person engaged in electro fishing, which amount the 83. It seems that the Department of Fisheries prescribed their own penalty for swift fishing which penalty is less than the severe penalty imposed in section 76 and which is not Identified to the at penalty imposed in section 83. Had Administrative Order No. 84 adopted the fighter penalty prescribed in on 83, then the crime of electro fishing would be within the exclusive original jurisdiction of the inferior court (Sec. 44 [f], Judiciary Law; People vs. Ragasi, L-28663, September 22, We have discussed this pre point, not raised in the briefs, because it is obvious that the crime of electro fishing which is punishable with a sum up to P500, falls within the concurrent original jurisdiction of the inferior courts and the Court of First instance (People vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531 and the cases cited therein). And since the instant case was filed in the municipal court of Sta. Cruz, Laguna, a provincial capital, the order of d rendered by that municipal court was directly appealable to the Court, not to the Court of First Instance of Laguna (Sec. 45 and last par. of section 87 of the Judiciary Law; Esperat vs. Avila, L-25992, June 30, 1967, 20 SCRA 596). It results that the Court of First Instance of Laguna had no appellate jurisdiction over the case. Its order affirming the municipal court's order of dismissal is void for lack of motion. This appeal shall be treated as a direct appeal from the municipal court to this Court. (See People vs. Del Rosario, 97 Phil. 67). In this appeal, the prosecution argues that Administrative Orders Nos. 84 and 84-1 were not issued under section 11 of the Fisheries Law which, as indicated above, punishes fishing by means of an obnoxious or poisonous substance. This contention is not well-taken because, as already stated, the Penal provision of Administrative Order No. 84 implies that electro fishing is penalized as a form of fishing by means of an obnoxious or poisonous substance under section 11. The prosecution cites as the legal sanctions for the prohibition against electro fishing in fresh water fisheries (1) the rule-making power of the Department Secretary under section 4 of the Fisheries Law; (2) the function of the Commissioner of Fisheries to enforce the provisions of the Fisheries Law and the regulations Promulgated thereunder and to execute the rules and regulations consistent with the purpose for the creation of the Fisheries Commission and for the development of fisheries (Sec. 4[c] and [h] Republic Act No. 3512; (3) the declared national policy to encourage, Promote and conserve our fishing resources (Sec. 1, Republic Act No. 3512), and (4) section 83 of the Fisheries Law which provides that "any other violation of" the Fisheries Law or of any rules and regulations promulgated thereunder "shall subject the offender to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the court." As already pointed out above, the prosecution's reference to section 83 is out of place because the penalty for electro fishing under Administrative order No. 84 is not the same as the penalty fixed in section 83. We are of the opinion that the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders Nos. 84 and 84-1 and that those orders are not warranted under the Fisheries Commission, Republic Act No. 3512. The reason is that the Fisheries Law does not expressly prohibit electro fishing. As electro fishing is not banned under that law, the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries are powerless to penalize it. In other words, Administrative Orders Nos. 84 and 84-1, in penalizing electro fishing, are devoid of any legal basis. Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could have been easily embodied in the old Fisheries Law.

That law punishes (1) the use of obnoxious or poisonous substance, or explosive in fishing; (2) unlawful fishing in deepsea fisheries; (3) unlawful taking of marine molusca, (4) illegal taking of sponges; (5) failure of licensed fishermen to report the kind and quantity of fish caught, and (6) other violations. Nowhere in that law is electro fishing specifically punished. Administrative Order No. 84, in punishing electro fishing, does not contemplate that such an offense fails within the category of "other violations" because, as already shown, the penalty for electro fishing is the penalty next lower to the penalty for fishing with the use of obnoxious or poisonous substances, fixed in section 76, and is not the same as the penalty for "other violations" of the law and regulations fixed in section 83 of the Fisheries Law. The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute an offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. (People vs. Exconde 101 Phil. 11 25, citing 11 Am. Jur. 965 on p. 11 32). Originally, Administrative Order No. 84 punished electro fishing in all waters. Later, the ban against electro fishing was confined to fresh water fisheries. The amendment created the impression that electro fishing is not condemnable per se. It could be tolerated in marine waters. That circumstances strengthens the view that the old law does not eschew all forms of electro fishing. However, at present, there is no more doubt that electro fishing is punishable under the Fisheries Law and that it cannot be penalized merely by executive revolution because Presidential Decree No. 704, which is a revision and consolidation of all laws and decrees affecting fishing and fisheries and which was promulgated on May 16, 1975 (71 O.G. 4269), expressly punishes electro fishing in fresh water and salt water areas. That decree provides: +.wph!1 SEC. 33. Illegal fishing, dealing in illegally caught fish or fishery/aquatic products . It shall he unlawful for any person to catch, take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (1), (m) and (d), respectively, of Section 3 hereof: ... The decree Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos. 43, 534 and 553, and all , Acts, Executive Orders, rules and regulations or parts thereof inconsistent with it (Sec. 49, P. D. No. 704). The inclusion in that decree of provisions defining and penalizing electro fishing is a clear recognition of the deficiency or silence on that point of the old Fisheries Law. It is an admission that a mere executive regulation is not legally adequate to penalize electro fishing. Note that the definition of electro fishing, which is found in section 1 (c) of Fisheries Administrative Order No. 84 and which is not provided for the old Fisheries Law, is now found in section 3(d) of the decree. Note further that the decree penalty electro fishing by "imprisonment from two (2) to four (4) years", a punishment which is more severe than the penalty of a time of not excluding P500 or imprisonment of not more than six months or both fixed in section 3 of Fisheries Administrative Order No. 84. An examination of the rule-making power of executive officials and administrative agencies and, in particular, of the Secretary of Agriculture and Natural Resources (now Secretary of Natural Resources) under the Fisheries Law sustains the view that he ex his authority in penalizing electro fishing by means of an administrative order. Administrative agent are clothed with rule-making powers because the lawmaking body finds it impracticable, if not impossible, to anticipate and provide for the multifarious and complex situations that may be encountered in enforcing the law. All that is required is that the regulation should be germane to the defects and purposes of the law and that it should conform to the standards that the law prescribes (People vs. Exconde 101 Phil. 1125; Director of Forestry vs. Mu;oz, L-24796, June 28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706, 712). The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute (U.S. vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs. Grimaud 220 U.S. 506; Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6). The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the nondeleption of legislative, powers. Administrative regulations or "subordinate legislation calculated to promote the public interest are necessary because of "the growing complexity of modem life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law" Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osme;a, 68 Phil. 328). Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. (U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the d of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350). The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it his been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax A 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see of Internal Revenue vs. Villaflor 69 Phil. 319, Wise & Co. vs. Meer, 78 Phil. 655, 676; Del March vs. Phil. Veterans Administrative, L-27299, June 27, 1973, 51 SCRA 340, 349). There is no question that the Secretary of Agriculture and Natural Resources has rule-making powers. Section 4 of the Fisheries law provides that the Secretary "shall from time to time issue instructions, orders, and regulations consistent" with that law, "as may be and proper to carry into effect the

provisions thereof." That power is now vested in the Secretary of Natural Resources by on 7 of the Revised Fisheries law, Presidential December No. 704. Section 4(h) of Republic Act No. 3512 empower the Co of Fisheries "to prepare and execute upon the approval of the Secretary of Agriculture and Natural Resources, forms instructions, rules and regulations consistent with the purpose" of that enactment "and for the development of fisheries." Section 79(B) of the Revised Administrative Code provides that "the Department Head shall have the power to promulgate, whenever he may see fit do so, all rules, regulates, orders, memorandums, and other instructions, not contrary to law, to regulate the proper working and harmonious and efficient administration of each and all of the offices and dependencies of his Department, and for the strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said Department; but none of said rules or orders shall prescribe penalties for the violation thereof, except as expressly authorized by law." Administrative regulations issued by a Department Head in conformity with law have the force of law (Valerie vs. Secretary of culture and Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc. vs. Zayco, L- 20051, May 30, 1966, 17 SCRA 316). As he exercises the rule-making power by delegation of the lawmaking body, it is a requisite that he should not transcend the bound demarcated by the statute for the exercise of that power; otherwise, he would be improperly exercising legislative power in his own right and not as a surrogate of the lawmaking body. Article 7 of the Civil Code embodies the basic principle that administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution." As noted by Justice Fernando, "except for constitutional officials who can trace their competence to act to the fundamental law itself, a public office must be in the statute relied upon a grant of power before he can exercise it." "department zeal may not be permitted to outrun the authority conferred by statute." (Radio Communications of the Philippines, Inc. vs. Santiago, L-29236, August 21, 1974, 58 SCRA 493, 496-8). "Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute, and compliance therewith may be enforced by a penal sanction provided in the law. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are oftentimes left to the administrative agency entrusted with its enforcement. In this sense, it has been said that rules and regulations are the product of a delegated power to create new or additional legal provisions that have the effect of law." The rule or regulation should be within the scope of the statutory authority granted by the legislature to the administrative agency. (Davis, Administrative Law, p. 194, 197, cited in Victories Milling Co., Inc. vs. Social Security Commission, 114 Phil. 555, 558). In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People vs. Lim, 108 Phil. 1091). This Court in its decision in the Lim case, supra, promulgated on July 26, 1960, called the attention of technical men in the executive departments, who draft rules and regulations, to the importance and necessity of closely following the legal provisions which they intend to implement so as to avoid any possible misunderstanding or confusion. The rule is that the violation of a regulation prescribed by an executive officer of the government in conformity with and based upon a statute authorizing such regulation constitutes an offense and renders the offender liable to punishment in accordance with the provisions of the law (U.S. vs. Tupasi Molina, 29 Phil. 119, 124). In other words, a violation or infringement of a rule or regulation validly issued can constitute a crime punishable as provided in the authorizing statute and by virtue of the latter (People vs. Exconde 101 Phil. 1125, 1132). It has been held that "to declare what shall constitute a crime and how it shall be punished is a power vested exclusively in the legislature, and it may not be delegated to any other body or agency" (1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F. Supp. 527). In the instant case the regulation penalizing electro fishing is not strictly in accordance with the Fisheries Law, under which the regulation was issued, because the law itself does not expressly punish electro fishing. The instant case is similar to People vs. Santos, 63 Phil. 300. The Santos case involves section 28 of Fish and Game Administrative Order No. 2 issued by the Secretary of Agriculture and Natural Resources pursuant to the aforementioned section 4 of the Fisheries Law. Section 28 contains the proviso that a fishing boat not licensed under the Fisheries Law and under the said administrative order may fish within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military reservations authorities of the United States only upon receiving written permission therefor, which permission may be granted by the Secretary upon recommendation of the military or naval authorities concerned. A violation of the proviso may be proceeded against under section 45 of the Federal Penal Code. Augusto A. Santos was prosecuted under that provision in the Court of First Instance of Cavite for having caused his two fishing boats to fish, loiter and anchor without permission from the Secretary within three kilometers from the shoreline of Corrigidor Island. This Court held that the Fisheries Law does not prohibit boats not subject to license from fishing within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military authorities of the United States, without permission from the Secretary of Agriculture and Natural Resources upon recommendation of the military and naval authorities concerned. As the said law does not penalize the act mentioned in section 28 of the administrative order, the promulgation of that provision by the Secretary "is equivalent to legislating on the matter, a power which has not been and cannot be delegated to him, it being expressly reserved" to the lawmaking body.

"Such an act constitutes not only an excess of the regulatory power conferred upon the Secretary but also an exercise of a legislative power which he does not have, and therefore" the said provision "is null and void and without effect". Hence, the charge against Santos was dismiss. A penal statute is strictly construed. While an administrative agency has the right to make ranks and regulations to carry into effect a law already enacted, that power should not be confused with the power to enact a criminal statute. An administrative agency can have only the administrative or policing powers expressly or by necessary implication conferred upon it. (Glustrom vs. State, 206 Ga. 734, 58 Second 2d 534; See 2 Am. Jr. 2nd 129130). Where the legislature has delegated to executive or administrative officers and boards authority to promulgate rules to carry out an express legislative purpose, the rules of administrative officers and boards, which have the effect of extending, or which conflict with the authority granting statute, do not represent a valid precise of the rule-making power but constitute an attempt by an administrative body to legislate (State vs. Miles, Wash. 2nd 322, 105 Pac. 2nd 51). In a prosecution for a violation of an administrative order, it must clearly appear that the order is one which falls within the scope of the authority conferred upon the administrative body, and the order will be scrutinized with special care. (State vs. Miles supra). The Miles case involved a statute which authorized the State Game Commission "to adopt, promulgate, amend and/or repeal, and enforce reasonable rules and regulations governing and/or prohibiting the taking of the various classes of game. Under that statute, the Game Commission promulgated a rule that "it shall be unlawful to offer, pay or receive any reward, prize or compensation for the hunting, pursuing, taking, killing or displaying of any game animal, game bird or game fish or any part thereof." Beryl S. Miles, the owner of a sporting goods store, regularly offered a ten-down cash prize to the person displaying the largest deer in his store during the open for hunting such game animals. For that act, he was charged with a violation of the rule Promulgated by the State Game Commission. It was held that there was no statute penalizing the display of game. What the statute penalized was the taking of game. If the lawmaking body desired to prohibit the display of game, it could have readily said so. It was not lawful for the administrative board to extend or modify the statute. Hence, the indictment against Miles was quashed. The Miles case is similar to this case. WHEREFORE, the lower court's decision of June 9, 1970 is set aside for lack of appellate jurisdiction and the order of dismissal rendered by the municipal court of Sta. Cruz, Laguna in Criminal Case No. 5429 is affirmed. Costs de oficio. SO ORDERED. Barredo, Concepcion, Jr., Santos and Guerrero, JJ., concur.1wph1.t Fernando and Antonio, JJ., took no part. Guerrero, J., was designated to sit in the Second Division.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-50908 January 31, 1984 MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA, petitioners, vs. ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V. RAMOS, respondents. Mary Concepcion Bautista for and in his own behalf. The Solicitor General for respondents.

FERNANDO, C.J.: The validity of an energy conservation measure, Letter of Instruction No. 869, issued on May 31, 1979 the response to the protracted oil crisis that dates back to 1974 is put in issue in this prohibition proceeding filed by petitioners, spouses Mary Concepcion Bautista and Enrique D. Bautista, for being allegedly violative of the due process and equal protection guarantees 1 of the Constitution. The use of private motor vehicles with H and EH plates on week-ends and holidays was banned from "[12:00] a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday." 2 Motor vehicles of the following classifications are exempted: (a) S (Service); (b) T (Truck); (e) DPL (Diplomatic); (d) CC (Consular Corps); (e) TC (Tourist Cars). 3 Pursuant thereto, respondent Alfredo L. Juinio, then Minister of Public Works, Transportation and Communications and respondent Romeo P. Edu, then Commissioner of Land Transportation Commission issued on June 11, 1979, Memorandum Circular No. 39, which imposed "the penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified vehicles" found violating such Letter of Instruction. 4It was then alleged by petitioners that "while the purpose for the issuance of the LOI 869 is laudable, to wit, energy conservation, the provision banning the use of H and EH [vehicles] is unfair, discriminatory, [amounting to an] arbitrary classification" and thus in contravention of the equal protection clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process, more specifically, "of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions and outings on week-ends and holidays," inviting attention to the fact that others not included in the ban enjoying "unrestricted freedom." 6 It would follow, so they contend that Memorandum Circular No. 39 imposing penalties of fine, confiscation of the vehicle and cancellation of license is likewise unconstitutional, for being violative of the doctrine of "undue delegation of legislative power." 7 It is to be noted that such Memorandum Circular does not impose the penalty of confiscation but merely that of impounding, fine, and for the third offense that of cancellation of certificate of registration and for the rest of the year or for ninety days whichever is longer. This Court gave due course to the petition requiring respondent to answer. There was admission of the facts as substantially alleged except, as previously noted, that the ban starts at 12:00 a.m. rather than 1:00 a.m. of a Saturday or of a holiday and as to the mention of a Willy's Kaiser jeep being registered in the name of a certain Teresita Urbina, about which respondents had no knowledge. There was a denial of the allegations that the classification of vehicles into heavy H and extra heavy (EH) on the other hand and light and bantam on the other hand was violative of equal protection and the regulation as to the use of the former cars on the dates specified a transgression of due process. The answer likewise denied that there was an undue delegation of legislative power, reference being made to the Land Transportation and Traffic Code. 8 There was also a procedural objection raised, namely, that what is sought amounts at most to an advisory opinion rather than an ajudication of a case or controversy. Petitioners filed a motion to be allowed to reply to the answer. It was granted. The reply, considering its exhaustive character serving as its memorandum, stressed anew what it emphasized as the arbitrary, unreasonable, and oppressive aspects of the challenged Letter of Instruction and Memorandum Circular No. 39. It disputed what it characterized as an "erroneous and arbitrary presumption that heavy car owners unnecessarily use and therefore waste gasoline whenever they drive their cars on week-ends and holidays;" 9 it stigmatized the ban as defeating its "avowed purpose in the case of the affluent who own not only heavy limousines but also many small cars [as] they may be compelled to use at least two small cars;" 10 referred to the high cost of taxis or other public transports for those "not able to afford expensive small cars [possibly] only one heavy and possible old model;" 11 cited the case of "many eight cylinder vehicles which because of their weight have been registered as light but in fact consume more or as much gasoline as the banned vehicles." 12 Their conclusion is that "the ban imposed, in result and effect is class legislation." 13 The parties were required to submit memoranda. Respondents did so but not petitioners. They relied on their reply to the answer as noted, a rather comprehensive pleading. For reasons to be set forth, this Court holds that the petition cannot prosper. 1. First as to the procedural objection. In the memorandum for respondents, one of the issues raised was whether "the power of judicial review may be invoked considering the inadequacy of the record and the highly abstract and academic questions raised by the petitioners." 14 It is inaccurate to say that the record is inadequate. It does not admit of doubt that the ban applies to petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To that extent, therefore, the enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would be a valid exercise of a property right. Thus they fall squarely within "the unchallenged rule" as to who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading case of People v. Vera, 16"that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result of its enforcement. 17 Moreover, that rule has been considerably relaxed. 18 The question then is neither abstract nor academic as contended by respondents. 2. There is, however, this formidable obstacle that confronts petitioners. What they seek is for this Court to hold that a Letter of Instruction, a regulatory measure precisely enacted to cope with the serious and grave problem of energy conservation, is void on its face. Such a task is rendered unusually difficult by what has been referred to by Justice Laurel in the leading case of Angara v. Electoral Commission 19 as the "presumption of constitutionality"

and by the same jurist in the case of People v. Vera 20 in slightly different words "a presumption that such an act falls within constitutional limitations." There is need then for a factual foundation of invalidity. In the language ofErmita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co., where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: 'The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.' "21 3. It is true, of course, that there may be instances where a police power measure may, because of its arbitrary, oppressive or unjust character, be held offensive to the due process clause and, therefore, may, when challenged in an appropriate legal proceeding, be declared void on its face. This is not one of them. A recital of the whereas clauses of the Letter of Instruction makes it clear. Thus: "[Whereas], developments in the international petroleum supply situation continue to follow a trend of limited production and spiralling prices thereby precluding the possibility of immediate relief in supplies within the foreseeable future; [Whereas], the uncertainty of fuel supply availability underscores a compelling need for the adoption of positive measures designed to insure the viability of the country's economy and sustain its developmental growth; [Whereas], to cushion the effect of increasing oil prices and avoid fuel supply disruptions, it is imperative to adopt a program directed towards the judicious use of our energy resources complemented with intensified conservation efforts and efficient utilization thereof; * * *." 22That is undeniable is that the action taken is an appropriate response to a problem that presses urgently for solution. It may not be the only alternative, but its reasonableness is immediately apparent. Thus, to repeat, substantive due process, which is the epitome of reasonableness and fair play, is not ignored, much less infringed. 4. In the interplay between such a fundamental right and police power, especially so where the assailed governmental action deals with the use of one's property, the latter is accorded much leeway. That is settled law. What is more, it is good law. Due process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate Hotel decision: "To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does 'to all the great public needs.' It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the general welfare. Negatively put, police power is 'that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.' " 23 5. The due process question having been disposed of, there is still the objection based on the equal protection clause to be considered. A governmental act may not be offensive to the due process clause, but may run counter to such a guarantee. Such is the case when there is no rational basis for the classification followed. That is the point raised by petitioners. For them, there is no rational justification for the ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for precisely those owned by them fall within such category. Tested by the applicable standard that must be satisfied to avoid the charge of a denial of equal protection, the objection of petitioners is shown to be lacking in merit. Such a classification on its face cannot be characterized as an affront to reason. A legal norm according to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a rule, principle, or standard, constitutes a defense against anarchy at one extreme and tyranny at the other. Thereby, people living together in a community with its myriad and complex problems can minimize the friction and reduce the conflicts, to assure, at the very least, a peaceful ordering of existence. The Ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the Idea of law. The actual, given things as they are and likely to continue to be, cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into account the realties of the situation. * * * To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 25 6. Nor does it militate against the validity of the Letter of Instruction just because the ban imposed does not go as far as it could have and therefore could be less efficacious in character. That was the solution which for the President expressing a power validly lodged in him, recommended itself. There was a situation that called for a corrective measure. He decided that what was issued by him would do just that or, at the very least, help in easing the situation. That it did not cover other matters which could very well have been regulated does not call for a declaration of nullity. The President, to paraphrase Lutz v. Araneta, 26 "is not required by the Constitution to adhere to the policy of all or none." 27 It is quite obvious then that no equal protection question arises. 7. It may not be amiss to refer to a 1981 American Supreme Court decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent along with several other business corporations adversely affected involved in the manufacture and utilization of plastic milk containers filed suit in a Minnesota district court seeking to enjoin enforcement of a Minnesota statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After conducting extensive evidentiary hearings, the Minnesota court enjoined enforcement of the statute, finding that it violated among others the equal protection clause of the Fourteenth Amendment to the Federal Constitution. The Minnesota Supreme Court affirmed. On certiorari, the United States Supreme Court reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted that "proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy."29 That sufficed for the Court to conclude "that the ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause." 30 It does show that notwithstanding the "new equal protection approach" with its emphasis on "suspect classification" and "fundamental rights and interests standard," a concept so ably expounded by professor Gunther, the "rational relation test" 31 still retains its validity. Not that there could be any objection to the classification here followed as being in any way susceptible to such a pejorative expression as "suspect" or that the assailed Letter of Instruction does not qualify under "the fundamental rights and interests" standard 8. There was set forth in the petition what were referred to as "other reasonable measures which the authorities concerned with energy conservation can take immediately, which are in fact acceptable and obviously called for and should have been done long ago, to wit: 1. require and establish taxi stands equipped with efficient telephone and communication systems; 2. strict implementation and observance of cargo truck hours on main arteries; 3. strict observance of traffic rules; 4. effective solution of traffic problems and decongestion of traffic through rerouting and quick repair of roads and efficient operation of double decker buses; 5. rationing of gasoline to avoid panic buying and give the private car owner the option and responsibility of deciding

