Public Corporation Cases

EN BANC

[G.R. No. L-23825. December 24, 1965.]

EMMANUEL PELAEZ, Petitioner, v. THE AUDITOR GENERAL, Respondent.

Zulueta, Gonzales, Paculdo & Associates for Petitioner.

Solicitor General for Respondent.
SYLLABUS

1. ADMINISTRATIVE LAW; POWER OF PRESIDENT TO CREATE MUNICIPALITIES. — 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.” This 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.2. ID.; ID.; NATURE OF POWER TO CREATE MUNICIPALITIES. — Whereas the power to fix a 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.

   3. ID.; ID.; ID.; REQUISITES FOR VALID DELEGATION OF POWER. — Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential that said law: (a) be complete in itself, setting forth therein the policy to be executed, carried out or implemented by the delegate; and (b) fix a standard – the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions.

   4. ID.; ID.; ID.; ID.; REQUIREMENTS OF DUE DELEGATION OF POWER NOT MET BY SECTION 68 OF REVISED ADMINISTRATIVE CODE. — Section 68 of the Revised Administrative Code, insofar as it grants to the President the power to create municipalities, does not meet the 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.

   5. ID.; ID.; ID.; ID.; ID.; ABDICATION OF POWERS OF CONGRESS IN FAVOR OF THE EXECUTIVE. — If the validity of said delegation of powers, made in Section 68 of the Revised Administrative Code, 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 the Constitution.

   6. ID.; ID.; ID.; NATURE OF POWERS DEALT WITH IN SECTION 68 OF THE REVISED ADMINISTRATIVE CODE. — It is true that in Calalang v. Williams (70 Phil., 726) and People v. 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 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. 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 of the Revised Administrative Code. The creation of municipalities being essentially and eminently legislative in character, the question whether or not “public interest” demands the exercise of such power is not one of fact. It is purely a legislative question (Carolina- Virginia Coastal Highway v. Coastal Turnpike Authority, 74 S.E. 21., 310-313, 315-318), or a political question (Udall v. Severn, 79 p. 2d., 347-349).

   7. ID.; ID., ID.; ID.; PROOF THAT ISSUANCE OF EXECUTIVE ORDERS IN QUESTION ENTAILS EXERCISE OF PURELY LEGISLATIVE FUNCTIONS. — The fact that Executive Orders Nos. 93 to 121, 124 and 126 to 129, creating thirty-three municipalities, were issued after the legislative bills for the creation of the said municipalities had failed to pass Congress, is the best proof that their issuance entails the exercise of purely legislative functions.

   8. ID.; ID.; ID.; POWER OF CONTROL OVER LOCAL GOVERNMENTS. — The power of control under Section 10(a) of Article X of the Constitution 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, for instance, 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. If, on the other hand, 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 (Section 2179, Revised Administrative Code). Thus, by merely brandishing the power to create a new municipality, 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.

   9. ID.; ID.; ID.; ID.; SECTION 68, REVISED ADMINISTRATIVE CODE, REPEALED BY THE CONSTITUTION. — The power of control of the President over executive departments, bureaus or offices under Section 10 (a) of Article X of the Constitution implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. 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 executive departments, bureaus or offices. Even if, therefore, it did not 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. (De los Santos v. Mallare, 87 Phil., 289, 298-299.)

   10. ID. ID.; ID.; MUNICIPAL OFFICIALS CONCERNED DULY REPRESENTED IN PRESENT CASE. — It is contented that not all the proper parties have been impleaded in the present case. Suffice it to say that the records do not show, and the parties do not claim, that the officers of any of the municipalities concerned have been appointed or elected and have 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 officers 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 municipalities involved in this case, which involves a political, not proprietary functions, said local officials, if any, are mere agents or representatives of the national government. Their interest in the case has accordingly been duly represented. (Mangubat v. Osmeña Jr., G.R. No. L-12837, April 30, 1959; City of Cebu v. Judge Piccio, G.R. Nos. L-13012 & L-14876, December 31, 1960.)

   11. ID.; ID.; ACTION NOT PREMATURE. — The present action cannot be said to be premature simply because respondent Auditor General has not yet acted on any of the executive orders in question and has not intimated how he would act in connection therewith. It is a matter of common knowledge that the President has for many years issued executive orders creating municipal corporations and that the same have been organized and are 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 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.

D E C I S I O N
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 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 subdivision — intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear as amici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:jgc:chanrobles.com.ph

“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:jgc:chanrobles.com.ph

“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 situated. 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.”cralaw virtua1aw library

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. 2370. has been brought to our attention.

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides:jgc:chanrobles.com.ph

“The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any province, sub-province, municipality, [township] municipal district or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed.

“Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General) President of the Philippines.”cralaw virtua1aw library

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 v. Municipality of Binañgonan (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 (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov’t of the P.I. ex rel. Municipality of Cardona v. Municipality of Binañgonan [34 Phil. 518, 519-520], — 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 v. Aicklen, 119 S. 425, January 2, 1959) or “solely and exclusively the exercise of legislative power” (Udall v. Severn, May 29, 1938, 79 P. 2d. 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly v. Stewart, February 13, 1890, 23 Pac. 405, 409), “municipal corporations are purely the creatures of statutes.”cralaw virtua1aw library

Although 1 Congress may delegate to another branch of the government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate 2 — and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. 2 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. 2 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:jgc:chanrobles.com.ph

“. . . may change the seat of the government within any subdivision to such place therein as the public welfare may require.”cralaw virtua1aw library

It is apparent, however, from the language of this clause, that the phrase “as the public welfare may require” qualifies, 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 well 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 v. William (70 Phil. 726) and People v. Rosenthal (68 Phil. 328), this Court had upheld “public welfare” and “public interest”, respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these cases — as all judicial pronouncements — must be construed in relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and have no binding effect. 4 The law construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations to promote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale of speculative securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions, calling for the determination of questions of fact.

Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not an administrative function, but one which is essentially and eminently legislative in character. The question whether or not “public interest” demands the exercise of such power is not one of fact. It is “purely a legislative question” (Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority, 74 S.E. 2d., 310-313, 315-318), or a political question (Udall v. 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 v. Severn, supra, 358-359); 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 meter 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 v. 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 v. 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 v. 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:jgc:chanrobles.com.ph

“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.”cralaw virtua1aw library

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:jgc:chanrobles.com.ph

“The President shall have control of all 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.”cralaw virtua1aw library

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 veto, 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 more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureaus, 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 not 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.”cralaw virtua1aw library

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.

Zalvidar, J., took no part.

Separate Opinions

BENGZON, J.P., J., concurring and dissenting:chanrob1es virtual 1aw library

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 v. Municipality of Binangonan, 34 Phil. 518; Municipality of Cardona v. Municipality of Binangonan, 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 least, already repealed in the light of the Philippine Constitution and Republic Act 2370 (The Barrio Charter).

Section 68 is again reproduced hereunder for convenience:jgc:chanrobles.com.ph

“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 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 division 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.”cralaw virtua1aw library

From such wording 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 of 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:jgc:chanrobles.com.ph

“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.”cralaw virtua1aw library

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 set-up 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 power 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.”cralaw virtua1aw library

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 impelled to conclude, therefore, that Section 10(1) of 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. Mallare, 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.

Makalintal and Regala, JJ., concur with the opinion of Justice J.P. Bengzon.

EN BANC

[G.R. NO. 161414 : January 17, 2005]

SULTAN OSOP B. CAMID, Petitioner, v. THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT of FINANCE, DEPARTMENT of BUDGET AND MANAGEMENT, COMMISSION ON AUDIT, and the CONGRESS OF THE PHILIPPINES (HOUSE of REPRESENTATIVES AND SENATE), Respondents.

D E C I S I O N

TINGA, J.:

This Petition for Certiorari presents this Court with the prospect of our own Brigadoon¹ the municipality of Andong, Lanao del Sur―which like its counterpart in filmdom, is a town that is not supposed to exist yet is anyway insisted by some as actually alive and thriving. Yet unlike in the movies, there is nothing mystical, ghostly or anything even remotely charming about the purported existence of Andong. The creation of the putative municipality was declared void ab initio by this Court four decades ago, but the present petition insists that in spite of this insurmountable obstacle Andong thrives on, and hence, its legal personality should be given judicial affirmation. We disagree.

