Republic of the Philippines appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon

aez and the last two thru Delegate Ramon Gonzales. All said
SUPREME COURT respondents, thru counsel, resist petitioner's action.
Manila
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
EN BANC confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
G.R. No. L-34150 October 16, 1971 Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all
ARTURO M. TOLENTINO, petitioner, interests involved should be duly and amply represented and protected. At any rate,
vs. notwithstanding that their corresponding motions for leave to intervene or to appear as amicus
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and curiae 1 have been denied, the pleadings filed by the other delegates and some private parties, the
THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL latter in representation of their minor children allegedly to be affected by the result of this case
CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. with the records and the Court acknowledges that they have not been without value as materials in
TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA, the extensive study that has been undertaken in this case.
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into being
Arturo M. Tolentino in his own behalf. by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a convention to propose amendments to
the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16,
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional 1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under
Convention. and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of
the 1971 Constitutional Convention. SECTION 1. There is hereby called a convention to propose amendments to the
Constitution of the Philippines, to be composed of two elective Delegates from
Intervenors in their own behalf. each representative district who shall have the same qualifications as those
required of Members of the House of Representatives.

xxx xxx xxx

BARREDO, J.:
SECTION 7. The amendments proposed by the Convention shall be valid and
considered part of the Constitution when approved by a majority of the votes
Petition for prohibition principally to restrain the respondent Commission on Elections "from cast in an election at which they are submitted to the people for their
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional ratification pursuant to Article XV of the Constitution.
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines
to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic
Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent implementing Resolution No. 4 merely modified the number of delegates to represent the different cities and
resolutions, by declaring said resolutions to be without the force and effect of law in so far as they provinces fixed originally in Resolution No 2.
direct the holding of such plebiscite and by also declaring the acts of the respondent Commission
(COMELEC) performed and to be done by it in obedience to the aforesaid Convention resolutions After the election of the delegates held on November 10, 1970, the Convention held its inaugural
to be null and void, for being violative of the Constitution of the Philippines. session on June 1, 1971. Its preliminary labors of election of officers, organization of committees
and other preparatory works over, as its first formal proposal to amend the Constitution, its session
As a preliminary step, since the petition named as respondent only the COMELEC, the Count which began on September 27, 1971, or more accurately, at about 3:30 in the morning of September
required that copies thereof be served on the Solicitor General and the Constitutional Convention, 28, 1971, the Convention approved Organic Resolution No. 1 reading thus: .
through its President, for such action as they may deem proper to take. In due time, respondent
COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and CC ORGANIC RESOLUTION NO. 1
considering that the fiscal officers of the Convention are indispensable parties in a proceeding of
this nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by
law for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and
Auditor of the Convention be made respondents. After the petition was so amended, the first
 A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known
CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING as the Constitutional Convention Act of 1971, may we call upon you to help the
AGE TO 18 Convention implement this resolution:

BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Sincerely,

Convention:
(Sgd.) DIOSDADO P. MACAPAGAL
Section 1. Section One of Article V of the Constitution of the Philippines is DIOSDADO P. MACAPAGALPresident
amended to as follows:
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it
Section 1. Suffrage may be exercised by (male) citizens of the will hold the plebiscite on condition that:
Philippines not otherwise disqualified by law, who are
(twenty-one) EIGHTEEN years or over and are able to read
(a) The Constitutional Convention will undertake the printing of separate
and write, and who shall have resided in the Philippines for
official ballots, election returns and tally sheets for the use of said plebiscite at
one year and in the municipality wherein they propose to
its expense;
vote for at least six months preceding the election.

(b) The Constitutional Convention will adopt its own security measures for the
Section 2. This amendment shall be valid as part of the Constitution of the
printing and shipment of said ballots and election forms; and
Philippines when approved by a majority of the votes cast in a plebiscite to
coincide with the local elections in November 1971.
(c) Said official ballots and election forms will be delivered to the Commission
in time so that they could be distributed at the same time that the Commission
Section 3. This partial amendment, which refers only to the age qualification for
will distribute its official and sample ballots to be used in the elections on
the exercise of suffrage shall be without prejudice to other amendments that
November 8, 1971.
will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended Section or on other portions of the entire Constitution.
What happened afterwards may best be stated by quoting from intervenors' Governors' statement
of the genesis of the above proposal:
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00
from its savings or from its unexpended funds for the expense of the advanced
plebiscite; provided, however that should there be no savings or unexpended The President of the Convention also issued an order forming an Ad Hoc
sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per Committee to implement the Resolution.
diem.
This Committee issued implementing guidelines which were approved by the
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent President who then transmitted them to the Commission on Elections.
Comelec "to help the Convention implement (the above) resolution." The said letter reads:
The Committee on Plebiscite and Ratification filed a report on the progress of
September 28, 1971 the implementation of the plebiscite in the afternoon of October 7,1971,
enclosing copies of the order, resolution and letters of transmittal above
referred to (Copy of the report is hereto attached as Annex 8-Memorandum).
The Commission on Elections Manila