on the use of his allocation; 6. allow neon and electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m. 7. prohibit immediately the importation of heavy and luxury cars and seriously re-examine the car manufacturing program." 32 Admittedly, such measures are conducive to energy conservation. The question before us however is limited to whether or not Letter of Instruction 869 as implemented by Memorandum Circular No. 39 is violative of certain constitutional rights. It goes no further than that. The determination of the mode and manner through which the objective of minimizing the consumption of oil products may be attained is left to the discretion of the political branches. 33 Absent therefore the alleged infringement of constitutional rights, more precisely the due process and equal protection guarantees, this Court cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality. 9. It was likewise contended that Memorandum Circular No. 39, issued by the then respondent Minister of Public Works, Transportation and Communications, and then respondent Land Transportation Commissioner, imposing the penalties "of fine, confiscation of vehicle and cancellation of license is likewise unconstitutional," petitioners invoking the principle of non-delegation of legislative power. 34 To that extent that a Letter of Instruction may be viewed as an exercise of the decree-making power of the President, then such an argument is futile. If, however, viewed as a compliance with the duty to take care that the laws be faithfully executed, as a consequence of which subordinate executive officials may in turn issue implementing rules and regulations, then the objection would properly be considered as an ultra vires allegation. There is this relevant excerpt from Teoxon v. Member of the Board of Administrators: 35 "1. The recognition of the power of administrative officials to promulgate rules in the implementation of the statute, necessarily limited to what is provided for in the legislative enactment, may be found in the early case of United States v. Barrias decided in 1908. Then came, in a 1914 decision, United States v. Tupasi Molina, a delineation of the scope of such competence. Thus: 'Of course the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid.' In 1936, in People v. Santos, this Court expressed its disapproval of an administrative order that would amount to an excess of the regulatory power vested in an administrative official. We reaffirmed such a doctrine in a 1951 decision, where we again made clear that where an administrative order betrays inconsistency or repugnancy to the provisions of the Act, 'the mandate of the Act must prevail and must be followed.' Justice Barrera, speaking for the Court in Victorias Milling Company, Inc. v. Social Security Commission, citing Parker as well as Davis did tersely sum up the matter thus: 'A rule is binding on tile courts so long as the procedure fixed for its promulgation is followed and its scope is within the statutory granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom * * *. On the other hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means.' It cannot be otherwise as the Constitution limits the authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser administrative executive office or agency then can, contrary to the express language of the Constitution, assert for itself a more extensive prerogative." 36 It was alleged in the Answer of Solicitor General Estelito P. Mendoza that Letter of Instruction 869 and Memorandum Circular No. 39 were adopted pursuant to the Land Transportation and Traffic Code. 37 It contains a specific provision as to penalties. 38 Thus: "For violation of any provisions of this Act or regulations promulgated pursuant hereto, not hereinbefore specifically punished, a fine of not less than ten nor more than fifty pesos shall be imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra vires as long as the fine imposed is not less than ten nor more than fifty pesos. As to suspension of registration, 40 the Code, insofar as applicable, provides: "Whenever it shall appear from the records of the Commission that during any twelve-month period more than three warnings for violations of this Act have been given to the owner of a motor vehicle, or that the said owner has been convicted by a competent court more than once for violation of such laws, the Commissioner may, in his discretion, suspend the certificate of registration for a period not exceeding ninety days and, thereupon, shall require the immediate surrender of the number plates * * *." 41 It follows that while the imposition of a fine or the suspension of registration under the conditions therein set forth is valid under the Land Transportation and Traffic Code, the impounding of a vehicle finds no statutory justification. To apply that portion of Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear that a penalty even if warranted can only be imposed in accordance with the procedure required by law. 42 WHEREFORE, the petition is dismissed. Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ., concur. Makasiar and Concepcion J., took no part.

Separate Opinions

ABAD SANTOS, J., dissenting: The power of the State to restrict the use of certain motor vehicles during stated days and hours as a fuel-saving measure is to me indubitable. It is anchored on the police power of the State. For this reason LOI No. 869 cannot be assailed successfully as violative of due process and equal protection guarantees of the Constitution. There is also no question as to the power of the Commissioner of Land Transportation and the Minister of Public Works, Transportation and Communication to issue Memorandum Circular No. 39 on June 11, 1979. The circular was necessary to implement the LOI. But it does not follow that the circular is completely immune from the taint of infirmity. I refer to paragraph 4 of the circular which provides, inter alia, for penalties consisting of fine and suspension or cancellation of the certificate of registration for owners of motor vehicles violating the LOI. This portion of the circular is clearly illegal for the LOI is absolutely and completely devoid of legal sanctions and consequently the implementing circular cannot prescribe them. It is elementary that only the legislature (or the President in the exercise of his legislative power) can prescribe penalties. Executive officials whose task is to enforce the law can prescribe penalties only if they are authorized to do so within specified limits by the legislature.

It is contended by the respondents that the LOI and the implementing circular were adopted pursuant to the Land Transportation and Traffic Code Republic Act No. 4136. This contention is utterly baseless. LOI No. 869 can be compared to a multiple independently targeted ballistic missile. It tasks various agencies of the government as follows: 1. The Ministry of Energy shall during the period of tight supply, limit as necessary, sales of fuel products by oil companies and other outlets to all consumers including the government and the Armed Forces of the Philippines. Initially sales shall be limited to 1978 levels. This may be adjusted upward or downward as required to balance supply with demand and to equitably distribute available supplies. Moreover, the Ministry of Energy is hereby authorized to set supply priorities and to establish supply allocations accordingly. 2. The Ministry of Local Government and Community Development in cooperation with the Ministry of Energy shall formulate energy conservation plans and implement the same through the Bay brigades; moreover, it shall assist in the implementation of other conservation measures to be instituted by other government agencies. 3. The Metro Manila Commission, in coordination with the appropriate government agencies, shall develop, implement and supervise a program for the implementation of the Executive Order on the staggering of office hours of both government and private sectors to achieve optimum use of transportation facilities, as well as to improve traffic flow. 4. All Ministries, agencies and corporations of the government shall discontinue the use of airconditioning facilities in offices whom adequate ventilation is available. Any use of airconditioning facilities by government offices shall be only with prior approval of the respective ministers and, where allowed temperature shall be kept at a minimum of 78 o F. 5. The Ministry of Public Works, Transportation and Communications shall prohibit the use of private motor vehicles under the "H" and "EH" classifications of the LTC on weekends and holidays starting 0001 hours, Saturday morning, (or the day of the holiday) until 0500 hours, Monday morning (or the day after the holiday). Exempted from this prohibition are motor vehicles of the following classifications: (a) S (Service) (b) T (Truck) (c) DPL (Diplomatic) (d) CC (Consular Corps) (e) TC (Tourist Cars) 6. The Metro Manila Traffic Management Authority shall, in coordination with the appropriate ministries, institute traffic flow improvement measures to ensure better traffic flow. These agencies moreover, shall review the traffic citation system in order to simplify the application of sanctions for traffic violations. 7. The Ministry of Public Works, Transportation and Communication shall review the registration requirements of vehicles with a view to weeding out inefficient motor vehicles. 8. The Ministry of National Defense shall prohibit sports activities involving mainly the use of motor vehicles, watercraft and aircraft, including but not limited to car and motorcycle rallies, racing and similar events. 9. All government Ministries, agencies and corporations shall limit the use of government vehicles to essential activities and shall review travel program and schedules to unnecessary trips. 10. The Metro Manila Commission, in coordination with the appropriate agencies, shall study the feasibility of designating pedestrian mails and bicycle lanes. 11. The Ministry of National Defense shall intensify the drive against hoarding or black marketing of fuel especially of kerosene and diesel and other petroleum products which from time to time may be short of supply. 12. The Ministry of Energy shall monitor and report on the implementation of the foregoing measures. How can it be claimed with a straight face that the LOI was adopted pursuant to R.A. No. 4136 when nowhere in the LOI is the law mentioned aside from the fact that the Ministry of Public Works, Transportation and Communication which is entrusted with the enforcement of R.A. No. 4136 is only one of the many agencies involved in conserving energy resources? It is obvious for any one willing to see that R.A. No. 4136 has no relevance to the LOI. Such being the case, the circular which is merely an accessory to the LOI cannot also be related to R.A. No. 4136. LOI No. 869 is constitutional but its application pursuant to Memorandum Circular No. 39 is not. For this reason, I vote to grant the petition.

I close this dissent with the following observation: the prohibition against the use of certain vehicles during certain times has not been uniformly and consistently enforced. We are a nation surrounded by rules but many of which are not enforced or enforced indifferently. This situation breeds contempt instead of respect for the law. A few rules that are consistently enforced are better than many which are violated with impunity. Teehankee, J., concurs. Plana, J., dissent.

Separate Opinions ABAD SANTOS, J., dissenting: The power of the State to restrict the use of certain motor vehicles during stated days and hours as a fuel-saving measure is to me indubitable. It is anchored on the police power of the State. For this reason LOI No. 869 cannot be assailed successfully as violative of due process and equal protection guarantees of the Constitution. There is also no question as to the power of the Commissioner of Land Transportation and the Minister of Public Works, Transportation and Communication to issue Memorandum Circular No. 39 on June 11, 1979. The circular was necessary to implement the LOI. But it does not follow that the circular is completely immune from the taint of infirmity. I refer to paragraph 4 of the circular which provides, inter alia, for penalties consisting of fine and suspension or cancellation of the certificate of registration for owners of motor vehicles violating the LOI. This portion of the circular is clearly illegal for the LOI is absolutely and completely devoid of legal sanctions and consequently the implementing circular cannot prescribe them. It is elementary that only the legislature (or the President in the exercise of his legislative power) can prescribe penalties. Executive officials whose task is to enforce the law can prescribe penalties only if they are authorized to do so within specified limits by the legislature. It is contended by the respondents that the LOI and the implementing circular were adopted pursuant to the Land Transportation and Traffic Code Republic Act No. 4136. This contention is utterly baseless. LOI No. 869 can be compared to a multiple independently targeted ballistic missile. It tasks various agencies of the government as follows: 1. The Ministry of Energy shall during the period of tight supply, limit as necessary, sales of fuel products by oil companies and other outlets to all consumers including the government and the Armed Forces of the Philippines. Initially sales shall be limited to 1978 levels. This may be adjusted upward or downward as required to balance supply with demand and to equitably distribute available supplies. Moreover, the Ministry of Energy is hereby authorized to set supply priorities and to establish supply allocations accordingly. 2. The Ministry of Local Government and Community Development in cooperation with the Ministry of Energy shall formulate energy conservation plans and implement the same through the Bay brigades; moreover, it shall assist in the implementation of other conservation measures to be instituted by other government agencies. 3. The Metro Manila Commission, in coordination with the appropriate government agencies, shall develop, implement and supervise a program for the implementation of the Executive Order on the staggering of office hours of both government and private sectors to achieve optimum use of transportation facilities, as well as to improve traffic flow. 4. All Ministries, agencies and corporations of the government shall discontinue the use of airconditioning facilities in offices whom adequate ventilation is available. Any use of airconditioning facilities by government offices shall be only with prior approval of the respective ministers and, where allowed temperature shall be kept at a minimum of 78 o F. 5. The Ministry of Public Works, Transportation and Communications shall prohibit the use of private motor vehicles under the "H" and "EH" classifications of the LTC on weekends and holidays starting 0001 hours, Saturday morning, (or the day of the holiday) until 0500 hours, Monday morning (or the day after the holiday). Exempted from this prohibition are motor vehicles of the following classifications: (a) S (Service) (b) T (Truck) (c) DPL (Diplomatic) (d) CC (Consular Corps) (e) TC (Tourist Cars)

6. The Metro Manila Traffic Management Authority shall, in coordination with the appropriate ministries, institute traffic flow improvement measures to ensure better traffic flow. These agencies moreover, shall review the traffic citation system in order to simplify the application of sanctions for traffic violations. 7. The Ministry of Public Works, Transportation and Communication shall review the registration requirements of vehicles with a view to weeding out inefficient motor vehicles. 8. The Ministry of National Defense shall prohibit sports activities involving mainly the use of motor vehicles, watercraft and aircraft, including but not limited to car and motorcycle rallies, racing and similar events. 9. All government Ministries, agencies and corporations shall limit the use of government vehicles to essential activities and shall review travel program and schedules to unnecessary trips. 10. The Metro Manila Commission, in coordination with the appropriate agencies, shall study the feasibility of designating pedestrian mails and bicycle lanes. 11. The Ministry of National Defense shall intensify the drive against hoarding or black marketing of fuel especially of kerosene and diesel and other petroleum products which from time to time may be short of supply. 12. The Ministry of Energy shall monitor and report on the implementation of the foregoing measures. How can it be claimed with a straight face that the LOI was adopted pursuant to R.A. No. 4136 when nowhere in the LOI is the law mentioned aside from the fact that the Ministry of Public Works, Transportation and Communication which is entrusted with the enforcement of R.A. No. 4136 is only one of the many agencies involved in conserving energy resources? It is obvious for any one willing to see that R.A. No. 4136 has no relevance to the LOI. Such being the case, the circular which is merely an accessory to the LOI cannot also be related to R.A. No. 4136. LOI No. 869 is constitutional but its application pursuant to Memorandum Circular No. 39 is not. For this reason, I vote to grant the petition. I close this dissent with the following observation: the prohibition against the use of certain vehicles during certain times has not been uniformly and consistently enforced. We are a nation surrounded by rules but many of which are not enforced or enforced indifferently. This situation breeds contempt instead of respect for the law. A few rules that are consistently enforced are better than many which are violated with impunity. Teehankee, J., concur Plana, J., dissent.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 96266 July 18, 1991 ERNESTO M. MACEDA, petitioner, vs. ENERGY REGULATORY BOARD, CALTEX (Philippines), INC., PILIPINAS SHELL PETROLEUM CORPORATION AND PETRON CORPORATION, respondents. G.R. No. 96349 July 18, 1991 EUGENIO O. ORIGINAL, IRENEO N. AARON, JR., RENE LEDESMA, ROLANDO VALLE, ORLANDO MONTANO, STEVE ABITANG, NERI JINON, WILFREDO DELEONIO, RENATO BORRO, RODRIGO DE VERA, ALVIN BAYUANG, JESUS MELENDEZ, NUMERIANO CAJILIG JR., RUFINO DE LA CRUZ AND JOVELINO G. TIPON,petitioners, vs. ENERGY REGULATORY BOARD, CALTEX (Philippines), INC., PILIPINAS SHELL PETROLEUM CORPORATION AND PETRON CORPORATION, respondents. G.R. No. 96284 July 18,1991 CEFERINO S. PAREDES, JR., petitioner, vs. ENERGY REGULATORY BOARD, CALTEX (Philippines), INC., PILIPINAS SHELL, INC. AND PETROPHIL CORPORATION, respondents. RESOLUTION

MEDIALDEA, J.:p In G.R. No. 96266, petitioner Maceda seeks nullification of the Energy Regulatory Board (ERB) Orders dated December 5 and 6, 1990 on the ground that the hearings conducted on the second provisional increase in oil prices did not allow him substantial cross-examination, in effect, allegedly, a denial of due process. The facts of the case are as follows: Upon the outbreak of the Persian Gulf conflict on August 2, 1990, private respondents oil companies filed with the ERB their respective applications on oil price increases (docketed as ERB Case Nos. 90-106, 90-382 and 90-384, respectively). On September 21, 1990, the ERB issued an order granting a provisional increase of P1.42 per liter. Petitioner Maceda filed a petition for Prohibition on September 26, 1990 (E. Maceda v. ERB, et al., G.R. No. 95203), seeking to nullify the provisional increase. We dismissed the petition on December 18, 1990, reaffirming ERB's authority to grant provisional increase even without prior hearing, pursuant to Sec. 8 of E.O. No. 172, clarifying as follows: What must be stressed is that while under Executive Order No. 172, a hearing is indispensable, it does not preclude the Board from ordering, ex-parte, a provisional increase, as it did here, subject to its final disposition of whether or not: (1) to make it permanent; (2) to reduce or increase it further; or (3) to deny the application. Section 3, paragraph (e) is akin to a temporary restraining order or a writ of preliminary attachment issued by the courts, which are given ex-parte and which are subject to the resolution of the main case. Section 3, paragraph (e) and Section 8 do not negate each other, or otherwise, operate exclusively of the other, in that the Board may resort to one but not to both at the same time. Section 3(e) outlines the jurisdiction of the Board and the grounds for which it may decree a price adjustment, subject to the requirements of notice and hearing. Pending that, however, it may order, under Section 8, an authority to increase provisionally, without need of a hearing, subject to the final outcome of the proceeding. The Board, of course, is not prevented from conducting a hearing on the grant of provisional authority-which is of course, the better procedure however, it cannot be stigmatized later if it failed to conduct one. (pp. 129-130, Rollo) (Emphasis supplied) In the same order of September 21, 1990, authorizing provisional increase, the ERB set the applications for hearing with due notice to all interested parties on October 16, 1990. Petitioner Maceda failed to appear at said hearing as well as on the second hearing on October 17, 1990. To afford registered oppositors the opportunity to cross-examine the witnesses, the ERB set the continuation of the hearing to October 24, 1990. This was postponed to November 5, 1990, on written notice of petitioner Maceda.

On November 5, 1990, the three oil companies filed their respective motions for leave to file or admit amended/supplemental applications to further increase the prices of petroleum products. The ERB admitted the respective supplemental/amended petitions on November 6, 1990 at the same time requiring applicants to publish the corresponding Notices of Public Hearing in two newspapers of general circulation (p. 4, Rollo and Annexes "F" and "G," pp. 60 and 62, Rollo). Hearing for the presentation of the evidence-in-chief commenced on November 21, 1990 with ERB ruling that testimonies of witnesses were to be in the form of Affidavits (p. 6, Rollo). ERB subsequently outlined the procedure to be observed in the reception of evidence, as follows: CHAIRMAN FERNANDO: Well, at the last hearing, applicant Caltex presented its evidence-in-chief and there is an understanding or it is the Board's wish that for purposes of good order in the presentation of the evidence considering that these are being heard together, we will defer the cross-examination of applicant Caltex's witness and ask the other applicants to present their evidence-in-chief so that the oppositors win have a better Idea of what an of these will lead to because as I mentioned earlier, it has been traditional and it is the intention of the Board to act on these applications on an industry-wide basis, whether to accept, reject, modify or whatever, the Board win do it on an industry wide basis, so, the best way to have (sic) the oppositors and the Board a clear picture of what the applicants are asking for is to have all the evidence-in-chief to be placed on record first and then the examination will come later, the crossexamination will come later. . . . (pp. 5-6, tsn., November 23, 1990, ERB Cases Nos. 90-106, 90382 and 90-384). (p. 162, Rollo) Petitioner Maceda maintains that this order of proof deprived him of his right to finish his cross-examination of Petron's witnesses and denied him his right to cross-examine each of the witnesses of Caltex and Shell. He points out that this relaxed procedure resulted in the denial of due process. We disagree. The Solicitor General has pointed out: . . . The order of testimony both with respect to the examination of the particular witness and to the general course of the trial is within the discretion of the court and the exercise of this discretion in permitting to be introduced out of the order prescribed by the rules is not improper (88 C.J.S. 206-207). Such a relaxed procedure is especially true in administrative bodies, such as the ERB which in matters of rate or price fixing is considered as exercising a quasi-legislative, not quasi-judicial, function As such administrative agency, it is not bound by the strict or technical rules of evidence governing court proceedings (Sec. 29, Public Service Act; Dickenson v. United States, 346, U.S. 389, 98 L. ed. 132, 74 S. St. 152). (Emphasis supplied) In fact, Section 2, Rule I of the Rules of Practice and Procedure Governing Hearings Before the ERB provides that These Rules shall govern pleadings, practice and procedure before the Energy Regulatory Board in all matters of inquiry, study, hearing, investigation and/or any other proceedings within the jurisdiction of the Board. However, in the broader interest of justice, the Board may, in any particular matter, except itself from these rules and apply such suitable procedure as shall promote the objectives of the Order. (pp. 163-164, Rollo) Petitioner Maceda also claims that there is no substantial evidence on record to support the provisional relief. We have, in G.R. Nos. 95203-05, previously taken judicial notice of matters and events related to the oil industry, as follows: . . . (1) as of June 30, 1990, the OPSF has incurred a deficit of P6.1 Billion; (2) the exchange rate has fallen to P28.00 to $1.00; (3) the country's balance of payments is expected to reach $1 Billion; (4) our trade deficit is at P2.855 Billion as of the first nine months of the year. . . . (p. 150, Rollo) The Solicitor General likewise commented: Among the pieces of evidence considered by ERB in the grant of the contested provisional relief were: (1) certified copies of bins of lading issued by crude oil suppliers to the private respondents; (2) reports of the Bankers Association of the Philippines on the pesodollar exchange rate at the BAP oil pit; and (3) OPSF status reports of the Office of Energy Affairs. The ERB was likewise guided in the determination of international crude oil prices by traditional authoritative sources of information on crude oil and petroleum products, such as Platt's Oilgram and Petroleum Intelligence Weekly. (p. 158, Rollo) Thus, We concede ERB's authority to grant the provisional increase in oil price, as We note that the Order of December 5, 1990 explicitly stated: in the light, therefore, of the rise in crude oil importation costs, which as earlier mentioned, reached an average of $30.3318 per barrel at $25.551/US $ in September-October 1990; the huge OPSF deficit which, as reported by the Office of Energy Affairs, has amounted to P5.7 Billion (based on filed claims only and net of the P5 Billion OPSF) as of September 30, 1990, and is estimated to further increase to over P10 Billion by end December 1990; the decision of the government to discontinue subsidizing oil prices in

view of inflationary pressures; the apparent inadequacy of the proposed additional P5.1 Billion government appropriation for the OPSF and the sharp drop in the value of the peso in relation to the US dollar to P28/US $, this Board is left with no other recourse but to grant applicants oil companies further relief by increasing the prices of petroleum products sold by them. (p. 161, Rollo) Petitioner Maceda together with petitioner Original (G.R. No. 96349) also claim that the provisional increase involved amounts over and above that sought by the petitioning oil companies. The Solicitor General has pointed out that aside from the increase in crude oil prices, all the applications of the respondent oil companies filed with the ERB covered claims from the OPSF. We shall thus respect the ERB's Order of December 5, 1990 granting a provisional price increase on petroleum products premised on the oil companies' OPSF claims, crude cost peso differentials, forex risk for a subsidy on sale to NPC (p. 167, Rollo), since the oil companies are "entitled to as much relief as the fact alleged constituting the course of action may warrant," (Javellana v. D.O. Plaza Enterprises, Inc., G.R. No. L-28297, March 30, 1970, 32 SCRA 261 citing Rosales v. Reyes, 25 Phil. 495; Aguilar v. Rubiato, 40 Phil. 470) as follows: Per Liter Weighted Petron Shell Caltex Average Crude Cost P3.11 P3.6047 P2.9248 P3.1523 Peso Cost Diffn'l 2.1747 1.5203 1.5669 1.8123 Forex Risk Fee -0.1089 -0,0719 -0.0790 -0.0896 Subsidy on Sales to NPC 0.1955 0.0685 0.0590 0.1203 Total Price Increase Applied for P59.3713 P5.1216 P4.4717 P4.9954 Less: September 21 Price Relief Actual Price Increase P1.42 Actual Tax Reduction: Ad Valorem Tax (per Sept. 1, 1990 price build-up) P1.3333 Specific Tax (per Oct. 5, 1990 price build-up) .6264 .7069 2.1269 Net Price Increase