The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor General² in 1965. As discussed therein, then President Diosdado Macapagal issued several Executive Orders³ creating thirty-three (33) municipalities in Mindanao. Among them was Andong in Lanao del Sur which was created by virtue of Executive Order No. 107.⁴

These executive orders were issued after legislative bills for the creation of municipalities involved in that case had failed to pass Congress.⁵ President Diosdado Macapagal justified the creation of these municipalities citing his powers under Section 68 of the Revised Administrative Code. Then Vice-President Emmanuel Pelaez filed a special civil action for a writ of prohibition, alleging in main that the Executive Orders were null and void, Section 68 having been repealed by Republic Act No. 2370,⁶ and said orders constituting an undue delegation of legislative power.⁷

After due deliberation, the Court unanimously held that the challenged Executive Orders were null and void. A majority of five justices, led by the ponente, Justice (later Chief Justice) Roberto Concepcion, ruled that Section 68 of the Revised Administrative Code did not meet the well-settled requirements for a valid delegation of legislative power to the executive branch,⁸ while three justices opined that the nullity of the issuances was the consequence of the enactment of the 1935 Constitution, which reduced the power of the Chief Executive over local governments.⁹ Pelaez was disposed in this wise:

WHEREFORE, the Executive Orders in question are 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.¹⁰

Among the Executive Orders annulled was Executive Order No. 107 which created the Municipality of Andong. Nevertheless, the core issue presented in the present petition is the continued efficacy of the judicial annulment of the Municipality of Andong.

Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of Andong,¹¹ suing as a private citizen and taxpayer whose locus standi “is of public and paramount interest especially to the people of the Municipality of Andong, Province of Lanao del Sur.”¹² He alleges that Andong “has metamorphosed into a full-blown municipality with a complete set of officials appointed to handle essential services for the municipality and its constituents,”¹³ even though he concedes that since 1968, no person has been appointed, elected or qualified to serve any of the elective local government positions of Andong.¹⁴ Nonetheless, the municipality of Andong has its own high school, Bureau of Posts, a Department of Education, Culture and Sports office, and at least seventeen (17) “barangay units” with their own respective chairmen.¹⁵ From 1964 until 1972, according to Camid, the public officials of Andong “have been serving their constituents through the minimal means and resources with least (sic) honorarium and recognition from the Office of the then former President Diosdado Macapagal.” Since the time of Martial Law in 1972, Andong has allegedly been getting by despite the absence of public funds, with the “Interim Officials” serving their constituents “in their own little ways and means.”¹⁶

In support of his claim that Andong remains in existence, Camid presents to this Court aCertification issued by the Office of the Community Environment and Natural Resources (CENRO) of the Department of Environment and Natural Resources (DENR) certifying the total land area of the Municipality of Andong, “created under Executive Order No. 107 issued [last] October 1, 1964.”¹⁷ He also submits a Certification issued by the Provincial Statistics Office of Marawi City concerning the population of Andong, which is pegged at fourteen thousand fifty nine (14,059) strong. Camid also enumerates a list of governmental agencies and private groups that allegedly recognize Andong, and notes that other municipalities have recommended to the Speaker of the Regional Legislative Assembly for the immediate implementation of the revival or re-establishment of Andong.¹⁸

The petition assails a Certification dated 21 November 2003, issued by the Bureau of Local Government Supervision of the Department of Interior and Local Government (DILG).¹⁹The Certification enumerates eighteen (18) municipalities certified as “existing,” per DILG records. Notably, these eighteen (18) municipalities are among the thirty-three (33), along with Andong, whose creations were voided by this Court in Pelaez. These municipalities are Midaslip, Pitogo, Naga, and Bayog in Zamboanga del Sur; Siayan and Pres. Manuel A. Roxas in Zamboanga del Norte; Magsaysay, Sta. Maria and New Corella in Davao; Badiangan and Mina in Iloilo; Maguing in Lanao del Sur; Gloria in Oriental Mindoro; Maasim in Sarangani; Kalilangan and Lantapan in Bukidnon; and Maco in Compostela Valley.²⁰

Camid imputes grave abuse of discretion on the part of the DILG “in not classifying [Andong] as a regular existing municipality and in not including said municipality in its records and official database as [an] existing regular municipality.”²¹ He characterizes such non-classification as unequal treatment to the detriment of Andong, especially in light of the current recognition given to the eighteen (18) municipalities similarly annulled by reason of Pelaez. As appropriate relief, Camid prays that the Court annul the DILGCertification dated 21 November 2003; direct the DILG to classify Andong as a “regular existing municipality;” all public respondents, to extend full recognition and support to Andong; the Department of Finance and the Department of Budget and Management, to immediately release the internal revenue allotments of Andong; and the public respondents, particularly the DILG, to recognize the “Interim Local Officials” of Andong.²²

Moreover, Camid insists on the continuing validity of Executive Order No. 107. He argues that Pelaez has already been modified by supervening events consisting of subsequent laws and jurisprudence. Particularly cited is our Decision in Municipality of San Narciso v. Hon. Mendez,²³ wherein the Court affirmed the unique status of the municipality of San Andres in Quezon as a “de facto municipal corporation.”²⁴ Similar to Andong, the municipality of San Andres was created by way of executive order, precisely the manner which the Court in Pelaez had declared as unconstitutional. Moreover, San Narciso cited, as Camid does, Section 442(d) of the Local Government Code of 1991 as basis for the current recognition of the impugned municipality. The provision reads:

Section 442. Requisites for Creation. – xxx

(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities.²⁵

There are several reasons why the petition must be dismissed. These can be better discerned upon examination of the proper scope and application of Section 442(d), which does not sanction the recognition of just any municipality. This point shall be further explained further on.

Notably, as pointed out by the public respondents, through the Office of the Solicitor General (OSG), the case is not a fit subject for the special civil actions of certiorari andmandamus, as it pertains to the de novo appreciation of factual questions. There is indeed no way to confirm several of Camid’s astonishing factual allegations pertaining to the purported continuing operation of Andong in the decades since it was annulled by this Court. No trial court has had the opportunity to ascertain the validity of these factual claims, the appreciation of which is beyond the function of this Court since it is not a trier of facts.

The importance of proper factual ascertainment cannot be gainsaid, especially in light of the legal principles governing the recognition of de facto municipal corporations. It has been opined that municipal corporations may exist by prescription where it is shown that the community has claimed and exercised corporate functions, with the knowledge and acquiescence of the legislature, and without interruption or objection for period long enough to afford title by prescription.²⁶ These municipal corporations have exercised their powers for a long period without objection on the part of the government that although no charter is in existence, it is presumed that they were duly incorporated in the first place and that their charters had been lost.²⁷ They are especially common in England, which, as well-worth noting, has existed as a state for over a thousand years. The reason for the development of that rule in England is understandable, since that country was settled long before the Roman conquest by nomadic Celtic tribes, which could have hardly been expected to obtain a municipal charter in the absence of a national legal authority.

In the United States, municipal corporations by prescription are less common, but it has been held that when no charter or act of incorporation of a town can be found, it may be shown to have claimed and exercised the powers of a town with the knowledge and assent of the legislature, and without objection or interruption for so long a period as to furnish evidence of a prescriptive right.²⁸

What is clearly essential is a factual demonstration of the continuous exercise by the municipal corporation of its corporate powers, as well as the acquiescence thereto by the other instrumentalities of the state. Camid does not have the opportunity to make an initial factual demonstration of those circumstances before this Court. Indeed, the factual deficiencies aside, Camid’s plaint should have undergone the usual administrative gauntlet and, once that was done, should have been filed first with the Court of Appeals, which at least would have had the power to make the necessary factual determinations. Camid’s seeming ignorance of the principles of exhaustion of administrative remedies and hierarchy of courts, as well as the concomitant prematurity of the present petition, cannot be countenanced.

It is also difficult to capture the sense and viability of Camid’s present action. The assailed issuance is the Certification issued by the DILG. But such Certification does not pretend to bear the authority to create or revalidate a municipality. Certainly, the annulment of theCertification will really do nothing to serve Camid’s ultimate cause – the recognition of Andong. Neither does the Certification even expressly refute the claim that Andong still exists, as there is nothing in the document that comments on the present status of Andong. Perhaps the Certification is assailed before this Court if only to present an actual issuance, rather than a long-standing habit or pattern of action that can be annulled through the special civil action of certiorari . Still, the relation of the Certification to Camid’s central argument is forlornly strained.