RECESS RESOLUTION
Thru the Chairman

In its plenary session in the evening of October 7, 1971, the Convention

Gentlemen:
approved a resolution authored by Delegate Antonio Olmedo of Davao Oriental,
calling for a recess of the Convention from November 1, 1971 to November 9,
Last night the Constitutional Convention passed Resolution No. 1 quoted as 1971 to permit the delegates to campaign for the ratification of Organic
follows: Resolution No. 1. (Copies of the resolution and the transcript of debate thereon
are hereto attached as Annexes 9 and 9-A Memorandum, respectively).
xxx xxx xxx
RESOLUTION CONFIRMING IMPLEMENTATION
(see above)
 On October 12, 1971, the Convention passed Resolution No. 24 submitted by
Delegate Jose Ozamiz confirming the authority of the President of the
Convention to implement Organic Resolution No. 1, including the creation of
the Ad Hoc Committee ratifying all acts performed in connection with said
implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and
effect as laws in so far as they provide for the holding of a plebiscite co-incident with the elections
of eight senators and all city, provincial and municipal officials to be held on November 8, 1971,
hence all of Comelec's acts in obedience thereof and tending to carry out the holding of the
plebiscite directed by said resolutions are null and void, on the ground that the calling and holding
of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative
body, and may not be exercised by the Convention, and that, under Section 1, Article XV of the
Constitution, the proposed amendment in question cannot be presented to the people for
ratification separately from each and all of the other amendments to be drafted and proposed by
the Convention. On the other hand, respondents and intervenors posit that the power to provide
for, fix the date and lay down the details of the plebiscite for the ratification of any amendment the
Convention may deem proper to propose is within the authority of the Convention as a necessary
consequence and part of its power to propose amendments and that this power includes that of
submitting such amendments either individually or jointly at such time and manner as the
Convention may direct in discretion. The Court's delicate task now is to decide which of these two
poses is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and
Auditor of the convention expressly concede the jurisdiction of this Court in their answer
acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full
impact of the portions of Our decision they have quoted or would misapply them by taking them
out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis
the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that
matter, those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that
very case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards
that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court
speaking through one of the leading members of the Constitutional Convention
and a respected professor of Constitutional Law, Dr. Jose P. Laurel declared
that "the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the
issue submitted thereto as a political one declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a proposed
amendment to the Constitution which was being submitted to the people for
ratification satisfied the three-fourths vote requirement of the fundamental
law. The force of this precedent has been weakened, however, by Suanes v.
Chief Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851,
March 4 & 14, 1949), Taada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias
v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that
the officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the
latter; in the second, this Court proceeded to determine the number of Senators
necessary for quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes in said
chamber, purporting to act, on behalf of the party having the second largest
number of votes therein of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of Congress purporting to apportion
the representatives districts for the House of Representatives, upon the ground
that the apportionment had not been made as may be possible according to the
number of inhabitants of each province. Thus we rejected the theory, advanced
in these four (4) cases that the issues therein raised were political questions the
determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to Congress
(Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent
powers of the people as the repository sovereignty in a republican state, such
as ours (Section 1, Art. 11, Constitution of the Philippines) to make, and,
hence, to amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because the same explicitly grants such
power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when
exercising the same, it is said that Senators and members of the House of
Representatives act, not as members of Congress, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive
their authority from the Constitution, unlike the people, when performing the
same function, (Of amending the Constitution) for their authority
does not emanate from the Constitution they are the very source of all
powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final say on
whether or not their acts are within or beyond constitutional limits. Otherwise,
they could brush aside and set the same at naught, contrary to the basic tenet
that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that the Constitution expressly
confers upon the Supreme Court, (And, inferentially, to lower courts.) the
power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a
constituent assembly violates the Constitution is essentially justiciable not
political, and, hence, subject to judicial review, and, to the extent that this view
may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the
 latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence
and derives all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that the
remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator
Pelaez refer. No amount of rationalization can belie the fact that the current convention came into
being only because it was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the present Constitution which
provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths
of all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention
for the purpose. Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass of
such powers can be co-extensive only with the purpose for which the convention was called and as
it may propose cannot have any effect as part of the Constitution until the same are duly ratified by
the people, it necessarily follows that the acts of convention, its officers and members are not
immune from attack on constitutional grounds. The present Constitution is in full force and effect
in its entirety and in everyone of its parts the existence of the Convention notwithstanding, and
operates even within the walls of that assembly. While it is indubitable that in its internal operation
and the performance of its task to propose amendments to the Constitution it is not subject to any
degree of restraint or control by any other authority than itself, it is equally beyond cavil that
neither the Convention nor any of its officers or members can rightfully deprive any person of life,
liberty or property without due process of law, deny to anyone in this country the equal protection
of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the
existing Constitution. Nor, for that matter, can such Convention validly pass any resolution
providing for the taking of private property without just compensation or for the imposition or
exacting of any tax, impost or assessment, or declare war or call the Congress to a special session,
suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment in a
controversy between private individuals or between such individuals and the state, in violation of
the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an
act of the Convention be assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a contention is correct or not?
It is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve
such a grave constitutional question must be lodged on some authority, or we would have to
confess that the integrated system of government established by our founding fathers contains a
wide vacuum no intelligent man could ignore, which is naturally unworthy of their learning,
experience and craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice
Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial
departments of the government. The overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it hard
to say where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the Constitution are
apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting
through their delegates to so provide, that instrument which is the expression of
their sovereignty however limited, has established a republican government
intended to operate and function as a harmonious whole, under a system of
check and balances and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms. Certainly the
limitations and restrictions embodied in our Constitution are real as they
should be in any living Constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a period of
more than one and half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of Article VIII of
our Constitution.
The Constitution is a definition of the powers or government. Who is to
determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. Even then, this
power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented. Any attempt
at abstraction could only lead to dialectics and barren legal questions and to
strike conclusions unrelated to actualities. Narrowed as its functions is in this
manner the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive
and legislative departments of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of
James Madison, the system itself is not "the chief palladium of constitutional
liberty ... the people who are authors of this blessing must also be its
guardians ... their eyes must be ever ready to mark, their voices to pronounce ...
aggression on the authority of their Constitution." In the last and ultimate
analysis then, must the success of our government in the unfolding years to
come be tested in the crucible of Filipino minds and hearts than in consultation
rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December
3, 1935, confirmed the election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution adopted on December
9, 1935, fixed said date as the last day for the filing of protests against the
election, returns and qualifications of members of the National Assembly;
notwithstanding the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National
Assembly has the effect of cutting off the power of the Electoral Commission to
entertain protests against the election, returns and qualifications of members of
the National Assembly, submitted after December 3, 1935 then the resolution of
the Electoral Commission of December 9, 1935, is mere surplusage and had no
effect. But, if, as contended by the respondents, the Electoral Commission has
the sole power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the Electoral
Commission fixed said date as the last day for filing protests against the
election, returns and qualifications of members of the National Assembly,
should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a
grave constitutional nature between the National Assembly on the one hand
and the Electoral Commission on the other. From the very nature of the
republican government established in our country in the light of American
experience and of our own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission as we shall have occasion
to refer hereafter, is a constitutional organ, created for a specific purpose,
namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within the
limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a separate
department of the government, and even if it were, conflicting claims of
authority under the fundamental law between departmental powers and
agencies of the government are necessarily determined by the judiciary in
justiciable and appropriate cases. Discarding the English type and other
European types of constitutional government, the framers of our Constitution
adopted the American type where the written constitution is interpreted and
given effect by the judicial department. In some countries which have declined
to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the
fundamental law. This is taken as a recognition of what otherwise would be the
rule that in the absence of direct prohibition, courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921
expressly provides that courts shall have no power to examine the validity of
statutes (art. 81, Chap. IV). The former Austrian Constitution contained a
similar declaration. In countries whose constitution are silent in this respect,
courts have assumed this power. This is true in Norway, Greece, Australia and
South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
Constitutional Charter of the Czechoslavak, Republic, February 29, 1920) and
Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of ordinary laws.
In our case, the nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take cognizance of
the controversy, who will determine the conflict? And if the conflict were left
undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum
abhorret, so must we avoid exhaustion in our constitutional system. Upon
principle, reason, and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy for the purpose
of determining the character, scope and extent of the constitutional grant to the
Electoral Commission as "the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing regular
departments of the government but to all such conflicts between and among these departments, or,
between any of them, on the one hand, and any other constitutionally created independent body,
like the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by
the House of Congress, on the other. We see no reason of logic or principle whatsoever, and none
has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is an assembly of delegate elected directly by
the people, since at best, as already demonstrated, it has been convened by authority of and under
the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both
the Convention and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn
duty of the Court, under the existing Constitution to resolve the issues in which petitioner,
respondents and intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers
of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the exercise of During these twice when most anyone feels very strongly the urgent need for constitutional
suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic reforms, to the point of being convinced that meaningful change is the only alternative to a violent
Resolution No. 1 in the manner and form provided for in said resolution and the subsequent revolution, this Court would be the last to put any obstruction or impediment to the work of the
implementing acts and resolution of the Convention? Constitutional Convention. If there are respectable sectors opining that it has not been called to
supplant the existing Constitution in its entirety, since its enabling provision, Article XV, from
which the Convention itself draws life expressly speaks only of amendments which shall form part
At the threshold, the environmental circumstances of this case demand the most accurate and
of it, which opinion is not without persuasive force both in principle and in logic, the seemingly
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has
prevailing view is that only the collective judgment of its members as to what is warranted by the
very clearly stated that he is not against the constitutional extension of the right of suffrage to the
present condition of things, as they see it, can limit the extent of the constitutional innovations the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a proposal,
Convention may propose, hence the complete substitution of the existing constitution is not
and that, in truth, the herein petition is not intended by him to prevent that the proposed
beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave
amendment here involved be submitted to the people for ratification, his only purpose in filing the
divergence of views, the Court does not consider this case to be properly the one in which it should
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the
discharge its constitutional duty in such premises. The issues raised by petitioner, even those
Constitution of the Philippines even if it is committed in the course of or in connection with the
among them in which respondents and intervenors have joined in an apparent wish to have them
most laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is
squarely passed upon by the Court do not necessarily impose upon Us the imperative obligation to
limited solely and only to the point of whether or not it is within the power of the Convention to
express Our views thereon. The Court considers it to be of the utmost importance that the
call for a plebiscite for the ratification by the people of the constitutional amendment proposed in
Convention should be untrammelled and unrestrained in the performance of its constitutionally as
the abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as
signed mission in the manner and form it may conceive best, and so the Court may step in to clear
well as in the subject question implementing actions and resolution of the Convention and its
up doubts as to the boundaries set down by the Constitution only when and to the specific extent
officers, at this juncture of its proceedings, when as it is a matter of common knowledge and
only that it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable
judicial notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary stages of
violation of the existing Charter. Withal, it is a very familiar principle of constitutional law that
considering other reforms or amendments affecting other parts of the existing Constitution; and,
constitutional questions are to be resolved by the Supreme Court only when there is no alternative
indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein proposed
but to do it, and this rule is founded precisely on the principle of respect that the Court must accord
"shall be without prejudice to other amendments that will be proposed in the future by the 1971
to the acts of the other coordinate departments of the government, and certainly, the
Constitutional Convention on other portions of the amended section or on other portions of the
Constitutional Convention stands almost in a unique footing in that regard.
entire Constitution." In other words, nothing that the Court may say or do, in this case should be
understood as reflecting, in any degree or means the individual or collective stand of the members
of the Court on the fundamental issue of whether or not the eighteen-year-olds should be allowed In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
to vote, simply because that issue is not before Us now. There should be no doubt in the mind of came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the
anyone that, once the Court finds it constitutionally permissible, it will not hesitate to do its part so Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related
that the said proposed amendment may be presented to the people for their approval or rejection. to its internal operation and the performance of its assigned mission to propose amendments to
the Constitution, the Convention and its officers and members are all subject to all the provisions
of the existing Constitution. Now We hold that even as to its latter task of proposing amendments
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so,
blinded them to the absolute necessity, under the fundamental principles of democracy to which
because it is plain to Us that the framers of the Constitution took care that the process of amending
the Filipino people is committed, of adhering always to the rule of law. Surely, their idealism,
the same should not be undertaken with the same ease and facility in changing an ordinary
sincerity and purity of purpose cannot permit any other line of conduct or approach in respect of
legislation. Constitution making is the most valued power, second to none, of the people in a
the problem before Us. The Constitutional Convention of 1971 itself was born, in a great measure,
constitutional democracy such as the one our founding fathers have chosen for this nation, and
because of the pressure brought to bear upon the Congress of the Philippines by various elements
which we of the succeeding generations generally cherish. And because the Constitution affects the
of the people, the youth in particular, in their incessant search for a peaceful and orderly means of
lives, fortunes, future and every other conceivable aspect of the lives of all the people within the
bringing about meaningful changes in the structure and bases of the existing social and
country and those subject to its sovereignty, every degree of care is taken in preparing and drafting
governmental institutions, including the provisions of the fundamental law related to the well-
it. A constitution worthy of the people for which it is intended must not be prepared in haste
being and economic security of the underprivileged classes of our people as well as those
without adequate deliberation and study. It is obvious that correspondingly, any amendment of the
concerning the preservation and protection of our natural resources and the national patrimony, as
Constitution is of no less importance than the whole Constitution itself, and perforce must be
an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the
conceived and prepared with as much care and deliberation. From the very nature of things, the
excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations
drafters of an original constitution, as already observed earlier, operate without any limitations,
in the streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the
restraints or inhibitions save those that they may impose upon themselves. This is not necessarily
people, do not want confusion and disorder, anarchy and violence; what they really want are law
true of subsequent conventions called to amend the original constitution. Generally, the framers of
and order, peace and orderliness, even in the pursuit of what they strongly and urgently feel must
the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not
be done to change the present order of things in this Republic of ours. It would be tragic and
only for reasons purely personal but more importantly, because written constitutions are supposed
contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding
to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be
this case to be carried astray by considerations other than the imperatives of the rule of law and of
adopted to the needs and exigencies of the people, hence, they must be insulated against
the applicable provisions of the Constitution. Needless to say, in a larger measure than when it
precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as
binds other departments of the government or any other official or entity, the Constitution imposes
a rule, the original constitutions carry with them limitations and conditions, more or less stringent,
upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and
made so by the people themselves, in regard to the process of their amendment. And when such
construing its provisions in appropriate cases with the proper parties, and by striking down any act
limitations or conditions are so incorporated in the original constitution, it does not lie in the
violative thereof. Here, as in all other cases, We are resolved to discharge that duty.
delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are as powerful and omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature
and the scope and extent of the amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even
of a consensus among the members of the Court in respect to this issue creates the need for more
study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from
making any pronouncement or expressing Our views on this question until a more appropriate case
comes to Us. After all, the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1
of Article XV of the Constitution which is violated by the act of the Convention of calling for a
plebiscite on the sole amendment contained in Organic Resolution No. 1? The Court holds that
there is, and it is the condition and limitation that all the amendments to be proposed by the same
Convention must be submitted to the people in a single "election" or plebiscite. It being
indisputable that the amendment now proposed to be submitted to a plebiscite is only the first
amendment the Convention propose We hold that the plebiscite being called for the purpose of
submitting the same for ratification of the people on November 8, 1971 is not authorized by Section
1 of Article XV of the Constitution, hence all acts of the Convention and the respondent Comelec in
that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly
that either Congress sitting as a constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as to the number of amendments
that Congress or the Convention may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held
to ratify any amendment or amendments proposed by the same constituent assembly of Congress
or convention, and the provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking
as constitution making itself. Indeed, any amendment of the Constitution is as important as the
whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it
is to be viable as the framework of the government it establishes, on the one hand, and adequately
formidable and reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the
other. lt is inconceivable how a constitution worthy of any country or people can have any part
which is out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once
the original constitution is approved, the part that the people play in its amendment becomes
harder, for when a whole constitution is submitted to them, more or less they can assumed its
harmony as an integrated whole, and they can either accept or reject it in its entirety. At the very
least, they can examine it before casting their vote and determine for themselves from a study of
the whole document the merits and demerits of all or any of its parts and of the document as a
whole. And so also, when an amendment is submitted to them that is to form part of the existing
constitution, in like fashion they can study with deliberation the proposed amendment in relation
to the whole existing constitution and or any of its parts and thereby arrive at an intelligent
judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact
that under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is
provided the voter, as to what finally will be concomitant qualifications that will be required by the
final draft of the constitution to be formulated by the Convention of a voter to be able to enjoy the
right of suffrage, there are other considerations which make it impossible to vote intelligently on
the proposed amendment, although it may already be observed that under Section 3, if a voter
would favor the reduction of the voting age to eighteen under conditions he feels are needed under
the circumstances, and he does not see those conditions in the ballot nor is there any possible
indication whether they will ever be or not, because Congress has reserved those for future action,
what kind of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on the verge of introducing substantial
changes, if not radical ones, in almost every part and aspect of the existing social and political
order enshrined in the present Constitution. How can a voter in the proposed plebiscite
intelligently determine the effect of the reduction of the voting age upon the different institutions
which the Convention may establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment
to the Constitution may be validly held, it must provide the voter not only sufficient time but ample
basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole. In the context of the
present state of things, where the Convention has hardly started considering the merits of
hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the
people any single proposal or a few of them cannot comply with this requirement. We are of the
opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or
"election" wherein the people are in the dark as to frame of reference they can base their judgment
on. We reject the rationalization that the present Constitution is a possible frame of reference, for
the simple reason that intervenors themselves are stating that the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be,
in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra,
"no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow
these eighteen years old to vote. But like the Convention, the Court has its own duties to the people
under the Constitution which is to decide in appropriate cases with appropriate parties Whether or
not the mandates of the fundamental law are being complied with. In the best light God has given
Us, we are of the conviction that in providing for the questioned plebiscite before it has finished,
and separately from, the whole draft of the constitution it has been called to formulate, the
Convention's Organic Resolution No. 1 and all subsequent acts of the Convention implementing the
same violate the condition in Section 1, Article XV that there should only be one "election" or
plebiscite for the ratification of all the amendments the Convention may propose. We are not
denying any right of the people to vote on the proposed amendment; We are only holding that
under Section 1, Article XV of the Constitution, the same should be submitted to them not
separately from but together with all the other amendments to be proposed by this present
Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of
the Constitutional Convention of 1971 and the implementing acts and resolutions of the
Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as
the resolution of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby
declared null and void. The respondents Comelec, Disbursing Officer, Chief Accountant and
Auditor of the Constitutional Convention are hereby enjoined from taking any action in compliance
with the said organic resolution. In view of the peculiar circumstances of this case, the Court
declares this decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
EN BANC
[G.R. No. L-66088. January 25, 1984.]
ALEX G. ALMARIO, ISAGANI M. JUNGCO, ESTANISLAO L. CESA, JR., DORINTINO
FLORESTA, FIDELA Y. VARGAS, ET AL., Petitioners, v. HON. MANUEL ALBA and
THE COMMISSION ON ELECTIONS, Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION;
GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
PROPOSALS BASED ON PRESENT CONSTITUTIONAL PROVISIONS. The present provisions
of the Constitution are adequate to support any program of the government for the grant of public
lands to qualified and deserving citizens or for the implementation of urban land reform.
Homesteads and free patents are "grants." We likewise see no constitutional infirmity to a law
passed by the Batasang Pambansa, under the present Constitution, that would grant alienable and
disposable lands of the public domain not more than twenty four (24) hectares to any qualified
tenant, farmer, and other landless citizen in areas reserved by the President, acting pursuant to
such law.
2. ID.; ID.; ID.; NECESSITY OF PROPOSED AMENDMENTS TO DETERMINED SOLELY BY THE
PEOPLE. The necessity, expediency, and wisdom of the proposed amendments are beyond the
power of the courts to adjudicate. Precisely, whether or not "grant" of public land and "urban land
reform" are unwise or improvident or whether or not the proposed amendments are unnecessary is
a matter which only the people can decide. The questions are presented for their determination.
3. ID.; ID.; ID.; PUBLICATION; REQUIREMENT FOR FAIR AND PROPER SUBMISSION
ADEQUATELY MET. Batas Pambansa Blg. 643 directs the COMELEC to publish the
amendments. The respondents assure us that publication in all provinces and cities, except a few
where there are no local newspapers, has been affected and that Barangays all over the country
have been enjoined to hold community gatherings for this purpose. The Integrated Bar of the
Philippines and various civic organizations have taken a strong stand for or against the last two
proposed questions. Television and radio programs regularly broadcast the amendments. The
petitioners have failed to explain why, inspite of all the above, there is still fair and proper
submission.
FERNANDO, C.J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION;
GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
PROPOSALS ALREADY AUTHORIZED UNDER THE EXISTING CONSTITUTION. Resolution
No. 105 deals with the grant or distribution of alienable and disposable lands of the public domain
to qualified tenants, farmers and other landless citizens. Resolution No. 113 deals with urban land
reform and social housing program. They are, then, immediately recognizable as logical and
necessary extensions of the fundamental principle of social justice enshrined as far back as the
1935 Constitution and expanded in the present Constitution. Our adoption of such principle
antedated the Universal Declaration of Human Rights by thirteen years. To my mind, therefore, no
question need arise under the standard of proper submission.
PLANA, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION;
GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
PROPOSALS ALREADY AUTHORIZED UNDER THE EXISTING CONSTITUTION. Reflecting
on Section 11, Article XIV and Section 6, Article 11 of the 1973 Constitution, it seems evident that
what is sought to be adopted under Questions 3 and 4 of the forthcoming plebiscite based on
Resolutions Nos. 105 and 113 of the Batasang Pambansa, is already authorized under the existing
Constitution. The proposed Constitutional amendments under Questions 3 and 4 would just be
confirmatory of a legislative power already existing, it stands to reason that a protracted discussion
of the proposed Constitutional amendments under Questions 3 and 4 is neither necessary nor
constitutionally required.
2. ID.; ID.; ID.; REQUIREMENT OF FAIR AND PROPER SUBMISSION COMPLIED WITH.
There is compliance with Article XVI, Section 2 of the Constitution, under which a proposed
Constitutional amendment shall be submitted to a plebiscite "which shall be held not later than 3
months after the approval of such amendment." The proposed amendments under Questions 3 and
4, as embodied in Resolutions 105 and 113 of the Batasang Pambansa, were adopted on November
21 and December 19, 1983, respectively. From November 21, 1983, when Resolution No. 105 was
adopted, up to January 27, 1984, there would be a spread of 67 days. On the other hand, from
December 19, 1983, when Resolution No. 113 was adopted, up to January 27, 1984, there would be
a spread of 39 days.
3. ID.; ID.; ID.; NO COMPELLING REASON FOR A SEPARATE PLEBISCITE FOR THE
APPROVAL OF QUESTIONED PROPOSALS. There is no compelling reason why so much of the
peoples money should be spent for holding a separate plebiscite when the purpose, by and large, of
the second is merely to confirm an existing Constitutional power.
TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION;
REQUIREMENT OF FAIR AND PROPER SUBMISSION. The doctrine of fair and proper
submission to the people of proposed constitutional amendments as enunciated by the Court in
Tolentino v. Comelec (41 SCRA 702, 729) mandates that "in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must provide the voter not
only sufficient time, but ample basis for an intelligent appraisal of the nature of the amendment
per se as well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole." There must be fair submission and intelligent consent or rejection. As the late
Justice Conrado V. Sanchez stressed in his separate opinion in the earlier case of Gonzales v.
Comelec, concurred in by the late Chief Justice Fred Ruiz Castro and Justice Calixto Zaldivar, (21
SCRA 774, 817), the people must be "sufficiently informed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner."cralaw virtua1aw
library
2. ID.; ID.; ID.; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND
REFORM; PEOPLE HAVE NOT BEEN GIVEN AMPLE TIME TO COMPREHEND THE
SIGNIFICANCE AND CONSEQUENCES THEREOF; RATIFICATION OF THE AMENDMENTS IN
A PLEBISCITE SHOULD BE ENJOINED. There has not been ample time and dissemination of
information to comprehend the significance, implications and complications and consequences of
the proposed amendments so as to comply with the fundamental requirements of a fair and proper
submission in order that the people may intelligently approve or reject the same. It is, therefore,
but proper, in accordance with due process in dealing with such a fundamental instrument as the
Constitution which basically is a charter of limitation of the powers of government, that the
precipitate submittal on January 27, 1984 of Questions Nos. 3 and 4 for the peoples ratification or
rejection be enjoined. It is far better to avail of the maximum 90-day period after the approval of
the proposed amendments for their submittal in a plebiscite so that the people may at the proper
time make their decision with the fullest possible comprehension. During this interval, the separate
and completely different second additional paragraphs proposed to be inserted in Article XIV,
section 12 of the Constitution in conflicting Resolutions Nos. 105 and 113 (103) as pointed out on
pages 2 and 5 hereof should be clarified. Otherwise, if the plebiscite is held on the 27th, the people
would just have to go by the position taken by the State at the hearing of January 24th that their
remedy is to vote "No" against the proposed amendments which they do not understand (or are
"unnecessary").
ABAD SANTOS, J., separate opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION;
GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
SUBMISSION OF PROPOSALS IN A PLEBISCITE TO BE DEFERRED. Partial relief should be
granted to petitioners as there is manifest basis for their claim that the citizenry has not been
adequately educated on the proposed amendments on grant of public lands and urban land reform.
The petitioners cite the case of Tolentino v. Comelec and although the instant case does not fall
squarely under said decision, that case can serve as a guide in the resolution of this case. No
question is raised with respect to Questions 1 and 2 which have been thoroughly discussed in
public and private fora for which reason there is no cause to delay their submission to the people.
Preparations for the plebiscite on January 27, 1984, have reached the point of no return. questions
1 and 2 can and should be submitted to the people on plebiscite day but Questions 3 and 4 should
be submitted at some other appropriate date.
MELENCIO-HERRERA, J., separate opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; AMENDMENTS TO THE 1973 CONSTITUTION; PROCEDURE
ADOPTED THEREFOR SUBJECT TO JUDICIAL INQUIRY. What may be noted in Article XVI
is that, besides the provision for the number of votes necessary for the Batasans proposal to amend
or revise the Constitution, or to call a convention or propose to the people the calling of a
convention, the procedure for the revision or amendment of the Constitution has not been
established. Hence, the procedure shall be as the Batasan shall adopt in the exercise of sound
judgment, in the understanding that when it does so, it acts only as a constituent assembly and not
as a legislative body. If the Batasan, as a constituent assembly, should provide for the revision or
amendment of the Constitution in a manner not consonant with fundamentals of democracy and of
good government, and its action is challenged, this Court can assume jurisdiction to resolve the
controversy.
2. ID.; ID.; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND
REFORM; BATASANG PAMBANSA RESOLUTIONS PROPOSING THE SAME SUBJECT TO THE
PUBLICATION REQUIREMENT IN THE CIVIL CODE. Publication is a fundamental
requirement for Resolution 105 and Resolution 113 and it has been sought to be done in BP 643, a
statutory law setting January 27, 1984 for the plebiscite. In the same way that the people are
entitled to know what laws have been approved by the Batasan, through their publication in the
Official Gazette, the same requirement should be followed in respect of resolutions proposing
constitutional amendments. Batas Pambansa Blg. 643, a statutory law setting January 27, 1984 for
the plebiscite, where the people can vote on the proposed constitutional amendments, it should be
published in the Official Gazette pursuant to the provisions of the Civil Code. The Code provides
that "laws shall take effect after fifteen (15) days following the completion of their publication in
the Official Gazette, unless it is otherwise provided." The important factor in the codal provision is
the publication, and the date of effectivity of the law is of secondary importance. I do not subscribe
to the proposition that, when a statute provides for the date of its effectivity it no longer needs to be
published. The provision should be interpreted such that when a statute provides for the date of its
effectivity, it shall not become effective after fifteen days of publication but it shall be effective after
publication, on the date provided in the statute itself.
3. ID.; ID.; ID.; FAILURE OF EFFECTIVE PUBLICATION OF THE PROPOSED AMENDMENTS.
A reading of the minimum standards set in Gonzalez v. COMELEC, 21 SCRA 774 (1967) will
readily show that principles of good government require that, in a plebiscite for the revision of the
Constitution, aside from other standards set, the ballots should set out in full the proposed
constitutional amendments so that there can be no question that when a citizen had voted "yes" or
"no", he thoroughly knew what he had voted for or against. Publication is for the general public.
Individual notice should also be given to the voter and this can be done easily through the ballot
that he will cast. Thus, in the case of non-resident defendants, summons is published in a
newspaper of general circulation but it is also required that summons be served to him individually
through registered mail sent to his last known address. In the ballots to be prepared for the
January 27 plebiscite, as mentioned in BP 643, the citizen is not made aware of the exact
amendments which have been proposed by the Batasan. Said law merely makes mention of the
amendments in substance. For example, anent Question No. 3, that the "grant" is limited to 24
hectares is not stated. Question No. 4 is not even indicated. Again, to my mind, there is failure of
effective publication. It is not enough that the citizen is expected, or required, to read the
newspapers and posted copies in public places.
4. ID.; ID.; ID.; ID.; PLEBISCITE TO RATIFY AMENDMENTS TO BE HELD WITHIN 3 MONTHS
FOLLOWING COMPLETION OF LAST PUBLICATION. If BP 643 is published in the Official
Gazette, and the ballots for the plebiscite should contain in full the proposed amendments to the
Constitution, the plebiscite can be held on a stated date within 3 months following the completion
of the last publication. The number of days after completion of the last publication, whether it is
ten days, one month, or three months, will be a question which this Court will have no jurisdiction
to resolve. It is very clear in Article XVI of the Constitution that the plebiscite shall be held in so
many number of days after approval of the amendment provided they do not exceed 3 months. The
number of days is within the exclusive power of the Batasan to determine.
RELOVA, J., separate opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION;
GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
REQUIREMENT OF PROPER SUBMISSION NOT MET. It is safe to say that the people in the
provinces are not, and by Friday (January 27) will not be sufficiently informed of the meaning,
nature and effects thereof. Undersigned takes judicial notice of the fact that they have not been
afforded ample time to deliberate thereon conscientiously. As stated by this Court in Tolentino v.
Commission on Elections, 41 SCRA 702, 729, "in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as
its relation to the other parts of the Constitution with which it has to form a harmonious whole." In
the case at bar, it is sad to state that proposed Amendments 3 and 4 have not been fairly laid before
the people for their approval or rejection. In fact, said proposed Amendments have only been
translated into Tagalog and Cebuano. There has been no translation thereof in the many other
dialects in which case it cannot be said that our people were afforded ample opportunity to
understand and deliberate over them.
RESOLUTION
 GUTIERREZ, JR., J.:
As provided for in Batas Pambansa Blg. 643, the Filipino electorate will go to the polls on January
27, 1984 to either approve or reject amendments to the Constitution proposed by Resolution Nos.
104, 105, 110, 111, 112, and 113 of the Batasang Pambansa. The proposed amendments are
embodied in four (4) separate questions to be answered by simple YES or NO
answers.chanroblesvirtualawlibrary
Petitioners herein seek to enjoin the submission on January 27, 1984 of Question Nos. 3 and 4,
which cover Resolution Nos. 105 and 113, to the people for ratification or rejection on the ground
that there has been no fair and proper submission following the doctrine laid down in Tolentino v.
COMELEC (41 SCRA 707). The petitioners do not seek to prohibit the holding of the plebiscite but
only ask for more time for the people to study the meaning and implications of Resolution Nos. 105
and 113 until the nature and effect of the proposals are fairly and properly submitted to the
electorate.
The questions to be presented to the electorate at the plebiscite are:chanrob1es virtual 1aw library
QUESTION NO. 3
Do you vote for the approval of amendments to the Constitution as proposed by the Batasang
Pambansa in Resolution Numbered 105 which, in substance, provide that grant shall be an
additional mode for the acquisition of lands belonging to the public domain and that the agrarian
reform program may include the grant or distribution of alienable lands of the public domain to
qualified tenants, farmers and other landless citizens.
QUESTION NO. 4
Do you vote for the approval of an amendment to the Constitution as proposed by the Batasang
Pambansa in its Resolution Numbered 113, adding the following paragraph to Section 12 of Article
XIV of the Constitution:jgc:chanrobles.com.ph
"The State shall moreover undertake an urban land reform and social housing program to provide
deserving landless, homeless or inadequately sheltered low income resident citizens reasonable
opportunity to acquire land and decent housing consistent with Section 2 of Article IV of this
Constitution."cralaw virtua1aw library
After a careful consideration of the issues raised in the petition for prohibition with preliminary
injunction, the answer of the Solicitor General, and the arguments of the parties during the hearing
on January 24, 1984, the COURT Resolved to DISMISS the petition for lack of merit.
Section 2, Article XVI of the Constitution which states:chanrob1es virtual 1aw library
x x x amendments are beyond the power of the courts to adjudicate. Precisely, whether or not "grant" of
SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months after the
approval of such amendment or revision.
allows a period of not more than three months for the conduct of information campaigns. The
sufficiency of the period during which amendments are submitted to the people before they vote to
either affirm or reject depends on the complexity and intricacy of the questions presented. The
petitioners have failed to show that the addition of the one word "grant" to Section 11, Article XIV
to make the provision read:jgc:chanrobles.com.ph
". . . nor may any citizen hold such (alienable) lands (of the public domain) by lease in excess of five
hundred hectares or acquire by purchase, homestead, or GRANT in excess of twenty four
hectares. . ."cralaw virtua1aw library
or that the addition of two paragraphs including one on urban land reform to Section 12 of Article
XIV to make it read:chanrob1es virtual 1aw library
SEC. 12. The State shall formulate and implement an agrarian reform program aimed at
emancipating the tenant from the bondage of the soil and achieving the goals enunciated in this
Constitution.
"SUCH PROGRAM MAY INCLUDE THE GRANT OR DISTRIBUTION OF ALIENABLE AND
DISPOSABLE LANDS OF THE PUBLIC DOMAIN TO QUALIFIED TENANTS, FARMERS AND
OTHER LANDLESS CITIZENS IN AREAS WHICH THE PRESIDENT MAY BY OR PURSUANT
TO LAW RESERVE FROM TIME TO TIME, NOT EXCEEDING THE LIMITATIONS FIXED IN
ACCORDANCE WITH THE IMMEDIATELY PRECEDING SECTION.
"THE STATE SHALL MOREOVER UNDERTAKE AN URBAN LAND REFORM AND SOCIAL
HOUSING PROGRAM TO PROVIDE DESERVING LANDLESS, HOMELESS OR
INADEQUATELY SHELTERED LOW INCOME RESIDENT CITIZENS REASONABLE
OPPORTUNITY TO ACQUIRE LAND AND DECENT HOUSING CONSISTENT WITH SECTION 2
OF ARTICLE IV OF THIS CONSTITUTION."cralaw virtua1aw library
result in amendments of such nature that when the people go to the polls on January 27, 1984 they
cannot arrive at an intelligent judgment on their acceptability or non-acceptability.
The present provisions of the Constitution are adequate to support any program of the government
for the grant of pub]ic lands to qualified and deserving citizens or for the implementation of urban
land reform. Homesteads and free patents are "grants." We likewise see no constitutional infirmity
to a law passed by the Batasang Pambansa, under the present Constitution, that would grant
alienable and disposable lands of the public domain not more than twenty four (24) hectares to any
qualified tenant, farmer, and other landless citizen in areas reserved by the President, acting
pursuant to such law. Nor is it correct to say that after the agrarian land reform program now being
implemented and the agitation for a similar program in urban areas, the meaning of "urban land
reform" is not yet understood. Questions No. 3 and No. 4, if ratified with an affirmative vote, will
serve at most a symbolic purpose. That much the Solicitor General conceded when he stated that
the amendments under Question No. 3 serve to confirm existing practice pursuant to long standing
legislation. Any interpretation of "grant" will, therefore, carry the weight of applicable precedents
which surround the associated words "homestead" and "purchase" in the same clause of the
Constitution. Similarly, any legislation laying down the rules on urban land reform will have to
survive the constitutional tests of due process, equal protection, police power, reasonable
compensation, etc., now applied to agrarian land reform.chanrobles virtual lawlibrary
More important, however, is that the necessity, expediency, and wisdom of the proposed
public land and "urban land reform" are unwise or improvident or whether or not the proposed
amendments are unnecessary is a matter which only the people can decide. The questions are
presented for their determination. Assuming that a member or some members of this Court may
find undesirable any additional mode of disposing of public land or an urban land reform program,
the remedy is to vote "NO" in the plebiscite but not to substitute his or their aversion to the
proposed amendments by denying to the millions of voters an opportunity to express their own
likes or dislikes. The issue before us has nothing to do with the wisdom of the proposed
amendments, their desirability, or the danger of the power being abused. The issue is whether or
not the voters are aware of the wisdom, the desirability, or the dangers of abuse. The petitioners
have failed to make out a case that the average voter does not know the meaning of "grant" of
public land or of "urban land reform."cralaw virtua1aw library