Applied for 2.8685 Nonetheless, it is relevant to point out that on December 10, 1990, the ERB, in response to the President's appeal, brought back the increases in Premium and Regular gasoline to the levels mandated by the December 5, 1990 Order (P6.9600 and P6.3900, respectively), as follows: Product In Pesos Per Liter OPSF Premium Gasoline 6.9600 Regular Gasoline 6.3900 Avturbo 4.9950 Kerosene 1.4100 Diesel Oil 1.4100 Fuel Oil/Feedstock 0.2405 LPG 1.2200 Asphalt 2.5000 Thinner 2.5000 In G.R. No. 96349, petitioner Original additionally claims that if the price increase will be used to augment the OPSF this will constitute illegal taxation. In the Maceda case, (G.R. Nos. 95203-05, supra) this Court has already ruled that "the Board Order authorizing the proceeds generated by the increase to be deposited to the OPSF is not an act of taxation but is authorized by Presidential Decree No. 1956, as amended by Executive Order No. 137. The petitions of E.O. Original et al. (G.R. No. 96349) and C.S. Povedas, Jr. (G.R. No. 96284), insofar as they question the ERB's authority under Sec. 8 of E.O. 172, have become moot and academic. We lament Our helplessness over this second provisional increase in oil price. We have stated that this "is a question best judged by the political leadership" (G.R. Nos. 95203-05, G.R. Nos. 95119-21, supra). We wish to reiterate Our previous pronouncements therein that while the government is able to justify a provisional increase, these findings "are not final, and it is up to petitioners to demonstrate that the present economic picture does not warrant a permanent increase." In this regard, We also note the Solicitor General's comments that "the ERB is not averse to the idea of a presidential review of its decision," except that there is no law at present authorizing the same. Perhaps, as pointed out by Justice Padilla, our lawmakers may see the wisdom of allowing presidential review of the decisions of the ERB since, despite its being a quasi-judicial body, it is still "an administrative body under the Office of the President whose decisions should be appealed to the President under the established principle of exhaustion of administrative remedies," especially on a matter as transcendental as oil price increases which affect the lives of almost an Filipinos. ACCORDINGLY, the petitions are hereby DISMISSED. SO ORDERED. Narvasa, Melencio-Herrera, Feliciano, Gancayco, Bidin, Grio-Aquino and Regalado, JJ., concur. Davide, J., concurs in the result. Fernan, C.J., took no part.

Separate Opinions

PARAS, J., dissenting:

I dissent. As I have long previously indicated, the ERB has absolutely no power to tax which is solely the prerogative of Congress. This is what the ERB is precisely doing by getting money from the people to ultimatelysubsidize the ravenous oil companies. Additionally, the stubborn refusal of the ERB to effectively rollback oil prices is a continuing bestial insult to the intelligence of our countrymen, and a gross abandonment of the people in their hour of economic misery. I therefore vote for a complete and effective rollback of all oil prices. Cruz, J., concurs. PADILLA, J., dissenting: I regret that I can not concur in the majority opinion. In the matter of price increases of oil products, which vitally affects the people, especially those in the middle and low income groups, any increase, provisional or otherwise, should be allowed only after the Energy Regulatory Board (ERB) shall have fully determined, through bona fide and full-dress hearings, that it is absolutely necessary and by how much it shall be effected. The people, represented by reputable oppositors, deserve to be given full opportunity to be heard in their opposition to any increase in the prices of fuel. The right to be heard includes not only the right to present one's case and submit evidence in support thereof, but also the right to confront and cross-examine the witnesses of the adverse parties. Because of the procedure adopted by the ERB in the reception of evidence leading to the price increases of 5 and 6 December 1990, petitioner Maceda was not able to finish his cross-examination of Petron's sole witness. And, even before each of the witnesses of Shell and Caltex could be crossexamined by petitioners and before they could present evidence in support of their opposition to the increase, the ERB had already issued its 5 December 1990 order allowing a "provisional increase" sought by the oil companies in their respective supplemental applications. That there were postponements of scheduled hearings before the ERB, at the instance of oppositor Maceda, did not justify a denial of the right of oppositors to be heard. The postponements were not intended to delay the proceedings. In fact, the resetting of the scheduled hearings on November 14, 15 and 16 to a later date, upon motion of petitioner Maceda, was to enable him to file a written opposition to the supplemental applications filed by the oil companies. The ERB acted hastily in granting the provisional increases sought by the oil companies even before the oppositors could submit evidence in support of their opposition. The fact that the questioned orders merely allowed a provisional increase is beside the point, for past experiences have shown that socalled provisional increases" allowed by the ERB ultimately became permanent. ERB's claim that the second provisional increase was duly supported by evidence, is belied by its own act of modifying said order (of provisional increase) not only once but twice, upon the "request" of the President. First, the ERB rolled back the prices of fuel just a day after it issued the questioned order, altering the allocation of the increase. Second, on 10 December 1990, the ERB further modified the price of petroleum products resulting in reduction of the weighted average provisional increase from P2.82 to P2.05 per liter, but only after the President had announced that she would meet with the leaders of both Houses of Congress, to discuss the creation of a special fund to be raised from additional taxes, to subsidize the prices of petroleum products. 1 These acts of the ERB ostensibly sparked by "presidential requests" clearly demonstrate that the evidence did not, in the first place, justify the price increases it had ordered on 5 and 6 December 1990. Furthermore, the ERB never came out with a categorical and official declaration of how much was the so-called deficit of the Oil Price Stabilization Fund (OPSF) and how much of the oil price increases was intended to cover such deficit. In the midst of a national crisis related to oil price increases, each and every one is called upon to assume his/its share of continuing sacrifices. The public, the government, as well as the oil companies should work hand in hand in solving the present problem that confronts us. We are not unmindful of the fact that the oil companies are profit-oriented. However, profits should not be their only concern in times of deepening inability of the people to cope with their prices with "built-in-margins". A reduction of profits during these crucial and trying times, is certainly in order considering that in the past, the oil companies had unquestionably made tremendous profits. In view of the foregoing, I vote to GRANT the petition for the nullification of the 5 and 6 December 1990 orders of the ERB and for a roll-back of the prices of oil products to levels existing before 5 and 6 December 1990 until hearings before the ERB are finally concluded. Before closing, I also would like to submit for congressional consideration two (2) proposals in the public interest. They are: (1) to do away with the present scheme of allowing provisional price increases of oil products. This scheme, to my mind, is misleading and serves as an excuse for unilateral and arbitrary ERB-action. As already noted, these provisional price increases are, to all intents and purposes, permanent when fixed. To that extent, the scheme is a fraud on the people. (2) all decisions and orders of the ERB should be expressly made appealable by statute to the President of the Philippines whose decisions shall be final, except in cases involving questions of law or grave abuse of discretion which may be elevated to the Supreme Court in a special civil action for certiorari under Rule 65 of the Rules of Court. While at present, decisions and orders of the ERB are, in my considered opinion, appealable to the President under the principle of "exhaustion of administrative remedies", it is nevertheless desirable that the appealability of ERB decisions and orders to the President be placed beyond any and all doubts. In this way, the President of the Philippines has to assume full responsibility for all price increases in oil products, which should be the case because the matter involved is not only one of national interest but profoundly one of people's survival. Gutierrez, Jr. and Cruz, JJ., concur. SARMIENTO, J., separate opinion:

I would like to point out a few things in view of the majority's reliance on the first Maceda case. 1 The first Maceda case was a challenge on provisional oil price increases decreed by the Energy Regulatory Board (ERB). This Court sustained the Board, as it is sustaining the Board in this case, on a few economic outputs, namely, the Oil Price Stabilization Fund (OPSF) deficit, the deteriorating exchange rate, and the balance of payments and trade gaps. As I held in my dissent in yet another Maceda case, Maceda v. Macaraig, 2 the current oil price increases were (are) also the result of the devaluation of the currency, since a devalued peso forced oil companies to pay more pesos for oil worth in dollars. I simply wish to state what has apparently been left unstated in the course of debate and perhaps, the real score behind recurring oil price hikes and why the ERB has been very quick in granting them. The truth is that petroleum prices have been dictated by the Government's economic maneuvers, and not rather the vagaries of the world market. The truth is that the recent oil hikes have nothing to do with Saddam Hussein or the Gulf crisis (during which oil prices in fact dropped) and are, rather, the natural consequences of calculated moves by the Government in its effort to meet so-called International Monetary Fund (IMF) targets. In 1989, the Government of the Republic of the Philippines submitted its letter of intent to the IMF outlining the country's economic program from 1989 through 1992. In its paragraph 19, it states that: The Government intends to continue with the floating exchange rate system established in October 1984 . . . 3 Since exchange control was abolished and the floating rate system was established, the Philippine peso has seen a series of devaluations that have progressively pushed up prices, significantly, prices of petroleum. According to one authority, devaluation has been a "standard prescription" to correct balance of payments (BOP) deficits. 4 It makes dollars expensive, discourages import and encourages exports, and forces dollars conservation. 5 It is a matter of opinion whether or not devaluation has been good for the country and whether or not it has realized these objectives. The truth is that, whatever it has accomplished, oil which is imported has been subject to the effects of devaluation. Early this year, Governor Jose Cuisia of the Central Bank, Secretary Jesus Estanislao of the Department of Finance, and Secretary Guillermo Carague of the Budget and Management Department, wrote Mr. Michael Camdessus of the International Monetary Fund (the letter of intent) and informed him of the country's "Economic Stabilization Plan, 1991-92". The Plan recognized certain economic imbalances that have supposedly inhibited growth, in particular, inflation and an increasing balance of payments deficit, and drew a program centered on "a strong effort to bring down the overall fiscal deficit "through, among other things, "the gradual elimination of the deficit of the Oil Price Stabilization Fund." 6 It spelled out, among other things, a "[r]estoration of a sustainable external position requir[ing] the continuation of a flexible exchange rate policy . . . " 7 and described in detail an "Oil Price and Energy Policy" focused on wiping out the OPSF deficit, to wit: xxx xxx xxx A substantial erosion in the overall fiscal position occurred in 1989 and 1990 as a result of official price support for oil products provided through the OPSF. Despite a lowering of the excise tax on oil in September 1990 and average domestic oil price increases of about 30 percent in September and 32 percent in December 1990, the fund continued to incur a deficit during the second half of 1990. The cumulative OPSF deficit (excluding unfiled claims) at end December 1990 is estimated at P8.8 billion, and this deficit will rise in the first part of 1991. However the cumulative OPSF deficit is to be eliminated by the end of the third quarter of 1991. To this end, the Government intends to follow a pricing policy that ensures attainment of zero balance within the specific time. In particular, the Government will maintain present price levels despite projected world price declines. In addition, a budgetary transfer of P5 billion will be provided in 1991 to settle outstanding claim of the OPSF. 15. Full deregulation of oil prices continues to be an important objective of the Government once calm has been restored to world oil markets. Meanwhile the technical and legal groundwork is being laid with a view to full deregulation as soon as practicable. 16. The principal objectives of the Government's policy in the energy sector are: (i) the development of economically viable indigenous energy resources, mainly thermal, geothermal and hydro-electric power, together with ensuring adequate maintenance of existing facilities; (ii) promoting more efficient use of energy resources through various energy conservation measures; and (ii) the elimination of distortions in every resource allocation through appropriate pricing policies. 8 xxx xxx xxx As I said, Philippine oil prices today have nothing to do with the law on supply and demand, if they had anything to do with it in recent years. (I also gather that the Government is intending to re-adjust the prices of gasoline and diesel fuel soon since apparently, low diesel prices have reduced the demand for gasoline resulting in "distortions".) As the Court held in the first Maceda v. Energy Regulatory Board, 9 oil pricing "is a question best judged by the political leadership" and oil prices are (and have been apparently), political, rather than economic, decisions. I am not to be mistaken as accepting the "letter of intent" as a correct prescription much less a necessary medicine although I will be lacking in candor if I did not say that it is a bitter pill to swallow. What I must be understood as saying is that "oil" is a political card to be played on a political board rather than the courts, so long, of course, as nobody has done anything illegal.

The "politics of oil" as spelled out in the Government's letter of intent likewise bring to light the true nature of the ERB Under the Memorandum on Philippine Economic Stabilization Plan: xxx xxx xxx In the past, energy prices had been set to broadly reflect the average cost of supply. However, the lack of transparency of the pricing mechanism and subsidization of consumption have increasingly become a cause for concern. To alleviate some of these problems, in mid-1987, the Government established the Energy Regulatory Board ERB a quasi-judicial body empowered with the setting and regulation of the pricing of petroleum products and electricity tariffs, the regulation of additions to oil refining capacity, and the regulation of importing, transporting, processing and distributing all energy resources. (Petroleum pricing policy is described in paragraphs 14 and 15.) In addition to the full pass-through of changes in oil prices to power tariffs, the Government is committed to the adoption of longrun marginal cost pricing for electricity. To this end, NPC intends to introduce a marginal cost imported-has tariff structure to ensure that it meets its target of achieving a rate of return of eight percent on its rate base. 10 it is apparent that the Board, in spite of its "independence" (from the Office of the President), is bound by the terms of the program and that it has after all, no genuine discretion to deny requests for price adjustments by oil companies. I seriously doubt whether or not it is possessed of that discretion judging, first, from its performance since 1987 (in which it has not overruled the Government on "oil cases") and the fact that the exchange rate, the balance of payment deficit, and the OPSF deficiency are matters of simple arithmetic. And certainly, the Board can not possibly overrule the Government's "letter of intent." The first Maceda case sustained the grant of provisional price increases ex parte not only because Section 8 of Executive Order No. 172 authorized the grant of provisional relief without a hearing but because fluctuations in the foreign exchange rates, for instance, were, and are, a matter of judicial notice, and a hearing thereafter was necessary only to see whether or not the ERB determined the rates correctly. This likewise brings to light the necessity for an ERB to fix rates since it does not, after all fix (meaning decide) rates but merely announces their imminence on demonstrable figures of higher rates. The Court however can not question the wisdom of a statute and after all, I suppose the Government can make use of an accountant. I agree with Justice Padilla insofar as he refers to the "present scheme of allowing provisional price increase" as a "scheme [to defraud] the people." I would like to go further. As I indicated the ERB does no more than to punch calculators for the Government-which decides oil price increases. The comedy of December, 1990, when the Board adjusted prices in a matter of days, is a confirmation of this point. As Justice Padilla noted, the readjustment of December 10, 1990 was in fact prompted by "presidential requests" which does not speak well of the Board's independence and which in fact bares the truth as to who really makes the decision. (The readjustment, consisting in the reduction in diesel fuel and a corresponding increase in gasoline, sought to mollify the indignation of the public.) I agree with Justice Padilla that it amounts to fraud on the people to make them believe that the ERB can give them a fair hearing, indeed, if it can do anything at all. I agree, finally, with Justice Padilla that the nation is one in crisis, and evidently, the "ravenous" oil companies Justice Paras refers to, have not helped any. I submit however that we have not succeeded in fingering the real villain the letter of intent. Saddam's Middle East folly has nothing to do with that.

Separate Opinions PARAS, J., dissenting: I dissent. As I have long previously indicated, the ERB has absolutely no power to tax which is solely the prerogative of Congress. This is what the ERB is precisely doing by getting money from the people to ultimatelysubsidize the ravenous oil companies. Additionally, the stubborn refusal of the ERB to effectively rollback oil prices is a continuing bestial insult to the intelligence of our countrymen, and a gross abandonment of the people in their hour of economic misery. I therefore vote for a complete and effective rollback of all oil prices. Cruz, J., concurs. PADILLA, J., dissenting: I regret that I can not concur in the majority opinion. In the matter of price increases of oil products, which vitally affects the people, especially those in the middle and low income groups, any increase, provisional or otherwise, should be allowed only after the Energy Regulatory Board (ERB) shall have fully determined, through bona fide and full-dress hearings, that it is absolutely necessary and by how much it shall be effected. The people, represented by reputable oppositors, deserve to be given full opportunity to be heard in their opposition to any increase in the prices of fuel. The right to be heard includes not only the right to present one's case and submit evidence in support thereof, but also the right to confront and cross-examine the witnesses of the adverse parties. Because of the procedure adopted by the ERB in the reception of evidence leading to the price increases of 5 and 6 December 1990, petitioner Maceda was not able to finish his cross-examination of Petron's sole witness. And, even before each of the witnesses of Shell and Caltex could be cross-

examined by petitioners and before they could present evidence in support of their opposition to the increase, the ERB had already issued its 5 December 1990 order allowing a "provisional increase" sought by the oil companies in their respective supplemental applications. That there were postponements of scheduled hearings before the ERB, at the instance of oppositor Maceda, did not justify a denial of the right of oppositors to be heard. The postponements were not intended to delay the proceedings. In fact, the resetting of the scheduled hearings on November 14, 15 and 16 to a later date, upon motion of petitioner Maceda, was to enable him to file a written opposition to the supplemental applications filed by the oil companies. The ERB acted hastily in granting the provisional increases sought by the oil companies even before the oppositors could submit evidence in support of their opposition. The fact that the questioned orders merely allowed a provisional increase is beside the point, for past experiences have shown that socalled provisional increases" allowed by the ERB ultimately became permanent. ERB's claim that the second provisional increase was duly supported by evidence, is belied by its own act of modifying said order (of provisional increase) not only once but twice, upon the "request" of the President. First, the ERB rolled back the prices of fuel just a day after it issued the questioned order, altering the allocation of the increase. Second, on 10 December 1990, the ERB further modified the price of petroleum products resulting in reduction of the weighted average provisional increase from P2.82 to P2.05 per liter, but only after the President had announced that she would meet with the leaders of both Houses of Congress, to discuss the creation of a special fund to be raised from additional taxes, to subsidize the prices of petroleum products. 1 These acts of the ERB ostensibly sparked by "presidential requests" clearly demonstrate that the evidence did not, in the first place, justify the price increases it had ordered on 5 and 6 December 1990. Furthermore, the ERB never came out with a categorical and official declaration of how much was the so-called deficit of the Oil Price Stabilization Fund (OPSF) and how much of the oil price increases was intended to cover such deficit. In the midst of a national crisis related to oil price increases, each and every one is called upon to assume his/its share of continuing sacrifices. The public, the government, as well as the oil companies should work hand in hand in solving the present problem that confronts us. We are not unmindful of the fact that the oil companies are profit-oriented. However, profits should not be their only concern in times of deepening inability of the people to cope with their prices with "built-in-margins". A reduction of profits during these crucial and trying times, is certainly in order considering that in the past, the oil companies had unquestionably made tremendous profits. In view of the foregoing, I vote to GRANT the petition for the nullification of the 5 and 6 December 1990 orders of the ERB and for a roll-back of the prices of oil products to levels existing before 5 and 6 December 1990 until hearings before the ERB are finally concluded. Before closing, I also would like to submit for congressional consideration two (2) proposals in the public interest. They are: (1) to do away with the present scheme of allowing provisional price increases of oil products. This scheme, to my mind, is misleading and serves as an excuse for unilateral and arbitrary ERB-action. As already noted, these provisional price increases are, to all intents and purposes, permanent when fixed. To that extent, the scheme is a fraud on the people. (2) all decisions and orders of the ERB should be expressly made appealable by statute to the President of the Philippines whose decisions shall be final, except in cases involving questions of law or grave abuse of discretion which may be elevated to the Supreme Court in a special civil action for certiorari under Rule 65 of the Rules of Court. While at present, decisions and orders of the ERB are, in my considered opinion, appealable to the President under the principle of "exhaustion of administrative remedies", it is nevertheless desirable that the appealability of ERB decisions and orders to the President be placed beyond any and all doubts. In this way, the President of the Philippines has to assume full responsibility for all price increases in oil products, which should be the case because the matter involved is not only one of national interest but profoundly one of people's survival. Gutierrez, Jr. and Cruz, JJ., concur. SARMIENTO, J., separate opinion: I would like to point out a few things in view of the majority's reliance on the first Maceda case. 1 The first Maceda case was a challenge on provisional oil price increases decreed by the Energy Regulatory Board (ERB). This Court sustained the Board, as it is sustaining the Board in this case, on a few economic outputs, namely, the Oil Price Stabilization Fund (OPSF) deficit, the deteriorating exchange rate, and the balance of payments and trade gaps. As I held in my dissent in yet another Maceda case, Maceda v. Macaraig, 2 the current oil price increases were (are) also the result of the devaluation of the currency, since a devalued peso forced oil companies to pay more pesos for oil worth in dollars. I simply wish to state what has apparently been left unstated in the course of debate and perhaps, the real score behind recurring oil price hikes and why the ERB has been very quick in granting them. The truth is that petroleum prices have been dictated by the Government's economic maneuvers, and not rather the vagaries of the world market. The truth is that the recent oil hikes have nothing to do with Saddam Hussein or the Gulf crisis (during which oil prices in fact dropped) and are, rather, the natural consequences of calculated moves by the Government in its effort to meet so-called International Monetary Fund (IMF) targets.