These disquisitions aside, the central issue remains whether a municipality whose creation by executive fiat was previously voided by this Court may attain recognition in the absence of any curative or reimplementing statute. Apparently, the question has never been decided before, San Narciso and its kindred cases pertaining as they did to municipalities whose bases of creation were dubious yet were never judicially nullified. The effect of Section 442(d) of the Local Government Code on municipalities such as Andong warrants explanation. Besides, the residents of Andong who belabor under the impression that their town still exists, much less those who may comport themselves as the municipality’s “Interim Government,” would be well served by a rude awakening.

The Court can employ a simplistic approach in resolving the substantive aspect of the petition, merely by pointing out that the Municipality of Andong never existed.²⁹ Executive Order No. 107, which established Andong, was declared “null and void ab initio” in 1965 by this Court in Pelaez, along with thirty-three (33) other executive orders. The phrase “ab initio” means “from the beginning,”³⁰ “at first,”³¹ “from the inception.”³² Pelaez was never reversed by this Court but rather it was expressly affirmed in the cases of Municipality of San Joaquin v. Siva,³³ Municipality of Malabang v. Benito,³⁴ and Municipality of Kapalong v. Moya.³⁵ No subsequent ruling by this Court declared Pelaez as overturned or inoperative. No subsequent legislation has been passed since 1965 creating a Municipality of Andong. Given these facts, there is hardly any reason to elaborate why Andong does not exist as a duly constituted municipality.

This ratiocination does not admit to patent legal errors and has the additional virtue of blessed austerity. Still, its sweeping adoption may not be advisedly appropriate in light of Section 442(d) of the Local Government Code and our ruling in Municipality of San Narciso, both of which admit to the possibility of de facto municipal corporations.

To understand the applicability of Municipality of San Narciso and Section 442(b) of the Local Government Code to the situation of Andong, it is necessary again to consider the ramifications of our decision in Pelaez.

The eminent legal doctrine enunciated in Pelaez was that the President was then, and still is, not empowered to create municipalities through executive issuances. The Court therein recognized “that the President has, for many years, issued executive orders creating municipal corporations, and that the same have been organized and in actual operation . . . .”³⁶ However, the Court ultimately nullified only those thirty-three (33) municipalities, including Andong, created during the period from 4 September to 29 October 1964 whose existence petitioner Vice-President Pelaez had specifically assailed before this Court. No pronouncement was made as to the other municipalities which had been previously created by the President in the exercise of power the Court deemed unlawful.

Two years after Pelaez was decided, the issue again came to fore in Municipality of San Joaquin v. Siva.³⁷ The Municipality of Lawigan was created by virtue of Executive Order No. 436 in 1961. Lawigan was not one of the municipalities ordered annulled in Pelaez. A petition for prohibition was filed contesting the legality of the executive order, again on the ground that Section 68 of the Revised Administrative Code was unconstitutional. The trial court dismissed the petition, but the Supreme Court reversed the ruling and entered a new decision declaring Executive Order No. 436 void ab initio. The Court reasoned without elaboration that the issue had already been squarely taken up and settled in Pelaez which agreed with the argument posed by the challengers to Lawigan’s validity.³⁸

In the 1969 case of Municipality of Malabang v. Benito,³⁹ what was challenged is the validity of the constitution of the Municipality of Balabagan in Lanao del Sur, also created by an executive order,⁴⁰ and which, similar to Lawigan, was not one of the municipalities annulled in Pelaez. This time, the officials of Balabagan invoked de facto status as a municipal corporation in order to dissuade the Court from nullifying action. They alleged that its status as a de facto corporation cannot be collaterally attacked but should be inquired into directly in an action for quo warranto at the instance of the State, and not by a private individual as it was in that case. In response, the Court conceded that an inquiry into the legal existence of a municipality is reserved to the State in a proceeding for quo warranto, but only if the municipal corporation is a de facto corporation.⁴¹

Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation, even though it had been organized prior to the Court’s decision in Pelaez. The Court declared void the executive order creating Balabagan and restrained its municipal officials from performing their official duties and functions.⁴² It cited conflicting American authorities on whether a de facto corporation can exist where the statute or charter creating it is unconstitutional.⁴³ But the Court’s final conclusion was unequivocal that Balabagan was not a de facto corporation.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

In the cases where a de facto municipal corporation was recognized as such despite the fact that the statute creating it was later invalidated, the decisions could fairly be made to rest on the consideration that there was some other valid law giving corporate vitality to the organization. Hence, in the case at bar, the mere fact that Balabagan was organized at a time when the statute had not been invalidated cannot conceivably make it a de factocorporation, as, independently of the Administrative Code provision in question, there is no other valid statute to give color of authority to its creation.⁴⁴

The Court did clarify in Malabang that the previous acts done by the municipality in the exercise of its corporate powers were not necessarily a nullity.⁴⁵ Camid devotes several pages of his petition in citing this point,⁴⁶ yet the relevance of the citation is unclear considering that Camid does not assert the validity of any corporate act of Andong prior to its judicial dissolution. Notwithstanding, the Court in Malabang retained an emphatic attitude as to the unconstitutionality of the power of the President to create municipal corporations by way of presidential promulgations, as authorized under Section 68 of the Revised Administrative Code.

This principle was most recently affirmed in 1988, in Municipality of Kapalong v. Moya.⁴⁷The municipality of Santo Tomas, created by President Carlos P. Garcia, filed a complaint against another municipality, who challenged Santo Tomas’s legal personality to institute suit. Again, Santo Tomas had not been expressly nullified by prior judicial action, yet the Court refused to recognize its legal existence. The blunt but simple ruling: “Now then, as ruled in the Pelaez case supra, the President has no power to create a municipality. Since [Santo Tomas] has no legal personality, it can not be a party to any civil action’. “⁴⁸

Nevertheless, when the Court decided Municipality of San Narciso⁴⁹ in 1995, it indicated a shift in the jurisprudential treatment of municipalities created through presidential issuances. The questioned municipality of San Andres, Quezon was created on 20 August 1959 by Executive Order No. 353 issued by President Carlos P. Garcia. Executive Order No. 353 was not one of the thirty-three issuances annulled by Pelaez in 1965. The legal status of the Municipality of San Andres was first challenged only in 1989, through a petition forquo warranto filed with the Regional Trial Court of Gumaca, Quezon, which did cite Pelaezas authority.⁵⁰ The RTC dismissed the petition for lack of cause of action, and the petitioners therein elevated the matter to this Court.

In dismissing the petition, the Court delved in the merits of the petition, if only to resolve further doubt on the legal status of San Andres. It noted a circumstance which is not present in the case at bar that San Andres was in existence for nearly thirty (30) years before its legality was challenged. The Court did not declare the executive order creating San Andres null and void. Still, acting on the premise that the said executive order was a complete nullity, the Court noted “peculiar circumstances” that led to the conclusion that San Andres had attained the unique status of a “de facto municipal corporation.”⁵¹ It noted that Pelaez limited its nullificatory effect only to those executive orders specifically challenged therein, despite the fact that the Court then could have very well extended the decision to invalidate San Andres as well.⁵² This statement squarely contradicts Camid’s reading of San Narciso that the creation of San Andres, just like Andong, had been declared a complete nullity on the same ground of unconstitutional delegation of legislative power found in Pelaez.⁵³

The Court also considered the applicability of Section 442(d)⁵⁴ of the Local Government Code of 1991. It clarified the implication of the provision as follows:

Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts “organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities.” No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is preferred. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving “validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with,” are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights. (Emphasis supplied)⁵⁵

The holding in San Narciso was subsequently affirmed in Municipality of Candijay v. Court of Appeals⁵⁶ and Municipality of Jimenez v. Baz⁵⁷ In Candijay, the juridical personality of the Municipality of Alicia, created in a 1949 executive order, was attacked only beginning in 1984. Pelaez was again invoked in support of the challenge, but the Court refused to invalidate the municipality, citing San Narciso at length. The Court noted that the situation of the Municipality of Alicia was strikingly similar to that in San Narciso; hence, the town should likewise “benefit from the effects of Section 442(d) of the Local Government Code, and should [be] considered as a regular, de jure municipality.” ⁵⁸

The valid existence of Municipality of Sinacaban, created in a 1949 executive order, was among the issues raised in Jimenez. The Court, through Justice Mendoza, provided an expert summation of the evolution of the rule.