As argued by the Solicitor-General:jgc:chanrobles.com.ph
"Agrarian reform program", for example, has been in the consciousness of the Filipino people, to
borrow a phrase from the petitioners, since 1972 with the passage of P.D. No. 27 (Oct. 21, 1972),
emancipating our tenants and transferring to them ownership of the land they toil, without
mentioning the fact that even prior to this, there were several laws enacted attempting at land
reform, notably Rep. Act No. 3844 (1964), ordaining the agricultural Land Reform Code and
instituting land reforms in the country. More importantly and more to the point, grant or land
grant or distribution are subject matters that have been in the consciousness of the Filipino
people since Commonwealth days, with the enactment of Commonwealth Act No. 141, amending
and compiling the previously scattered laws relative to the conservation and disposition of lands of
the public domain.
The undersigned ponente would like to add his personal views to this opinion of the Court. On
January 27, 1984, the average voter who goes to the polling place and reads Question No. 3 will
know whether or not he or she is in favor of distributing alienable public lands through "grants" in
addition to leases, homesteads and purchases. Upon reading Question No. 4, the voter will know
whether or not he or she is in favor of an urban land reform program. I personally find existing
provisions of the Constitution more than sufficient basis for legislation to achieve the objectives of
the proposed amendments. To me, the second question on the Vice-President vis-a-vis the
Executive Committee involves more complex and difficult issues involving as it does a collegiate
body as successor to the President. Yet, no one seems to question its fair and proper submission.
However, my personal feelings about the merits or demerits of the third and fourth questions are
entirely distinct and separate from the issue of their fair and proper submission to the electorate.
Like any other voter, my remedy is to vote NO on any proposal I find unwise or ill-advised and YES
on those I favor. I respect the views of those who may think differently.chanroblesvirtualawlibrary

x x x WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
"Similarly, the Filipino people have long been since familiar with the topics of urban land reform
and social housing, beginning perhaps with the countrys first zoning laws and, through all these Fernando, C.J., Makasiar, Aquino, voting to dismiss for lack of a cause action; Concepcion, Jr.,
years, with such laws as Rep. Act No. 267 (1948), authorizing cities to purchase or expropriate Guerrero, De Castro, Plana and Escolin, JJ., concur.
home sites and landed estates and subdivide them for resale at cost, P.D. No. 814 (1975), providing
a land tenure system for the Tondo Foreshore Dagat-Dagatan Urban Development Project, P.D.
No. 933 (1976) creating the Human Settlement Commission to bring about the optimum use of
land, Rep. Act No. 1322 (1955) creating the Philippine Homesite and Housing Authority, and P.D.
No. 1517, proclaiming an urban land reform in the Philippines, to give but a few
samples. . . ."cralaw virtua1aw library

Batas Pambansa Blg. 643 direct the COMELEC to publish the amendments. The respondents
assure us that publication in all provinces and cities, except a few where there are no local
newspapers, has been affected and that Barangays all over the country have been enjoined to hold
community gatherings for this purpose. The Integrated Bar of the Philippines and various civic
organizations have taken a strong stand for or against the last two proposed questions. Television
and radio programs regularly broadcast the amendments. The petitioners have failed to explain
why, inspite of all the above, there is still fair and proper submission.

On the bid for additional time, the respondents point out that Resolution No. 105 will have been
submitted for sixty seven (67) days to the people on Plebiscite Day while Resolution No. 113 will
have been submitted for forty two (42) days. The entire 1935 Constitution was submitted for
ratification thirty six (36) days after approval of Act No. 4200. The 1976 amendments which
admittedly are much more complicated, difficult to understand, and novel and far-reaching in their
implications were presented to the people for only three (3) weeks. In Sanidad v. Commission on
Elections (73 SCRA 333, 375), this was how this Court answered the issue of sufficient and proper
submission:jgc:chanrobles.com.ph

"Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion, Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however, that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond
the competence and cognizance of this Court. Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales v. COMELEC (21 SCRA 774).
Associate Justices Teehankee, and Muoz Palma hold that prescinding from the Presidents lack of
authority to exercise the constituent power to propose the amendments, etc., as above stated, there
is no fair and proper submission with sufficient information and time to assure intelligent consent
or rejection under the standards set by this Court in the controlling cases of Gonzales, supra and
Tolentino v. COMELEC (41 SCRA 702)."cralaw virtua1aw library

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON
(DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND
NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP),
and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution
through the system of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative was unknown to the
people of this country, except perhaps to a few scholars, before the drafting of the 1987
Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and the
main sponsor 2 of the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a
constitutional convention. 4 For this and the other reasons hereafter discussed, we resolved to give
due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift
Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin
asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition
for Initiative on the 1987 Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to
assist Petitioners and volunteers, in establishing signing stations at the time
and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's
Initiative, 6 a group of citizens desirous to avail of the system intended to institutionalize people
power; that he and the members of the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution granted under Section 2, Article XVII of
the Constitution; that the exercise of that power shall be conducted in proceedings under the
control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,
signature stations shall be established all over the country, with the assistance of municipal
election registrars, who shall verify the signatures affixed by individual signatories; that before the
Movement and other volunteers can gather signatures, it is necessary that the time and dates to be
designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to
adequately inform the people of the electoral process involved, it is likewise necessary that the said
order, as well as the Petition on which the signatures shall be affixed, be published in newspapers
of general and local circulation, under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI, 7Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the
petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the provisions
concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4
AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it
is signed by at least twelve per cent of the total number of registered voters in the country it will be
formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to
cause the publication of the petition, together with the attached Petition for Initiative on the 1987
Constitution (including the proposal, proposed constitutional amendment, and the signature
form), and the notice of hearing in three (3) daily newspapers of general circulation at his own
expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996
at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action
(PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-
Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition
on the ground that it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
"memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin filed this special civil action for prohibition raising the
following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution
can only be implemented by law to be passed by Congress. No such law has
been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitution Amendments by People's Initiative, which petitioner
Senator Santiago filed on 24 November 1995, is still pending before the Senate
Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it
failed to provide any subtitle on initiative on the Constitution, unlike in the
other modes of initiative, which are specifically provided for in Subtitle II and
Subtitle III. This deliberate omission indicates that the matter of people's
initiative to amend the Constitution was left to some future law. Former Senator
Arturo Tolentino stressed this deficiency in the law in his privilege speech
delivered before the Senate in 1994: "There is not a single word in that law
which can be considered as implementing [the provision on constitutional
initiative]. Such implementing provisions have been obviously left to a separate
law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication
in print media. This indicates that the Act covers only laws and not
constitutional amendments because the latter take effect only upon ratification
and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on
national and local laws, is ultra vires insofar as initiative on amendments to the
Constitution is concerned, since the COMELEC has no power to provide rules
and regulations for the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the Constitution to pass the
implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and
is, therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative;
neither the COMELEC nor any other government department, agency, or office
has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that
in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by
PIRMA would entail expenses to the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the millions of additional pesos in expenses
which would be incurred in the conduct of the initiative itself. Hence, the transcendental
importance to the public and the nation of the issues raised demands that this petition for
prohibition be settled promptly and definitely, brushing aside technicalities of procedure and
calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain,
speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a
non-extendible period of ten days from notice; and (b) issued a temporary restraining order,
effective immediately and continuing until further orders, enjoining public respondent COMELEC
from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the
petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST
OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN
THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY
DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE
SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO
SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION"
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING
LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-
SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16,
1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE
COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE
OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R.
NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION
ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND
LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER
 TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE
NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B.
NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF
ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS
NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED."
(PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which
starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for
Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December
1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the
signature campaign to amend the Constitution or to put the movement to gather signatures under
COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains
as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence
therein of a subtitle for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted
by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC
the power to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall; and (b)
Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such
rules and regulations as may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more specifically, only those which lay
term limits. It does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of
P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be
a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it will be for the exercise
of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of
the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes,
and guarantees that power; and its Section 3, which enumerates the three
systems of initiative, includes initiative on the Constitution and defines the
same as the power to propose amendments to the Constitution. Likewise, its
Section 5 repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A.
No. 6735 because, being national in scope, that system of initiative is deemed
included in the subtitle on National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions of the law when he claimed
that nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A.
No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment
to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A.
No. 6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by
this Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by
private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the
counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was
for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator
Raul Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and
(d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for
Intervention. Attached to the motion was their Petition in Intervention, which was later replaced
by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin Bernas,
S.J., 18 it would involve a change from a political philosophy that rejects
unlimited tenure to one that accepts unlimited tenure; and although the change
might appear to be an isolated one, it can affect other provisions, such as, on
synchronization of elections and on the State policy of guaranteeing equal
access to opportunities for public service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which, by express provision
of Section 2 of Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided
for all other national and local elective officials are based on the philosophy of
governance, "to open up the political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to break the concentration of
political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the
 common good"; hence, to remove the term limits is to negate and nullify the
noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in
a conflict-of-interest situation. Initiative is intended as a fallback position that
may be availed of by the people only if they are dissatisfied with the
performance of their elective officials, but not as a premium for good
performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling
law that implements the people's initiative on amendments to the Constitution.
It fails to state (a) the proper parties who may file the petition, (b) the
appropriate agency before whom the petition is to be filed, (c) the contents of
the petition, (d) the publication of the same, (e) the ways and means of
gathering the signatures of the voters nationwide and 3% per legislative district,
(f) the proper parties who may oppose or question the veracity of the signatures,
(g) the role of the COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any decision of the COMELEC,
(I) the holding of a plebiscite, and (g) the appropriation of funds for such
people's initiative. Accordingly, there being no enabling law, the COMELEC has
no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority to
legislate the procedure for a people's initiative under Section 2 of Article XVII
of the Constitution. That function exclusively pertains to Congress. Section 20
of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the
former does not set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right
to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House
Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He
likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate
COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is
without jurisdiction to take cognizance of the Delfin Petition and to order its publication because
the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act
No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for initiative which is signed by the required
number of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and supervision of a
plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in
Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2,
Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have
the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed
by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by
LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions
in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in
Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to comment thereon within a nonextendible
period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so far
filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative
and Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act,
as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local Laws) regarding the conduct
of initiative on amendments to the Constitution is valid, considering the
absence in the law of specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft "Petition for Initiative on the 1987 Constitution," would
constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a
petition solely intended to obtain an order (a) fixing the time and dates for
signature gathering; (b) instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature stations; and (c) directing
or causing the publication of, inter alia, the unsigned proposed Petition for
Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition
when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the
Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or
refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record
of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate
Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter
filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.
I for certiorari under Section I of Rule 65 of the Rules of Court.
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC
OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when
there is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by
private respondent Delfin. This being so, it becomes imperative to stop the
Comelec from proceeding any further, and under the Rules of Court, Rule 65,
Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the purpose
of preventing the inferior tribunal from usurping a jurisdiction with which it is
not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an
urgent necessity, in view of the highly divisive and adverse environmental
consequences on the body politic of the questioned Comelec order. The
consequent climate of legal confusion and political instability begs for judicial
statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by
the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the
Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently because after having heard the
arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on
6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause
the publication of the petition, together with the attached Petition for Initiative, the signature form,
and the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on
Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the
instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court alleging the facts with certainty and
praying that judgment be rendered commanding the defendant to desist from
further proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated as a special civil action
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may
brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural technicality which it may, in
the exercise of its discretion, set aside in view of the importance of issues raised.
In the landmark Emergency Powers Cases, this Court brushed aside this
technicality because the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE
TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per centum of the
total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five years following
the ratification of this Constitution nor oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the
Constitution until Congress provides for its implementation. Stated otherwise, while the
Constitution has recognized or granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That
section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article___ Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as Section
2; thus:
MR. SUAREZ. Thank you, Madam President. May we
respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us last
night, we submitted this afternoon a complete Committee
Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at
least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:
FR. BERNAS. Madam President, just two simple,
clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of
at least 10 percent, there are no details in the provision on
how to carry this out. Do we understand, therefore, that we
are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for
as long as the legislature does not pass the necessary
implementing law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the
committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the
plebiscite could be called. We deemed it best that this matter
be left to the legislature. The Gentleman is right. In any
event, as envisioned, no amendment through the power of
initiative can be called until after five years from the date of
the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of
this initiative power would be after five years. It is
reasonably expected that within that five-year period, the
National Assembly can come up with the appropriate rules
governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the
details on how this is to be carried out is it possible that,
in effect, what will be presented to the people for ratification
is the work of the legislature rather than of the people? Does
this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility
because even the legislature itself as a body could propose
that amendment, maybe individually or collectively, if it fails
to muster the three-fourths vote in order to constitute itself
as a constituent assembly and submit that proposal to the
people for ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the
intention in the proposal is to vest constituent power in the
people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of
the proposal in terms of institutionalizing popular
participation in the drafting of the Constitution or in the
 amendment thereof, but I would have a lot of difficulties in
terms of accepting the draft of Section 2, as written. Would
the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal
mandates?
the Article on Amendment. Would the sponsor be amenable
to accepting an amendment in terms of realigning Section 2
as another subparagraph (c) of Section 1, instead of setting it
up as another separate section as if it were a self-executing
provision?