In 1989, the Government of the Republic of the Philippines submitted its letter of intent to the IMF outlining the country's economic program from 1989 through 1992. In its paragraph 19, it states that: The Government intends to continue with the floating exchange rate system established in October 1984 . . .
3

Since exchange control was abolished and the floating rate system was established, the Philippine peso has seen a series of devaluations that have progressively pushed up prices, significantly, prices of petroleum. According to one authority, devaluation has been a "standard prescription" to correct balance of payments (BOP) deficits. 4 It makes dollars expensive, discourages import and encourages exports, and forces dollars conservation. 5 It is a matter of opinion whether or not devaluation has been good for the country and whether or not it has realized these objectives. The truth is that, whatever it has accomplished, oil which is imported has been subject to the effects of devaluation. Early this year, Governor Jose Cuisia of the Central Bank, Secretary Jesus Estanislao of the Department of Finance, and Secretary Guillermo Carague of the Budget and Management Department, wrote Mr. Michael Camdessus of the International Monetary Fund (the letter of intent) and informed him of the country's "Economic Stabilization Plan, 1991-92". The Plan recognized certain economic imbalances that have supposedly inhibited growth, in particular, inflation and an increasing balance of payments deficit, and drew a program centered on "a strong effort to bring down the overall fiscal deficit "through, among other things, "the gradual elimination of the deficit of the Oil Price Stabilization Fund." 6 It spelled out, among other things, a "[r]estoration of a sustainable external position requir[ing] the continuation of a flexible exchange rate policy . . . " 7 and described in detail an "Oil Price and Energy Policy" focused on wiping out the OPSF deficit, to wit: xxx xxx xxx A substantial erosion in the overall fiscal position occurred in 1989 and 1990 as a result of official price support for oil products provided through the OPSF. Despite a lowering of the excise tax on oil in September 1990 and average domestic oil price increases of about 30 percent in September and 32 percent in December 1990, the fund continued to incur a deficit during the second half of 1990. The cumulative OPSF deficit (excluding unfiled claims) at end December 1990 is estimated at P8.8 billion, and this deficit will rise in the first part of 1991. However the cumulative OPSF deficit is to be eliminated by the end of the third quarter of 1991. To this end, the Government intends to follow a pricing policy that ensures attainment of zero balance within the specific time. In particular, the Government will maintain present price levels despite projected world price declines. In addition, a budgetary transfer of P5 billion will be provided in 1991 to settle outstanding claim of the OPSF. 15. Full deregulation of oil prices continues to be an important objective of the Government once calm has been restored to world oil markets. Meanwhile the technical and legal groundwork is being laid with a view to full deregulation as soon as practicable. 16. The principal objectives of the Government's policy in the energy sector are: (i) the development of economically viable indigenous energy resources, mainly thermal, geothermal and hydro-electric power, together with ensuring adequate maintenance of existing facilities; (ii) promoting more efficient use of energy resources through various energy conservation measures; and (ii) the elimination of distortions in every resource allocation through appropriate pricing policies. 8 xxx xxx xxx As I said, Philippine oil prices today have nothing to do with the law on supply and demand, if they had anything to do with it in recent years. (I also gather that the Government is intending to re-adjust the prices of gasoline and diesel fuel soon since apparently, low diesel prices have reduced the demand for gasoline resulting in "distortions".) As the Court held in the first Maceda v. Energy Regulatory Board, 9 oil pricing "is a question best judged by the political leadership" and oil prices are (and have been apparently), political, rather than economic, decisions. I am not to be mistaken as accepting the "letter of intent" as a correct prescription much less a necessary medicine although I will be lacking in candor if I did not say that it is a bitter pill to swallow. What I must be understood as saying is that "oil" is a political card to be played on a political board rather than the courts, so long, of course, as nobody has done anything illegal. The "politics of oil" as spelled out in the Government's letter of intent likewise bring to light the true nature of the ERB Under the Memorandum on Philippine Economic Stabilization Plan: xxx xxx xxx In the past, energy prices had been set to broadly reflect the average cost of supply. However, the lack of transparency of the pricing mechanism and subsidization of consumption have increasingly become a cause for concern. To alleviate some of these problems, in mid-1987, the Government established the Energy Regulatory Board ERB a quasi-judicial body empowered with the setting and regulation of the pricing of petroleum products and electricity tariffs, the regulation of additions to oil refining capacity, and the regulation of importing, transporting, processing and distributing all energy resources. (Petroleum pricing policy is described in paragraphs 14 and 15.) In addition to the full pass-through of changes in oil prices to power tariffs, the Government is committed to the adoption of longrun marginal cost pricing for electricity. To this end, NPC intends to introduce a marginal cost imported-has tariff structure to ensure that it meets its target of achieving a rate of return of eight percent on its rate base. 10 it is apparent that the Board, in spite of its "independence" (from the Office of the President), is bound by the terms of the program and that it has after all, no genuine discretion to deny requests for price adjustments by oil companies. I seriously doubt whether or not it is possessed of that discretion

judging, first, from its performance since 1987 (in which it has not overruled the Government on "oil cases") and the fact that the exchange rate, the balance of payment deficit, and the OPSF deficiency are matters of simple arithmetic. And certainly, the Board can not possibly overrule the Government's "letter of intent." The first Maceda case sustained the grant of provisional price increases ex parte not only because Section 8 of Executive Order No. 172 authorized the grant of provisional relief without a hearing but because fluctuations in the foreign exchange rates, for instance, were, and are, a matter of judicial notice, and a hearing thereafter was necessary only to see whether or not the ERB determined the rates correctly. This likewise brings to light the necessity for an ERB to fix rates since it does not, after all fix (meaning decide) rates but merely announces their imminence on demonstrable figures of higher rates. The Court however can not question the wisdom of a statute and after all, I suppose the Government can make use of an accountant. I agree with Justice Padilla insofar as he refers to the "present scheme of allowing provisional price increase" as a "scheme [to defraud] the people." I would like to go further. As I indicated the ERB does no more than to punch calculators for the Government-which decides oil price increases. The comedy of December, 1990, when the Board adjusted prices in a matter of days, is a confirmation of this point. As Justice Padilla noted, the readjustment of December 10, 1990 was in fact prompted by "presidential requests" which does not speak well of the Board's independence and which in fact bares the truth as to who really makes the decision. (The readjustment, consisting in the reduction in diesel fuel and a corresponding increase in gasoline, sought to mollify the indignation of the public.) I agree with Justice Padilla that it amounts to fraud on the people to make them believe that the ERB can give them a fair hearing, indeed, if it can do anything at all. I agree, finally, with Justice Padilla that the nation is one in crisis, and evidently, the "ravenous" oil companies Justice Paras refers to, have not helped any. I submit however that we have not succeeded in fingering the real villain the letter of intent. Saddam's Middle East folly has nothing to do with that.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63915 April 24, 1985 LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788852, 854-857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative records no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5 The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, 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 conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. Relova, J., concurs. Aquino, J., took no part. Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect. I shall explain why. 1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity. 2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2 3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes. 4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. 5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement. I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion. Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties. Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith. Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is

provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring: I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification): The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazetterequired by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role. In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring: I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring: I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification): There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect. I shall explain why. 1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity. 2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2 3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes. 4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. 5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement. I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion. Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties. Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring: I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification): The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazetterequired by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role. In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. Cuevas and Alampay, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-9876 December 8, 1914 THE UNITED STATES, plaintiff-appellee, vs. ADRIANO PANLILIO, defendant-appellant. Pedro Abad Santos for appellant. Office of the Solicitor General Corpus for appellee.

MORELAND, J.: This is an appeal from a judgment of the Court of First Instance of the Province of Pampanga convicting the accused of a violation of the law relating to the quarantining of animals suffering from dangerous communicable or contagious diseases and sentencing him to pay a fine of P40, with subsidiary imprisonment in case of insolvency, and to pay the costs of the trial. The information charges: "That on or about the 22nd day of February, 1913, all of the carabaos belonging to the above-named accused having been exposed to the dangerous and contagious disease known as rinderpest, were, in accordance with an order of duly-authorized agent of the Director of Agriculture, duly quarantined in a corral in the barrio of Masamat, municipality of Mexico, Province of Pampanga, P. I.; that, on said place, the said accused, Adriano Panlilio, illegally and voluntarily and without being authorized so to do, and while the quarantine against said carabaos was still in force, permitted and ordered said carabaos to be taken from the corral in which they were then quarantined and conducted from one place to another; that by virtue of said orders of the accused, his servants and agents took the said carabaos from the said corral and drove them from one place to another for the purpose of working them." The defendant demurred to this information on the ground that the acts complained of did not constitute a crime. The demurrer was overruled and the defendant duly excepted and pleaded not guilty. From the evidence introduced by the prosecution on the trial of the cause it appears that the defendant was notified in writing on February 22, 1913, by a duly authorized agent of the Director of agriculture, that all of his carabaos in the barrio of Masamat, municipality of Mexico, Pampanga Province, had been exposed to the disease commonly known as rinderpest, and that said carabaos were accordingly declared under quarantine, and were ordered kept in a corral designated by an agent of the Bureau of Agriculture and were to remain there until released by further order of the Director of Agriculture. It further appears from the testimony of the witnesses for the prosecution that the defendant fully understood that, according to the orders of the Bureau of Agriculture, he was not to remove the animals, or to permit anyone else to remove them, from the quarantine in which they had been placed. In spite, however, of all this, the carabaos were taken from the corral by the commands of the accused and driven from place to place on his hacienda, and were used as work animals thereon in the same manner as if they had not been quarantined. The contention of the accused is that the facts alleged in the information and proved on the trial do not constitute a violation of Act No. 1760 or any portion thereof. We are forced to agree with this contention.1awphil.net The original information against the accused charged a violation of section 6 of Act No. 1760 committed by the accused in that he ordered and permitted his carabaos, which, at the time, were in quarantine, to be taken from quarantine and moved from one place to another on his hacienda. An amended information was filed. It failed, however, to specify that section of Act No. 1760 alleged to have been violated, evidently leaving that to be ascertained by the court on the trial. The only sections of Act No. 1760, which prohibit acts and pronounce them unlawful are 3, 4 and 5. This case does not fall within any of them. Section 3 provides, in effect, that it shall be unlawful for any person, firm, or corporation knowingly to ship or otherwise bring into the Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any of the effects pertaining to such animal which are liable to introduce such disease into the Philippine Islands. Section 4 declares, substantially, that it shall be unlawful for any reason, firm, or corporation knowingly to ship, drive or otherwise take or transport from one island, province, municipality, township, or settlement to another any domestic animal suffering from any dangerous communicable diseased or to expose such animal either alive or dead on any public road or highway where it may come in contact with other domestic animals. Section 5 provides that whenever the Secretary of the Interior shall declare that a dangerous communicable animal disease prevails in any island, province, municipality, township, or settlement and that there is danger of spreading such disease by shipping, driving or otherwise transporting or taking out of such island, province, municipality, township, or settlement any class of domestic animal, it shall be unlawful for any person, firm or corporation to ship, drive or otherwise remove the kind of animals so specified from such locality except when accompanied by a certificate issued by authority of the Director of Agriculture stating the number and the kind of animals to be shipped, driven, taken or transported, their destination, manner in which they are authorized to be shipped, driven, taken, or transported, and their brands and distinguishing marks. A simple reading of these sections demonstrates clearly that the case at bar does not fall within any of them. There is no question here of importation and there is no charge or proof that the animals in question were suffering from a dangerous communicable disease or that the Secretary of the Interior

had made the declaration provided for in section 5 or that the accused had driven or taken said animals from one island, province, municipality, township or settlement to another. It was alleged had been exposed to a dangerous communicable disease and that they had been placed in a corral in quarantine on the premises of the accused and that he, in violation of the quarantine, had taken them from the corral and worked them upon the lands adjoining. They had not been in highway nor moved from one municipality or settlement to another. They were left upon defendant's hacienda, where they were quarantined, and there worked by the servants of the accused. The Solicitor-General in his brief in this court admits that the sections referred to are not applicable to the case at bar and also admits that section 7 of said Act is not applicable. This section provides: "Whenever the Director of Agriculture shall order any animal placed in quarantine in accordance with the provisions of this Act, the owner of such animal, or his agent, shall deliver it at the place designated for the quarantine and shall provide it with proper food, water, and attendance. Should the owner or his agent fail to comply with this requirement the Director of Agriculture may furnish supplies and attendance needed, and the reasonable cost of such supplies and attendance shall be collectible from the owner or his agent." We are in accord with the opinion expressed by the Solicitor-General with respect to this section, as we are with his opinion as to sections 3, 4, and 5. the law nowhere makes it a penal offense to refuse to comply with the provisions of section 7, nor is the section itself so phrased as to warrant the conclusion that it was intended to be a penal section. The section provides the means by which the refusal of the owner to comply therewith shall be overcome and the punishment, if we may call it punishment, which he shall receive by reason of that refusal. It has none of the aspects of a penal provision or the form or substance of such provision. It does not prohibit any act. It does not compel an act nor does it really punish or impose a criminal penalty. The other sections of the law under which punishments may be inflicted are so phrased as to make the prohibited act unlawful, and section 8 provides the punishment for any act declared unlawful by the law. The Solicitor-General suggests, but does not argue, that section 6 is applicable to the case at bar. Section 6 simply authorizes the Director of Agriculture to do certain things, among them, paragraph (c) "to require that animals which are suffering from dangerous communicable diseases or have been exposed thereto be placed in quarantine at such place and for such time as may be deemed by him necessary to prevent the spread of the disease." Nowhere in the law, however, is the violation of the orders of the Bureau of Agriculture prohibited or made unlawful, nor is there provided any punishment for a violation of such orders. Section 8 provides that "any person violating any of the provisions of this Act shall, upon conviction, be punished by a fine of not more than one thousand pesos, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court, for each offense." A violation of the orders of the Bureau of Agriculture, as authorized by paragraph ( c), is not a violation of the provision of the Act. The orders of the Bureau of Agriculture, while they may possibly be said to have the force of law, are statutes and particularly not penal statutes, and a violation of such orders is not a penal offense unless the statute itself somewhere makes a violation thereof unlawful and penalizes it. Nowhere in Act No. 1760 is a violation of the orders of the Bureau of Agriculture made a penal offense, nor is such violation punished in any way therein. Finally, it is contended by the Government that if the offense stated in the information and proved upon the trial does not constitute a violation of any of the provisions of Act No. 1760, it does constitute a violation of article 581, paragraph 2, of the Penal Code. It provides: A fine of not less than fifteen and not more than seventy pesetas and censure shall be imposed upon: . . . 2. Any person who shall violate the regulations, ordinances, or proclamations issued with reference to any epedemic disease among animals, the extermination of locusts, or any other similar plague.1awphil.net It alleged in the information and was proved on the trial that the Bureau of agriculture had ordered a quarantine of the carabaos at the time and place mentioned; that the quarantine had been executed and completed and the animals actually segregated and confined; that the accused, in violation of such quarantine and of the orders of the Bureau of Agriculture, duly promulgated, broke the quarantine, removed the animals and used them in the ordinary work of his plantation. We consider these acts a plain violation of the article of the Penal Code as above quoted. The fact that the information in its preamble charged a violation of act No. 1760 does not prevent us from finding the accused guilty of a violation of an article of the Penal Code. The complaint opens as follows: "The undersigned accuses Adriano Panlilio of a violation of Act No. 1760, committed as follows:" Then follows the body of the information already quoted in this opinion. We would not permit an accused to be convicted under one Act when he is charged with the violation of another, if the change from one statute to another involved a change of the theory of the trial or required of the defendant a different defense or surprised him in any other way. The allegations required under Act No. 1760 include those required under article 581. The accused could have defended himself in no different manner if he had been expressly charged with a violation of article 581. In the case of United States vs. Paua (6 Phil. Rep., 740), the information stating the facts upon which the charge was founded terminated with his expression: "In violation of section 315 of Act No. 355 of the Philippine Commission, in effect on the 6th of February, 1902." In the resolution of this case the Supreme Court found that the facts set forth in the information and proved on the trial did not constitute a violation of section 315 of Act No. 355 as alleged in the information, but did constitute a violation of article 387 in connection with article 383 of the Penal Code, and accordingly convicted the accused under those articles and sentenced him to the corresponding penalty. In that case the court said: "The foregoing facts, duly established as they were by the testimony of credible witnesses who heard and saw everything that occurred, show beyond peradventure of doubt that the crime of attempted bribery, as defined in article 387, in connection with article 383 of the Penal Code, has been committed, it being immaterial whether it is alleged in the complaint that section 315 of Act No. 355 of the Philippine Commission was violated by the defendant, as the same recites facts and circumstances sufficient to constitute the crime of bribery as defined and punished in the aforesaid articles of the Penal Code." (U. S. vs. Lim San, 17 Phil. Rep., 273; U.S. vs. Jeffrey, 15 Phil. Rep., 391; U. S. vs. Guzman, 25 Phil. Rep., 22.) The accused is accordingly convicted of a violation of article 581, paragraph 2, of the Penal Code, and is sentenced to pay a fine of seventy pesetas (P14) and censure, with subsidiary imprisonment in case of insolvency, and the costs of this appeal. So ordered. Arellano, C.J., Torres, Carson and Araullo, JJ., concur. Johnson, J., dissents.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 96681 December 2, 1991 HON. ISIDRO CARIO, in his capacity as Secretary of the Department of Education, Culture & Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of Manila, petitioners, vs. THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents.

NARVASA, J.:p The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the Solicitor General, may be formulated as follows: where the relief sought from the Commission on Human Rights by a party in a case consists of the review and reversal or modification of a decision or order issued by a court of justice or government agency or official exercising quasi-judicial functions, may the Commission take cognizance of the case and grant that relief? Stated otherwise, where a particular subject-matter is placed by law within the jurisdiction of a court or other government agency or official for purposes of trial and adjudgment, may the Commission on Human Rights take cognizance of the same subject-matter for the same purposes of hearing and adjudication? The facts narrated in the petition are not denied by the respondents and are hence taken as substantially correct for purposes of ruling on the legal questions posed in the present action. These facts, 1 together with others involved in related cases recently resolved by this Court 2 or otherwise undisputed on the record, are hereunder set forth. 1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among them members of the Manila Public School Teachers Association (MPSTA) and Alliance of Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to "dramatize and highlight" their plight resulting from the alleged failure of the public authorities to act upon grievances that had time and again been brought to the latter's attention. According to them they had decided to undertake said "mass concerted actions" after the protest rally staged at the DECS premises on September 14, 1990 without disrupting classes as a last call for the government to negotiate the granting of demands had elicited no response from the Secretary of Education. The "mass actions" consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their representatives, the teachers participating in the mass actions were served with an order of the Secretary of Education to return to work in 24 hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate dismissal proceedings against those who did not comply and to hire their replacements. Those directives notwithstanding, the mass actions continued into the week, with more teachers joining in the days that followed. 3 Among those who took part in the "concerted mass actions" were the eight (8) private respondents herein, teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-political demands of the MPSTA. 4 2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were administratively charged on the basis of the principal's report and given five (5) days to answer the charges. They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D. 807" and temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation committee was consequently formed to hear the charges in accordance with P.D. 807. 5 3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named respondents, 6 the latter filed separate answers, opted for a formal investigation, and also moved "for suspension of the administrative proceedings pending resolution by . . (the Supreme) Court of their application for issuance of an injunctive writ/temporary restraining order." But when their motion for suspension was denied by Order dated November 8, 1990 of the Investigating Committee, which later also denied their motion for reconsideration orally made at the hearing of November 14, 1990, "the respondents led by their counsel staged a walkout signifying their intent to boycott the entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cario dated December 17, 1990, rendered after evaluation of the evidence as well as the answers, affidavits and documents submitted by the respondents, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo. 8 4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of Manila against petitioner (Cario), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA went to the Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on the) alleged violation of the striking teachers" right to due process and peaceable assembly docketed as G.R. No. 95445, supra. The ACT also filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590." 9 Both petitions in this Court were filed in behalf of the teacher associations, a few named individuals, and "other teacher-members so numerous similarly situated" or "other similarly situated public school teachers too numerous to be impleaded." 5. In the meantime, too, the respondent teachers submitted sworn statements dated September 27, 1990 to the Commission on Human Rights to complain that while they were participating in peaceful mass actions, they suddenly learned of their replacements as teachers, allegedly without notice and consequently for reasons completely unknown to them. 10