The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the ruling in Pelaez v. Auditor General that the creation of municipal corporations is essentially a legislative matter and therefore the President was without power to create by executive order the Municipality of Sinacaban. The ruling in this case has been reiterated in a number of cases later decided. However, we have since held that where a municipality created as such by executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. In Municipality of San Narciso, Quezon v. Mendez, Sr., this Court considered the following factors as having validated the creation of a municipal corporation, which, like the Municipality of Sinacaban, was created by executive order of the President before the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30 years the validity of the creation of the municipality had never been challenged; (2) the fact that following the ruling in Pelaez noquo warranto suit was filed to question the validity of the executive order creating such municipality; and (3) the fact that the municipality was later classified as a fifth class municipality, organized as part of a municipal circuit court and considered part of a legislative district in the Constitution apportioning the seats in the House of Representatives. Above all, it was held that whatever doubt there might be as to the dejure character of the municipality must be deemed to have been put to rest by the Local Government Code of 1991 (R. A. No. 7160), ‘442(d) of which provides that “municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of elective officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.”

Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal corporation in the sense that its legal existence has been recognized and acquiesced publicly and officially. Sinacaban had been in existence for sixteen years whenPelaez v. Auditor General was decided on December 24, 1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it was only 40 years later that its existence was questioned and only because it had laid claim to an area that apparently is desired for its revenue. This fact must be underscored because under Rule 66, ’16 of the Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must be commenced within five (5) years from the time the act complained of was done or committed. On the contrary, the State and even the Municipality of Jimenez itself have recognized Sinacaban’s corporate existence. Under Administrative Order No. 33 dated June 13, 1978 of this Court, as reiterated by ’31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is constituted part of a municipal circuit for purposes of the establishment of Municipal Circuit Trial Courts in the country. For its part, Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their common boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of Misamis Occidental.

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacaban part of the Second District of Misamis Occidental. Moreover, following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., 442(d) of the Local Government Code of 1991 must be deemed to have cured any defect in the creation of Sinacaban’.⁵⁹ ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

From this survey of relevant jurisprudence, we can gather the applicable rules. Pelaez and its offspring cases ruled that the President has no power to create municipalities, yet limited its nullificatory effects to the particular municipalities challenged in actual cases before this Court. However, with the promulgation of the Local Government Code in 1991, the legal cloud was lifted over the municipalities similarly created by executive order but not judicially annulled. The de facto status of such municipalities as San Andres, Alicia and Sinacaban was recognized by this Court, and Section 442(b) of the Local Government Code deemed curative whatever legal defects to title these municipalities had labored under.

Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not. There are eminent differences between Andong and municipalities such as San Andres, Alicia and Sinacaban. Most prominent is the fact that the executive order creating Andong was expressly annulled by order of this Court in 1965. If we were to affirm Andong’s de facto status by reason of its alleged continued existence despite its nullification, we would in effect be condoning defiance of a valid order of this Court.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Court decisions cannot obviously lose their efficacy due to the sheer defiance by the parties aggrieved.

It bears noting that based on Camid’s own admissions, Andong does not meet the requisites set forth by Section 442(d) of the Local Government Code. Section 442(d) requires that in order that the municipality created by executive order may receive recognition, they must “have their respective set of elective municipal officials holding office at the time of the effectivity of [the Local Government] Code.” Camid admits that Andong has never elected its municipal officers at all.⁶⁰ This incapacity ties in with the fact that Andong was judicially annulled in 1965. Out of obeisance to our ruling in Pelaez, the national government ceased to recognize the existence of Andong, depriving it of its share of the public funds, and refusing to conduct municipal elections for the void municipality.

The failure to appropriate funds for Andong and the absence of elections in the municipality in the last four decades are eloquent indicia of the non-recognition by the State of the existence of the town. The certifications relied upon by Camid, issued by the DENR-CENRO and the National Statistics Office, can hardly serve the purpose of attesting to Andong’s legal efficacy. In fact, both these certifications qualify that they were issued upon the request of Camid, “to support the restoration or re-operation of the Municipality of Andong, Lanao del Sur,”⁶¹ thus obviously conceding that the municipality is at present inoperative.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

We may likewise pay attention to the Ordinance appended to the 1987 Constitution, which had also been relied upon in Jimenez and San Narciso. This Ordinance, which apportioned the seats of the House of Representatives to the different legislative districts in the Philippines, enumerates the various municipalities that are encompassed by the various legislative districts. Andong is not listed therein as among the municipalities of Lanao del Sur, or of any other province for that matter.⁶² On the other hand, the municipalities of San Andres, Alicia and Sinacaban are mentioned in the Ordinance as part of Quezon,⁶³Bohol,⁶⁴ and Misamis Occidental⁶⁵ respectively.

How about the eighteen (18) municipalities similarly nullified in Pelaez but certified as existing in the DILG Certification presented by Camid? The petition fails to mention that subsequent to the ruling in Pelaez, legislation was enacted to reconstitute these municipalities.⁶⁶ It is thus not surprising that the DILG certified the existence of these eighteen (18) municipalities, or that these towns are among the municipalities enumerated in the Ordinance appended to the Constitution. Andong has not been similarly reestablished through statute. Clearly then, the fact that there are valid organic statutes passed by legislation recreating these eighteen (18) municipalities is sufficient legal basis to accord a different legal treatment to Andong as against these eighteen (18) other municipalities.

We thus assert the proper purview to Section 442(d) of the Local Government Code that it does not serve to affirm or reconstitute the judicially dissolved municipalities such as Andong, which had been previously created by presidential issuances or executive orders. The provision affirms the legal personalities only of those municipalities such as San Narciso, Alicia, and Sinacaban, which may have been created using the same infirm legal basis, yet were fortunate enough not to have been judicially annulled. On the other hand, the municipalities judicially dissolved in cases such as Pelaez, San Joaquin, and Malabang, remain inexistent, unless recreated through specific legislative enactments, as done with the eighteen (18) municipalities certified by the DILG. Those municipalities derive their legal personality not from the presidential issuances or executive orders which originally created them or from Section 442(d), but from the respective legislative statutes which were enacted to revive them.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

And what now of Andong and its residents? Certainly, neither Pelaez or this decision has obliterated Andong into a hole on the ground. The legal effect of the nullification of Andong in Pelaez was to revert the constituent barrios of the voided town back into their original municipalities, namely the municipalities of Lumbatan, Butig and Tubaran.⁶⁷ These three municipalities subsist to this day as part of Lanao del Sur,⁶⁸ and presumably continue to exercise corporate powers over the barrios which once belonged to Andong.

If there is truly a strong impulse calling for the reconstitution of Andong, the solution is through the legislature and not judicial confirmation of void title. If indeed the residents of Andong have, all these years, been governed not by their proper municipal governments but by a ragtag “Interim Government,” then an expedient political and legislative solution is perhaps necessary. Yet we can hardly sanction the retention of Andong’s legal personality solely on the basis of collective amnesia that may have allowed Andong to somehow pretend itself into existence despite its judicial dissolution. Maybe those who insist Andong still exists prefer to remain unperturbed in their blissful ignorance, like the inhabitants of the cave in Plato’s famed allegory. But the time has come for the light to seep in, and for the petitioner and like-minded persons to awaken to legal reality.

WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur.

EN BANC

[G.R. No. 103702. December 6, 1994.]

MUNICIPALITY OF SAN NARCISO, QUEZON; MAYOR JUAN K. UY; COUNCILORS: DEOGRACIAS R. ARGOSINO III, BENITO T. CAPIO, EMMANUEL R. CORTEZ, NORMANDO MONTILLA, LEONARDO C. UY, FIDEL C. AURELLANA, PEDRO C. CARABIT, LEONARDO D. AURELLANA, FABIAN M. MEDENILLA, TRINIDAD F. CORTEZ, SALVADOR M. MEDENILLA, CERELITO B. AUREADA and FRANCISCA A. BAMBA, Petitioners, v. HON. ANTONIO V. MENDEZ, SR., Presiding Judge, Regional Trial Court, Branch 62, 4th Judicial Region, Gumaca, Quezon; MUNICIPALITY OF SAN ANDRES, QUEZON; MAYOR FRANCISCO DE LEON; COUNCILORS: FE LUPINAC, TOMAS AVERIA, MANUEL O. OSAS, WILFREDO O. FONTANIL, ENRICO U. NADRES, RODELITO LUZOIR, LENAC, JOSE L. CARABOT, DOMING AUSA, VIDAL BANQUELES and CORAZON M. MAXIMO, Respondents.
D E C I S I O N
VITUG, J.:
On 20 August 1959, President Carlos P. Garcia, issued, pursuant to the then Sections 68 and 2630 of the Revised Administrative Code, as amended, Executive Order No. 353 creating the municipal district of San Andres, Quezon, by segregating from the municipality of San Narciso of the same province, the barrios of San Andres, Mangero, Alibijaban, Pansoy, Camflora and Tala along with their respective sitios.chanrobles virtual lawlibrary