MR. SUAREZ. The Commissioner is right, Madam MR. SUAREZ. We would be amenable except that, as we
President. clarified a while ago, this process of initiative is limited to
the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the
MS. AQUINO. And would the sponsor agree with me that in
Constitution. That was the sense that was conveyed by the
the hierarchy of legal values, the Constitution is source of all
Committee.
legal mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution? MS. AQUINO. In other words, the Committee was
attempting to distinguish the coverage of modes (a) and (b)
in Section 1 to include the process of revision; whereas
MR. SUAREZ. That proposition is nondebatable.
the process of initiation to amend, which is given to the
public, would only apply to amendments?
MS. AQUINO. Such that in order to underscore the primacy
of constituent power we have a separate article in the
MR. SUAREZ. That is right. Those were the terms
constitution that would specifically cover the process and the
envisioned in the Committee. 35
modes of amending the Constitution?

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario
MR. SUAREZ. That is right, Madam President.
G. Davide, Jr., which the Committee accepted. Thus:

MS. AQUINO. Therefore, is the sponsor inclined, as the

MR. DAVIDE. Thank you Madam President. I propose to
provisions are drafted now, to again concede to the
substitute the entire Section 2 with the following:
legislature the process or the requirement of determining
the mechanics of amending the Constitution by people's
initiative? MR. DAVIDE. Madam President, I have modified the
proposed amendment after taking into account the
modifications submitted by the sponsor himself and the
MR. SUAREZ. The matter of implementing this could very
honorable Commissioners Guingona, Monsod, Rama, Ople,
well be placed in the hands of the National Assembly, not
de los Reyes and Romulo. The modified amendment in
unless we can incorporate into this provision the mechanics
substitution of the proposed Section 2 will now read as
that would adequately cover all the conceivable situations. 33
follows: "SECTION 2. AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
It was made clear during the interpellations that the aforementioned Section 2 is limited to PROPOSED BY THE PEOPLE THROUGH INITIATIVE
proposals to AMEND not to REVISE the Constitution; thus: UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER Of REGISTERED VOTERS, OF
MR. SUAREZ. . . . This proposal was suggested on the theory WHICH EVERY LEGISLATIVE DISTRICT MUST BE
that this matter of initiative, which came about because of REPRESENTED BY AT LEAST THREE PERCENT OF THE
the extraordinary developments this year, has to be REGISTERED VOTERS THEREOF. NO AMENDMENT
separated from the traditional modes of amending the UNDER THIS SECTION SHALL BE AUTHORIZED
Constitution as embodied in Section 1. The committee WITHIN FIVE YEARS FOLLOWING THE RATIFICATION
members felt that this system of initiative should not extend OF THIS CONSTITUTION NOR OFTENER THAN ONCE
to the revision of the entire Constitution, so we removed it EVERY FIVE YEARS THEREAFTER.
from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34 THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF
xxx xxx xxx THIS RIGHT.

MS. AQUINO. In which case, I am seriously bothered by MR. SUAREZ. Madam President, considering that the
providing this process of initiative as a separate section in proposed amendment is reflective of the sense contained in
 Section 2 of our completed Committee Report No. 7, we
accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment,
is it possible for the legislature to set forth certain
procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does
not prevent the legislature from asking another body to set
the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words,
the implementation of this particular right would be subject
to legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the
determination of the proper form for submission to the
people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to
be proposed by the legislative body must diminish or impair
the right conceded here.
MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner
Davide's proposed amendment on line 1 refers to
"amendment." Does it not cover the word "revision" as
defined by Commissioner Padilla when he made the
distinction between the words "amendments" and
"revision"?
MR. DAVIDE. No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments"
not "revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this
proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of
three-fourths; and to call a constitutional convention would
require a higher number. Moreover, just to submit the issue
of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the
process of amendment must be made more rigorous and
difficult than probably initiating an ordinary legislation or
putting an end to a law proposed by the National Assembly
by way of a referendum. I cannot agree to reducing the
requirement approved by the Committee on the Legislative
because it would require another voting by the Committee,
and the voting as precisely based on a requirement of 10
percent. Perhaps, I might present such a proposal, by way of
an amendment, when the Commission shall take up the
Article on the Legislative or on the National Assembly on
plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED VOTERS, OF
WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF
THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second
reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner
Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved on Second and Third
Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by
changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in
the second paragraph so that said paragraph reads: The Congress 43 shall provide for the
implementation of the exercise of this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer
the question in the affirmative, like the private respondents and intervenor Senator Roco, point to
us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of
Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of
this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the
rules implementing the exercise of the right. The "rules" means "the details on how [the
right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House
of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No.
497, 47 which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt
with the subject matter of House Bill No. 497, as well as with initiative and referendum under
Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of
the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference Committee
consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently
approved on 8 June 1989 by the Senate 50and by the House of Representatives. 51 This approved
bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole
or in part, the Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions. That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in whole or in part, the
Constitution" through the system of initiative. They can only do so with respect to "laws,
ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and
referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in
whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments
to the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered
voters who must submit the proposal. But unlike in the case of the other systems of initiative, the
Act does not provide for the contents of a petition for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be. It does not include, as among the
contents of the petition, the provisions of the Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100)
words which shall be legibly written or printed at the top of every page of the
petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act
is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully
provide for the implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments to the Constitution is
far more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on National Initiative and Referendum because it is national in scope. Our
reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and
Referendum) leaves no room for doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character. It is "national initiative," if what is proposed to
be adopted or enacted is a national law, or a law which only Congress can pass. It is "local
initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution which
only the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative into national and local is
actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative
bodies of local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's organization, as
defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum, which
could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative
and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant
to this Act for violation of the Constitution or want of capacity of the local
legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving
them special attention, it failed, rather intentionally, to do so on the system of initiative on
amendments to the Constitution. Anent the initiative on national legislation, the Act provides for
the following:

a.1 Initiative on the Constitution which refers to a petition proposing

(a) The required percentage of registered voters to sign the petition and the contents of the
amendments to the Constitution;
petition;

a.2 Initiative on Statutes which refers to a petition proposing to enact

(b) The conduct and date of the initiative;
a national legislation; and

(c) The submission to the electorate of the proposition and the required number of votes for its
a.3 Initiative on local legislation which refers to a petition proposing to enact a
approval;
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).
(d) The certification by the COMELEC of the approval of the proposition;
Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution. 53 (e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) (f) The effects of the approval or rejection of the proposition. 55
paragraphs (b) and (c) of Section 9, which reads:
As regards local initiative, the Act provides for the following:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as to the day of (a) The preliminary requirement as to the number of signatures of registered voters for the
the plebiscite. petition;

(c) A national or local initiative proposition approved by majority of the votes
cast in an election called for the purpose shall become effective fifteen (15) days
after certification and proclamation of the Commission. (Emphasis supplied).
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the
power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered
voters for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines
"initiative on the Constitution" and includes it in the enumeration of the three systems of initiative
in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people; (d) reiterates the constitutional
requirements as to the number of voters who should sign the petition; and (e) provides for the date
of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting
in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering"
the COMELEC "to promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as
follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a showing that the delegation itself
is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of
which are sufficiently determinate and determinable to which the delegate must conform in the
performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks
its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to
implement the exercise of the right of the people to directly propose amendments to the
Constitution through the system of initiative. It does not have that power under R.A. No. 6735.
Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is
misplaced, for the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate
legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the
Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered
voters of which every legislative district is represented by at least 3% of the registered voters
therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin
himself admits that he has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the required signatures,
the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition Resolution on the matter of contempt is hereby reserved.
then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en
banc. The only participation of the COMELEC or its personnel before the filing of such petition are
SO ORDERED.
(1) to prescribe the form of the petition; 63(2) to issue through its Election Records and Statistics
Office a certificate on the total number of registered voters in each legislative district; 64 (3) to
assist, through its election registrars, in the establishment of signature stations; 65 and (4) to verify, Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ.,
through its election registrars, the signatures on the basis of the registry list of voters, voters' concur.
affidavits, and voters' identification cards used in the immediately preceding election. 66
Padilla, J., took no part.
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC
Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The
respondent Commission must have known that the petition does not fall under any of the actions
or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which
reason it did not assign to the petition a docket number. Hence, the said petition was merely
entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper,
which should not have been dignified by the Order of 6 December 1996, the hearing on 12
December 1996, and the order directing Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of elective national and local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for the implementation of the
system.

We feel, however, that the system of initiative to propose amendments to the Constitution should
no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress
should not tarry any longer in complying with the constitutional mandate to provide for the
implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the Constitution;
and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.
 Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that
the classification provided therein is based on "purely arbitrary grounds and, therefore, class
legislation."
Republic of the Philippines
SUPREME COURT
Manila For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory
provisions:
EN BANC
Sec 7. Terms of Office Unless sooner removed for cause, all local elective
officials hereinabove mentioned shall hold office for a term of six (6) years,
G.R. No. L-52245 January 22, 1980
which shall commence on the first Monday of March 1980.

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,

.... (Batas Pambansa Blg. 51) Sec. 4.
vs.
COMMISSION ON ELECTIONS, respondent.
Sec. 4. ...
Raul M. Gonzales for petitioners
Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall
Office of the Solicitor General for respondent.
not be qualified to be a candidate for any of the offices covered by this Act, or to
participate in any partisan political activity therein:

provided that a judgment of conviction for any of the aforementioned crimes

MELENCIO-HERRERA, J: shall be conclusive evidence of such fact and

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by the filing of charges for the commission of such crimes before a civil court or
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin military tribunal after preliminary investigation shall be prima fascie
respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas evidence of such fact.
Pambansa Big. 51, 52, and 53 for being unconstitutional.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who
has filed his certificate of candidacy for said position of Governor in the forthcoming elections of
Section 1. Election of certain Local Officials ... The election shall be held on
January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the
January 30, 1980. (Batas Pambansa, Blg. 52)
Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San
Miguel, Iloilo. Section 6. Election and Campaign Period The election period shall be fixed by
the Commission on Elections in accordance with Section 6, Art. XII-C of the
Constitution. The period of campaign shall commence on December 29, 1979
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg.
and terminate on January 28, 1980. (ibid.)
52 as discriminatory and contrary to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa
Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-
Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which
C of the Constitution and disqualification mentioned in existing laws, which are
provides that a "bona fide candidate for any public office shall be it. from any form of harassment
hereby declared as disqualification for any of the elective officials enumerated
and discrimination. "The question of accreditation will not be taken up in this case but in that
in section 1 hereof.
of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised,

Any retired elective provincial city or municipal official who has received
Petitioners then pray that the statutory provisions they have challenged be declared null and void
payment of the retirement benefits to which he is entitled under the law, and
for being violative of the Constitution.
who shall have been 6,5 years of age at the commencement of the term of
office to which he seeks to be elected shall not be qualified to run for the same
elective local office from which he has retired (Emphasis supplied) I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and
actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner
Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the
latter join Dumlao in his. The respectively contest completely different statutory provisions.
Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of
petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners
plead nine constraints as the reason of their joint Petition, it would have required only a modicum
more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the
other, to have filed separate suits, in the interest of orderly procedure.
For another, there are standards that have to be followed inthe exercise of the function of judicial
review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by
the party raising the constitutional question: (3) the plea that the function be exercised at the
earliest opportunity and (4) the necessity that the constiutional question be passed upon in order
to decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the parties have
raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by
the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision.
Yet, Dumlao has not been adversely affected by the application of that provision. No petition
seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that
constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a
question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion
from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's
case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice
Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for
in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following power and functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns
and qualifications of all members of the National Assembly and elective
provincial and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days from
his receipt of a copy thereof.
B. Proper party.The long-standing rule has been that "the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition,
that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has
been convicted nor charged with acts of disloyalty to the State, nor disqualified from being
candidates for local elective positions. Neither one of them has been calle ed to have been adversely
affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a
generated grievance. They have no personal nor substantial interest at stake. In the absence of any
litigate interest, they can claim no locus standi in seeking judicial redress.
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that
the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary
of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only by one
who will sustain a direct injury in consequence of its enforcement. Yet, there are
many decisions nullifying at the instance of taxpayers, laws providing for the
disbursement of public funds, upon the theory that "the expenditure of public
funds, by an officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds," which may be
enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the requisite
standing to attack the constitutionality of a statute, the general rule is that not
only persons individually affected, but also taxpayers have sufficient interest in
preventing the illegal expenditure of moneys raised by taxation and they may,
therefore, question the constitutionality of statutes requiring expenditure of
public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez,
et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections
4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in violation of specific
constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds
through the enforcement of an invalid or unconstitutional law. (Philippine Constitution
Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs.
Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance
of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking
through our present Chief Justice, this Court is vested with discretion as to whether or not a
taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an
act of the legislature will not be determined by the courts unless that question is properly raised
and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
being entirely without discretion in the matter. Thus, adherence to the strict procedural standard
was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having
been penned by our present Chief Justice. The reasons which have impelled us are the paramount
public interest involved and the proximity of the elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other candidates for
local positions based on the challenged provision have already been filed with the COMELEC (as
listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is
neither well taken. The constitutional guarantee of equal protection of the laws is subject to
rational classification. If the groupings are based on reasonable and real differentiations, one class
can be treated and regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from younger employees.
Employees attaining that age are subject to compulsory retirement, while those of younger ages are
not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates should
not be more than 65 years of age at the time they assume office, if applicable to everyone, might or
might not be a reasonable classification although, as the Solicitor General has intimated, a good
policy of the law would be to promote the emergence of younger blood in our political elective
echelons. On the other hand, it might be that persons more than 65 years old may also be good
elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees from
government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged
65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him from running for the same office from which he
had retired, as provided for in the challenged provision. The need for new blood assumes
relevance. The tiredness of the retiree for government work is present, and what is emphatically
significant is that the retired employee has already declared himself tired and unavailable for the
same government work, but, which, by virtue of a change of mind, he would like to assume again. It
is for this very reason that inequality will neither result from the application of the challenged
provision. Just as that provision does not deny equal protection neither does it permit of such
denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal classification.
What is proscribes is a classification which is arbitrary and unreasonable. That constitutional
guarantee is not violated by a reasonable classification based upon substantial distinctions, where
the classification is germane to the purpose of the law and applies to all Chose belonging to the
same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966];
Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong
etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being pursuant to that purpose,
it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is
marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the
Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that to justify the nullification of a law, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts
are practically unanimous in the pronouncement that laws shall not be declared invalid unless the
conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55
[1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56).
Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires
to become a candidate for office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of
Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two
parts. The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall be
conclusive evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
presumption of validity that attaches to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We
are constrained to hold that this is one such clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the
fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
constitutional presumption of innocence, as a candidate is disqualified from running for public
office on the ground alone that charges have been filed against him before a civil or military
tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof,
no distinction is made between a person convicted of acts of dislotalty and one against whom
charges have been filed for such acts, as both of them would be ineligible to run for public office. A
person disqualified to run for public office on the ground that charges have been filed against him
is virtually placed in the same category as a person already convicted of a crime with the penalty
of arresto, which carries with it the accessory penalty of suspension of the right to hold office
during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and therefore, may be
rebutted, yet. there is "clear and present danger" that because of the proximity of the elections,
time constraints will prevent one charged with acts of disloyalty from offering contrary proof to
overcome the prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts
rather than before an administrative body such as the COMELEC. A highly possible conflict of
findings between two government bodies, to the extreme detriment of a person charged, will
thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be
allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second paragraph of
section 4 of Batas Pambansa Big. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared
valid. Said paragraph reads:

SEC. 4. Special disqualification. In addition to violation of Section 10 of

Article XII(C) of the Constitution and disqualifications mentioned in existing
laws which are hereby declared as disqualification for any of the elective
officials enumerated in Section 1 hereof, any retired elective provincial, city or
municipal official, who has received payment of the retirement benefits to
which he is entitled under the law and who shall have been 65 years of age at
the commencement of the term of office to which he seeks to be elected, shall
not be qualified to run for the same elective local office from which he has
retired.

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang

52 providing that "... the filing of charges for the commission of such crimes
before a civil court or military tribunal after preliminary investigation shall
be prima facie evidence of such fact", is hereby declared null and void, for being
violative of the constitutional presumption of innocence guaranteed to an
accused.

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.

Fernando, C.J., concurs and submits a brief separate opinion.

De Castro, J., abstain as far as petitioner Dumlao is concerned.

 consequences to which a suit of such character would give rise. Subsequently, there
was a reply by petitioners on June 26, 1971 and a rejoinder by respondents on June
Republic of the Philippines 28, 1971. There was even a surrejoinder by respondents on July 6 of the same year,
SUPREME COURT as well as a reply thereto on the very same day. Then came the hearing on August 4,
Manila 1971.