6. Their complaints and those of other teachers also "ordered suspended by the . . . (DECS)," all numbering forty-two (42) were docketed as "Striking Teachers CHR Case No. 90775." In connection therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a subpoena to Secretary Cario requiring his attendance therein. 11 On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cario) received the subpoena which was served at his office, . . . (the) Commission, with the Chairman presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the case;" it heard the complainants' counsel (a) explain that his clients had been "denied due process and suspended without formal notice, and unjustly, since they did not join the mass leave," and (b) expatiate on the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants) sympathize." 12 The Commission thereafter issued an Order 13 reciting these facts and making the following disposition: To be properly apprised of the real facts of the case and be accordingly guided in its investigation and resolution of the matter, considering that these forty two teachers are now suspended and deprived of their wages, which they need very badly, Secretary Isidro Cario, of the Department of Education, Culture and Sports, Dr. Erlinda Lolarga, school superintendent of Manila and the Principal of Ramon Magsaysay High School, Manila, are hereby enjoined to appear and enlighten the Commission en banc on October 19, 1990 at 11:00 A.M. and to bring with them any and all documents relevant to the allegations aforestated herein to assist the Commission in this matter. Otherwise, the Commission will resolve the complaint on the basis of complainants' evidence. xxx xxx xxx 7. Through the Office of the Solicitor General, Secretary Cario sought and was granted leave to file a motion to dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging as grounds therefor, "that the complaint states no cause of action and that the CHR has no jurisdiction over the case." 14 8. Pending determination by the Commission of the motion to dismiss, judgments affecting the "striking teachers" were promulgated in two (2) cases, as aforestated, viz.: a) The Decision dated December l7, 1990 of Education Secretary Cario in Case No. DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo; 15 and b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and 95590 dismissing the petitions "without prejudice to any appeals, if still timely, that the individual petitioners may take to the Civil Service Commission on the matters complained of," 16 and inter alia "ruling that it was prima facie lawful for petitioner Cario to issue return-to-work orders, file administrative charges against recalcitrants, preventively suspend them, and issue decision on those charges." 17 9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cario's motion to dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten (10) days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits with or without respondents counter affidavit." 18 It held that the "striking teachers" "were denied due process of law; . . . they should not have been replaced without a chance to reply to the administrative charges;" there had been a violation of their civil and political rights which the Commission was empowered to investigate; and while expressing its "utmost respect to the Supreme Court . . . the facts before . . . (it) are different from those in the case decided by the Supreme Court" (the reference being unmistakably to this Court's joint Resolution of August 6, 1991 in G.R. Nos. 95445 and 95590, supra). It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf of petitioner Cario, has commenced the present action of certiorari and prohibition. The Commission on Human Rights has made clear its position that it does not feel bound by this Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends, in other words, to try and decide or hear and determine, i.e., exercise jurisdiction over the following general issues: 1) whether or not the striking teachers were denied due process, and just cause exists for the imposition of administrative disciplinary sanctions on them by their superiors; and 2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants) sympathize," justify their mass action or strike. The Commission evidently intends to itself adjudicate, that is to say, determine with character of finality and definiteness, the same issues which have been passed upon and decided by the Secretary of Education, Culture & Sports, subject to appeal to the Civil Service Commission, this Court having in fact, as aforementioned, declared that the teachers affected may take appeals to the Civil Service Commission on said matters, if still timely. The threshold question is whether or not the Commission on Human Rights has the power under the Constitution to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has jurisdiction or adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights. The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the

facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. 21 This function, to repeat, the Commission does not have. 22 The proposition is made clear by the constitutional provisions specifying the powers of the Commission on Human Rights. The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution, it succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of the Constitution. 24 Its powers and functions are the following 25 (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law. As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the Commission the power toinvestigate all forms of human rights violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth. It may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its findings. 26 But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings. "Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." 27 The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." 29 "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." 30 And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . . ." 31 In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." 32

Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions, and return to their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by them; and (c) what where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or omissions. These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education, being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the Civil Service Commission. Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and resolved them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service Commission; and even this Court itself has had occasion to pass upon said issues. 34 Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed "human rights violations involving civil and political rights," are matters which may be passed upon and determined through a motion for reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme Court. The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding into the jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no business going over the same ground traversed by the latter and making its own judgment on the questions involved. This would accord success to what may well have been the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education Secretary in the administrative cases against them which they anticipated would be adverse to them. This cannot be done. It will not be permitted to be done. In any event, the investigation by the Commission on Human Rights would serve no useful purpose. If its investigation should result in conclusions contrary to those reached by Secretary Cario, it would have no power anyway to reverse the Secretary's conclusions. Reversal thereof can only by done by the Civil Service Commission and lastly by this Court. The only thing the Commission can do, if it concludes that Secretary Cario was in error, is to refer the matter to the appropriate Government agency or tribunal for assistance; that would be the Civil Service Commission. 35 It cannot arrogate unto itself the appellate jurisdiction of the Civil Service Commission. WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET ASIDE, and the respondent Commission on Human Rights and the Chairman and Members thereof are prohibited "to hear and resolve the case ( i.e., Striking Teachers HRC Case No. 90-775) on the merits." SO ORDERED. Melencio-Herrera, Cruz, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ, concur.

Separate Opinions

GUTIERREZ, JR., J., concurring: I concur in the result. The teachers are not to be blamed for exhausting all means to overcome the Secretary's arbitrary act of not reinstating them. PARAS, J., concurring: I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa I wish to add however that the Commission on Human Rights should concern itself in this case and in many other similar cases: (1) not only with the human rights of striking teachers but also the human rights of students and their parents; (2) not only with the human rights of the accused but also the human rights of the victims and the latter's families; (3) not only with the human rights of those who rise against the government but also those who defend the same;

(4) not only the human rights of striking laborers but also those who as a consequence of strikes may be laid off because of financial repercussions. The defense of human rights is not a monopoly of a government agency (such as the Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called "human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL LAWYERS, JUDGES, and JUSTICES. Finally, the Commission should realize that while there are "human rights", there are also corresponding "human obligations."

PADILLA, J., dissenting: I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in this case.

# Separate Opinions GUTIERREZ, JR., J., concurring: I concur in the result. The teachers are not to be blamed for exhausting all means to overcome the Secretary's arbitrary act of not reinstating them. PARAS, J., concurring: I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa I wish to add however that the Commission on Human Rights should concern itself in this case and in many other similar cases: (1) not only with the human rights of striking teachers but also the human rights of students and their parents; (2) not only with the human rights of the accused but also the human rights of the victims and the latter's families; (3) not only with the human rights of those who rise against the government but also those who defend the same; (4) not only the human rights of striking laborers but also those who as a consequence of strikes may be laid off because of financial repercussions. The defense of human rights is not a monopoly of a government agency (such as the Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called "human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL LAWYERS, JUDGES, and JUSTICES. Finally, the Commission should realize that while there are "human rights", there are also corresponding "human obligations."

PADILLA, J., dissenting: I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in this case.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-42783-85 November 29, 1976 CARIDAD CRUZ DE SYQUIA, petitioner, vs. BOARD OF POWER AND WATER WORKS (formerly Public Service Commission), RAFAEL J. RUIZ, PETER ENRIQUEZ and CYRIL D. MOSES, respondents. Enrique O. Chan for petitioner. Zosimo Rivas for private respondents.

TEEHANKEE, J.: The Court sets aside respondent board's orders ruling upon the complaints of the three private respondents-tenants of petitioner's apartment building that petitioner may not charge them pro rata the extra cost of electricity consumed for the building's common areas and facilities such as the elevator and servants' quarters. The question of the proportionate amount that each tenant should bear for the additional electricity cost for common facilities of the apartment building used by the tenants in common is purely civil in character, (involving the conditions of lease between landlord and tenant), to be adjudged under the applicable civil laws exclusively by the regular courts of general jurisdiction and is beyond the jurisdiction of respondent board. In December, 1974, private respondents filed three separate complaints with respondent Board of Power and Waterworks charging petitioner as administrator of the South Syquia Apartments at Malate, Manila with the offense of selling electricity without permit or franchise issued by respondent board, in that petitioner billed respondents-complainants various specified amounts for their electricity consumption at their respective apartments for the months of May to September, 1974 in excess of the Meralco rates authorized by respondent board. Petitioner's motion to dismiss the complaints asserting that they involved contractual obligations of respondents as apartment tenants and were beyond respondent board's jurisdiction was denied by the latter. Petitioner thereupon filed her answer, wherein she again questioned the complaints as beyond the jurisdiction of respondent as a regulatory board, since she is not engaged in the sale of electric power but merely passes to the apartment tenants as the end-users their legitimate electric current bills in accordance with their lease contracts, and their relationship is contractual in nature. Petitioner added that the tenants including respondents had no complaint under the contractual set-up of billings for water and electric service consumption, whereby while individual electric meters are installed in each apartment, Meralco billings include all consumption in the entire compound, including the common areas, servants' quarters and elevators, the payment for which was advanced by petitioner and later collected by way of reimbursement from the tenants pro rata; but that respondents alone complained later when on account of the energy crisis, additional fuel adjustment costs were added by Meralco to their billings which were likewise passed on by petitioner to all the tenants pro rata. As stated in respondent board's questioned order of August 28, 1975, petitioner further manifested her willingness to abide by such computations as respondent board may determine to be the correct electric billing that should be charged against complainants-respondents for their respective electric consumption and submitted pertinent records of the electrical consumption and Meralco billings. Respondent board in said order however came up with its computation which would allow petitioner to charge respondents only the cost of electricity registered in their individual apartment meters and disallow the actual cost of additional electricity charged them pro rata by petitioner for the cost of electricity consumed by all tenants in the common areas. When petitioner pointed out in her motion for reconsideration that respondent board's computation would not reimburse petitioner for the cost of the electric consumption in the common areas and elevators with a resultant loss to her at the least of P1,250.00 a month or P15,000.00 a year and reiterated that this was a contractual obligation of the tenants over which respondent regulatory board had no jurisdiction, the board, acting through its Acting Chairman alone, Cesar S. de Guzman, (as seems to be the case with all the board actions herein involved) denied reconsideration and ruled that It is the considered opinion of this Board, that since the tenants (complainants) are already paying rentals for the use of their rooms and for the cost of their electricity within their rooms, they should no longer be required to pay for the extra cost of electricity in common areas such as the elevator and the servants' quarters, for it is only fair and equitable that the cost of electricity for common areas such as the elevator and servants' quarters be shouldered alone by the owner of the building as part of the cost for the rentals being paid by the tenants (complainants). ... Hence, the petition at bar, wherein petitioner raises the basic question of the board's lack of jurisdiction, aside from the error of its action based on the admitted facts. The Court required comment and private respondents as well as respondent board's counsel filed their comments simply assuming the board's jurisdiction and supported its questioned orders.

Also required to comment, Acting Solicitor General Hugo E. Gutierrez, Jr. concurred with petitioner and submitted that respondent regulatory board acted without jurisdiction over the subject-matter of the complaints, succinctly stating the State's position as follows: Since the petitioner does not operate, manage or control the power plant and furthermore, since electricity is directly and uninterruptedly supplied to the end-user, it cannot be correctly claimed that the petitioner is selling electricity nor can she be considered a middleman in the electric power business. The dispute between the petitioner landlord and her tenants as to how much each tenant should be correspondingly billed, for the actual electricity consumed and as to the proportionate amount each tenant should bear for the common facilities used in the apartments, if such amounts should be borne by the tenants at all, is an issue affecting mathematical computations and conditions of lease between landlord and tenant. The Court resolved to treat the petition as a special civil action and to grant the petition. Under the reorganization plan effected by Presidential Decree No. 1 as amended by Presidential Decree No. 458 issued on May 16, 1974, jurisdiction, supervision and control over public service related to electric light, power and waterworks utilities formerly vested in the Public Service Act 1 were transferred to respondent board. Respondent board as a regulatory board manifestly exceeded its jurisdiction in taking cognizance of and adjudicating the complaints filed by respondents against petitioner. Respondent board acquired no jurisdiction over petitioner's contractual relations with respondents-complainants as her tenants, since petitioner is not engaged in a public service nor in the sale of electricity without permit or franchise. Respondents' complaints against being charged he additional cost of electricity for common facilities used by the tenants (in addition to those registered in their respective apartment meters) give rise to a question that is purely civil in character that is to be adjudged under the applicable provisions of the Civil Code (not the Public Service Act) and not by the respondent regulatory board which has no jurisdiction but by the regular courts of general jurisdiction. Respondent board in resolving the complaints against petitioner and requiring her to absorb the additional rising costs of electricity consumed for the common areas and elevator service even at a resultant loss of P15,000.00 a year arrogated the judicial function. Its orders were beyond its jurisdiction and must be set aside as null and void. ACCORDINGLY, the questioned orders of respondent board are annulled and the complaints of private respondents are ordered dismissed. With costs against private respondents. SO ORDERED. Makasiar, Muoz Palma, Concepcion, Jr. and Martin, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-27520 January 21, 1987 GLOBE WIRELESS LTD., petitioner, vs. PUBLIC SERVICE COMMISSION and ANTONIO B. ARNAIZ, respondents. RESOLUTION G.R. No. 27520 [Globe Wireless Ltd., vs. Public Service Commission and Antonio B. Arnaiz]. Challenged in this petition for certiorari is the jurisdiction of the defunct Public Service Commission [PSC] under Section 21 of Commonwealth Act No. 146, as amended, to discipline and impose a fine upon petitioner, Globe Wireless, Ltd., a duly organized Philippines corporation engaged in ;international telecommunication business under a franchise granted by Public Acts Nos. 3495, 3692 and 4150 as amended by Republic Act No. 4630. A message addressed to Maria Diaz, Monte Esquina 30, Madrid, Spain, filed by private respondent Antonio B. Arnaiz with the telegraph office of the Bureau of Telecommunications in Dumaguete City was transmitted to the Bureau of Telecommunications in Manila. It was forwarded to petitioner Globe Wireless Ltd. for transmission to Madrid. Petitioner sent the message to the American Cable and Radio Corporation in New York, which, in turn, transmitted the same to the Empresa Nacional de Telecommunicaciones in Madrid. The latter, however, mislaid said message, resulting in its nondelivery to the addressee. After being informed of said fact, private respondent Arnaiz, sent to then Public Service Commissioner Enrique Medina an unverified letter-complaint relating the incident. The complaint was docketed as PSC Case No. 65-39-OC and petitioner was required to answer the same. Petitioner, in its answer, questioned PSC's jurisdiction over the subject matter of the letter-complaint, even as it denied liability for the non-delivery of the message to the addressee. Hearing ensued, after which the PSC issued an order finding petitioner "responsible for the inadequate and unsatisfactory service complained of, in violation of the Public Service Act" and ordering it "to pay a fine of TWO HUNDRED [P200.00] PESOS under Sec. 21 of Com. Act 146, as amended." petitioner was likewise required to refund the sum of P19.14 to the remitter of the undelivered message. [Annex "C", petition, . 23, Rollo]. Its motion for reconsideration having been denied, petitioner instituted the instant petition. We find for petitioner. Verily, Section 13 of Commonwealth Act No. 146, as amended otherwise known as the Public Service Act, vested in the Public Service Commission jurisdiction, supervision and control over all Public services and their franchises, equipment and other properties. However, Section 5 of Republic Act No. 4630, the legislative franchise under which petitioner was operating, limited respondent Commission's jurisdiction over petitioner only to the rate which petitioner may charge the Public. Thus, Sec. 5. The Public Service Commission is hereby given jurisdiction over the grantee only with respect to the rates which the grantee may charge the public subject to international commitments made or adhered to by the Republic of the Philippines. (Emphasis supplied.) The act complained of consisted in petitioner having allegedly failed to deliver the telegraphic message of private respondent to the addressee in Madrid, Spain. Obviously, such imputed negligence had nothing whatsoever to do with the subject matter of the very limited jurisdiction of the Commission over petitioner. Moreover, under Section 21 of C.A. No. 146, as amended, the Commission was empowered to impose an administrative fine in cases of violation of or failure by a Public service to comply with the terms and conditions of any certificate or any orders, decisions or regulations of the Commission. petitioner operated under a legislative franchise, so there were no terms nor conditions of any certificate issued by the Commission to violate. Neither was there any order, decision or regulation from the Commission applicable to petitioner that the latter had allegedly violated, disobeyed, defied or disregarded. Too basic in administrative law to need citation of jurisprudence is the rule that the jurisdiction and powers of administrative agencies, like respondent Commission, are limited to those expressly granted or necessarily implied from those granted in the legislation creating such body; and any order without or beyond such jurisdiction is void and ineffective. The order under consideration belonged to this category. ACCORDINGLY, the instant petition is hereby granted and the order of respondent Public Service Commission in PSC Case No. 65-39-OC is set aside for being null and void.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-41315 November 13, 1986 PILIPINAS SHELL PETROLEUM CORPORATION, petitioner, vs. THE OIL INDUSTRY COMMISSION and MANUEL B. YAP, respondents. Angara, Concepcion, Regala and Cruz Law Office for petitioner. J. T. Barrera & Associates for respondent Manuel B. Yap.

PARAS, J.: This is a Petition for certiorari assailing certain orders issued by respondent Oil Industry Commission (hereinafter known as OIC) in OIC Case No. 144. Briefly the facts of the case are as follows: Respondent Manuel B. Yap is a gasoline dealer by virtue of a "Sublease and Dealer Agreement" entered into with petitioner Pilipinas Shell Petroleum Corporation (hereinafter known as Shell) originally in the year 1965 and superseded in the year 1969 (Annex "A") of the petition). The latter was filed and registered with the OIC on April 30, 1971 as required by Republic Act #6173 (R.A. #6173). While petitioner Shell complied with its contractual commitments, Manuel B. Yap defaulted in his obligations upon failure to pay for his purchases of gasoline and other petroleum products. Petitioner Shell sent demand letters to respondent Manuel B. Yap who continued to ignore these demands letters forcing petitioner Shell to exercise its contractual rights to terminate the contract. Petitioner Shell sent respondent Yap the required 90-day written notice to terminate their contract as provided for by Sec. 5 of their "Sublease and Dealer Agreement, " to wit: 5. Effective Date, Direction and Termination of Agreement. -This Agreement, duly signed by the DEALER, shall become effective for both parties first of January, 1969 and shall continue indefinitely thereafter, until terminated by either party giving to the other ninety (90) days notice in writing of such termination. Respondent Yap filed a complaint with the then Court of First Instance (CFI) of Iloilo docketed as Civil Case No. 9507 for damages with preliminary injunction against petitioner Shell Respondent Yap questioned the validity of the exercise by petitioner of its contractual right to terminate the contract. Barely less than a month from the filing of his complaint, respondent Yap again filed with the respondent OIC Case #144 where he likewise raised the same issue. Without affording the petitioner an opportunity to be heard on the matter, respondent OIC issued anex-parte preliminary mandatory injunction commanding petitioner to perform the following acts: 1) to continue selling to respondent Yap petroleum products 2) to maintain the status quo insofar as the operation by respondent Yap of the gasoline station is concerned 3) to sub t a verified statement of the unpaid accounts of respondent Yap. Petitioner Shell also filed a complaint with the then CFI of Cebu docketed as Civil Case No. 13675 to collect the long overdue debts of respondent Yap. Shell filed with the OIC an Urgent Ex-parte Motion to Dissolve the Writ (Annex "I") and filed its answer to complaint of respondent Yap principally impugning the jurisdiction of the OIC. A decision was rendered in Civil Case No. 13675 ordering respondent Yap to pay his overdue liabilities: 1) P47,537.30 representing the value of petroleum products he bought from the petitioner 2) P1,000, litigation expenses 3) P5,000, attorney's fees. Despite the pendency of the controversy before the ordinary civil courts, OIC persisted in asserting jurisdiction over it by rendering a decision stating it has jurisdiction to pass upon the alleged contractual right of petitioner to declare Yap's contract terminated. The OIC negated the existence of such right because the stipulation is an "unfair and onerous trade practice." Respondent OIC also allowed respondent Yap reasonable time from receipt of the decision within which to pay his judgment debt to petitioner as adjudged in Civil Case No. 13675. Petitioner Shell moved for a reconsideration but respondent OIC denied it. However, a modification was made by declaring that the permission it gave respondent Yap to pay his judgment debt was "merely a suggestion." OIC ordered that petitioner must comply within ten (10) days from notice. The issues now of the petition are the aforementioned orders of the respondent OIC, petitioner Shell submitting that they are null and void on any, or all, of the following grounds: 1. Respondent OIC has no jurisdiction to hear and decide contractual disputes between a gasoline dealer and an oil company. 2. Respondent Manuel B. Yap himself first invoked the jurisdiction of the then CFI of Iloilo to resolve the dispute so that he is now estopped from impugning the jurisdiction of the civil courts.

3. Peremptory declaration by respondent OIC that the contractual stipulation that either party may declare the contract terminated after a 90-day written notice constitutes an "unfair and onerous trade practice" is an unconstitutional impairment of the obligation of contracts and a deprivation of property without due process of law. 4. There is no factual basis for respondent OIC's conclusion and ruling that the disputed contract is an "unfair and onerous trade practice." The contentions of petitioner are well-founded. A detailed reading of the entire OIC Act (R.A. #6173) will reveal that there is no express provision conferring upon respondent OIC the power to hear and decide contractual disputes between a gasoline dealer and an oil company. It is of course a well settled principle of administrative law that unless expressly empowered, administrative agencies like respondent OIC, are bereft of quasi-judicial powers. As We declared in Miner vs. Mardo, et al (2 SCRA 898): . . . It may be conceded that the Legislature may confer on administrative boards or bodies quasi-judicial powers involving the exercise of judgment and discretion, as incident to the performance of administrative functions, but in so doing, the legislature must state its intention in express terms that would leave no doubt, as even such quasi-judicial prerogatives must be limited, if they are to be valid, only to those incidental to, or in connection with, the performance of administrative duties which do not amount to conferment of jurisdiction over a matter exclusively vested in the courts. Sec. 6 of R.A. #6173 restricts the extent and scope of the OIC prerogative of jurisdiction in sub-paragraphs "a" to "f". A contrary interpretation would collide with the familiar principles of statutory construction that, in making a detailed enumeration, the law-making body intended to accomplish a purpose and that the all-embracing and general word "jurisdiction" must be restricted to mere regulatory and supervisory (not judicial) powers. The phrase "to set the conditions" under subparagraph "a" refers to the right to prescribe rules of conduct. It appertains to rule-making functions and cannot include quasi-judicial powers. The limitations of supervision and regulation are reiterated in the provisions of Sec. 7 (4) (d), to wit: (4) (d) To regulate the operations and trade practices of the industry in order to encourage orderly competition, prevent monopolies and collusive practices within the industry, giving due regard to the ecological and environmental needs of the country; There is no question that respondent Yap first invoked the jurisdiction of the then CFI of Iloilo to resolve the dispute and without waiting for the determination of the issues, he filed a complaint with respondent OIC raising the same issues. Respondent Yap thus submitted a single and indivisible controversy to two different entities. This cannot be permitted without making a mockery of justice. It is not amiss to mention that even before the creation of the OIC in 1971, petitioner Shell and respondent Yap were already bound by their dealership agreement. From the time said agreement was registered with the OIC as required by R.A. 6173, respondent OIC never informed the petitioner that said agreement or any of its provisions was contrary to the provisions of R.A. No. 6173. Neither did respondent Yap show any disapproval of the provisions of Sec. 5 of their agreement. Said provision is not contrary to law. WHEREFORE, the questioned orders of respondent OIC, in OIC Case #144 are hereby declared null and void. SO ORDERED. Feria (Chairman), Alampay, Gutierrez, Jr, and Cruz, JJ., concur. Fernan, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and NATIONAL WORKERS BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents. Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia for National Labor Unon. Claro M. Recto for petitioner "Ang Tibay". Jose M. Casal for National Workers' Brotherhood. LAUREL, J.: The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court: 1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cunado se termine la obra; 2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma; 3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato en virtud del paro. The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers: 1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather. 2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.) 5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.) 6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of American origin where the industrial peace has always been the rule. 7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood. 8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations. 9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein.