Executive Order No. 353 was issued upon the request, addressed to the President and coursed through the Provincial Board of Quezon, of the municipal council of San Narciso, Quezon, in its Resolution No. 8 of 24 May 1959. 1

By virtue of Executive Order No. 174, dated 05 October 1965, issued by President Diosdado Macapagal, the municipal district of San Andres was later officially recognized to have gained the status of a fifth class municipality beginning 01 July 1963 by operation of Section 2 of Republic Act No. 1515. 2 The executive order added that” (t)he conversion of this municipal district into (a) municipality as proposed in House Bill No. 4864 was approved by the House of Representatives.”cralaw virtua1aw library

On 05 June 1989, the Municipality of San Narciso filed a petition for quo warranto with the Regional Trial Court, Branch 62, in Gumaca, Quezon, against the officials of the Municipality of San Andres. Docketed Special Civil Action No. 2014-G, the petition sought the declaration of nullity of Executive Order No. 353 and prayed that the respondent local officials of the Municipality of San Andres be permanently ordered to refrain from performing the duties and functions of their respective offices. 3 Invoking the ruling of this Court in Pelaez v. Auditor General, 4 the petitioning municipality contended that Executive Order No. 353, a presidential act, was a clear usurpation of the inherent powers of the legislature and in violation of the constitutional principle of separation of powers. Hence, petitioner municipality argued, the officials of the Municipality or Municipal District of San Andres had no right to exercise the duties and functions of their respective offices that rightfully belonged to the corresponding officials of the Municipality of San Narciso.

In their answer, respondents asked for the dismissal of the petition, averring, by way of affirmative and special defenses, that since it was at the instance of petitioner municipality that the Municipality of San Andres was given life with the issuance of Executive Order No. 353, it (petitioner municipality) should be deemed estopped from questioning the creation of the new municipality; 5 that because the Municipality of San Andred had been in existence since 1959, its corporate personality could no longer be assailed; and that, considering the petition to be one for quo warranto, petitioner municipality was not the proper party to bring the action, that prerogative being reserved to the State acting through the Solicitor General. 6

On 18 July 1991, after the parties had submitted their respective pre-trial briefs, the trial court resolved to defer action on the motion to dismiss and to deny a judgment on the pleadings.cralawnad

On 27 November 1991, the Municipality of San Andres filed anew a motion to dismiss alleging that the case had become moot and academic with the enactment of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, which took effect on 01 January 1991. The movant municipality cited Section 442(d) of the law, reading thusly:chanrob1es virtual 1aw library

Sec. 442. Requisites for Creation. — . . .

“(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.”cralaw virtua1aw library

The motion was opposed by petitioner municipality, contending that the above provision of law was inapplicable to the Municipality of San Andres since the enactment referred to legally existing municipalities and not to those whose mode of creation had been void ab initio. 7

In its Order of 02 December 1991, the lower court 8 finally dismissed the petition 9 for lack of cause of action on what it felt was a matter that belonged to the State, adding that “whatever defects (were) present in the creation of municipal districts by the President pursuant to presidential issuances and executive orders, (were) cured by the enactment of R. A. 7160, otherwise known as Local Government Code of 1991.” In an order, dated 17 January 1992, the same court denied petitioner municipality’s motion for reconsideration.

Hence, this petition “for review on certiorari.” Petitioners 10 argue that in issuing the orders of 02 December 1991 and 17 January 1992, the lower court has “acted with grave abuse of discretion amounting to lack of or in excess of jurisdiction.” Petitioners assert that the existence of a municipality created by a null and void presidential order may be attacked either directly or even collaterally by anyone whose interests or rights are affected, and that an unconstitutional act is not a law, creates no office and is inoperative such as though its has never been passed. 11

Petitioners consider the instant petition to be one for “review on certiorari” under Rules 42 and 45 of the Rules of Court; at the same time, however, they question the orders of the lower court for having been issued with “grave abuse of discretion amounting to lack of or in excess of jurisdiction, and that there is no other plain , speedy and adequate remedy in the ordinary course of law available to petitioners to correct said Orders, to protect their rights and to secure a final and definitive interpretation of the legal issues involved.” 12 Evidently, then, the petitioners intend to submit their case in this instance under Rule 65. We shall disregard the procedural incongruence.

The special civil action of quo warranto is a “prerogative writ by which the Government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.” 13 When the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto or any other credit proceeding. 14 It must be brought “in the name of the Republic of the Philippines” 15 and commenced by the Solicitor General or the fiscal “when directed by the President of the Philippines . . . .” 16 Such officers may, under certain circumstances, bring such an action “at the request and upon the relation of another person” with the permission of the court. 17 The Rules of Court also allows an individual to commence an action for quo warranto in his own name but this initiative can be done when he claims to be “entitled to a public office or position usurped or unlawfully held or exercised by another.” 18 While the quo warranto proceedings filed below by petitioner municipality has so named only the officials of the Municipality of San Andres as respondents, it is virtually, however, a denunciation of the authority of the Municipality or Municipal District of San Andres to exist and to act in that capacity.

At any rate, in the interest of resolving any further doubt on the legal status of the Municipality of San Andres, the Court shall delve into the merits of the petition.chanrobles virtual lawlibrary

While petitioners would grant that the enactment of Republic Act No. 7160 may have converted the Municipality of San Andres into a de facto municipality, they, however, contend that since the petition for quo warranto had been filed prior to the passage of said law, petitioner municipality had acquired a vested right to seek the nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic Act 7160 to the petition would perforce be violative of due process and the equal protection clause of the Constitution.

Petitioners’ theory might perhaps be a point to consider had the case been seasonably brought. Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal District, and later the Municipality, of San Andres, began and continued to exercise the powers and authority of a duly created local government unit. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within one-year period can abrogate an action belatedly filed, 19 so also, if not indeed with greatest imperativeness, must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. 20 Public interest demands it.

Granting the Executive Order No. 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez v. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State’s recognition of the continued existence of the Municipality of San Andres. Thus, after more than five years as a municipal district, Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits organized under Administrative Order No. 33, dated 13 June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this administrative order, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.chanrobles virtual lawlibrary

At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon. Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts “organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities.” No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is preferred. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, 21 and aimed at giving “validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with,” are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights. 22

All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Costs against petitioners.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur.

Feliciano, J., is on leave.

THIRD DIVISION

[G.R. No. 116702. December 28, 1995.]

THE MUNICIPALITY OF CANDIJAY, BOHOL, acting through its. Sangguniang Bayan and Mayor,Petitioner, v. COURT OF APPEALS and THE MUNICIPALITY OF ALICIA, BOHOL, Respondents.
D E C I S I O N
PANGANIBAN, J.:
This is a petition for review on certiorari of the Decision of the Court of Appeals 1 promulgated on June 28, 1994, reversing the judgment 2 of the Regional Trial Court (Branch I) of the City of Tagbilaran, Bohol.

The lower court’s decision, among other things declared “barrio/barangay Pagahat as within the territorial jurisdiction of the plaintiff municipality of Candijay, Bohol, therefore, said barrio forms part and parcel of its territory, therefore, belonging to said plaintiff municipality”, and further permanently enjoined defendant municipality of Alicia “to respect plaintiff’s control, possession and political supervision of barangay Pagahat and never to molest, disturb, harass its possession and ownership over the same barrio” (RTC decision, p. 4; Rollo, p. 86).