SECOND DIVISION There is no need, however, to pass on the merits of the various legal issues raised as
in accordance with the ruling in Philippine Constitution Association, Inc. v.
Gimenez, 3 promulgated on February 28, 1974, a suit of this character has become
moot and academic with the effectivity of the present Constitution and the
consequent abolition of the House of Representatives. It may not be amiss to quote
G.R. No. L-33517 March 29, 1974 this excerpt from the resolution declaring moot and academic the above case against
Auditor General Gimenez: "Parenthetically, it is to be observed that such difficulty
PHILIPPINE CONSTITUTION ASSOCIATION, SALVADOR ARANETA, need not attend a petition of this character if filed now in view of the specific provision in the
JUAN V. BORRA, JOSE NUGUID, JOSE NOLLEDO, and RAMON A. present Constitution: 'The records and books of accounts of the National Assembly shall be open to
GONZALES, petitioners, the public in accordance with law, and such books shall be audited by the Commission on Audit
vs. which shall publish annually the itemized expenditures for each Member.' " 4
HON. CORNELIO T. VILLAREAL, in his capacity as Speaker of the
House of Representatives, Manila, CHIEF ACCOUNTANT, House of WHEREFORE, the above petition is declared moot and academic.
Representatives, Manila, and AUDITOR, House of Representatives,
Manila, respondents. Zaldivar (Chairman), Barredo, Antonio and Fernandez, JJ., concur.

Ramon A. Gonzales for petitioners. Aquino, J., took no part.

Ramon C. Aquino for respondent.

Footnotes

1 The other petitioners were Salvador Araneta, Juan V. Borra, Jose Nuguid,
FERNANDO, J.:p Jose Nolledo and Ramon A. Gonzales.

Petitioner Philippine Constitution Association, joined by other petitioners, 1 all 2 Resolution dated May 18, 1971.
delegates to the 1971 Constitutional Convention, suing in their capacity as such as
well as citizens and taxpayers, filed this mandamus proceeding on May 15, 1971 3 L-21786.
praying that a writ be issued ordering respondents Cornelio T. Villareal, in his
capacity as Speaker of the then House of Representatives, the Chief Accountant 4 Ibid. Citing Article VIII, Section 8, par. (2) of the Constitution.
thereof, as well as its Auditor, to inspect and examine the books, records, vouchers
and other supporting papers of the House of Representatives that have relevance to
the alleged transfer of P26.2 million from various executive offices to the House of
Representatives as well as its books, records, vouchers and other supporting papers
dealing with the original outlay of the P39 million as appropriated for the 1969-1970
fiscal year. On May 19, 1971, this Court adopted a resolution of the following tenor:
"The respondents are hereby required to file an answer to the petition for
mandamus within 10 days from notice hereof, and not to move to dismiss the
petition." 2 There was, on June 16, 1971, an answer and motion to dismiss on behalf
of respondents seeking the dismissal of the suit on the ground of lack of jurisdiction
under the theory of separation of powers, absence of a cause of action, lack of legal
personality to sue, nonjoinder of indispensable parties as well as the mischievous

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21450 April 15, 1968
SERAFIN TIJAM, ET AL., plaintiffs-appellees,
vs.
MAGDALENO SIBONGHANOY alias GAVINO SIBONGHANOY and LUCIA
BAGUIO, defendants,
MANILA SURETY AND FIDELITY CO., INC. (CEBU BRANCH) bonding company and
defendant-appellant.
F. S. Urot and G. A. Uriate for plaintiffs-appellees.
Carlos J. Cuizon for defendants Gavino Sibonghanoy and Lucia Baguio.
Villaluz Law Office, Velasco Law Office, Pages and Soberano for defendant-appellant Manila
Surety and Fidelity Company, Inc.
DIZON, J.:
On July 19, 1948 barely one month after the effectivity of Republic Act No. 296 known as the
Judiciary Act of 1948 the spouses Serafin Tijam and Felicitas Tagalog commenced Civil Case No.
R-660 in the Court of First Instance of Cebu against the spouses Magdaleno Sibonghanoy and
Lucia Baguio to recover from them the sum of P1,908.00, with legal interest thereon from the date
of the filing of the complaint until the whole obligation is paid, plus costs. As prayed for in the
complaint, a writ of attachment was issued by the court against defendants' properties, but the
same was soon dissolved upon the filing of a counter-bond by defendants and the Manila Surety
and Fidelity Co., Inc. hereinafter referred to as the Surety, on the 31st of the same month.
After being duly served with summons the defendants filed their answer in which, after making
some admissions and denials of the material averments of the complaint, they interposed a
counterclaim. This counterclaim was answered by the plaintiffs.
After trial upon the issues thus joined, the Court rendered judgment in favor of the plaintiffs and,
after the same had become final and executory, upon motion of the latter, the Court issued a writ of
execution against the defendants. The writ having been returned unsatisfied, the plaintiffs moved
for the issuance of a writ of execution against the Surety's bond (Rec. on Appeal, pp. 46-49),
against which the Surety filed a written opposition (Id. pp. 49) upon two grounds, namely, (1)
Failure to prosecute and (2) Absence of a demand upon the Surety for the payment of the amount
due under the judgment. Upon these grounds the Surety prayed the Court not only to deny the
motion for execution against its counter-bond but also the following affirmative relief : "to relieve
the herein bonding company of its liability, if any, under the bond in question" (Id. p. 54) The
Court denied this motion on the ground solely that no previous demand had been made on the
Surety for the satisfaction of the judgment. Thereafter the necessary demand was made, and upon
failure of the Surety to satisfy the judgment, the plaintiffs filed a second motion for execution
against the counterbond. On the date set for the hearing thereon, the Court, upon motion of the
Surety's counsel, granted the latter a period of five days within which to answer the motion. Upon
its failure to file such answer, the Court granted the motion for execution and the corresponding
writ was issued.
Subsequently, the Surety moved to quash the writ on the ground that the same was issued without
the required summary hearing provided for in Section 17 of Rule 59 of the Rules of Court. As the
Court denied the motion, the Surety appealed to the Court of Appeals from such order of denial
and from the one denying its motion for reconsideration (Id. p. 97). Its record on appeal was then
printed as required by the Rules, and in due time it filed its brief raising therein no other question
but the ones covered by the following assignment of errors:
I. That the Honorable Court a quo erred in issuing its order dated November 2, 1957, by
holding the incident as submitted for resolution, without a summary hearing and
compliance with the other mandatory requirements provided for in Section 17, Rule 59 of
the Rules of Court.
II. That the Honorable Court a quo erred in ordering the issuance of execution against
the herein bonding company-appellant.
III. That the Honorable Court a quo erred in denying the motion to quash the writ of
execution filed by the herein bonding company-appellant as well as its subsequent
motion for reconsideration, and/or in not quashing or setting aside the writ of execution.
Not one of the assignment of errors it is obvious raises the question of lack of jurisdiction,
neither directly nor indirectly.
Although the appellees failed to file their brief, the Court of Appeals, on December 11, 1962,
decided the case affirming the orders appealed from.
On January 8, 1963 five days after the Surety received notice of the decision, it filed a motion
asking for extension of time within which to file a motion for reconsideration. The Court of Appeals
granted the motion in its resolution of January 10 of the same year. Two days later the Surety filed
a pleading entitled MOTION TO DISMISS, alleging substantially that appellees action was filed in
the Court of First Instance of Cebu on July 19, 1948 for the recovery of the sum of P1,908.00 only;
that a month before that date Republic Act No. 296, otherwise known as the Judiciary Act of 1948,
had already become effective, Section 88 of which placed within the original exclusive jurisdiction
of inferior courts all civil actions where the value of the subject-matter or the amount of the
demand does not exceed P2,000.00, exclusive of interest and costs; that the Court of First Instance
therefore had no jurisdiction to try and decide the case. Upon these premises the Surety's motion
prayed the Court of Appeals to set aside its decision and to dismiss the case. By resolution of
January 16, 1963 the Court of Appeals required the appellees to answer the motion to dismiss, but
they failed to do so. Whereupon, on May 20 of the same year, the Court resolved to set aside its
decision and to certify the case to Us. The pertinent portions of its resolution read as follows:
It would indeed appear from the record that the action at bar, which is a suit for
collection of money in the sum of exactly P1,908.00 exclusive of interest, was originally
instituted in the Court of First Instance of Cebu on July 19, 1948. But about a month prior
to the filing of the complaint, more specifically on June 17, 1948, the Judiciary Act of
1948 took effect, depriving the Court of First Instance of original jurisdiction over cases
in which the demand, exclusive of interest, is not more than P2,000.00. (Secs. 44[c] and
86[b], R.A. No. 296.)
We believe, therefore, that the point raised in appellant's motion is an important one
which merits serious consideration. As stated, the complaint was filed on July 19, 1948.
This case therefore has been pending now for almost 15 years, and throughout the entire
proceeding appellant never raised the question of jurisdiction until after receipt of this
Court's adverse decision.
 There are three cases decided by the Honorable Supreme Court which may be worthy of
consideration in connection with this case, namely: Tyson Tan, et al. vs. Filipinas
Compaia de Seguros, et al., G.R. No. L-10096, March 23, 1956; Pindangan Agricultural
Co., Inc. vs. Jose P. Dans, etc., et al., G.R. No. L-14591, September 26, 1962; and Alfredo
Montelibano, et al. vs. Bacolod-Murcia Milling Co., Inc., G.R. No. L-15092, September 29,
1962, wherein the Honorable Supreme Court frowned upon the 'undesirable practice' of
appellants submitting their case for decision and then accepting the judgment, if
favorable, but attacking it for lack of jurisdiction when adverse.
Considering, however, that the Supreme Court has the "exclusive" appellate jurisdiction
over "all cases in which the jurisdiction of any inferior court is in issue" (See. 1, Par. 3[3],
Judiciary Act of 1948, as amended), we have no choice but to certify, as we hereby do
certify, this case to the Supreme Court.1wph1.t
ACCORDINGLY, pursuant to Section 31 of the Judiciary Act of 1948 as amended, let the
record of this case be forwarded to the Supreme Court.
It is an undisputed fact that the action commenced by appellees in the Court of First Instance of
Cebu against the Sibonghanoy spouses was for the recovery of the sum of P1,908.00 only an
amount within the original exclusive jurisdiction of inferior courts in accordance with the
provisions of the Judiciary Act of 1948 which had taken effect about a month prior to the date
when the action was commenced. True also is the rule that jurisdiction over the subject matter is
conferred upon the courts exclusively by law, and as the lack of it affects the very authority of the
court to take cognizance of the case, the objection may be raised at any stage of the proceedings.
However, considering the facts and circumstances of the present case which shall forthwith be
set forth We are of the opinion that the Surety is now barred by laches from invoking this plea at
this late hour for the purpose of annuling everything done heretofore in the case with its active
participation.
As already stated, the action was commenced in the Court of First Instance of Cebu on July 19,
1948, that is, almost fifteen years before the Surety filed its motion to dismiss on January 12, 1963
raising the question of lack of jurisdiction for the first time.
It must be remembered that although the action, originally, was exclusively against the
Sibonghanoy spouses the Surety became a quasi-party therein since July 31, 1948 when it filed a
counter-bond for the dissolution of the writ of attachment issued by the court of origin (Record on
Appeal, pp. 15-19). Since then, it acquired certain rights and assumed specific obligations in
connection with the pending case, in accordance with sections 12 and 17, Rule 57, Rules of Court
(Bautista vs. Joaquin, 46 Phil. 885; Kimpang & Co. vs. Javier, 65 Phil. 170).
Upon the filing of the first motion for execution against the counter-bond the Surety not only filed
a written opposition thereto praying for its denial but also asked for an additional affirmative
relief that it be relieved of its liability under the counter-bond upon the grounds relied upon in
support of its opposition lack of jurisdiction of the court a quo not being one of them.
Then, at the hearing on the second motion for execution against the counter-bond, the Surety
appeared, through counsel, to ask for time within which to file an answer or opposition thereto.
This motion was granted, but instead of such answer or opposition, the Surety filed the motion to
dismiss mentioned heretofore.
A party may be estopped or barred from raising a question in different ways and for different
reasons. Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel
by laches.
Laches, in a general sense is failure or neglect, for an unreasonable and unexplained length of time,
to do that which, by exercising due diligence, could or should have been done earlier; it is
negligence or omission to assert a right within a reasonable time, warranting a presumption that
the party entitled to assert it either has abandoned it or declined to assert it.
The doctrine of laches or of "stale demands" is based upon grounds of public policy which requires,
for the peace of society, the discouragement of stale claims and, unlike the statute of limitations, is
not a mere question of time but is principally a question of the inequity or unfairness of permitting
a right or claim to be enforced or asserted.
It has been held that a party can not invoke the jurisdiction of a court to sure affirmative relief
against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that
same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of
explaining the rule, it was further said that the question whether the court had jurisdiction either of
the subject-matter of the action or of the parties was not important in such cases because the party
is barred from such conduct not because the judgment or order of the court is valid and conclusive
as an adjudication, but for the reason that such a practice can not be tolerated obviously for
reasons of public policy.
Furthermore, it has also been held that after voluntarily submitting a cause and encountering an
adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the
court (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs.
McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that
it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty.
Upon this same principle is what We said in the three cases mentioned in the resolution of the
Court of Appeals of May 20, 1963 (supra) to the effect that we frown upon the "undesirable
practice" of a party submitting his case for decision and then accepting the judgment, only if
favorable, and attacking it for lack of jurisdiction, when adverse as well as in Pindagan etc. vs.
Dans, et al., G.R. L-14591, September 26, 1962; Montelibano, et al., vs. Bacolod-Murcia Milling
Co., Inc., G.R. L-15092; Young Men Labor Union etc. vs. The Court of Industrial Relation et al.,
G.R. L-20307, Feb. 26, 1965, and Mejia vs. Lucas, 100 Phil. p. 277.
The facts of this case show that from the time the Surety became a quasi-party on July 31, 1948, it
could have raised the question of the lack of jurisdiction of the Court of First Instance of Cebu to
take cognizance of the present action by reason of the sum of money involved which, according to
the law then in force, was within the original exclusive jurisdiction of inferior courts. It failed to do
so. Instead, at several stages of the proceedings in the court a quo as well as in the Court of
Appeals, it invoked the jurisdiction of said courts to obtain affirmative relief and submitted its case
for a final adjudication on the merits. It was only after an adverse decision was rendered by the
Court of Appeals that it finally woke up to raise the question of jurisdiction. Were we to sanction
such conduct on its part, We would in effect be declaring as useless all the proceedings had in the
present case since it was commenced on July 19, 1948 and compel the judgment creditors to go up
their Calvary once more. The inequity and unfairness of this is not only patent but revolting.
Coming now to the merits of the appeal: after going over the entire record, We have become
persuaded that We can do nothing better than to quote in toto, with approval, the decision
rendered by the Court of Appeals on December 11, 1962 as follows:
In Civil Case No. R-660 of the Court of First Instance of Cebu, which was a suit for
collection of a sum of money, a writ of attachment was issued against defendants'
properties. The attachment, however, was subsequently discharged under Section 12 of
Rule 59 upon the filing by defendants of a bond subscribed by Manila Surety & Fidelity
Co., Inc.
After trial, judgment was rendered in favor of plaintiffs.
The writ of execution against defendants having been returned totally unsatisfied, plaintiffs
moved, under Section 17 of Rule 59, for issuance of writ of execution against Manila Surety &
Fidelity Co., Inc. to enforce the obligation of the bond. But the motion was, upon the surety's
opposition, denied on the ground that there was "no showing that a demand had been made, by
the plaintiffs to the bonding company for payment of the amount due under the judgment"
(Record on Appeal, p. 60).
Hence, plaintiffs made the necessary demand upon the surety for satisfaction of the judgment,
and upon the latter's failure to pay the amount due, plaintiffs again filed a motion dated
October 31, 1957, for issuance of writ of execution against the surety, with notice of hearing on
November 2, 1957. On October 31, 1957, the surety received copy of said motion and notice of
hearing.
It appears that when the motion was called on November 2, 1957, the surety's counsel asked
that he be given time within which to answer the motion, and so an order was issued in open
court, as follows:
As prayed for, Atty. Jose P. Soberano, Jr., counsel for the Manila Surety & Fidelity
Co., Inc., Cebu Branch, is given until Wednesday, November 6, 1957, to file his
answer to the motion for the issuance of a writ of execution dated October 30, 1957
of the plaintiffs, after which this incident shall be deemed submitted for resolution.
SO ORDERED.
Given in open court, this 2nd day of November, 1957, at Cebu City, Philippines.
(Sgd.) JOSE M. MENDOZA
Judge
(Record on Appeal, pp.
64-65, emphasis ours)
Since the surety's counsel failed to file any answer or objection within the period given him, the
court, on December 7, 1957, issued an order granting plaintiffs' motion for execution against
the surety; and on December 12, 1957, the corresponding writ of execution was issued.
On December 24, 1957, the surety filed a motion to quash the writ of execution on the ground
that the same was "issued without the requirements of Section 17, Rule 59 of the Rules of Court
having been complied with," more specifically, that the same was issued without the required
"summary hearing". This motion was denied by order of February 10, 1958.
On February 25, 1958, the surety filed a motion for reconsideration of the above-stated
order of denial; which motion was likewise denied by order of March 26, 1958.
From the above-stated orders of February 10, 1958 and March 26, 1958 denying the
surety's motion to quash the writ of execution and motion for reconsideration,
respectively the surety has interposed the appeal on hand.
The surety insists that the lower court should have granted its motion to quash the writ of
execution because the same was issued without the summary hearing required by Section
17 of Rule 59, which reads;
"Sec. 17. When execution returned unsatisfied, recovery had upon bond. If the
execution be returned unsatisfied in whole or in part, the surety or sureties on any
bond given pursuant to the provisions of this role to secure the payment of the
judgment shall become finally charged on such bond, and bound to pay to the
plaintiff upon demand the amount due under the judgment, which amount may be
recovered from such surety or sureties after notice and summary hearing in the
same action." (Emphasis ours)
Summary hearing is "not intended to be carried on in the formal manner in which ordinary
actions are prosecuted" (83 C.J.S. 792). It is, rather, a procedure by which a question is
resolved "with dispatch, with the least possible delay, and in preference to ordinary legal and
regular judicial proceedings" (Ibid, p. 790). What is essential is that "the defendant is notified
or summoned to appear and is given an opportunity to hear what is urged upon him, and to
interpose a defense, after which follows an adjudication of the rights of the parties" (Ibid., pp.
793-794); and as to the extent and latitude of the hearing, the same will naturally lie upon the
discretion of the court, depending upon the attending circumstances and the nature of the
incident up for consideration.
In the case at bar, the surety had been notified of the plaintiffs' motion for execution and of the
date when the same would be submitted for consideration. In fact, the surety's counsel was
present in court when the motion was called, and it was upon his request that the court a
quo gave him a period of four days within which to file an answer. Yet he allowed that period to
lapse without filing an answer or objection. The surety cannot now, therefore, complain that it
was deprived of its day in court.
It is argued that the surety's counsel did not file an answer to the motion "for the simple reason
that all its defenses can be set up during the hearing of the motion even if the same are not
reduced to writing" (Appellant's brief, p. 4). There is obviously no merit in this pretense
because, as stated above, the record will show that when the motion was called, what the
surety's counsel did was to ask that he be allowed and given time to file an answer. Moreover, it
was stated in the order given in open court upon request of the surety's counsel that after the
four-day period within which to file an answer, "the incident shall be deemed submitted for
resolution"; and counsel apparently agreed, as the order was issued upon his instance and he
interposed no objection thereto.
It is also urged that although according to Section 17 of Rule 59, supra, there is no need for a
separate action, there must, however, be a separate judgment against the surety in order to
hold it liable on the bond (Appellant's Brief, p. 15). Not so, in our opinion. A bond filed for
discharge of attachment is, per Section 12 of Rule 59, "to secure the payment to the plaintiff of
any judgment he may recover in the action," and stands "in place of the property so released".
Hence, after the judgment for the plaintiff has become executory and the execution is "returned
unsatisfied" (Sec. 17, Rule 59), as in this case, the liability of the bond automatically attaches
and, in failure of the surety to satisfy the judgment against the defendant despite demand
therefor, writ of execution may issue against the surety to enforce the obligation of the bond.
UPON ALL THE FOREGOING, the orders appealed from are hereby affirmed, with costs against the
appellant Manila Surety and Fidelity Company, Inc.
Reyes, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46267 November 28, 1938
FRANCISCO ZANDUETA, petitioner,
vs.
SIXTO DE LA COSTA, respondent.
Vicente J. Francisco and Francisco Zandueta for petitioner.
Solicitor-General Ozaeta and Ramon Diokno for respondent.
VILLA-REAL, J.:
This is a quo warranto proceeding instituted by the Honorable Francisco Zandueta against the
Honorable Sixto de la Costa to obtain from this court a judgment declaring the respondent to be
illegally occupying the office of Judge of the Fifth Branch of the Court of First Instance of Manila,
Fourth Judicial District, ousting him from said office, and holding that the petitioner is entitled to
continue occupying the office in question by placing him in possession thereof, with costs to said
respondent.
Prior to the promulgation of Commonwealth Act No. 145, the petitioner, the Honorable Francisco
Zandueta was discharging the office of judge of first instance, Ninth Judicial District, comprising
solely the City of Manila, and was presiding over the Fifth Branch of the Court of First Instance of
said city, by virtue of an ad interim appointment issued by the President of the Philippines in his
favor on June 2, 1936, and confirmed by the Commission on Appointments of the National
Assembly on September 8th of the same year.
On November 7, 1936, the date on which Commonwealth Act No. 145, otherwise known as
the Judicial Reorganization Law, took effect, the petitioner received from the President of the
Commonwealth a new ad interim appointment as judge of first instance, this time of the Fourth
Judicial District, with authority to preside over the Courts of First Instance of Manila and Palawan,
issued in accordance with said Act. As the National Assembly adjourned on November 20,
1937, without its Commission on Appointments having acted on said ad interim appointment,
another ad interim appointment to the same office was issued in favor of said petitioner, pursuant
to which he took a new oath on November 22, 1937, before discharging the duties thereof.
After his appointment and qualification as judge of first instance of the Fourth Judicial District, the
petitioner, acting as executive judge, performed several executive acts, some of which consist in the
designation of the assistant clerk of the Court of First Instance of Manila, Ladislao Pasicolan, as
administrative officer, under the orders of the petitioner, as executive judge of said court, to take
charge of all matters pertaining to the Court of First Instance of Palawan, which are handled by
said execute judge in Manila (Exhibit 2); in the appointment of attorney Rufo M. San Juan as
notary public for the Province of Palawan, said appointment to expire on December 31, 1938
(Exhibit 3); in having authorized justice of the peace Iigo R. Pea to defend a criminal case the
hearing of which had begun during the past sessions in Coron, Palawan (Exhibit 5); in having
granted a leave of absence of ten days to justice of the peace Abordo (of Puerto Princesa), Palawan
(Exhibit 8); and in having granted a leave of absence of thirteen days to the justice of the peace of
Coron, Palawan (Exhibit 9).
On May 19, 1938, the Commission on Appointments of the National Assembly disapproved the
aforesaid ad interim appointment of said petitioner, who was advised thereof by the Secretary of
Justice on the 20th of said month and year.
On August 1, 1938, the President of the Philippines appointed the herein respondent, Honorable
Sixto de la Costa, judge of first instance of the Fourth Judicial District, with authority to preside
over the Fifth Branch of the Court of First Instance of Manila and the Court of First Instance of
Palawan, and his appointment was approved by the Commission on Appointments of the National
Assembly. By virtue of said appointment, the respondent took the necessary oath and assumed
office. On the same date, August 1, 1938, the President of the Philippines, pursuant to said
appointment of judge of first instance of the Fourth Judicial District and after confirmation
thereof, issued the corresponding final appointment in favor of the respondent, Honorable Sixto de
la Costa (Exhibit 11).
The respondent, in answer to the petition, admits some of the facts alleged therein and denies the
rest, and alleges, as one of his special defenses, that the petitioner is estopped from attacking the
constitutionality of Commonwealth Act No. 145, for having accepted his new appointment as judge
of first instance of the Fourth Judicial District, issued by virtue thereof, to preside over the Courts
of First Instance of Manila and Palawan, and for having taken the necessary oath, entering into the
discharge of the functions of his office and performing judicial as well as administrative acts.
The defense of estoppel being procedural, we shall discuss it first to determine whether or not the
petitioner may proceed to question the constitutionality of the law by virtue of which the new ad
interim appointment of judge of first instance of the Fourth Judicial District, to preside over the
Courts of First Instance of Manila and Palawan, was issued in his favor.
As stated beforehand, while the petitioner Honorable Francisco Zandueta was presiding over the
Fifth Branch of the Court of First Instance of Manila, Ninth Judicial District, by virtue of an
appointment issued to him on June 2, 1936, and confirmed by the National Assembly on
September 8th of the same year, he received, on November 7, 1936, a new ad
interim appointment, issued in accordance with the provisions of Commonwealth Act No. 145,
which took effect on the same date, to discharge the office of judge of first instance, Fourth Judicial
District, with authority to preside over the Fifth Branch of the Court of First Instance of Manila and
the Court of First Instance of Palawan, upon which he immediately took the corresponding oath
and entered into the discharge of his office. Under his former appointment of June 2, 1936, the
petitioner had authority preside solely over the Fifth Branch of the Court of First Instance of
Manila but not over the Court of First Instance of Palawan, while, according to his new
appointment of November 7, 1936, he had authority to preside not only over said Fifth
Branch of said Court of First Instance of Manila but also over the Court of First Instance of
Palawan. It should be noted that the territory over which the petitioner could exercise and did
exercise jurisdiction by virtue of his last appointment is wider than that over which he could
exercise and did exercise jurisdiction by virtue of the former. Hence, there is incompatibility
between the two appointments and, consequently, in the discharge of the office conferred by each
of them, resulting in the absorption of the former by the latter. In accepting this appointment and
qualifying for the exercise of the functions of the office conferred by it, by taking the necessary
oath, and in discharging the same, disposing of both judicial and administrative cases
corresponding to the courts of First Instance of Manila and of Palawan, the petitioner abandoned
his appointment of June 2, 1936, and ceased in the exercise of the functions of the office occupied
by him by virtue thereof.
The rule of equity, sanctioned by jurisprudence, is that when a public official voluntarily accepts an
appointment to an office newly created or reorganized by law, which new office is incompatible
with the one formerly occupied by him , qualifies for the discharge of the functions thereof by
taking the necessary oath, and enters into the performance of his duties by executing acts inherent
in said newly created or reorganized office and receiving the corresponding salary, he will be
considered to have abandoned the office he was occupying by virtue of his former appointment (46 For the foregoing considerations, we are of the opinion and so hold when a judge of first instance,
Corpus Juris, 947, sec. 55), and he can not question the constitutionality of the law by virtue of presiding over a branch of a Court of First Instance of a judicial district by virtue of a legal and
which he was last appointed (11 American Jurisprudence, 166, par. 121; id., 767, par. 123). He is valid appointment, accepts another appointment to preside over the same branch of the same
excepted from said rule only when his non-acceptance of the new appointment may affect public Court of First Instance, in addition to another court of the same category, both of which belong to a
interest or when he is compelled to accept it by reason of legal exigencies (11 American new judicial district formed by the addition of another Court of First Instance to the old one, enters
Jurisprudence, 770, par. 124). lawphi1.net into the discharge of the functions of his new office and receives the corresponding salary, he
abandons his old office and cannot claim to be to repossess it or question the constitutionality of
the law by virtue of which his new appointment has been issued; and, said new appointment
In the case under consideration, the petitioner was free to accept or not the ad
having been disapproved by the Commission on Appointments of the National Assembly, neither
interim appointment issued by the President of the Commonwealth in his favor, in accordance with
can he claim to continue occupying the office conferred upon him by said new appointment,
said Commonwealth Act No. 145. Nothing or nobody compelled him to do so. While the office of
having ipso jure ceased in the discharge of the functions thereof.
judge of first instance of public interest, being one of the means employed by the Government to
carry out one of its purposes, which is the administration of justice, considering the organization of
the courts of justice in the Philippines and the creation of the positions of judges-at-large or Wherefore, the petition for quo warranto instituted is denied and the same is dismissed with costs
substitutes, the temporary disability of a judge may be immediately remedied without detriment to to the petitioner. So ordered.
the smooth running of the judicial machinery. If the petitioner believed, as he now seems to
believe, that Commonwealth Act No. 145 is unconstitutional, he should have refused to accept the
Avancea, C.J., Abad Santos, Imperial and Concepcion, JJ., concur.
appointment offered him or, at least, he should have accepted it with reservation, had he believed
that his duty of obedience to the laws compelled him to do so, and afterwards resort to the power
entrusted with the final determination of the question whether a law is unconstitutional or not. The
petitioner, being aware of his constitutional and legal rights and obligations, by implied order of
the law (art. 2, Civil Code), accepted the office of judge of first instance of the Fourth Judicial
District, with authority to preside over the Fifth Branch of the Court of First Instance of Manila and
the Court of First Instance of Palawan and entered into the performance of the duties inherent
therein, after taking the necessary oath, thereby acting with full knowledge that if he voluntarily
accepted the office to which he was appointed, he would later be estopped from questioning the
validity of said appointment by alleging that the law, by virtue of which his appointment was
issued, is unconstitutional. He likewise knew, or at least he should know, that his ad
interim appointment was subject to the approval of the Commission on Appointments of the
National Assembly and that if said commission were to disapprove the same, it would become
ineffective and he would cease discharging the office.