The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union, Inc. In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value. The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the determination of disputes between employers and employees but its functions are far more comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific controversies between labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers. In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are primary rights which must be respected even in proceedings of this character: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court inEdwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.) (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our case there is no such statutory authority. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it. In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered. Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-52364 March 25, 1983 RICARDO VALLADOLID, petitioner, vs. HON. AMADO G. INCIONG, Deputy Minister of Labor, and COPACABANA APARTMENT-HOTEL, respondents. G.R. No.L-53349 March 25, 1983 J.R.M. & CO., INC. as owner and operator of Copacabana Apartment-Hotel petitioners, vs. HON. AMADO G. INCIONG, as Deputy Minister of Labor,HON. FRANCISCO L. ESTRELLA, as Regional Director of the National Capital Region, Ministry of Labor, nd RICARDO VALLADOLID, respondents. Daniel Co for petitioner Ricardo Valadolid. The Solicitor General for respondents. Vicente V. Ocampo & Antonio V. de Ocampo for J.R.M. & Co., Inc.

MELENCIO-HERRERA, J.: The Order dated December 26, 1979 of the Deputy Minister of Labor affirming the Order of May 2, 1979 for reinstatement without backwages issued by Regional Director Francisco L. Estrella in Case No. R4-STF-2-1316-79 entitled, "Ricardo C. Valladolid, Jr. vs. Copacabana Apartment-Hotel," is being assailed by the parties in these petitions. J. R. M. & Co., Inc. (hereinafter referred to as JRM), as petitioner in G.R. No. 53349, is also the respondent in G.R. No. 52364 named therein as Copacabana Apartment-Hotel. JRM originally owned and operated not only Copacabana but also Tropicana Apartment-Hotel. The principal stockholders of JRM were the brothers Joseph, Manuel, Vicente and Roman, all surnamed Yu. Upon the death of Joseph on October 12, 1975, although both Copacabana and Tropicana continued technically as owned by JRM, the controlling (70%) interest in Copacabana was lodged in the surviving heirs of Joseph, with brothers Manuel and Roman having a 15% interest each. JRM was placed under the management of the heirs of Joseph. The brothers Manuel, Roman and Vicente were allowed 100% equity interest in Tropicana, which was operated separately from JRM. Eventually, Tropicana and Copacabana became competing businesses. Ricardo Valladolid, petitioner in G.R. No. 52364 and respondent in G.R. No. 53349, after the death of Joseph, was employed by JRM in 1977 as a telephone switchboard operator. He was subsequently transferred to the position of clerk-collector by Mrs. Lourdes T. Yu, President of JRM. According to the affidavit of Daniel T. Yu, Executive Vice-President, attached to the position paper submitted by JRM before the Regional Director, the transfer was motivated by the fact: xxx xxx xxx That as such switchboard operator numerous telephone conversations and communications relating to business and confidential matters were intercepted and relayed to Tropicana Apartment-Hotel, a competitor; That to confirm suspicion on Ricardo Valladolid as the person responsible for said interception and relay, Mrs. Lourdes T. Yu, President of JRM & Co., Inc. sent him on an errand to Manila Hotel to bring flowers on the occasion of Wedding Anniversary of Mr. & Mrs. Yu Hong Ty. Matters which Mrs. Lourdes Yu told him in confidence and admonitions not to tell anyone, reached Tropicana people; xxx xxx xxx 1 The affidavit further disclosed: xxx xxx xxx That while serving in his capacity as clerk/collector, copies of Accounts Receivables, reach Tropicana Management although said copies were not referred to them;

That conferred (sic) on numerous confidential matters taken in the office of Copacabana Apartment-Hotel reached Tropicana Apartment-Hotel; That to finally and fully confirmed suspicions that Ricardo Valladolid was the person responsible for the aforementioned disclosures, a plan for the entrapment was conceived by the management of Copacabana Apartment- Hotel; That on November 9, 1979, pursuance of said plan, a cash voucher for P500,000.00 supposedly in payment for representation expenses to myself with the corresponding check were prepared and issued respectively by Juan V. Bermudo, Apartment-Hotel Manager, who thereafter called Ricardo Valladolid and asked the latter to bring the said cash voucher and check to my room which he did; few minutes later I came down to the office and asked Mr. Ricardo Valladolid to prepare the corresponding deposit slip to Pacific Banking Corporation for said check; That thereafter, the aforementioned cash voucher, corresponding check and deposit slip were kept in the hotel vault with no other person other than myself, Juan Bermudo and Ricardo Valladolid having any knowledge of preparation and existence thereof; That unknown to Ricardo Villadolid, the aforementioned check, cash voucher and deposit slip were cancelled; That on December 4, 1978, Mr. Manuel Yu Chua, came to Copacabana Apartment-Hotel as minority stockholder of the latter, vehemently demanding for an accounting of Copacabana books; That he strongly charged that information reached him that I received a disbursement of P500,000.00 from Copacabana ApartmentHotel as representation expenses in my capacity as Executive Vice-President thereof; That at this juncture, I brought out the cancelled cash voucher, check and deposit slip with mouth agape Manuel Yu Chua, could do nothing else but admit that in fact, his informer within Copacabana Apartment-Hotel was no other than Mr. Ricardo C. Villadolid; That I then informed Manuel Yu Chua, that under the circumstances, I could no longer repose any trust whatsoever on Ricardo Valladolid and requested him to take the latter to Tropicana Apartment-Hotel and just swap him with someone else; Mr. Manuel Yu Chua directed me to tell Valladolid to see him; That after few days, Ricardo Valladolid came back and told me that Manuel Yu Chua has no place for him at Tropicana ApartmentHotel; in this conversation, Ricardo Valladolid apologized for having betrayed the trust that we had reposed on him, especially after Mrs. Lourdes T. Yu had told him to stay impartial; that he then having done this for Manuel Yu Chua, the latter could not even accept him in Tropicana Apartment-Hotel; xxx xxx xxx 2 The entrapment scheme was corroborated by the affidavits of Sofia Mo. Gianan, External Auditor of J.R.M. & Co., Inc., and Juan V. Bermudo, Copacabana Apartment-Hotel Manager, which affidavits formed part of JRM's position paper filed before the agency below. 3 The cancelled Cash Voucher, the uncashed check, and the unused deposit slip, all in the respective amounts of P500,000.00 were also attached to the same position paper as Exhibits "4", "5" and "6". On December 29, 1978, or after the entrapment scheme had been effected, Valladolid filed a written request for a five (5) day vacation leave starting December 30, 1978 with the Manager of Copacabana, stating therein that he would report for work on January 5, 1979. 4 He did not report for work on January 5 but sent a telegram from Bicol on January 8, 1979 requesting for 15 days sick leave as he was confined for flu at the Dr. Estrellado Clinic. 5 On January 23, 1979, Valladolid's wife allegedly called up JRM informing the company through its accountant, Eddie Escueta, that her husband was still sick and requested for 30 days sick leave, which was allegedly granted. This was denied by JRM. Valladolid reported for work on February 16, 1979. The Executive Vice- President, Mr. Daniel Yu, allegedly refused to admit him and instead asked him to resign. JRM maintains that Valladolid left the office that same day and never returned, because he was reprimanded for his unauthorized absences. On February 22, 1979, Valladolid filed a Complaint for Illegal Dismissal with vacation and sick leave pay.
6

On February 24, 1979, JRM sent a letter to Valladolid signed by Daniel T. Yu, advising him of his preventive suspension effective February 26, 1979 preparatory to the termination of his services 10 days from receipt of a copy of the application for clearance to dismiss him. The grounds given were: (1) Willful Breach of Trust for having divulged, in various instances, confidential business matters to competitors of the company; and (2) Gross Neglect of Duty for having been absent without leave or notice for more than 25 days, to the detriment of the company. 7 On February 28, 1979, JRM filed said application for clearance with the Ministry of Labor. 8 The application for clearance and Valladolid's complaint for Illegal Dismissal were consolidated and docketed as R4-STF-2-1316-79. The parties submitted their respective position papers and documentary evidence. On May 2, 1979, the Regional Director issued the following challenged Order: WHEREFORE, premises considered, the application for clearance with preventive suspension is hereby denied. Respondent is hereby ordered to reinstate complainant to his former position without backwages and without loss of seniority rights. Let the time this case was pending be considered as complainant's suspension for his absences. The claim for vacation sick leave pay is dismissed for failure to substantiate the same.

Valladolid appealed the foregoing order to the Minister of Labor seeking modification of the same, praying for the award of backwages from the time he was illegally dismissed on February 16, 1979 to the date of his actual reinstatement. JRM also appealed the said Order. On December 26, 1979, the Deputy Minister of Labor, in a succinct Order, dismissed both appeals after finding "no sufficient justification or valid reason to alter, modify, much less reverse the Order appealed from." On January 21, 1980, Valladolid filed a Petition for certiorari with this Court, docketed as G.R. No. 52364, praying for a modification of the Order of December 26, 1979 of the Deputy Minister of Labor so as to grant him backwages. This Court resolved. on February 4, 1980, to give due course to the petition, and required the parties to submit simultaneous memoranda. On March 12, 1980, JRM also filed a petition for certiorari with this Court assailing that same Order. This Court gave due course to the petition and consolidated the same with G.R. No. 52364. Thereafter, the parties filed their respective memoranda. The non-award of backwages is the only issue being raised by Valladolid claiming that the Orders in question are contrary to law and evidence, and were issued arbitrarily and capriciously with grave abuse of discretion, amounting to excess or lack of jurisdiction. JRM, on the other hand, assails the said Orders on the following grounds: I That respondent Deputy Minister of Labor committed grave abuse of discretion when in his questioned order in effect sustained the finding of respondent Regional Director that there is no evidence to support the dismissal of private respondent. II That respondent Deputy Minister Amado Inciong and Regional Director Francisco Estrella committed grave abuse of discretion when they arbitrarily failed to consider in their respective orders under review, established jurisprudence. III That respondent Regional Director committed grave abuse of discretion when he held that preventive suspension is equivalent to dismissal. IV That the order of respondent Hon. Amado Inciong was a capricious and whimsical exercise of judgment when it failed to state the facts and conclusion of law upon which it is based. V That respondent Regional Director Francisco Estrella acted in excess of his jurisdiction when, without any statutory authority or transcending beyond his jurisdiction, he absolutely disregarded procedural requirement in the hearing of the present controversy, thus depriving petitioner of its right to due process. Valladolid, in his affidavit dated March 29, 1979, denied having committed any breach of trust. 9 In corroboration, he presented the affidavits of Mr. Manuel Yu dated March 20, 1979 and March 29, 1979, wherein the latter stated that Valladolid was "one of Copacabana's most hard-working and efficient employees;" that Valladolid's work is "mere routinary collection and clerical in nature which do not involve trust (or) confidential business or trade secrets which he may 'divulge' to other companies." 10 On this issue, the Regional Director ruled that "there is no evidence on record that Valladolid furnished copies of receivables or divulged confidential business matters to Mr. Manuel Yu and the 'Tropicana People' including the P500,000.00 'entrapment scheme.'" That finding is not supported by the records. The affidavits attached to petitioner's position paper adequately show that JRM did not act on mere suspicion but on the contrary, acted prudently when it first transferred Valladolid from switchboard operator where he could eavesdrop on telephone conversations, to a less crucial position of clerk-collector. But even in the latter capacity, JRM's fears were confirmed as shown by the entrapment scheme. Manuel Yu's certification as to Valladolid's trustworthiness cannot be given much weight not only because it was disproved by the entrapment contrived but more so because even Manuel Yu himself refused to employ him at Tropicana when Daniel Yu had suggested that Tropicana absorb Valladolid because JRM had lost confidence in the latter. And although Manuel Yu, who owns 15% of the equity holding of Copacabana, and being a member of the Board of Directors of JRM had a right to know the business standing of said establishment, there is basis to believe that he would not have been able to pinpoint the particular "disbursement" of P500,000.00, if the same had not been leaked out to him. Loss of confidence is a valid ground for dismissing an employee. Proof beyond reasonable doubt of the employee's misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of the trust and confidence demanded of his position. 11 However, as this was Valladolid's first offense, as found by the Regional Director, dismissal from the service is too harsh a punishment, considering that he had not been previously admonished, warned or suspended for any misdemeanor. Besides as clerk-collector, he need not be given access to facts relative to the business of Copacabana, which, if divulged to Tropicana would be to the former's prejudice.

Moreover, we find basis for the finding of the Regional Director that Valladolid was terminated without prior clearance. J.R.M. sent a memorandum to Valladolid on February 24, 1979 advising him of his preventive suspension effective February 26, 1979 pending approval of the application for clearance to dismiss him. The clearance application was filed on February 28, 1979. However, even prior to that date, or on February 22, 1979, Valladolid had already filed a complaint for Illegal Dismissal. This shows that Valladolid was indeed refused admittance on February 16, 1979 when he reported back to work, so that he was practically dismissed before he was formally notified of his suspension leading to his dismissal, in violation of the requirement of Section 3, Rule XIV, Book V, Rules & Regulation Implementing the Labor Code. 12 And as provided in Section 2 of the same Rule, any dismissal without prior clearance shall be "conclusively presumed to be termination of employment without a just cause." JRM cannot claim that it was deprived of due process considering that applications for clearance have to be summarily investigated and a decision required to be rendered within ten (10) days from the filing of the opposition13 As this Court had occasion to hold there is no violation of due process where the Regional Director merely required the submission of position papers and resolved the case summarily thereafter. 14 Nor is the questioned Order of the Deputy Minister of Labor violative of Section 9, Article X of the Constitution, which requires a statement of the facts and the conclusions of law upon which it is based. That prescription applies to decisions of Courts of record. The Ministry of Labor is an administrative body with quasi-judicial functions. Section 5, Rule XIII, Book V, Ibid, states that proceedings in the NLRC shall be non-litigious and summary in nature without regard to legal technicalities obtaining in courts of law. As the Deputy Minister was in full accord with the findings of fact and the conclusions of law drawn from those facts by the Regional Director, there was no necessity of discussing anew the issues raised therein. JRM admits that Valladolid requested for leave for 5 days from December 30, 1978, and thereafter for 15 days, but denies that he notified the company of his absences subsequent to this. The Regional Director ruled that the absences of Valladolid were unauthorized but did not amount to gross neglect of duty or abandonment of work which requires deliberate refusal to resume employment or a clear showing in terms of specific circumstances that the worker does not intend to report for work. We agree. But as Valladolid had been AWOL, no error was committed by respondent Regional Director in ordering his reinstatement without backwages. 16 WHEREFORE, both Petitions for certiorari are hereby denied. No costs. SO ORDERED. Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur. Teehankee, J., took no part.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-26803 October 14, 1975 AMERICAN TOBACCO COMPANY, CARNATION COMPANY, CURTISS CANDY COMPANY, CUDAHY PACKING CO., CLUETT, PEABODY & CO., INC., CANNONMILLS COMPANY, FORMICA CORPORATION, GENERALMOTORS CORPORATION, INTERNATIONAL LATEX CORPORATION, KAYSER-ROTH CORPORATION, M and R DIETETIC LABORATORIES, INC., OLIN MATHIESON, PARFUM CIRO, INC., PROCTER and GAMBLE COMPANY, PROCTER and GAMBLE PHILIPPINE MANUFACTURING CORPORATION, PARFUMS PORVIL DENTRIFICES DU DOCTEUR PIERRE REUNIS SOCIETE ANONYME, R.J. REYNOLDS TOBACCO COMPANY, SWIFT AND COMPANY, STERLING PRODUCTS INTERNATIONAL, THE CLOROX COMPANY, WARNER LAMBERT PHARMACEUTICALS COMPANY and ZENITH RADIO CORPORATION, petitioners, vs. THE DIRECTOR OF PATENTS, ATTYS. AMANDO L. MARQUEZ, TEOFILO P. VELASCO, RUSTICO A. CASIA and HECTOR D. BUENALUZ, respondents. Lichauco, Picazo and Agcaoili for petitioners. Office of the Solicitor General for respondents.

ANTONIO, J.: In this petition for mandamus with preliminary injunction, petitioners challenge the validity of Rule 168 of the "Revised Rules of Practice before the Philippine Patent Office in Trademark Cases" as amended, authorizing the Director of Patents to designate any ranking official of said office to hear "inter partes" proceedings. Said Rule likewise provides that "all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him." These proceedings refer to the hearing of opposition to the registration of a mark or trade name, interference proceeding instituted for the purpose of determining the question of priority of adoption and use of a trade-mark, trade name or servicemark, and cancellation of registration of a trade-mark or trade name pending at the Patent Office. Petitioners are parties, respectively, in the following opposition, interference and cancellation proceedings in said Office: Inter Partes Cases Nos. 157, 392, 896, 282, 247, 354, 246,332, 398, 325, 374, 175, 297, 256, 267, 111, 400, 324, 114, 159, 346, and 404. Under the Trade-mark Law (Republic Act No. 166 ), the Director of Patents is vested with jurisdiction over the above-mentioned cases. Likewise, the Rules of Practice in Trade-mark Cases contains a similar provision, thus: 168. Original jurisdiction over inter partes proceeding. the Director of Patents shall have original jurisdiction over inter partes proceedings. In the event that the Patent Office should be provided with an Examiner of Interferences, this Examiner shall have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decision subject to appeal to the Director of Patents within three months of the receipt of notice of decisions. Such appeals shall be governed by sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be P25.00. The Rules of Practice in Trade-mark Cases were drafted and promulgated by the Director of Patents and approved by the then Secretary of Agriculture and Commerce.. 1 Subsequently, the Director of Patents, with the approval of the Secretary of Agriculture and Commerce, amended the afore-quoted Rule 168 to read as follows: 168. Original Jurisdiction over inter partes proceedings. The Director of Patents shall have original jurisdiction over inter partes proceedings, [In the event that the Patent Office is provided with an Examiner of Interferences, this Examiner shall then have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decisions shall be subject to appeal to the Director of Patents within three months of the receipt of notice decision. Such appeals shall be governed by Sections 2, 3, 4, 6, 7, 8,10, 11, 12, 13, 14, 15, and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be [P25.00.] Such inter partesproceedings in the Philippine Patent Office under this Title shall be heard before the Director of Patents, any hearing officer, or any ranking official designated by the Director, but all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him. (Emphasis supplied.) In accordance with the amended Rule, the Director of Patents delegated the hearing of petitioners' cases to hearing officers, specifically, Attys. Amando Marquez, Teofilo Velasco, Rustico Casia and Hector Buenaluz, the other respondents herein.