On appeal, the respondent Court stated that” (S)crutiny of the conflicting claims and the respective evidence of the parties lead to the conclusion that the trial court committed an error in declaring that Barrio Pagahat is within the territorial jurisdiction of plaintiff-appellee (municipality of Candijay).” Said Court rejected the boundary line being claimed by petitioner based on certain exhibits, since it would in effect place “practically all of Barrio Pagahat . . ., part of Barrio Cagongcagong and portions of Barrio Putlongcam and La Hacienda and all of Barrio Mahayag and Barrio del Monte within the territorial jurisdiction of plaintiff-appellee Candijay.” Added the respondent Court, “As aptly pointed out by defendant-appellant in its appeal brief, ‘the plaintiff municipality will not only engulf the entire barrio of Pagahat, but also of the barrios of Putlongcam, Mahayag, Del Monte, Cagongcagong, and a part of the Municipality of Mabini. Candijay will eat up a big chunk of territories far exceeding her territorial jurisdiction under the law creating her. Her claim opens the floodgate of controversies over boundaries, including with Mabini.’” (Decision, p. 4; Rollo, p. 35.) The respondent Court concluded that “the trial court erred in relying on Exh. X-Commissioner [exhibit for petitioner], because, in effect, it included portions of Barrios Putlongcam and La Hacienda within the jurisdiction of appellee Candijay when said barrios are undisputedly part of appellant ‘ s (Alicia) territory under Executive Order No. 265 creating the latter” (Decision, p. 6, Rollo, p. 37).

The respondent Court also found, after an examination of the respective survey plans of petitioner and respondent submitted as exhibits, that “both plans are inadequate insofar as identifying the monuments of the boundary line between [petitioner] and the Municipality of Mabini (which is not a party to this case) as declared by the Provincial Board of Bohol . Neither plan shows where Looc-Tabasan, Lomislis Island, Tagtang Canlirong, mentioned in the afore-quoted boundary line declared by the Provincial Board of Bohol, are actually located.” (Decision, p. 4; Rollo, p. 35.) The respondent Court, after weighing and considering the import of certain official acts, including Executive Order No. 265 dated September 16, 1949 (which created the municipality of Alicia from out of certain barrios of the municipality of Mabini), and Act No. 968 of the Philippine Commission dated October 31, 1903 (which set forth the respective component territories of the municipalities of Mabini and Candijay), concluded that “Barrio Bulawan from where barrio Pagahat originated is not mentioned as one of the barrios constituted as part of defendant-appellant Municipality of Alicia. Neither do they show that Barrio Pagahat forms part of plaintiff-appellant Municipality of Candijay.”cralaw virtua1aw library

On that basis, the respondent Court held that:jgc:chanrobles.com.ph

“Clearly, from the foregoing, there is equiponderance of evidence. The Supreme Court has ruled:chanrob1es virtual 1aw library

‘Equiponderance of evidence rule states:chanrob1es virtual 1aw library

‘When the scale shall stand upon an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant.

‘Under said principle, the plaintiff must rely on the strength of his evidence and not on the weakness of defendant’s claim. Even if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance of evidence on his side if such evidence is insufficient in itself to establish his cause of action .

(Sapu-an, Et. Al. v. Court of Appeals, Oct. 19, 1992, 214 SCRA 701, 705-706 .)

“WHEREFORE, the appealed judgment is reversed and set aside. Another judgment is hereby entered dismissing the complaint in Civil Case No. 2402. No costs.” (Decision. p. 6, Rollo, p. 37.)

Petitioner’s motion for reconsideration having been rejected by the respondent Court, petitioner came to this Court, alleging (i) improper application by the respondent Court of Appeals of the so-called principle of “equiponderance of evidence”, for having based its ruling against petitioner on documentary evidence which, petitioner claims, are void, (ii) the respondent municipality’s purported lack of juridical personality, as a result of having been created under a void executive order, and (iii) that the challenged Decision “does not solve the problem of both towns but throws them back again to their controversy.” (Petition, p. 6, Rollo, p. 21.)

After deliberating on the petition, comment and reply, this Court is not persuaded to grant due course to the petition.

With respect to the first and third grounds, we find that the issues of fact in this case had been adequately passed upon by respondent Court in its Decision, which is well-supported by the evidence on record. The determination of equiponderance of evidence by the respondent Court involves the appreciation of evidence by the latter tribunal, which will not be reviewed by this Court unless shown to be whimsical or capricious; here, there has been no such showing.

In connection with the foregoing, that the assailed Decision, in dismissing the complaint in Civil Case No. 2402, may leave the parties where they are or may not resolve their problem one way or the other, is of no moment. The fact remains that, as correctly evaluated by the respondent Court, neither party was able to make out a case; neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. In such cases, courts have no choice but to dismiss the complaints/petitions.

On the second issue, we noted that petitioner commenced its collateral attack on the juridical personality of respondent municipality on 19 January 1984 (or some thirty five years after respondent municipality first came into existence in 1949) during the proceedings in the court a quo. It appears that, after presentation of its evidence, herein petitioner asked the trial court to bar respondent municipality from presenting its evidence on the ground that it had no juridical personality. Petitioner contended that Exec. Order No. 265 issued by President Quirino on September 16, 1949 creating respondent municipality is null and void ab initio, inasmuch as Section 68 of the Revised Administrative Code, on which said Executive Order was based, constituted an undue delegation of legislative powers to the President of the Philippines, and was therefore declared unconstitutional, per this Court’s ruling in Pelaez v. Auditor General. 3

In this regard, we call to mind the ruling of this Court in Municipality of San Narciso, Quezon v. Mendez, Sr., 4 which will be found very instructive in the case at bench. Therein we stated:jgc:chanrobles.com.ph

“While petitioners would grant that the enactment of Republic Act No. 7160 [Local Government Code of 1991] may have converted the Municipality of San Andres into a de facto municipality, they, however, contend that since the petition for quo warranto had been filed prior to the passage of said law, petitioner municipality had acquired a vested right to seek the nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic Act 7160 to the petition would perforce be violative of due process and the equal protection clause of the Constitution.

“Petitioner’s theory might perhaps be a point to consider had the case been seasonably brought. Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal district, and later the Municipality of San Andres, began and continued to exercise the powers and authority of a duly created local government unit. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within a one-year period can abrogate an action belatedly file, so also, if not indeed with greatest imperativeness, must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. Public interest demands it.

“Granting that Executive Order No. 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez v. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State’s recognition of the continued existence of the Municipality of San Andres. Thus, after more than five years as a municipal district, Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits organized under Administrative Order No. 33, dated 13 June 1978, issued by this court pursuant to Presidential Decree No. 537. Under this administrative order, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.

“At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon. Equally significant is Section 442 (d) of the Local Government Code to the effect that municipal districts “organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities.” No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is proffered. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving “validity to acts done that would have been complied with,” are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights.

“All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded.”cralaw virtua1aw library

Respondent municipality’s situation in the instant case is strikingly similar to that of the municipality of San Andres. Respondent municipality of Alicia was created by virtue of Executive Order No. 265 in 1949, or ten years ahead of the municipality of San Andres, and therefore had been in existence for all of sixteen years when Pelaez v. Auditor General was promulgated. And various governmental acts throughout the years all indicate the State’s recognition and acknowledgment of the existence thereof. For instance, under Administrative Order No. 33 above-mentioned, the Municipality of Alicia was covered by the 7th Municipal Circuit Court of Alicia-Mabini for the province of Bohol. Likewise, under the Ordinance appended to the 1987 Constitution, the Municipality of Alicia is one of twenty municipalities comprising the Third District of Bohol.

Inasmuch as respondent municipality of Alicia is similarly situated as the municipality of San Andres, it should likewise benefit from the effects of Section 442 (d) of the Local Government Code, and should henceforth be considered as a regular, de jure municipality.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED, with costs against petitioner.

SO ORDERED.

Romero, Melo and Vitug, JJ., concur.

EN BANC

[G.R. No. 105746. December 2, 1996.]