It appears from all the foregoing that the petitioner having voluntarily abandoned his appointment
of June 2, 1936, and, consequently, the office of judge of first instance of Manila, Ninth Judicial
District, whose Fifth Branch was being presided over by him by virtue thereof, upon accepting
the ad interim appointment of November 7, 1936, to the office of judge of first instance of
the Fourth Judicial District, with authority to preside over said Fifth Branch of the Court of First
Instance of Manila together with the Court of First Instance of Palawan, and entering into the
discharge of the functions of said office, he can not now claim to be entitled to repossess the office
occupied by him under his said appointment of June 2, 1936 (22 R. C. L., 560, par. 264), or
question the constitutionality of Commonwealth Act No. 145, by virtue of which he has been
appointed judge of first instance of the Fourth Judicial District, with authority to preside over the
Fifth Branch of the Court of First Instance of Manila and the Court of First Instance of Palawan,
which appointment was disapproved by the Commission on Appointments of the National
Assembly.

Having arrived at the conclusion that the petitioner is estopped by his own act from proceeding to
question the constitutionality of Commonwealth Act No. 145, by virtue of which he was appointed,
by accepting said appointment and entering into the performance of the duties appertaining to the
office conferred therein, and pursuant to the well settled doctrine established by both American
and Philippine jurisprudence relative to the consideration of constitutional questions, this court
deems it unnecessary to decide the questions constitutional law raised in the petition
(Cruz vs. Youngberg, 56 Phil., 234; Walter E. Olsen and Co. vs. Aldanese and Trinidad, 43 Phil.,
259; Yangco vs. Board of Public Utility Commissioner, 36 Phil., 116; Government of the Philippine
Islands vs. Municipality of Binagonan, 34 Phil., 518; McGirr vs. Hamilton and Abreu, 30 Phil.,
563; 12 Corpus Juris, 699, section 40; id., 780, section 212).
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON.
JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON.
ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation
and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of
Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor
Amado D. Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is
assailed in this prohibition proceeding as being violative of the constitutional guarantee of due
process and, insofar as the rules and regulations for its implementation are concerned, for
transgressing the fundamental principle of non- delegation of legislative power. The Letter of
Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being
arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu,
Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L.
Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino,
Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor
General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear
that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction
on is a valid police power measure. Nor could the implementing rules and regulations issued by
respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the
petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor
vehicles along streets or highways without any appropriate early warning device to signal
approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the
said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207,
recommended the enactment of local legislation for the installation of road safety signs and
devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of
safety on all streets and highways, including expressways or limited access roads, do hereby direct:
1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles
at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates
in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any
motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or
highway, including expressways or limited access roads, the owner, user or driver thereof shall
cause the warning device mentioned herein to be installed at least four meters away to the front
and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation
Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to
be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers,
charging for each piece not more than 15 % of the acquisition cost. He shall also promulgate such
rules and regulations as are appropriate to effectively implement this order. 4. All hereby
concerned shall closely coordinate and take such measures as are necessary or appropriate to carry
into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of
Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended
to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle
owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized
early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land
Transportation Commissioner shall also promulgate such rule and regulations as are appropriate
to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the
implementing rules and regulations on December 10, 1976. 5 They were not enforced as President
Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of
early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on
June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the
immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August
29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of
Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No.
229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices
(EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC
Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the
device may come from whatever source and that it shall have substantially complied with the EWD
specifications contained in Section 2 of said administrative order; 2. In order to insure that every
motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered
stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD.
serial number shall be indicated on the registration certificate and official receipt of payment of
current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in
conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was for
immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works,
transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035,
already properly equipped when it came out from the assembly lines with blinking lights fore and
aft, which could very well serve as an early warning device in case of the emergencies mentioned in
Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in
Administrative Order No. 1 issued by the land transportation Commission," 11 alleged that said
Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police
power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended
that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will
make manufacturers and dealers instant millionaires at the expense of car owners who are
compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per
set." 14are unlawful and unconstitutional and contrary to the precepts of a compassionate New
Society [as being] compulsory and confiscatory on the part of the motorists who could very well
provide a practical alternative road safety device, or a better substitute to the specified set of
EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and
Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo
C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues
raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or
mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto
within ton (10) days from notice and not to move to dismiss the petition. The Court further
Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until
otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual
allegations and stating that they lacked knowledge or information sufficient to form a belief as to
petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they
lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen
Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI (including its
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by
Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission
Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional
provisions on due process of law, equal protection of law and undue delegation of police power,
and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations are without legal and factual basis
and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike
petitioner who contented himself with a rhetorical recital of his litany of grievances and merely
invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the
assailed Letter of Instruction was a valid exercise of the police power and implementing rules and
regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of
legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of
what respondents believed to be the authoritative decisions of this Tribunal calling for application.
They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise
made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and
signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General
Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times
intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing
rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive
quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly joined. As
noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is
conceded by petitioner and is the main reliance of respondents. It is the submission of the former,
however, that while embraced in such a category, it has offended against the due process and equal
protection safeguards of the Constitution, although the latter point was mentioned only in passing.
The broad and expansive scope of the police power which was originally Identified by Chief Justice
Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the
powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case
of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into
force, Calalang v. Williams, Identified police power with state authority to enact legislation that
may interfere with personal liberty or property in order to promote the general welfare. Persons
and property could thus 'be subjected to all kinds of restraints and burdens in order to we the
general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias
v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a pre-
Commonwealth decision as 'that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be
hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative
power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to
quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as
Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet
the exigencies of the times, even to anticipate the future where it could be done, provides enough
room for an efficient and flexible response to conditions and circumstances thus assuring the
greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the
past may be interwoven in the present with the well-being of the nation. What is critical or urgent
changes with the time.' The police power is thus a dynamic agency, suitably vague and far from
precisely defined, rooted in the conception that men in organizing the state and imposing upon its
government limitations to safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to communal peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the
particular police power measure challenged was clearly intended to promote public safety. It would
be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that
character. None has been called to our attention, an indication of its being non-existent. The latest
decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment
conceived with the same end in view. Calalang v. Williams found nothing objectionable in a
statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads
and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be
nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner
failing in his quest, was likewise prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing
rules and regulations becomes even more apparent considering his failure to lay the necessary
factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in
an excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the
opinion: "The statute here questioned deals with a subject clearly within the scope of the police
power. We are asked to declare it void on the ground that the specific method of regulation
prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying
questions of fact may condition the constitutionality of legislation of this character, the
presumption of constitutionality must prevail in the absence of some factual foundation of record
in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of
validity. As was pointed out in his Answer "The President certainly had in his possession the
necessary statistical information and data at the time he issued said letter of instructions, and such
factual foundation cannot be defeated by petitioner's naked assertion that early warning devices
'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or
1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end
collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record.
As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being
a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of
petitioner's statistics, is that not reason enough to require the installation of early warning devices
to prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and
the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It
is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of
prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due
process clause is to give sanction to conjectural claims that exceeded even the broadest permissible
limits of a pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction
was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is
not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with
1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights
inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor
vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal
among the signatory countries to the said 1968 Vienna Conventions, and visible even under
adverse conditions at a distance of at least 400 meters, any motorist from this country or from any
part of the world, who sees a reflectorized rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking, that somewhere along the travelled
portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or
disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any
of the aforementioned other built in warning devices or the petroleum lamps will not immediately
get adequate advance warning because he will still think what that blinking light is all about. Is it
an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or
uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of
collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer
of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as
amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to
purchase the early warning device prescribed thereby. All that is required is for motor vehicle
owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning
device in question, procuring or obtaining the same from whatever source. In fact, with a little of
industry and practical ingenuity, motor vehicle owners can even personally make or produce this
early warning device so long as the same substantially conforms with the specifications laid down
in said letter of instruction and administrative order. Accordingly the early warning device
requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make
manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as
petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device
requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an
unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in
an unreasonable manner or to an unreasonable degree, does not render the same illegal or
immoral where, as in the instant case, the challenged Letter of Instruction No. 229 and
implementing order disclose none of the constitutional defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on
lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say
negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is
distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this
Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or
expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to
supervise legislation and keep it within the bounds of propriety and common sense. That is
primarily and exclusively a legislative concern.' There can be no possible objection then to the
observation of Justice Montemayor. 'As long as laws do not violate any Constitutional provision,
the Courts merely interpret and apply them regardless of whether or not they are wise or salutary.
For they, according to Justice Labrador, 'are not supposed to override legitimate policy and * * *
never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion
in Gonzales v. Commission on Elections, that only congressional power or competence, not the
wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be.
The principle of separation of powers has in the main wisely allocated the respective authority of
each department and confined its jurisdiction to such a sphere. There would then be intrusion not
allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the
judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the
last offender should be courts of justice, to which rightly litigants submit their controversy
precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on
the validity of the challenged provision likewise insofar as there may be objections, even if valid
and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of legislative power is
equally without any support well-settled legal doctrines. Had petitioner taken the trouble to
acquaint himself with authoritative pronouncements from this Tribunal, he would not have the
temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds
light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which
implies at the very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard
thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command is to be effected. It is
the criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations. The standard may be either express or implied. If the former,
the non-delegation objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered as a whole. In the
Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as
in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given
expression by Justice Laurel in a decision announced not too long after the Constitution came into
force and effect that the principle of non-delegation "has been made to adapt itself to the
complexities of modern governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation" not only in the United States and England but in practically
all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life,
the multiplication of the subjects of governmental regulation, and the increased difficulty of
administering the laws, there is a constantly growing tendency toward the delegation of greater
powers by the legislature and toward the approval of the practice by the courts.' Consistency with
the conceptual approach requires the reminder that what is delegated is authority non-legislative
in character, the completeness of the statute when it leaves the hands of Congress being
assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of
Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention,
which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment
of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be
disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The
Philippines * * * adopts the generally accepted principles of international law as part of the law of
the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a
character. It is not for this country to repudiate a commitment to which it had pledged its word.
The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at
war with the principle of international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even
elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and
categorical why such a casual observation should be taken seriously. In no case is there a more
appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far
Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered
unless the point is specially pleaded, insisted upon, and adequately argued." 38 "Equal protection"
is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect
that success will crown his efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is
immediately executory. No costs.

Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, concur.

Makasiar, J, reserves the right to file a separate opinion.

Aquino J., took no part.

Concepcion J., is on leave.

Castro, C.J., certifies that Justice Concepcion concurs in their decision.

 Republic of the Philippines presided by HONORABLE ASAALI S. ISNANI Branch 153, Court of First Instance of
SUPREME COURT Pasig, Metro Manila, respondent.
Manila
G.R No. 75765-67 December 18, 1986
EN BANC
LUIS M. HOJAS, petitioner,
G.R. No. L-63419 December 18, 1986 vs.
HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of
Cagayan de Oro City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON,
FLORENTINA A. LOZANO, petitioner,
Presiding Judge, Regional Trial Court of Cagayan de Oro City, Branch XXII,
vs.
HONORABLE CITY FISCAL NOLI T. CATHI, City Fiscal of Cagayan de Oro
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge,
City, respondents.
Regional Trial Court, National Capital Judicial Region, Branch XX, Manila, and the
HONORABLE JOSE B. FLAMINIANO, in his capacity as City Fiscal of
Manila, respondents. G.R. No. 75789 December 18, 1986

G.R. No. L-66839-42 December 18, 1986
LUZVIMINDA F. LOBATON petitioner,
vs.
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding Executive Judge,
Branch V, Region IV, Regional Trial Court, sitting at Lemery, Batangas, THE
PROVINCIAL FISCAL OF BATANGAS, and MARIA LUISA TORDECILLA, respondents.
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, National Capital
Judicial Region, Branch 52, Manila and THELMA SARMIENTO, respondents.
R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-13,
G.R. Nos. 75765-67 and counsel for respondent in G.R. No. 75789.

G.R No. 71654 December 18, 1986 Pio S. Canta for petitioner in G.R. Nos. 66839-42.

ANTONIO DATUIN and SUSAN DATUIN, petitioners, Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
vs.
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon City, Branch
Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49.
LXXXVIII, HONORABLE ClTY FISCAL OF QUEZON CITY, respondents.

The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654, G.R.
G.R. No. 74524-25 December 18, 1986
Nos. 74524-25, G.R. Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for
petitioner in G.R. No. 75789.
OSCAR VIOLAGO, petitioner,
vs.
HONORABLE JUDGE ERNANI C. PA;O Regional Trial Court, Quezon City, Branch
LXXXVIII, HONORABLE CITY FISCAL OF QUEZON CITY, respondents.
YAP, J.:
G.R. No. 75122-49 December 18, 1986
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the
Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by these
ELINOR ABAD, petitioner,
petitions for decision. The question is definitely one of first impression in our jurisdiction.
vs.
THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch 139, Makati and These petitions arose from cases involving prosecution of offenses under the statute. The
FEDERICO L. MELOCOTTON JR., in his capacity as Trial Fiscal Regional Trial Court, defendants in those cases moved seasonably to quash the informations on the ground that the acts
Branch 139, Makati, respondents. charged did not constitute an offense, the statute being unconstitutional. The motions were denied
by the respondent trial courts, except in one case, which is the subject of G. R. No. 75789, wherein
the trial court declared the law unconstitutional and dismissed the case. The parties adversely
G.R No. 75812-13 December 18, 1986
affected have come to us for relief.

AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners,

As a threshold issue the former Solicitor General in his comment on the petitions, maintained the
vs.
posture that it was premature for the accused to elevate to this Court the orders denying their
HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but temporarily
motions to quash, these orders being interlocutory. While this is correct as a general rule, we have
in justifiable cases intervened to review the lower court's denial of a motion to quash. 1 In view of
the importance of the issue involved here, there is no doubt in our mind that the instant petitions
should be entertained and the constitutional challenge to BP 22 resolved promptly, one way or the
other, in order to put to rest the doubts and uncertainty that exist in legal and judicial circles and
the general public which have unnecessarily caused a delay in the disposition of cases involving the
enforcement of the statute.
For the purpose of resolving the constitutional issue presented here, we do not find it necessary to
delve into the specifics of the informations involved in the cases which are the subject of the
petitions before us. 2 The language of BP 22 is broad enough to cover all kinds of checks, whether
present dated or postdated, or whether issued in payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of value.
I checks, this provision was deemed to cover within its ambit the issuance of worthless or bogus
BP 22 punishes a person "who makes or draws and issues any check on account or for value,
knowing at the time of issue that he does not have sufficient funds in or credit with the drawee
bank for the payment of said check in full upon presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the bank to stop
payment." The penalty prescribed for the offense is imprisonment of not less than 30 days nor
more than one year or a fine or not less than the amount of the check nor more than double said
amount, but in no case to exceed P200,000.00, or both such fine and imprisonment at the
discretion of the court. 3
The statute likewise imposes the same penalty on "any person who, having sufficient funds in or
credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the check if presented within a period of
ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee
bank. 4
An essential element of the offense is "knowledge" on the part of the maker or drawer of the check
of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment.
Since this involves a state of mind difficult to establish, the statute itself creates a prima
facie presumption of such knowledge where payment of the check "is refused by the drawee
because of insufficient funds in or credit with such bank when presented within ninety (90) days
from the date of the check. 5 To mitigate the harshness of the law in its application, the statute
provides that such presumption shall not arise if within five (5) banking days from receipt of the
notice of dishonor, the maker or drawer makes arrangements for payment of the check by the bank
or pays the holder the amount of the check.
Another provision of the statute, also in the nature of a rule of evidence, provides that the
introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal to pay
"stamped or written thereon or attached thereto, giving the reason therefor, "shall
constitute prima facie proof of "the making or issuance of said check, and the due presentment to
the drawee for payment and the dishonor thereof ... for the reason written, stamped or attached by
the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is open to the accused of course to present proof to
the contrary to overcome the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are worthless, i.e.
checks that end up being rejected or dishonored for payment. The practice, as discussed later, is
proscribed by the state because of the injury it causes to t public interests.
Before the enactment of BP 22, provisions already existed in our statute books which penalize the
issuance of bouncing or rubber checks. Criminal law has dealth with the problem within the
context of crimes against property punished as "estafa" or crimes involving fraud and deceit. The
focus of these penal provisions is on the damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from 1887 until it was replaced by
the Revised Penal Code in 1932, contained provisions penalizing, among others, the act of
defrauding another through false pretenses. Art. 335 punished a person who defrauded another "by
falsely pretending to possess any power, influence, qualification, property, credit, agency or
business, or by means of similar deceit." Although no explicit mention was made therein regarding
checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine Legislature, which added a new clause
(paragraph 10) to Article 335 of the old Penal Code, this time referring in explicit terms to the
issuance of worthless checks. The amendment penalized any person who 1) issues a check in
payment of a debt or for other valuable consideration, knowing at the time of its issuance that he
does not have sufficient funds in the bank to cover its amount, or 2) maliciously signs the check
differently from his authentic signature as registered at the bank in order that the latter would
refuse to honor it; or 3) issues a postdated check and, at the date set for its payment, does not have
sufficient deposit to cover the same. 8
In 1932, as already adverted to, the old Penal Code was superseded by the Revised Penal
Code. 9 The above provisions, in amended form, were incorporated in Article 315 of the Revised
Penal Code defining the crime of estafa. The revised text of the provision read as follows:
Art. 315. Swindling (estafa).Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commis sion of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or
by means of other similar deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in payment of an obligation the
offender knowing that at the time he had no funds in the bank, or the funds
deposited by him were not sufficient to cover the amount of the cheek without
informing the payee of such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-
existing obligations. 10 The rationale of this interpretation is that in estafa, the deceit causing the
defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a
check as payment for a pre-existing debt, the drawer does not derive any material benefit in return
or as consideration for its issuance. On the part of the payee, he had already parted with his money
or property before the check is issued to him hence, he is not defrauded by means of any "prior" or
"simultaneous" deceit perpetrated on him by the drawer of the check.
With the intention of remedying the situation and solving the problem of how to bring checks
issued in payment of pre-existing debts within the ambit of Art. 315, an amendment was
introduced by the Congress of the Philippines in 1967, 11 which was enacted into law as Republic
Act No. 4885, revising the aforesaid proviso to read as follows:
(d) By postdating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not sufficient to
cover the amount of the check. The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3) days from receipt of notice from the
bank and/or the payee or holder that said check has been dishonored for lack or
insufficiency of funds shall be puma facie evidence of deceit constituting false pretense or
fraudulent act.
However, the adoption of the amendment did not alter the situation materially. A divided Court
held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing obligations, again relying on the concept underlying the
crime of estafa through false pretenses or deceitwhich is, that the deceit or false pretense must be
prior to or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of dishonored checks consisted of those
issued in payment of pre-existing debts, 13 the amended provision evidently failed to cope with the
real problem and to deal effectively with the evil that it was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the then Interim Batasan
confronted the problem squarely. It opted to take a bold step and decided to enact a law dealing
with the problem of bouncing or worthless checks, without attaching the law's umbilical cord to the
existing penal provisions on estafa. BP 22 addresses the problem directly and frontally and makes
the act of issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within the ambit of the law on estafa
did not evoke any constitutional challenge. In contrast, BP 22 was challenged promptly.
Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional
provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it contravenes
the equal protection clause; (4) it unduly delegates legislative and executive powers; and (5) its
enactment is flawed in that during its passage the Interim Batasan violated the constitutional
provision prohibiting amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners deserves a searching and thorough
scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of
what has been described as "the highest and most delicate function which belongs to the judicial
department of the government." 15
As we enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of
the government, we need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor
of its constitutionality. This is not to say that we approach our task with diffidence or timidity.
Where it is clear that the legislature has overstepped the limits of its authority under the
constitution we should not hesitate to wield the axe and let it fall heavily, as fall it must, on the
offending statute.
III
Among the constitutional objections raised against BP 22, the most serious is the alleged conflict
between the statute and the constitutional provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the inhibition in the Bill of Rights which states, "No
person shall be imprisoned for debt or non-payment of a poll tax." 16 Petitioners insist that, since
the offense under BP 22 is consummated only upon the dishonor or non-payment of the check
when it is presented to the drawee bank, the statute is really a "bad debt law" rather than a "bad
check law." What it punishes is the non-payment of the check, not the act of issuing it. The statute,
it is claimed, is nothing more than a veiled device to coerce payment of a debt under the threat of
penal sanction.
First of all it is essential to grasp the essence and scope of the constitutional inhibition invoked by
petitioners. Viewed in its historical context, the constitutional prohibition against imprisonment
for debt is a safeguard that evolved gradually during the early part of the nineteenth century in the
various states of the American Union as a result of the people's revulsion at the cruel and
inhumane practice, sanctioned by common law, which permitted creditors to cause the
incarceration of debtors who could not pay their debts. At common law, money judgments arising
from actions for the recovery of a debt or for damages from breach of a contract could be enforced
against the person or body of the debtor by writ of capias ad satisfaciendum. By means of this writ,
a debtor could be seized and imprisoned at the instance of the creditor until he makes the
satisfaction awarded. As a consequence of the popular ground swell against such a barbarous
practice, provisions forbidding imprisonment for debt came to be generally enshrined in the
constitutions of various states of the Union. 17
This humanitarian provision was transported to our shores by the Americans at the turn of t0he
century and embodied in our organic laws. 18 Later, our fundamental law outlawed not only
imprisonment for debt, but also the infamous practice, native to our shore, of throwing people in
jail for non-payment of the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been the subject of judicial definition,
both by our Supreme Court 20 and by American State courts. 21 Mr. Justice Malcolm speaking for
the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt' intended to be covered by the
constitutional guaranty has a well-defined meaning. Organic provisions relieving from
imprisonment for debt, were intended to prevent commitment of debtors to prison for liabilities
arising from actions ex contractu The inhibition was never meant to include damages arising in
actions ex delicto, for the reason that damages recoverable therein do not arise from any contract
entered into between the parties but are imposed upon the defendant for the wrong he has done
and are considered as punishment, nor to fines and penalties imposed by the courts in criminal
proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the Code of Procedure in Civil Actions
(1909) which authorized the arrest of the defendant in a civil case on grounds akin to those which
justify the issuance of a writ of attachment under our present Rules of Court, such as imminent
departure of the defendant from the Philippines with intent to defraud his creditors, or
concealment, removal or disposition of properties in fraud of creditors, etc. The Court, in that case,
declared the detention of the defendant unlawful, being violative of the constitutional inhibition
against imprisonment for debt, and ordered his release. The Court, however, refrained from
declaring the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes, 23 wherein a statutory provision which made
illegal and punishable the refusal of an employer to pay, when he can do so, the salaries of his
employees or laborers on the fifteenth or last day of every month or on Saturday every week, was
challenged for being violative of the constitutional prohibition against imprisonment for debt. The
constitutionality of the law in question was upheld by the Court, it being within the authority of the
legislature to enact such a law in the exercise of the police power. It was held that "one of the
purposes of the law is to suppress possible abuses on the part of the employers who hire laborers or
employees without paying them the salaries agreed upon for their services, thus causing them
financial difficulties. "The law was viewed not as a measure to coerce payment of an obligation,
although obviously such could be its effect, but to banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To answer the
question, it is necessary to examine what the statute prohibits and punishes as an offense. Is it the
failure of the maker of the check to pay a debt? Or is it the making and issuance of a worthless
check in payment of a debt? What is the gravamen of the offense? This question lies at the heart of
the issue before us.
The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check
or a check that is dishonored upon its presentation for payment. It is not the non-payment of an
obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his
debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless
checks and putting them in circulation. Because of its deleterious effects on the public interest, the
practice is proscribed by the law. The law punishes the act not as an offense against property, but
an offense against public order.
Admittedly, the distinction may seem at first blush to appear elusive and difficult to conceptualize.
But precisely in the failure to perceive the vital distinction lies the error of those who challenge the
validity of BP 22.
It may be constitutionally impermissible for the legislature to penalize a person for non-payment of
a debt ex contractu But certainly it is within the prerogative of the lawmaking body to proscribe
certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts
which the law can punish. An act may not be considered by society as inherently wrong, hence,
not malum in se but because of the harm that it inflicts on the community, it can be outlawed and
criminally punished as malum prohibitum. The state can do this in the exercise of its police power.
The police power of the state has been described as "the most essential, insistent and illimitable of
powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society. 24 It is a power not emanating from or conferred by the constitution, but inherent in the
state, plenary, "suitably vague and far from precisely defined, rooted in the conception that man in
organizing the state and imposing upon the government limitations to safeguard constitutional
rights did not intend thereby to enable individual citizens or group of citizens to obstruct
unreasonably the enactment of such salutary measures to ensure communal peace, safety, good
order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, the
making and issuance of a worthless check is deemed public nuisance to be abated by the imposition
of penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a reasonable
nexus exists between means and end. Considering the factual and legal antecedents that led to the
adoption of the statute, it is not difficult to understand the public concern which prompted its
enactment. It had been reported that the approximate value of bouncing checks per day was close
to 200 million pesos, and thereafter when overdrafts were banned by the Central Bank, it averaged
between 50 minion to 80 million pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and payable on demand. 27 It is a
written order on a bank, purporting to be drawn against a deposit of funds for the payment of all
events, of a sum of money to a certain person therein named or to his order or to cash and payable
on demand. 28 Unlike a promissory note, a check is not a mere undertaking to pay an amount of
money. It is an order addressed to a bank and partakes of a representation that the drawer has
funds on deposit against which the check is drawn, sufficient to ensure payment upon its
presentation to the bank. There is therefore an element of certainty or assurance that the
instrument wig be paid upon presentation. For this reason, checks have become widely accepted as
a medium of payment in trade and commerce. Although not legal tender, checks have come to be
perceived as convenient substitutes for currency in commercial and financial transactions. The
basis or foundation of such perception is confidence. If such confidence is shakes the usefulness of
checks as currency substitutes would be greatly diminished or may become nit Any practice
therefore tending to destroy that confidence should be deterred for the proliferation of worthless
checks can only create havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the entire money supply of the country,
roughly totalling P32.3 billion, consists of peso demand deposits; the remaining two. 29 These de
deposit thirds consists of currency in circulation. ma deposits in the banks constitute the funds
against which among others, commercial papers like checks, are drawn. The magnitude of the
amount involved amply justifies the legitimate concern of the state in preserving the integrity of the
banking system. Flooding the system with worthless checks is like pouring garbage into the
bloodstream of the nation's economy.
The effects of the issuance of a worthless check transcends the private interests of the parties
directly involved in the transaction and touches the interests of the community at large. The
mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The
harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold,
can very wen pollute the channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest. As aptly stated 30
The 'check flasher' does a great deal more than contract a debt; he shakes the pillars of
business; and to my mind, it is a mistaken charity of judgment to place him in the same
category with the honest man who is unable to pay his debts, and for whom the
constitutional inhibition against' imprisonment for debt, except in cases of fraud was
intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the police power and is not repugnant to
the constitutional inhibition against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining in the various states of the
United States on the constitutionality of the "worthless check" acts. 31 It is needless to warn that
foreign jurisprudence must be taken with abundant caution. A caveat to be observed is that
substantial differences exist between our statute and the worthless check acts of those states where
the jurisprudence have evolved. One thing to remember is that BP 22 was not lifted bodily from
any existing statute. Furthermore, we have to consider that judicial decisions must be read in the
context of the facts and the law involved and, in a broader sense, of the social economic and
political environmentin short, the milieuunder which they were made. We recognize the
wisdom of the old saying that what is sauce for the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables the state to meet the exigencies of
changing times. There are occasions when the police power of the state may even override a
constitutional guaranty. For example, there have been cases wherein we held that the
constitutional provision on non-impairment of contracts must yield to the police power of the
state. 32 Whether the police power may override the constitutional inhibition against imprisonment
for debt is an issue we do not have to address. This bridge has not been reached, so there is no
occasion to cross it.
We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment for
debt.
V question as approved on Second Reading. 37 We therefore, find no merit in the petitioners' claim
We need not detain ourselves lengthily in the examination of the other constitutional objections
raised by petitioners, some of which are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. The
freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts.
Contracts which contravene public policy are not lawful. 33 Besides, we must bear in mind that
checks can not be categorized as mere contracts. It is a commercial instrument which, in this
modem day and age, has become a convenient substitute for money; it forms part of the banking
system and therefore not entirely free from the regulatory power of the state.
Neither do we find substance in the claim that the statute in question denies equal protection of the
laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is
contended that the payee is just as responsible for the crime as the drawer of the check, since
without the indispensable participation of the payee by his acceptance of the check there would be
no crime. This argument is tantamount to saying that, to give equal protection, the law should
punish both the swindler and the swindled. The petitioners' posture ignores the well-accepted
meaning of the clause "equal protection of the laws." The clause does not preclude classification of
individuals, who may be accorded different treatment under the law as long as the classification is
no unreasonable or arbitrary. 34
prohibits the introduction of amendments to a bill during the Third Reading. It is claimed that
during its Third Reading, the bill which eventually became BP 22 was amended in that the text of
the second paragraph of Section 1 of the bill as adopted on Second Reading was altered or changed
in the printed text of the bill submitted for approval on Third Reading.
A careful review of the record of the proceedings of the Interim Batasan on this matter shows that,
indeed, there was some confusion among Batasan Members on what was the exact text of the
paragraph in question which the body approved on Second Reading. 36 Part of the confusion was
due apparently to the fact that during the deliberations on Second Reading (the amendment
period), amendments were proposed orally and approved by the body or accepted by the sponsor,
hence, some members might not have gotten the complete text of the provisions of the bill as
amended and approved on Second Reading. However, it is clear from the records that the text of
the second paragraph of Section 1 of BP 22 is the text which was actually approved by the body on
Second Reading on February 7, 1979, as reflected in the approved Minutes for that day. In any
event, before the bin was submitted for final approval on Third Reading, the Interim Batasan
created a Special Committee to investigate the matter, and the Committee in its report, which was
approved by the entire body on March 22, 1979, stated that "the clause in question was ... an
authorized amendment of the bill and the printed copy thereof reflects accurately the provision in
that in the enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the 1973
Constitution were violated.
WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and setting aside the
order of the respondent Judge dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-42,
71654, 74524-25, 75122-49, 75812-13 and 75765-67 are hereby dismissed and the temporary
restraining order issued in G.R. Nos. 74524-25 is lifted. With costs against private petitioners.
SO ORDERED.
Teehankee, C.J., Feria, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras
and Feliciano, JJ., concur.