Petitioners filed their objections to the authority of the hearing officers to hear their cases, alleging that the amendment of the Rule is illegal and void because under the law the Director must personally hear and decideinter partes cases. Said objections were overruled by the Director of Patents, hence, the present petition formandamus, to compel The Director of Patents to personally hear the cases of petitioners, in lieu of the hearing officers. It would take an extremely narrow reading of the powers of the Director of Patents under the general law 2 and Republic Acts Nos. 165 3 and 166 3* to sustain the contention of petitioners. Under section 3 of RA 165, the Director of Patents is "empowered to obtain the assistance of technical, scientific or other qualified officers or employees of other departments, bureaus, offices, agencies and instrumentalities of the Government, including corporations owned, controlled or operated by the Government, when deemed necessary in the consideration of any matter submitted to the Office relative to the enforcement of the provisions" of said Act. Section 78 of the same Act also empowers "the Director, subject to the approval of the Department Head," to "promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office." The aforecited statutory authority undoubtedly also applies to the administration and enforcement of the Trade-mark Law (Republic Act No. 166). It has been held that power-conferred upon an administrative agency to which the administration of a statute is entrusted to issue such regulations and orders as may be deemed necessary or proper in order to carry out its purposes and provisions maybe an adequate source of authority to delegate a particular function, unless by express provisions of the Act or by implication it has been withheld. 4 There is no provision either in Republic Act No. 165 or 166 negativing the existence of such authority, so far as the designation of hearing examiners is concerned. Nor can the absence of such authority be fairly inferred from contemporaneous and consistent Executive interpretation of the Act. The nature of the power and authority entrusted to The Director of Patents suggests that the aforecited laws (Republic Act No. 166, in relation to Republic Act No. 165) should be construed so as to give the aforesaid official the administrative flexibility necessary for the prompt and expeditious discharge of his duties in the administration of said laws. As such officer, he is required, among others, to determine the question of priority in patent interference proceedings, 5 decide applications for reinstatement of a lapsed patent, 6 cancellations of patents under Republic Act No. 165, 7 inter partes proceedings such as oppositions, 8 claims of interference, 9 cancellation cases under the Trade-mark Law 10 and other matters in connection with the enforcement of the aforesaid laws. It could hardly be expected, in view of the magnitude of his responsibility, to require him to hear personally each and every case pending in his Office. This would leave him little time to attend to his other duties. 11 For him to do so and at the same time attend personally to the discharge of every other duty or responsibility imposed upon his Office by law would not further the development of orderly and responsible administration. The reduction of existing delays in regulating agencies requires the elimination of needless work at top levels. Unnecessary and unimportant details often occupy far too much of the time and energy of the heads of these agencies and prevent full and expeditious consideration of the more important issues. the remedy is a far wider range of delegations to subordinate officers. This sub-delegation of power has been justified by "sound principles of organization" which demand that "those at the top be able to concentrate their attention upon the larger and more important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail." 12 Thus, it is well-settled that while the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. 13 The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. 14 It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. 15 In short, there is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. 16 It is, however, required that to "give the substance of a hearing, which is for the purpose of making determinations upon evidence the officer who makes the determinations must consider and appraise the evidence which justifies them."17 In the case at bar, while the hearing officer may make preliminary rulings on the myriad of questions raised at the hearings of these cases, the ultimate decision on the merits of all the issues and questions involved is left to the Director of Patents. Apart from the circumstance that the point involved is procedural and not jurisdictional, petitioners have not shown in what manner they have been prejudiced by the proceedings. Moreover, as the Solicitor General Antonio P. Barredo, now a Member of this Court has correctly pointed out, the repeated appropriations by Congress for hearing officers of the Philippine Patent Office form 1963 to 1968 18 not only confirms the departmental construction of the statute, but also constitutes a ratification of the act of the Director of Patents and the Department Head as agents of Congress in the administration of the law. 19 WHEREFORE, the instant petition is hereby dismissed, with costs against petitioners. Castro (Actg., C.J.), Muoz Palma, Aquino and Martin, JJ., concur. Fernando, J, is on leave. Barredo, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5948 April 29, 1953

FORTUNATO F. HALILI, petitioner, vs. PUBLIC SERVICE COMMISSION and CAM TRANSIT CO., INC., respondents. Arnaldo J. Guzman for petitioner. Antonio H. Aspillera and Generoso A. Almario for respondent Public Service Commission. Graciano C. Regala for respondent CAM Transit Co., Inc. LABRADOR, J.: This is petition for writ of certiorari seeking the revocation and annulment of an order dated July 3, 1952, of the respondent Public Service Commission issued in cases Nos. 36450 and 36855, changing part of the route of the bus service established by the respondent CAM Transit Co., Inc., between Balara and City Hall, Manila. Petitioner herein is the holder of various certificates of public convenience to operate auto-truck services between Balara and various points in the city of Manila and its suburbs. Some were granted previous to the last war. The last one was granted in a decision of the respondent Commission in case No. 52272 dated February 13, 1951. The route fixed in petitioner's certificate of public convenience for SagandaanBalara, Pandacan-Balara, Bonifacio Monument-Balara, and Balara-Piers pass through Silagan Avenue and end at Balara. Respondent CAM Transit Co., Inc., also holds a certificate of public convenience to operate a line of trucks between Balara and City Hall, Manila. This certificate was obtained by it through assignment, with the approval of the Public Service Commission, from Benjamin Encarnacion. One of the original lines granted to Benjamin Encarnacion. now operated by the respondent CAM Transit Co., Inc., is the Balara-City Hall (Manila), via Kamuning line, starting at Balara fifter plant, passing through Barangka road, Marikina-San Juan road, Highway 54, Kamuning road, etc. (Appendix C.) On July 2, 1952, CAM Transit Co., Inc., filed a petition with the respondent Commission, alleging that the route authorized in its City Hall (Manila)-Balara line, and passing along the Marikina-Barangka road, Marikina-San Juan road, and Highway 54, is entirely different from that supported by the evidence presented in the hearing, and praying that the certificate be amended so that the route authorized should be along Highway 54, Silagan Avenue, U.P. site, ending at Balara, instead of Highway 54, Marikina San Juan road, Barangka road, ending at Balara. Acting upon this petition, the respondent Commission on the following day, July 3, 1952, and without a previous notice to the petitioner or a previous hearing thereon, ordered the modification of the line in accordance with the petition. The question now squarely presented to us for decision is whether the order for each amendment if the route, without notice to the petitioner and other interested parties, or hearing in which the latter may be given opportunity to be present, was lawfully and validly issued by the Commission. It will be noted that the Public Service Act (Commonwealth Act No. 146) expressly defines the powers of the respondent Commission which may be exercised by it "upon proper notice and hearing," or without previous hearing. (Section 16 and 17.) The act of the Commission in issuing the order of July 3, 1952, does not fall under any of the powers enumerated in the above sections of the law, and consequently the question at issue must be resolved in accordance with fundamental principles of law and justice. A cursory perusal of the existing routes between the Balara Filter and the Kamuning Avenue, or the University of the Philippines and Kamuning Avenue (see Annex A),which route are the subject of controversy, readily discloses that the change or amendment ordered by the respondent Commission in the route of respondent operator is one of substance, not nominal or innocent change. It does not seem to us to be a correction a mere clerical, innocent mistake or error. To us the grant of the route along the Barangka and the Marikina roads to respondent operator was for the purpose of giving service to people living along these roads and at Balara. On the other hand, petitioner herein Halili, then oppositor to the application of respondent operator's predecessor in interest, was already given the University of the Philippines, Silagan Avenue, to Kamuning line, to serve students of the University and people living along this route. Inasmuch as the terminal of respondent operator's line is Balara, not the University, it could not have been the purpose and intention of the original certificate issued to allow it to serve students of the University of the Philippines. The supposed justification for the issuance of the disputed order therefore, is not borne out by the original decision granting the certificate of respondent operator's predecessor. But assuming, for the sake of argument, that the respondent Commission committed an error, in the appreciation of the supposed evidence offered (which was not mentioned), it appears that the change in the route authorized in the order clearly affects the right and privilege granted the petitioner in his certificate of public convenience to pass from Kamuning road through Silagan Avenue, to the University of the Philippines, who without a change in the respondent operator's line, could not ride in the latter's buses because these operate only up to Balara, without reaching the University of the Philippines,and pass only through Barangka and Marikina roads. The amendment , therefore of the respondent operator's lines affect the rights granted and guaranteed by the certificate of public convenience of the petitioner. To allow the respondent Commission to authorize the amendment, without giving the petitioner opportunity to be heard and express his objections thereto, is clearly a deprivation of a precious right and privilege without due process of law. Respondent operator cites the decisions of this Court in the case of Ablaza Transportation Co., Inc., vs. Feliciano Ocampo,1 et al., G.R. No. L-3563, and the case of Eliseo Silva vs. Hon. Feliciano Ocampo,2 et al., G.R. No. L-5162, which decisions hold that the Commission may issue provisional permits without hearing for new services, and argues that if this can be done, with more reason may the said Commission be authorized to correct errors that it has committed; that the Commission is not bound in matters of procedure by technical rules established for judicial proceedings, etc. In the first place, the power to issues provisional permits is expressly authorized. In the second place, the change ordered is not provisional merely, like that granted in a provisional permit, but final and permanent in character. In the third place, even if the Commission is not bound by the rules in judicial proceedings, it must bow its head to he constitutional mandate that no person shall be deprived of a right without due process of law. The "due process of law" clause of the Constitution binds not only the Government of the Republic of the Philippines, but also each and everyone of its branches, agencies, etc. (16 C.J.S., 1149.)"Due process of law, or, in the mean accord with the procedure outlines in the law, or, in the absence of express procedure, under such safeguards for the protection of individual rights as the settled maxims of law permit and sanction for the particular class of cases to which the one in

question belongs," (16 C.J.S., 1141.) In the case at bar, the Public Service Act does not included the amendment made in the disputed order among those may be ordered without notice or hearing in accordance with Section 17 of the Act. Is the amendment, without notice or hearing, permitted by the well settled maxims of law? We declare it is not, because due process of law guarantees notice and opportunity to be heard to persons who would be affectd by the order or act contemplated. In a General sense it means the right to be heard before some tribunal having jurisdiction to determine the question in dispute.(Albin vs. Consolidated School District No. 14 of Richardson Country, 184 NW 141, 106 Neb. 719, cited in 16 C.J. S., 1143, footnote.) By "due process of law" is meant orderly proceeding adopted to the nature of the case, before a tribunal having jurisdiction, which proceeds upon notice, with an opportunity to bee heard, with full power to grant relief. (Footnotes), 16 C.J.S., 1144.) Some legal procedure in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself. (Doyle, Petitioner, 16 R.I., 537, 538, 21 Am. Jur., 759,5 L.R.A., 309, cited in 12 C.J., 1193.) A course of proceeding according to these rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. (12 C.J., 1191-1192.) We, therefore, hold that the amendment authorized by the order of the respondent Commission of July 3,1952, is not authorized by the facts contained in the decision granting the certificate of public convenience in favor of the predecessor in interest of the respondent operator, and that even if there was really an error in the original decision fixing the route , in that the said routes were not in accordance with the evidence submitted, the issuance of the order without proper notice to the petitioner and opportunity on the part of the latter to be heard in relation to the petition, is a violation of the petitioner's right not be deprived of his property without due process of law. The order of July 3, 1952, is hereby declared null and void and ordered revoked, with costs against the respondent CAM Transit Co., Inc. Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor, Reyes, Jugo, and Bautista Angelo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-9430 June 29, 1957

EMILIO SUNTAY Y AGUINALDO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, THE HONORABLE NICASIO YATCO, as Judge of the Court of First Instance of Rizal, Quezon City Branch V, and THE HONORABLE CARLOS P. GARCIA, as Secretary for Foreign Affairs, respondents. Federico Agrava for petitioner. Office of the Solicitor, General Ambrosio Padilla, First Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for respondents. PADILLA, J.: This is a petition for a writ of certiorari to annul an order of the Court of First Instance of Quezon City directing . . . the National Bureau of Investigation and the Department of Foreign Affairs for them to take proper steps in order that the accused, Emilio Suntay y Aguinaldo, who is alleged to be in the United States, may be brought back to the Philippines, so that he may be dealt with in accordance with law, (Exhibit D) and of prohibition to enjoin the Secretary for Foreign Affairs from cancelling the petitioner's passport without previous hearing. On 26 June 1954, Dr. Antonio Nubla, father of Alicia Nubla, a minor of 16 years, filed a verified complaint against Emilio Suntay in the Office of the City Attorney of Quezon City, as follows: On or about June 21, 1954, the accused took Alicia Nubla from St. Paul's Colleges in Quezon City with lewd design and took her to somewhere near the U.P. compound in Diliman, Quezon City and was then able to have carnal knowledge of her. Alicia Nubla is a minor of 16 years. On 15 December 1954, after an investigation, an Assistant City Attorney recommended to the City Attorney of Quezon City that the complaint be dismissed for lack of merit. On 23 December 1954 attorney for the complainant addressed a letter to the City Attorney of Quezon City wherein he took exception to the recommendation of the Assistant City Attorney referred to and urged that a complaint for seduction be filed against the herein petitioner. On 10 January 1955 the petitioner applied for and was granted a passport by the Department of Foreign Affairs (No. 5981 [A39184]). On 20 January 1955 the petitioner left the Philippines for San Francisco, California, U.S.A., where he is at present enrolled in school. On 31 January 1955 the offended girl subscribed and swore to a complaint charging the petitioner with seduction which was filed in the Court of First Instance of Quezon City after preliminary investigation had been conducted (crim. case No. Q-1596, Exhibit B). On 9 February 1955 the private prosecutor filed a motion praying the Court to issue an order "directing such government agencies as may be concerned, particularly the National Bureau of Investigation and the Department of Foreign Affairs, for the purpose of having the accused brought back to the Philippines so that he may be dealt with in accordance with law." (Exhibit C.) On 10 February 1955 the Court granted the motion (Exhibit D). On 7 March 1955 the respondent Secretary cabled the Ambassador to the United States instructing him to order the Consul General in San Francisco to cancel the passport issued to the petitioner and to compel him to return to the Philippines to answer the criminal charges against him. "The Embassy was likewise directed to make representation with the State Department that Emilio Suntay's presence outside the Philippines is considered detrimental to the best interest of this Government, that his passport has been withdrawn, and that he is not considered under the protection of the Philippines while abroad." (Exhibit E.) However, this order was not implemented or carried out in view of the commencement of this proceedings in order that the issues raised may be judicially resolved. On 5 July 1955 counsel for the petitioner wrote to the respondent Secretary requesting that the action taken by him be reconsidered (Exhibit F), and filed in the criminal case a motion praying that the respondent Court reconsider its order of 10 February 1955 (Exhibit G). On 7 July 1955 the respondent Secretary denied counsel's request (Exhibit H) and on 15 July 1955 the Court denied the motion for reconsideration (Exhibit I). Hence this petition. The petitioner contends that as the order of the respondent Court directing the Department of Foreign Affairs "to take proper steps in order that the" petitioner "may be brought back to the Philippines, so that he may be brought back to the Philippines, so that he may default with in accordance with law," may be carried out only "through the cancellation of his passport," the said order is illegal because "while a Court may review the action of the Secretary of Foreign Affairs in cancelling a passport and grant relief when the Secretary's discretion is abused, the court cannot, in the first instance, take the discretionary power away from the Secretary and itself order a passport to be cancelled." The petitioner contends that as the order of the respondent Court directing the department of Foreign Affairs "to take proper steps in order that the" petitioner "may be brought back to the Philippines, so that he may be dealt with in accordance with law," may be carried out only "through the cancellation of his passport," the said order is illegal because 'while a Court may review the action of the Secretary of Foreign Affairs in cancelling a passport and grant relief when the Secretary's discretion is abused, the court cannot, in the first instance, take the discretionary power away from the Secretary and itself order a passport to be cancelled." The petitioner further contends that while the Secretary for Foreign Affairs has discretion in the cancellation of passports, "such discretion cannot be exercised until after hearing," because the right to travel or stay abroad is a personal liberty within the meaning and protection of the Constitution and hence he cannot be deprived of such liberty without due process of law. The petitioner's contention cannot be sustained. The petitioner is charged with seduction. And the order of the respondent Court directing the Department of Foreign Affairs "to take proper steps in order that the accused . . . may be brought back to the Philippines, so that he may be dealt with in accordance with law," is not beyond or in excess of its jurisdiction.

When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by these rules, any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of said rules. (Section 6, Rule 124.) Moreover, the respondent Court did not specify what step the respondent Secretary must take to compel the petitioner to return to the Philippines to answer the criminal charge preferred against him. Section 25, Executive Order No. 1, series of 1946, 42 Off. Gaz, 1400, prescribing rules and regulations for the grant and issuance of passports, provides that The Secretary of Foreign Affairs as well as ally diplomatic or consular officer duly authorized by him, is authorized, in his discretion, to refuse to issue a passport for use only in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose its validity or use in certain countries. (Emphasis supplied.) True, the discretion granted, to the Secretary for Foreign Affairs to withdraw or cancel a passport already issued may not be exercised at whim. But here the petitioner was hailed to Court to answer a criminal charge for seduction and although at first all Assistant City Attorney recommended the dismissal of the complaint previously subscribed and sworn to by the father of the offended girl, yet the petitioner knew that no final action had been taken by the City Attorney of Quezon City as the case was still under study. And as the Solicitor General puts it, "His suddenly leaving the country in such a convenient time, can reasonably be interpreted to mean as a deliberate attemption his part to flee from justice, and, therefore, he cannot now be heard to complain if the strong arm of the law should join together to bring him back to justice." In issuing the order in question, the respondent Secretary was convinced that a miscarriage of justice would result by his inaction and as he issued it in the exercise of his sound discretion, he cannot be enjoined from carrying it out. Counsel for the petitioner insists that his client should have been granted a "quasi-judicial hearing" by the respondent Secretary before withdrawing or cancelling the passport issued to him. Hearing would have been proper and necessary if the reason for the withdrawal or cancellation of the passport were not clear but doubtful. But where the holder of a passport is facing a criminal a charge in our courts and left the country to evade criminal prosecution, the Secretary for Foreign Affairs, in the exercise of his discretion to revoke a passport already issued, cannot be held to have acted whimsically or capriciously in withdrawing and cancelling such passport. Due process does not necessarily mean or require a hearing. When discretion is exercised by an officer vested with it upon an undisputed fact, such as the filing of a serious criminal charge against the passport holder, hearing maybe dispensed with by such officer as a prerequisite to the cancellation of his passport; lack of such hearing does not violate the due process of law clause of the Constitution; and the exercise of the discretion vested in him cannot be deemed whimsical and capricious of because of the absence of such hearing. If hearing should always be held in order to comply with the due process of clause of the Constitution, then a writ of preliminary injunction issued ex parte would be violative of the said clause. In the cases of Bauer vs. Acheson, 106 F. Supp. 445; Nathan, vs. Dulles, 129 F. Supp. 951; and Schachtman vs. Dulles No. 12406, 23 June 1955, all decided by the States Court of Appeals for the district of Columbia, cited by the petitioner, the revocation of a passport already issued or refusal to issue a passport applied for, was on the vague reason that the continued possession or the issuance thereof would be contrary to the best interest of the United States. The petition is denied, with costs against the petitioner. Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-80160 June 26, 1989 GOVERNOR FELICISIMO T. SAN LUIS, THE SANGGUNIANG PANLALAWIGAN, PROVINCIAL ENGINEER JUANITO C. RODIL AND PROVINCIAL TREASURER AMADEO C. ROMEY, ALL OF LAGUNA, petitioners, vs. COURT OF APPEALS AND MARIANO L. BERROYA, JR., respondents. Dakila F. Castro & Associates for petitioners. Cecilio C. Villanueva for Gov. San Luis. Felicisimo T. San Luis for himself and in behalf of his co- petitioners. Renato B. Vasquez for private respondent.

CORTES, J.: The instant petition for certiorari and mandamus and/or appeal by certiorari assails the appellate court's ruling that mandamus lies to compel the reinstatement of a quarry superintendent in the provincial government of Laguna who was initially detailed or transferred to another office, then suspended, and finally dismissed following his expose of certain anomalies and irregularities committed by government employees in the province. The background facts, as narrated by the respondent Court of Appeals are: Records show that at all pertinent times, petitioner-appellant (private respondent herein) had been the quarry superintendent in the Province of Laguna since his appointment as such on May 31, 1959. In April and May of 1973, petitioner-appellant denounced graft and corrupt practices by employees of the provincial government of Laguna. Thereafter, the development of events may be briefly encapsulated as follows: a. On July 20, l973, herein respondent-appellee provincial governor (one of the petitioners herein) issued Office Order No. 72 transferring Berroya to the office of the Provincial Engineer. An amended office order invoked LOI 14-B for said transfer. b. Berroya challenged said transfer, and on October 25, 1973, the Civil Service Commission ruled the same violative of Section 32, RA 2260, and ordered that Berroya be reverted to his regular position of quarry superintendent. c. On December 12, 1973, instead of complying with the CSC directive that Berroya be reverted to his regular position, herein respondent-appellee provincial governor suspended Berroya for alleged gross discourtesy, inefficiency and insubordination. On that basis, reconsideration of the CSC directive that Berroya be reverted to the position of quarry superintendent was sought as academic (sic). d. On February 26, 1974 the Civil Service Commission reiterated its October 25, 1973 directive for the immediate reversion of Berroya to his former position, and ruled the one-year suspension illegal. e. Respondent-appellee provincial governor appealed to the Office of the President from the CSC rulings alluded to. f. On May 29, 1974, there issued OP Decision 954, Series of 1974 reversing the CSC rulings without prejudice to the decision of the Local Review Board [which had in fact already sustained the one-year suspension under date of May 6, 1974]. g. On petitioner-appellant's motion for reconsideration, the Office of the President rendered OP Decision 1834, Series of 1976, dated May 19, 1976, setting aside OP Decision 954, declaring the one-year suspension improper, and ordering payment of back salaries to Berroya. h. Respondent-appellant moved for reconsideration of OP Decision 1834 on June 14, 1976. The said motion for reconsideration was denied on November 6, 1978. i. In the interim, respondent-appellant provincial governor issued an Order of April 27, 1977 dismissing Berroya for alleged neglect of duty, frequent unauthorized absences, conduct prejudicial to the best interest of duty and abandonment of office, which order of dismissal was appealed by Berroya to the Civil Service Commission on May 12, 1977. j. On January 23, 1979, the Civil Service Commission resolved said appeal by declaring the dismissal unjustified, exonerating Berroya of charges, and directing his reinstatement as quarry superintendent.

k. On February l4, 1979, respondent-appellee provincial governor sought relief from the CSC decision of January 23, 1979 declaring Berroya's dismissal unjustified. 1. On October 15, 1979, the CSC Merit System Board denied said motion for reconsideration in its Resolution No. 567. m. Thereafter, respondent-appellee provincial governor moved anew to set aside O.P. Decision 1834, Series of 1976-the first motion for reconsideration of which had been denied on November 6, 1978. (ref. #h, supra). The Office of the President dismissed said motion on March 27, 1981. Petitioner-appellant's formal demand for reinstatement to the position of quarry superintendent having been disdained despite the factual antecedents aforestated, he filed, [on May 27, 1980] the antecedent Civil Case No. SC-1834 for mandamus to compel his reversion to the position of quarry superintendent at the Oogong Quarry, with back salaries for the entire period of his suspension and dismissal (exclusive of leaves of absence with pay), and prayed for moral and exemplary damages, attorney's fees and expenses of suit. Respondents-appellees moved to dismiss said petition for mandamus, as amended, and opposed the therein application for preliminary injunctive relief for immediate reinstatement. In an Order of December 1, 1980, the trial court denied the application for preliminary injunctive relief "until after the parties shall have adduced evidence, pro and con the grant of injunctive relief", and similarly deferred its resolution on the motion to dismiss "for lack of merit for the present ... until after the trial." On December 15, 1980, respondents-appellees answered the petition for mandamus and prayed that judgment be rendered1. Dismissing the Complaint and denying the prayer for Preliminary Injunction; 2. Declaring petitioner to have been legally separated or dismissed from the government service; 3. Order petitioner to pay each of them the sum of P 200,000.00 by way of moral damages; P 100,000.00 as exemplary damages and P 10,000.00 as attorney's fees plus P 300.00 each per court appearance; other litigation expenses which may be incurred as may be proved in due course; and to pay the costs of suit [Rollo, pp. 35-37]. During the pendency of the civil case for mandamus, on April 9, 1981 petitioner provincial governor filed a petition for relief from O.P. Decision 1834 with the Office of the President. This was denied on November 27, 1984 on the ground that only one motion for reconsideration of O.P. Decision 1834 was allowed, the petition for relief being the third such motion filed by petitioner. On May 17, 1985, after trial, the court a quo rendered its decision finding the transfer of petitioner- appellant from his position of quarry superintendent to the office of the Provincial Engineer sufficiently warranted. Furthermore, his one-year suspension was found to be proper under LOI 14-B and unassailable upon affirmation by the Local Review Board. His summary dismissal was likewise found to be a justified exercise of the authority granted under LOI 14-B. The trial Court further decided "that none of the respondents should be held personally liable in their private capacity to the petitioner because their actuations are not at all tainted with malice and bad faith" [Rollo, p. 38]. However, although the trial court upheld the validity of Berroya's dismissal, it nevertheless ordered his reinstatement to an equivalent position as a matter of equity. Hence, the dispositive portion of its decision reads as follows: WHEREFORE, judgment is hereby rendered: 1. Ordering respondents to reinstate petitioner to any position equivalent to that of a quarry superintendent which has been abolished in the present plantilla of the provincial government of Laguna as reorganized pursuant to PD 1136 without diminution in rank and salary; 2. Ordering respondents to pay the back salary of petitioner from April 26, 1977 to September 1, 1977 only and appropriating funds therefor, as soon as this decision becomes final; 3. Dismissing all claims and counterclaims of both parties for other damages including attorney's fees [Rollo, p. 35]. On June 6, 1985, herein private respondent Berroya appealed from the decision of the Regional Trial Court dated May 17, 1985. The appeal was resolved by the respondent Court of Appeals in his favor in a decision which was promulgated on April 30, 1987, the decretal portion of which states: WHEREFORE, the present appeal is accordingly resolved as follows: (a) Petitioner-appellant is ordered to be reinstated to the position of quarry superintendent of the Oogong Quarry in Laguna or to the position which said office may now be called pursuant to the reorganization of the plantilla of the Provincial Government of Laguna under PD 1136, without diminution in rank and salary; (b) Respondents-appellees are ordered to pay the back salary of petitioner-appellant corresponding to the period of suspension and of illegal dismissal from the service, exclusive of that corresponding to leaves of absences with pay; (c) Respondents-appellants (sic) are ordered, jointly and severally, to pay petitioner-appellant the sum of P 50,000.00 as and for moral damages;