MUNICIPALITY OF JIMENEZ, through its MAYOR ELEUTERIO A. QUIMBO, VICE-MAYOR ROBINSON B. LOMO, COUNCILORS TEOFILO GALORIO, CASIANO ADORABLE, MARIO APAO, ANTONIO BIENES, VEDE SULLANO, MARIETO TAN, SR., HERMINIO SERINO, BENJAMIN DANO, and CRISPULO MUNAR, and ELEUTERIO A. QUIMBO, ROBINSON B. LOMO, TEOFILO GALORIO, CASIANO ADORABLE, MARIO APAO, ANTONIO BIENES, VEDE SULLANO, MARIETO TAN, SR., HERMINIO SERINO, BENJAMIN DANO, and CRISPULO MUNAR, in their private capacities as taxpayer in the Province of Misamis Occidental and in the Municipality of Jimenez, Misamis Occidental, and BENJAMIN C. GALINDO and BENHUR B. BAUTISTA, in their private capacities as taxpayers in the Province of Misamis Occidental and the Municipality of Jimenez, Misamis Occidental, Petitioners, v. HON. VICENTE T. BAZ. JR., Presiding Judge, REGIONAL, TRIAL COURT, BRANCH 14, 10th JUDICIAL REGION, OROQUIETA CITY, and MUNICIPALITY OF SINACABAN through its MAYOR EUFRACIO D. LOOD, VICE-MAYOR BASILIO M. BANAAG, COUNCILORS CONCEPCION E. LAGA-AC, MIGUEL F. ABCEDE, JUANITO B. TIU, CLAUDIO T. REGIL, ANICETO S. MEJAREZ NAZIANCINO PAYE, JOSE P. BANQUE, NUMERIANO B. MARIQUIT, and FEDERICO QUINIMON, and THE PROVINCE OF MISAMIS OCCIDENTAL through the PROVINCIAL BOARD OF MISAMIS OCCIDENTAL and its members, VICE-GOVERNOR FLORENCIO L. GARCIA, BOARD MEMBERS MARIVIC S. CHIONG, PACITA M. YAP, ALEGRIA V. CARINO, JULIO L. TIU, LEONARDO R. REGALADO II, CONSTANCIO C. BALAIS, and ERNESTO P. IRA, and THE COMMISSION ON AUDIT, through its Chairman. HON. EUFEMIO DOMINGO, and THE DEPARTMENT OF LOCAL GOVERNMENT through its Secretary, HON. LUIS SANTOS (now HON. CESAR SARINO), and THE DEPARTMENT OF BUDGET AND MANAGEMENT, through its Secretary, HON. GUILLERMO CARAGUE (now HON. SALVADOR ENRIQUEZ) and The Hon. CATALINO MACARAIG (now HON. FRANKLIN DRILON), EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, Respondents.
D E C I S I O N
MENDOZA, J.:
This is a petition for review of the decision dated March 4, 1992 of the Regional Trial Court, Branch 14 of Oroquieta City, 1 affirming the legal existence of the Municipality of Sinacaban in Misamis Occidental and ordering the relocation of its boundary for the purpose of determining whether certain areas claimed by it belong to it.

The antecedent facts are as follows:chanrob1es virtual 1aw library

The Municipality of Sinacaban was created by Executive Order No. 258 of then President Elpidio Quirino, pursuant to §68 of the Revised Administrative Code of 1917. The full text of the Order reads:chanrob1es virtual 1aw library

EXECUTIVE ORDER NO. 258

CREATING THE MUNICIPALITY OF SINACABAN, IN THE PROVINCE OF MISAMIS OCCIDENTAL

Upon the recommendation of the Secretary of the Interior, and pursuant to the provisions of Section 68 of the Revised Administrative Code, there is hereby created, in the Province of Misamis Occidental, a municipality to be known as the municipality of Sinacaban, which shall consist of the southern portion of the municipality of Jimenez, Misamis Occidental, more particularly described and bounded as follows:chanrob1es virtual 1aw library

On the north by a line starting from point 1, the center of the lighthouse on the Tabo-o point S. 84º 30’W., 7,250 meters to point 2 which is on the bank of Palilan River branch; thence following Palilan River branch 2,400 meters southwesterly to point 3, thence a straight line S 87º 00’ W, 22,550 meters to point 4, where this intersects the Misamis Occidental-Zamboanga boundary; on the west, by the present Misamis Occidental-Zamboanga boundary; and on the south by the present Jimenez-Tudela boundary; and on the east, by the limits of the municipal waters which the municipality of Sinacaban shall have pursuant to section 2321 of the Revised Administrative Code, (Description based on data shown in Enlarged Map of Poblacion of Jimenez, Scale 1:8:000).

The municipality of Sinacaban contains the barrios of Sinacaban, which shall be the seat of the municipal government, Sinonoc, Libertad, the southern portion of the barrio of Macabayao, and the sitios of Tipan, Katipunan, Estrella, Flores, Senior, Adorable, San Isidro, Cagayanon, Kamanse, Kulupan and Libertad Alto.

The municipality of Jimenez shall have its present territory, minus the portion thereof included in the municipality of Sinacaban.

The municipality of Sinacaban shall begin to exist upon the appointment and qualification of the mayor, vice-mayor, and a majority of the councilors thereof. The new municipality shall, however, assume payment of a proportionate share of the loan of the municipality of Jimenez with the Rehabilitation Finance Corporation as may be outstanding on the date of its organization, the proportion of such payment to be determined by the Department of Finance.

Done in the City of Manila, this 30th day of August, in the year of Our Lord, nineteen hundred and forty-nine, and of the Independence of the Philippines, the fourth.

(SGD.) ELPIDIO QUIRINO

President of the Philippines

By the President:chanrob1es virtual 1aw library

(SGD.) TEODORO EVANGELISTA

Executive Secretary

By virtue of Municipal Council Resolution No. 171, 2 dated November 22, 1988, Sinacaban laid claim to a portion of Barrio Tabo-o and to Barrios Macabayao, Adorable, Sinara Baja, and Sinara Alto, 3 based on the technical description in E.O. No. 258. The claim was filed with the Provincial Board of Misamis Occidental against the Municipality of Jimenez.

In its answer, the Municipality of Jimenez, while conceding that under E.O. No. 258 the disputed area is part of Sinacaban, nonetheless asserted jurisdiction on the basis of an agreement it had with the Municipality of Sinacaban. This agreement was approved by the Provincial Board of Misamis Occidental, in its Resolution No. 77, dated February 18, 1950, which fixed the common boundary of Sinacaban and Jimenez as follows: 4

From a point at Cagayanon Beach follow Macabayao Road until it intersects Tabangag Creek at the back of the Macabayao Elementary School. Follow the Tabangag Creek until it intersect the Macabayao River at upper Adorable. Follow the Macabayao River such that the barrio of Macabayao. Sitio Adorable and site will be a part of Jimenez down and the sitios of San Vicente, Donan, Estrella, Mapula will be a part of Sinacaban. (Emphasis added)

In its decision dated October 11, 1989, 5 the Provincial Board declared the disputed area to be part of Sinacaban. It held that the previous resolution approving the agreement between the municipalities was void because the Board had no power to alter the boundaries of Sinacaban as fixed in E.O. No. 258, that power being vested in Congress pursuant to the Constitution and the Local Government Code of 1983 (B.P. Blg. 337), §134. 6 The Provincial Board denied in its Resolution No. 13-90 dated January 30, 1990 the motion of Jimenez seeking reconsideration. 7

On March 20, 1990, Jimenez filed a petition for certiorari, prohibition, and mandamus in the Regional Trial Court of Oroquieta City, Branch 14. The suit was filed against Sinacaban, the Province of Misamis Occidental and its Provincial Board, the Commission on Audit, the Departments of Local Government, Budget and Management, and the Executive Secretary. Jimenez alleged that, in accordance with the decision in Pelaez v. Auditor General, 8 the power to create municipalities is essentially legislative and consequently Sinacaban, which was created by an executive order, had no legal personality and no right to assert a territorial claim vis-a-vis Jimenez, of which it remains part. Jimenez prayed that Sinacaban be enjoined from assuming control and supervision over the disputed barrios; that the Provincial Board be enjoined from assuming jurisdiction over the claim of Sinacaban; that E.O. No. 258 be declared null and void; that the decision dated October 11, 1989 and Resolution No. 13-90 of the Provincial Board be set aside for having been rendered without jurisdiction; that the Commission on Audit be enjoined from passing in audit any expenditure of public funds by Sinacaban; that the Department of Budget and Management be enjoined from allotting public funds to Sinacaban; and that the Executive Secretary be enjoined from exercising control and supervision over said municipality.

During pre-trial, the parties agreed to limit the issues to the following:chanrob1es virtual 1aw library

A. Whether the Municipality of Sinacaban is a legal juridical entity, duly created in accordance with law;

B. If not, whether it is a de facto juridical entity;

C. Whether the validity of the existence of the Municipality can be properly questioned in this action on certiorari;

D. Whether the Municipality of Jimenez which had recognized the existence of the municipality for more than 40 years is estopped to question its existence;

E. Whether the existence of the municipality has been recognized by the laws of the land; and

F. Whether the decision of the Provincial Board had acquired finality.

On February 10, 1992, the RTC rendered its decision, the dispositive portion of which reads:chanrob1es virtual 1aw library

WHEREFORE, premises considered, it is the finding of this Court that the petition must be denied and judgment is hereby rendered declaring a STATUS QUO, that is. the municipality of Sinacaban shall continue to exist and operate as a regular municipality; declaring the decision dated October 11, 1989 rendered by the Sangguniang Panlalawigan fixing the boundaries between Sinacaban and Jimenez, Misamis Occi. as null and void, the same not being in accordance with the boundaries provided for in Executive Order No. 258 creating the municipality of Sinacaban; dismissing the petition for lack of merit, without pronouncement as to costs and damages. With respect to the without pronouncement as to costs and damages. With respect to the counterclaim, the same is hereby ordered dismissed.