(d) Respondents-appellants (sic) are ordered, jointly and severally, to pay petitioner-appellant the further sum of P 20,000.00 as and for attorney's fees, plus costs and expenses of suit. The decision of May 17, 1985, in Civil Case No. SC-1748 is accordingly set aside forthwith. With costs against respondents-appellees. SO ORDERED. [Rollo, p. 43.] Petitioners moved to reconsider the decision of the appellate court but their motion was denied. Hence, the instant petition docketed as G.R. No. 80160, which is "both or alternatively an original action for certiorari and mandamus and an appeal by certiorari" [See Rollo, p. 1, et seq.] Another petition for review of the Court of Appeals' decision was filed with this Court on October 8, 1987 docketed as G.R. No. 79985 by the same petitioners. However, in a resolution dated November 16, 1987, the Court noted the manifestation/motion filed by petitioners stating, among other things, that the petition docketed as G.R. No. 79985 be considered withdrawn and the petition dated October 16, 1987 which was filed on October 19, 1987 and docketed as G.R. No. 80160 be considered as the main and real petition [Rollo, p. 50]. Accordingly, the parties were required to submit their respective pleadings in G.R. No. 80160. The petition in G.R. No. 80160 contains the following assignment of errors: First THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION BY MEANS OF A MERE MINUTE RESOLUTION, STATING NO LEGAL BASIS THEREFOR, IN GROSS VIOLATION OF THE CONSTITUTION'S EXPRESS MANDATE AND WHEN IT STATED AND HELD IN SAID RESOLUTION "THAT NO NEW REASON HAS BEEN ADDUCED [IN SAID MOTION] TO JUSTIFY A REVERSAL OR MODIFICATION OF [ITS] FINDINGS AND CONCLUSIONS". Second THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN FINDING THAT THE RESPONDENT MARIANO L. BERROYA, JR. DOES NOT FALL UNDER THE CATEGORY OF "NOTORIOUSLY UNDESIRABLE" AND THAT THE "APPLICABILITY OF LOI 14-B TO RESPONDENT BERROYA IS OPEN TO QUESTION AS HE WAS NEVER ASKED TO RESIGN AS BEING NOTORIOUSLY UNDESIRABLE". Third THE RESPONDENT COURT BLATANTLY ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN FINDING THAT THE "RECALL" OF THE DISMISSAL ORDER IS ITSELF ATTENDED BY A TOUCH OF MYSTERY, MENTIONED ONLY IN THE TESTIMONY OF PETITIONER PROVINCIAL GOVERNOR, UNFORTIFIED BY ANY WRITING THEREOF, AND NOT ADVERTED TO IN THE DECEMBER 15, 1980 ANSWER FILED IN THE ANTECEDENT mandamus ACTION, AND IN NOT FINDING THAT RESPONDENT BERROYA COMMITTED ABANDONMENT OF OFFICE. Fourth THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN FINDING THAT THE DECISION OF THE LOCAL BOARD OF REVIEW UNDER LOI 14-B MAY BE REVIEWED UNDER THE CONSTITUTIONAL PREROGATIVE OF THE PRESIDENT TO SUPERVISE LOCAL GOVERNMENT UNITS, WHICH INCLUDES THE AUTHORITY TO REVIEW, MODIFY OR REVERSE DECISION INVOLVING SUSPENSION OF LOCAL OFFICIALS AND EMPLOYEES. Fifth THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN CONCLUDING IN RATHER STRONG LANGUAGE THAT THE "ABOLITION OF THE POSITION OF QUARRY SUPERINTENDENT FROM THE PLANTILLA OF THE PROVINCIAL GOVERNMENT OF LAGUNA MUST BE VIEWED WITH (sic) ABERRATION AND AN ANOMALY, IN THE LIGHT OF UNCONTROVERTED SHOWING THAT QUARRY OPERATIONS AT THE SAME SITE CONTINUE TO DATE, AS WOULD MILITATE AGAINST ATTENDANCE OF GOOD FAITH IN THE ABOLITION OF SAID OFFICE." Sixth THE RESPONDENT COURT ERRED AND GRAVELY ABUSED ITS DISCRETION AS WELL AS EXCEEDED ITS JURISDICTION IN ORDERING THE PAYMENT OF PRIVATE RESPONDENTS BACK SALARIES FOR THE PERIOD OF HIS SUSPENSION AS WELL AS DISMISSAL UNTIL REINSTATEMENT AS QUARRY SUPERINTENDENT, AND IN AWARDING MORAL DAMAGES IN THE SUM OF P50,000.00 AND ATTORNEY'S FEES IN THE SUM OF P20,000.00 IN FAVOR OF THE PRIVATE RESPONDENT BERROYA, AND IN HOLDING ALL THE PETITIONERS HEREIN SOLIDARILY LIABLE FOR THE PAYMENT OF AFORESAID BACK SALARIES AND DAMAGES [Rollo, pp. 13-14]. The first error assigned in the instant petition is not well taken. A thorough perusal of the assailed resolution of the respondent CA denying petitioners' motion for reconsideration reveals clearly its legal basis. Thus, its resolution stating that

Considering that the motion for reconsideration of the decision promulgated on April 30, 1987 filed by respondent-appellee merely reiterates the grounds and arguments already discussed, thoroughly analyzed and passed upon by this Court; and that no new reason has been adduced to justify a reversal or modification of the findings and conclusion of this Court. WHEREFORE, the motion for reconsideration is DENIED for lack of merit [Rollo, p. 45; Emphasis supplied]. constitutes sufficient compliance with the constitutional mandate that no motion for reconsideration of a decision of the court shall be denied without stating the legal basis therefor (1987 Constitution, Art. VIII, Sec. 14, par. 2). The resolution of the remaining assigned errors hinges on a determination of the effect of the decisions rendered in favor of Berroya by two administrative agencies. A. It is worth noting that the issue of legality of the order of suspension by petitioner Governor dated December 12, 1973 had already been passed upon in a decision of the Office of the President (O.P. Decision No. 1834) dated May 19, 1976 reversing its earlier ruling in O.P. Decision No. 954 dated May 29, 1974. The Office of the President categorically ruled as follows: xxx xxx xxx It is not disputed that the Governor, in issuing his Order of Suspension, was exercising an authority legally endowed upon (sic) him by LOI 14-B, but it must not be an unbridled exercise of such authority.... A review of the records discloses that the only act of the governor which was sustained by the Local Review Board was his imposing the suspension on Berroya for alleged discourtesy. This Office is prone to adopt a contrary stand on the matter taking into consideration the circumstances leading to the writing of the so-called "dishonest' statements of the petitioner. It is unfortunate that the Local Review Board took it as an infraction of the Civil Service Rules and Regulations. It must be observed that the said statements were made in the course of a pending case before the Civil Service Commission, and in defense of the position of the petitioner. Although the said statements, by themselves, may be considered as lacking in refinement, still this fact alone does not justify the drastic action taken against the petitioner in this case. . . . In view of the foregoing, this Office rules that the suspension order was unjustified. Considering that respondent Berroya has already served the suspension order and that his suspension was not proper, it is hereby ordered that he be entitled to the payment of his back salaries corresponding to the period of his suspension [Folder of Exhibits, Vol. 1, pp. 102-103]. From this decision of the Office of the President, petitioner Governor filed a petition for reconsideration dated June 14, 1976 which was denied for lack of merit in a resolution of the Office of the President dated November 6, 1978 [Folder of Exhibits, Vol. 1, p. 170]. On July 3, 1979, petitioner governor filed a second petition to reconsider O.P. Decision No. 1834 on the main ground that the disputed decision is null and void ab initio allegedly because Berroya filed his motion for reconsideration of O.P. Decision No. 954 only on July 15, 1975 or after a lapse of one year and forty seven (47) days from the date when the said decision was rendered. The Office of the President denied such petition in a resolution dated March 27, 1981 [Folder of Exhibits, Vol. 1, p. 210] on the strength of Executive Order No. 19, Series of 1966 which empowers said office to act upon petitions for reconsideration, even if filed late, in exceptionally meritorious cases. Said Office further pointed out that upon review of the records of the case, it was shown that Berroya's motion for reconsideration was filed on July 15, 1974 and not on July 15, 1975 as erroneously indicated in O.P. Decision No. 1834 [Folder of Exhibits, Vol. 1, p. 213]. From the foregoing, it can be seen that OP Decision No. 1834 had already attained finality upon denial of the first motion for reconsideration in view of the clear provisions of the applicable law at the time. Executive Order No. 19, Series of 1966, which provides: xxx xxx xxx 5. Petitions for reconsideration filed after the lapse of the aforesaid period (fifteen days from receipt of the decision) shall not be entertained unless the Office of the President, for exceptionally meritorious causes, decides to act thereon, provided that only one petition for reconsideration by any party shall be allowed [Emphasis supplied.] Accordingly, the filing of the second petition for reconsideration could not have stayed the finality of the aforesaid decision. In a last ditch attempt to assail the validity of O.P. Decision No. 1834, a petition for relief was filed by herein petitioners on April 9, 1981, during the pendency of the mandamus case. This petition was finally denied in a resolution of the office dated November 27, 1984. B. On the other hand, the validity of Berroya's dismissal was already passed upon by the Merit Systems Board of the Civil Service Commission in MSB Case No. 40. In a decision promulgated on January 23, 1979, the Merit Systems Board held as follows: After carefully perusing the records of this case, this board is convinced that there is no strong evidence of guilt against Berroya. In fact, there is not even sufficient evidence to maintain the charges against him. Hence, the same does not fall within the scope of Section 40, Presidential Decree No. 807. The record does not show that Berroya is notoriously undesirable. On the contrary, his performance ratings from the period ending December 31, 1969 to the period ending June 30, 1973 are all very satisfactory. Such being the case, he is not notoriously undesirable under the standard laid down by the President, to wit: "the test of being notoriously undesirable is two-fold: whether it is common knowledge or generally known as universally believed to be true or manifest to the world that petitioner committed the acts imputed against him, and whether he had contracted the habit for any of the enumerated misdemeanors". The same are not present in the case of

Berroya. On the contrary he should be given recognition for his efforts in exposing the irregularities allegedly committed by some authorities of the Laguna Provincial Government which led to the filing of criminal as well as administrative cases against such officials. Foregoing premises considered, this Board finds the order of dismissal dated April 27, 1977, without justifiable basis. Wherefore, the Board hereby exonerates Engr. Mariano Berroya, Jr. of the charges against him. Consequently, it is hereby directed that he be reinstated to his position as Quarry Superintendent of Laguna immediately, [Folder of Exhibits, Vol. 1, pp. 175-176]. The motion for reconsideration from this decision was denied in a resolution of the Board dated October 15, 1979. This decision was therefore already final when Berroya instituted suit in 1980 to compel petitioner to reinstate him to his former position and to pay his back salaries. Since the decisions of both the Civil Service Commission and the Office of the President had long become final and executory, the same can no longer be reviewed by the courts. It is well-established in our jurisprudence that the decisions and orders of administrative agencies, rendered pursuant to their quasi-judicial authority, have upon their finality, the force and binding effect of a final judgment within the purview of the doctrine of resjudicata [Brillantes v. Castro, 99 Phil. 497 (1956), Ipekdjian Merchadising Co., Inc. v. Court of Tax Appeals, G.R. No. L-15430, September 30, 1963, 9 SCRA 72.] The rule of res judicata which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers [Brillantes v. Castro, supra at 503]. Indeed, the principle of conclusiveness of prior adjudications is not confined in its operation to the judgments of what are ordinarily known as courts, but it extends to all bodies upon whom judicial powers had been conferred. Hence, whenever any board, tribunal or person is by law vested with authority to judicially determine a question, like the Merit Systems Board of the Civil Service Commission and the Office of the President, for instance, such determination, when it has become final, is as conclusive between the same parties litigating for the same cause as though the adjudication had been made by a court of general jurisdiction [Ipekdjian Merchandising Co., Inc. v. Court of Tax Appeals, supra at 76]. Furthermore, the trial court's act of reviewing and setting aside the findings of the two administrative bodies was in gross disregard of the basic legal precept that accords finality to administrative findings of facts. The general rule, under the principles of administrative law in force in this jurisdiction, is that decisions of administrative officers shall not be disturbed by the courts, except when the former have acted without or in excess of their jurisdiction, or with grave abuse of discretion. Findings of administrative officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial] evidence. . . . [Lianga Bay Logging Co., Inc. v. Lopez Enage, G.R. No. L-30637, July 16, 1987,152 SCRA 80]. Finally, the Court cannot ignore the undisputed fact that the decisions rendered by the Office of the President and the Merit Systems Board had attained finality without petitioners having taken any timely legal recourse to have the said decisions reviewed by the courts. On the other hand, Berroya, in order to enforce his right to reinstatement and to back salaries pursuant to these final and executory administrative rulings, instituted a suit for mandamus to compel petitioners to comply with the directives issued by the two administrative agencies. Since private respondent Berroya had established his clear legal right to reinstatement and back salaries under the aforementioned final and executory administrative decisions, it became a clear ministerial duty on the part of the authorities concerned to comply with the orders contained in said decisions [Tanala v. Legaspi, G.R. No. L-22537, March 31, 1965,13 SCRA 566 at 574-575]. The established rule is that a writ of mandamus lies to enforce a ministerial duty or "the performance of an act which the law specifically enjoins as a duty resulting from office, trust or station" [Section 3, Rule 65 of the Revised Rules of Court; Lianto v. Mohamad Ali Dimaporo, et al., G.R. No. L-21905, March 31, 1966, 16 SCRA 599]. In this case, the appropriate administrative agencies having determined with finality that Berroya's suspension and dismissal were without just cause, his reinstatement becomes a plain ministerial duty of the petitioner Provincial Governor, a duty whose performance may be controlled and enjoined by mandamus [Ynchausit and Co. v. Wright, 47 Phil. 866 (1925); Tee and Co. v. Wright, 53 Phil. 194 (1929); Gementiza v. Court of Appeals, G.R. Nos. L-41717-33, April 12, 1982,113 SCRA 477; Laganapan v. Asedillo, G.R. No. L-28353, September 30, 1987, 154 SCRA 377]. Thus, this Tribunal upholds the appellate court's judgment for the reinstatement of respondent Berroya and payment of his back salaries corresponding to the period of suspension and of illegal dismissal from service, exclusive of that corresponding to leaves of absences with pay. However, as respondent Berroya can no longer be reinstated because he has already reached the compulsory retirement age of sixty five years on December 7, 1986,** he should be paid his back salaries [Salcedo v. Court of Appeals, G.R. No. L-40846, January 31, 1978, 81 SCRA 408] and also all the retirement and leave privileges that are due him as a retiring employee in accordance with law [Tanala v. Legaspi, supra at 576]. According to settled jurisprudence, Berroya, as an illegally terminated civil service employee is entitled to back salaries limited only to a maximum period of five years Laganapan v. Asedillo, supra; Balquidra v. CFI of Capiz, Branch II, G.R. No. L-40490, October 28, 1977, 80 SCRA 123; Salcedo v. Court of Appeals, supra, Gementiza v. Court of Appeals, supra]. That petitioners Provincial Governor, Provincial Treasurer and Provincial Engineer of Laguna, the Sangguniang Panlalawigan of Laguna and the Province of Laguna, formally impleaded herein,'** are liable for back salaries in case of illegal termination of a civil service employee finds support in earlier decisions of this Court [Balquidra v. Court of First Instance of Capiz, Branch II, supra; Gementiza v. Court of Appeals, supra; Rama v. Court of Appeals, G.R. Nos. L-44484, 1,44842, L-44894, L-44591, March 16, 1987,148 SCRA 496; Laganapan v. Asedillo, supra]. However, the petitioners Juanito Rodil and Amado Romey must be held liable only in their official capacities as Provincial Engineer and Provincial Treasurer, respectively since they had been expressly sued by Berroya as such [Petition for mandamus with Preliminary Injunction, Record, Vol. 1, p. 1, et seq.; Gray v. De Vera, G.R. No. L-23966, May 22, 1969, 28 SCRA 268].

The same does not hold true for petitioner provincial governor who was found by the appellate court to have acted in bad faith as manifested by his contumacious refusal to comply with the decisions of the two administrative agencies, thus prompting respondent Berroya to secure an indorsement from the Minister of Local Government and Community Development dated November 15, 1979 for his reinstatement [Annex "Y-9", Folder of Exhibits, Vol. 1, p. 207]. The Minister's directive having been ignored, Berroya was compelled to bring an action for mandamus. Where, as in this case, the provincial governor obstinately refused to reinstate the petitioner, in defiance of the orders of the Office of the President and the Ministry of Local Government and in palpable disregard of the opinion of the Civil Service Commission, the appellate court's finding of bad faith cannot be faulted and accordingly, will not be disturbed by this Tribunal Enciso v. Remo, G.R. No. L-23670, September 30, 1969, 29 SCRA 580.] This is in line with our previous ruling in Remo v. Palacio [107 Phil. 803 (1960)] that xxx xxx xxx (i)t having been clearly shown by evidence, that respondent, Deogracias Remo, in his capacity as Mayor of Goa, refused to reinstate the petitioner to his former position in the police force of Goa, despite the orders of Malacanang to do so (Exhs. G and I), and inspite of the opinion of the Secretary of Finance (Exh. H), the respondent Mayor of Goa, willfully acted in bad faith, and therefore, he, as Mayor of Goa, should pay for damages caused to the petitioner, Angel Enciso. [At pp. 807-808.] It is well-settled that when a public officer goes beyond the scope of his duty, particularly when acting tortiously, he is not entitled to protection on account of his office, but is liable for his acts like any private individual [Palma v. Graciano, 99 Phil. 72 (1956)]. Thus, in Mendoza v. De Leon [33 Phil. 508 (1916)], it was held: Nor are officers or agents of the Government charged with the performance of governmental duties which are in their nature legislative or quasi-judicial liable for the consequences of their official acts, unless it be shown that they act wilfully and maliciously and with the express purpose of inflicting injury upon the plaintiff [at 513; Emphasis supplied]. Accordingly, applying the principle that a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith [Tabuena v. Court of Appeals, G.R. No. L-16290, October 31, 1961, 3 SCRA 413; Correa v. Court of First Instance of Bulacan, G. R. No. L-46096, July 30, 1979, 92 SCRA 312], the Court holds that petitioner Felicisimo T. San Luis, the Provincial Governor of Laguna who has been sued both in his official and private capacities, must be held personally liable to Berroya for the consequences of his illegal and wrongful acts. In this regard, the Court sustains the appellate court's finding that petitioner San Luis must be held liable to Berroya for moral damages since justice demands that the latter be recompensed for the mental suffering and hardship he went through in order to vindicate his right, apart from the back salaries legally due him [Rama v. Court of Appeals, supra at p. 5061]. The appellate court was clearly warranted in awarding moral damages in favor of respondent Berroya because of the obstinacy of petitioner Governor who arbitrarily and without legal justification refused Berroya's reinstatement in defiance of directives of the administrative agencies with final authority on the matter. We agree with the appellate court that the sum of P 50,000.00 for moral damages is a reasonable award considering the mental anguish and serious anxiety suffered by Berroya as a result of the wrongful acts of petitioner Governor in refusing to reinstate him. Finally, as correctly adjudged by respondent court, petitioner San Luis must likewise answer to Berroya for attorney's fees plus costs and expenses of suit, which have been fixed by said court at P 20,000.00, in view of the wrongful refusal of petitioner provincial governor to afford Berroya his plainly valid and just claim for reinstatement and back salaries [Rollo, p. 42]. WHEREFORE, the assailed decision of the appellate court is hereby MODIFIED as follows: (1) the petitioners, in their official capacities, are ordered to pay private respondent Berroya, his back salaries for a maximum period of five years; (2) since the reinstatement of Berroya can no longer be ordered by reason of his having reached the retirement age, he should instead be paid all the retirement benefits to which he is entitled under the law; and (3) petitioner Felicisimo T. San Luis, in his personal capacity, is further ordered to pay Berroya the sum of P 50,000.00 as and for moral damages, the sum of P 20,000.00 as and for attorney's fees plus costs and other expenses of suit. This decision shall be IMMEDIATELY EXECUTORY. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.