The Commissioners are hereby ordered to conduct the relocation survey of the boundary of Sinacaban within 60 days from the time the decision shall have become final and executory and another 60 days within which to submit their report from the completion of the said relocation survey.

SO ORDERED.

The RTC inter alia, held that Sinacaban is a de facto corporation since it had completely organized itself even prior to the Pelaez case and exercised corporate powers for forty years before its existence was questioned; that Jimenez did not have the legal standing to question the existence of Sinacaban, the same being reserved to the State as represented by the Office of the Solicitor General in a quo warranto proceeding; that Jimenez was estopped from questioning the legal existence of Sinacaban by entering into an agreement with it concerning their common boundary; and that any question as to the legal existence of Sinacaban had been rendered moot by §442(d) of the Local Government Code of 1991 (R.A. No. 7160), which provides:chanrob1es virtual 1aw library

Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.

On March 17, 1990, petitioner moved for a reconsideration of the decision but its motion was denied by the RTC. Hence this petition raising the following issues: (1) whether Sinacaban has legal personality to file a claim, and (2) if it has, whether it is the boundary provided for in E.O. No. 258 or in Resolution No. 77 of the Provincial Board of Misamis Occidental which should be used as the basis for adjudicating Sinacaban’s territorial claim.

First. The preliminary issue concerns the legal existence of Sinacaban. If Sinacaban legally exists, then it has standing to bring a claim in the Provincial Board. Otherwise, it cannot.

The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the ruling in Pelaez v. Auditor General that the creation of municipal corporations is essentially a legislative matter and therefore the President was without power to create by executive order the Municipality of Sinacaban. The ruling in this case has been reiterated in a number of cases 9 later decided. However, we have since held that where a municipality created as such by executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. In Municipality of San Narciso, Quezon v. Mendez, Sr., 10 this Court considered the following factors as having validated the creation of a municipal corporation, which, like the Municipality of Sinacaban, was created by executive order of the President before the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30 years the validity of the creation of the municipality had never been challenged; (2) the fact that following the ruling in Pelaez no quo warranto suit was filed to question the validity of the executive order creating such municipality; and (3) the fact that the municipality was later classified as a fifth class municipality, organized as part of a municipal circuit court and considered part of a legislative district in the Constitution apportioning the seats in the House of Representatives. Above all, it was held that whatever doubt there might be as to the de jure character of the municipality must be deemed to have been put to rest by the Local Government Code of 1991 (R. A. No. 7160), §442(d) of which provides that “municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of elective officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.”cralaw virtua1aw library

Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal corporation in the sense that its legal existence has been recognized and acquiesced publicly and officially. Sinacaban had been in existence for sixteen years when Pelaez v. Auditor General was decided on December 24, 1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it was only 40 years later that its existence was questioned and only because it had laid claim to an area that apparently is desired for its revenue. This fact must be underscored because under Rule 66, §16 of the Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must be commenced within five (5) years from the time the act complained of was done or committed. On the contrary, the State and even the Municipality of Jimenez itself have recognized Sinacaban’s corporate existence. Under Administrative Order No. 33 dated June 13, 1978 of this Court, as reiterated by §31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is constituted part of a municipal circuit for purposes of the establishment of Municipal Circuit Trial Courts in the country. For its part, Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their common boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of Misamis Occidental.

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacaban part of the Second District of Misamis Occidental. Moreover, following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., 442(d) of the Local Government Code of 1991 must be deemed to have cured any defect in the creation of Sinacaban. This provision states:chanrob1es virtual 1aw library

Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of the Code shall henceforth be considered as regular municipalities.

Second. Jimenez claims, however, that R.A. No. 7160, 442(d) is invalid, since it does not conform to the constitutional and statutory requirements for the holding of plebiscites in the creation of new municipalities. 11

This contention will not bear analysis. Since, as previously explained, Sinacaban had attained de facto status at the time the 1987 Constitution took effect on February 2, 1987, it is not subject to the plebiscite requirement. This requirement applies only to new municipalities created for the first time under the Constitution. Actually, the requirement of plebiscite was originally contained in Art. XI, §3 of the previous Constitution which took effect on January 17, 1973. It cannot, therefore, be applied to municipal corporations created before, such as the Municipality of Sinacaban in the case at bar.

Third. Finally, Jimenez argues that the RTC erred in ordering a relocation survey of the boundary of Sinacaban because the barangays which Sinacaban are claiming are not enumerated in E.O. No. 258 and that in any event in 1950 the parties entered into an agreement whereby the barangays in question were considered part of the territory of Jimenez.

E.O. No. 258 does not say that Sinacaban comprises only the barrios (now called barangays) therein mentioned. What it says is that “Sinacaban contains” those barrios, without saying they are the only ones comprising it. The reason for this is that the technical description, containing the metes and bounds of its territory, is controlling. The trial court correctly ordered a relocation survey as the only means of determining the boundaries of the municipality and consequently the question to which the municipality the barangays in question belong.

Now, as already stated, in 1950 the two municipalities agreed that certain barrios belonged to Jimenez, while certain other ones belonged to Sinacaban. This agreement was subsequently approved by the Provincial Board of Misamis Occidental. Whether this agreement conforms to E.O. No. 258 will be determined by the result of the survey. Jimenez contends, however, that regardless of its conformity to E.O. No. 258, the agreement as embodied in Resolution No. 77 of the Provincial Board, is binding on Sinacaban. This raises the question whether the Provincial Board had authority to approve the agreement or, to put it in another way, whether it had the power to declare certain barrios part of one or the other municipality. We hold it did not if the effect would be to amend the area as described in E.O. No. 258 creating the Municipality of Sinacaban.

At the time the Provincial Board passed Resolution No. 77 on February 18, 1950, the applicable law was §2167 of the Revised Administrative Code of 1917 which provided:chanrob1es virtual 1aw library

SEC. 2167. Municipal boundary disputes. — How settled. — Disputes as to jurisdiction of municipal governments over places or barrios shall be decided by the provincial boards of the provinces in which such municipalities are situated, after an investigation at which the municipalities concerned shall be duly heard. From the decision of the provincial board appeal may be taken by the municipality aggrieved to the Secretary of the Interior [now the Office of the Executive Secretary], whose decision shall be final. Where the places or barrios in dispute are claimed by municipalities situated in different provinces, the provincial boards of the provinces concerned shall come to an agreement if possible, but, in the event of their failing to agree, an appeal shall be had to the Secretary of Interior [Executive Secretary], whose decision shall be final.

As held in Pelaez v. Auditor General, 12 the power of provincial boards to settle boundary disputes is “of an administrative nature – involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities.” It is a power “to fix common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities.” It is thus limited to implementing the law creating a municipality. It is obvious that any alteration of boundaries that is not in accordance with the law creating a municipality is not the carrying into effect of that law but its amendment. 13 If, therefore, Resolution No. 77 of the Provincial Board of Misamis Occidental is contrary to the technical description of the territory of Sinacaban, it cannot be used by Jimenez as basis for opposing the claim of Sinacaban.

Jimenez properly brought to the RTC for review the decision of October 11, 1989 and Resolution No. 13-90 of the Provincial Board. Its action is in accordance with the Local Government Code of 1983, §79 of which provides that in case no settlement of boundary disputes is made the dispute should be elevated to the RTC of the province. In 1989, when the action was brought by Jimenez, this Code was the governing law. The governing law is now the Local Government Code of 1991 (R.A. No. 7160), §§118-119.

Jimenez’s contention that the RTC failed to decide the case “within one year from the start of proceedings” as required by §79 of the Local Government Code of 1983 and the 90-day period provided for in Article VIII, §15 of the Constitution does not affect the validity of the decision rendered. For even granting that the court failed to decide within the period prescribed by law, its failure did not divest it of its jurisdiction to decide the case but only makes the judge thereof liable for possible administrative sanction. 14

WHEREFORE, the petition is DENIED and the decision of the Regional Trial Court of Oroquieta City, Branch 14 is AFFIRMED.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.