It is also suggested that BP 22 constitutes undue or improper delegation of legislative powers, on

the theory that the offense is not completed by the sole act of the maker or drawer but is made to
depend on the will of the payee. If the payee does not present the check to the bank for payment
but instead keeps it, there would be no crime. The logic of the argument stretches to absurdity the
meaning of "delegation of legislative power." What cannot be delegated is the power to legislate, or
the power to make laws. 35 which means, as applied to the present case, the power to define the
offense sought to be punished and to prescribe the penalty. By no stretch of logic or imagination
can it be said that the power to define the crime and prescribe the penalty therefor has been in any
manner delegated to the payee. Neither is there any provision in the statute that can be construed,
no matter how remotely, as undue delegation of executive power. The suggestion that the statute
unlawfully delegates its enforcement to the offended party is farfetched.

Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973 Constitution was
violated by the legislative body when it enacted BP 22 into law. This constitutional provision
 Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES,
INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998, 1 we upheld the validity of
11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political
ads, except to the Commission on Elections under 90, of B.P. No. 881, the Omnibus Election
Code, with respect to print media, and 92, with respect to broadcast media. In the present case,
we consider the validity of 92 of B.P. Blg. No. 881 against claims that the requirement that radio
and television time be given free takes property without due process of law; that it violates the
eminent domain clause of the Constitution which provides for the payment of just compensation;
that it denies broadcast media the equal protection of the laws; and that, in any event, it violates
the terms of the franchise of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization
of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers,
and registered voters. The other petitioner, GMA Network, Inc., operates radio and television
broadcasting stations throughout the Philippines under a franchise granted by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property without due
process of law and without just compensation; (2) that it denies radio and television broadcast
companies the equal protection of the laws; and (3) that it is in excess of the power given to the
COMELEC to supervise or regulate the operation of media of communication or information
during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and
registered voters.
In those cases 2 in which citizens were authorized to sue, this Court upheld their standing in view of
the "transcendental importance" of the constitutional question raised which justified the granting
of relief. In contrast, in the case at bar, as will presently be shown, petitioner's substantive claim is
without merit. To the extent, therefore, that a party's standing is determined by the substantive
merit of his case or preliminary estimate thereof, petitioner TELEBAP must be held to be without
standing. Indeed, a citizen will be allowed to raise a constitutional question only when he can show
that he has personally suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury fairly is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action. 3 Members of petitioner have not shown that
they have suffered harm as a result of the operation of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in
upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power. 4 A party suing as a taxpayer must specifically show that
he has a sufficient interest in preventing the illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown
that the party suing has some substantial relation to the third party, or that the third party cannot
assert his constitutional right, or that the eight of the third party will be diluted unless the party in
court is allowed to espouse the third party's constitutional claim. None of these circumstances is
here present. The mere fact that TELEBAP is composed of lawyers in the broadcast industry does
not entitle them to bring this suit in their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates
radio and television broadcast stations in the Philippines affected by the enforcement of 92 of B.P.
Blg. 881 requiring radio and television broadcast companies to provide free air time to the
COMELEC for the use of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC
Time in connection with the 1992 presidential election and the 1995 senatorial election and that it
stands to suffer even more should it be required to do so again this year. Petitioner's allegation that
it will suffer losses again because it is required to provide free air time is sufficient to give it
standing to question the validity of 92. 5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92
of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity
of candidates in an election in regard to the use of mass media for political campaigns. These
statutory provisions state in relevant parts:
R.A. No. 6646
 Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other mass media, or
any person making use of the mass media to sell or to give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper
of general circulation in every province or city; Provided, however, That in the absence of
said newspaper, publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which the
newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. The commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of the
campaign. (Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation to
the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to procure
print space which, as we have held, should be paid for, 92 states that air time shall be procured by
the COMELEC free of charge.
Petitioners contend that 92 of BP Blg. 881 violates the due process clause 6 and the eminent
domain provision 7 of the Constitution by taking air time from radio and television broadcasting
stations without payment of just compensation. Petitioners claim that the primary source of
revenue of the radio and television stations is the sale of air time to advertisers and that to require
these stations to provide free air time is to authorize a taking which is not "a de minimis temporary
limitation or restraint upon the use of private property." According to petitioners, in 1992, the
GMA Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning
from Mondays to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m.
(prime time) and, in this year's elections, it stands to lose P58,980,850.00 in view of COMELEC'S
requirement that radio and television stations provide at least 30 minutes of prime time daily for
the COMELEC Time. 8
Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations,
is licensed by the government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to assign. 9 A franchise is thus a
privilege subject, among other things, to amended by Congress in accordance with the
constitutional provision that "any such franchise or right granted . . . shall be subject to
amendment, alteration or repeal by the Congress when the common good so requires." 10
The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
Sec. 49. Regulation of election propaganda through mass media. (a) The franchise of
all radio broadcasting and television stations are hereby amended so as to require each
such station to furnish free of charge, upon request of the Commission [on Elections],
during the period of sixty days before the election not more than fifteen minutes of prime
time once a week which shall be known as "Comelec Time" and which shall be used
exclusively by the Commission to disseminate vital election information. Said "Comelec
Time" shall be considered as part of the public service time said stations are required to
furnish the Government for the dissemination of public information and education under
their respective franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296),
which provided:
Sec. 46. COMELEC Time. The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations
are hereby amended so as to require such stations to furnish the Commission radio or
television time, free of charge, during the period of the campaign, at least once but not
oftener than every other day.
Substantially the same provision is now embodied in 92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had not
been thought of as taking property without just compensation. Art. XII, 11 of the Constitution
authorizes the amendment of franchises for "the common good." What better measure can be
conceived for the common good than one for free air time for the benefit not only of candidates but
even more of the public, particularly the voters, so that they will be fully informed of the issues in
an election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters, which is
paramount." 11
Nor indeed can there be any constitutional objection to the requirement that broadcast stations
give free air time. Even in the United States, there are responsible scholars who believe that
government controls on broadcast media can constitutionally be instituted to ensure diversity of
views and attention to public affairs to further the system of free expression. For this purpose,
broadcast stations may be required to give free air time to candidates in an election. 12 Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in
regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important,
government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for
such time on its own. Perhaps broadcasters should have to offer it as a condition for
receiving a license. Perhaps a commitment to provide free time would count in favor of
the grant of a license in the first instance. Steps of this sort would simultaneously
promote attention to public affairs and greater diversity of view. They would also help
 overcome the distorting effects of "soundbites" and the corrosive financial pressures
faced by candidates in seeking time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of some
form of public service. Thus, in De Villata v. Stanley, 14 a regulation requiring interisland vessels
licensed to engage in the interisland trade to carry mail and, for this purpose, to give advance
notice to postal authorities of date and hour of sailings of vessels and of changes of sailing hours to
enable them to tender mail for transportation at the last practicable hour prior to the vessel's
departure, was held to be a reasonable condition for the state grant of license. Although the
question of compensation for the carriage of mail was not in issue, the Court strongly implied that
such service could be without compensation, as in fact under Spanish sovereignty the mail was
carried free. 15
In Philippine Long Distance Telephone Company v. NTC, 16 the Court ordered the PLDT to allow
the interconnection of its domestic telephone system with the international gateway facility of
Eastern Telecom. The Court cited (1) the provisions of the legislative franchise allowing such
interconnection; (2) the absence of any physical, technical, or economic basis for restricting the
linking up of two separate telephone systems; and (3) the possibility of increase in the volume of
international traffic and more efficient service, at more moderate cost, as a result of
interconnection.
17
Similarly, in the earlier case of PLDT v. NTC, it was held:
Such regulation of the use and ownership of telecommunications systems is in the
exercise of the plenary police power of the State for the promotion of the general welfare.
The 1987 Constitution recognizes the existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic
agents shall contribute to the common good. Individuals and private
groups, including corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common good so
demands (Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid expansion
of telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of
communications in nation building . . . and to ensure that all users of the public
telecommunications service have access to all other users of the service wherever they
may be within the Philippines at an acceptable standard of service and at reasonable cost"
(DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the common
good. The NTC, as the regulatory agency of the State, merely exercised its delegated
authority to regulate the use of telecommunications networks when it decreed
interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations. 18 It would be strange if it cannot even require the licensees to render public service by
giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of
television programs involves large expenditure and requires the use of equipment for which huge
investments have to be made. The dissent cites the claim of GMA Network that the grant of free air
time to the COMELEC for the duration of the 1998 campaign period would cost the company
P52,380,000, representing revenue it would otherwise earn if the air time were sold to advertisers,
and the amount of P6,600,850, representing the cost of producing a program for the COMELEC
Time, or the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is "finished product" which, it is said, become the property
of the company, like oil produced from refining or similar natural resources after undergoing a
process for their production. But air time is not owned by broadcast companies. As held in Red
Lion Broadcasting Co. v. F.C.C., 19 which upheld the right of a party personally attacked to reply,
"licenses to broadcast do not confer ownership of designated frequencies, but only the temporary
privilege of using them." Consequently, "a license permits broadcasting, but the license has no
constitutional right to be the one who holds the license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others and to conduct himself as
a proxy or fiduciary with obligations to present those views and voices which are representative of
his community and which would otherwise, by necessity, be barred from the airwaves." 20 As radio
and television broadcast stations do not own the airwaves, no private property is taken by the
requirement that they provide air time to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air lanes
themselves 'are not property because they cannot be appropriated for the benefit of any
individual.'" (p. 5) That means neither the State nor the stations own the air lanes. Yet the dissent
also says that "The franchise holders can recover their huge investments only by selling air time to
advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used to produce air time
which the franchise holders can sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a
program and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental,
supplies, transportation, etc.)," and "technical facilities (technical crew such as director and
cameraman as well as 'on air plugs')." There is no basis for this claim. Expenses for these items will
be for the account of the candidates. COMELEC Resolution No. 2983, 6(d) specifically provides in
this connection:
(d) Additional services such as tape-recording or video-taping of programs, the
preparation of visual aids, terms and condition thereof, and consideration to be paid
therefor may be arranged by the candidates with the radio/television station
concerned. However, no radio/television station shall make any discrimination among
candidates relative to charges, terms, practices or facilities for in connection with the
services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth millions of
pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand larceny
of precious time," and allows itself to become "the people's unwitting oppressor." The charge is
really unfortunate. In Jackson v. Rosenbaun, 21 Justice Holmes was so incensed by the resistance of
property owners to the erection of party walls that he was led to say in his original draft, "a statute,
which embodies the community's understanding of the reciprocal rights and duties of neighboring
landowners, does not need to invoke the penalty larceny of the police power in its justification."
Holmes's brethren corrected his taste, and Holmes had to amend the passage so that in the end it
spoke only of invoking "the police power." 22 Justice Holmes spoke of the "petty larceny" of the
police power. Now we are being told of the "grand larceny [by means of the police power] of
precious air time."
Giving Free Air Time a Duty Blg. 881, 92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.
Assumed by Petitioner
Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, 2 of which states:
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA Network,
Inc. a franchise for the operation of radio and television broadcasting stations. They argue that
although 5 of R.A. No. 7252 gives the government the power to temporarily use and operate the Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
stations of petitioner GMA Network or to authorize such use and operation, the exercise of this operating under franchise shall grant the Commission, upon payment of just
right must be compensated. compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time", effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
The cited provision of. R.A. No. 7252 states:
9, 1998. (Emphasis added).

Sec. 5. Right of Government. A special right is hereby reserved to the President of the
This is because the amendment providing for the payment of "just compensation" is invalid, being
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or
in contravention of 92 of B.P. Blg. 881 that radio and television time given during the period of
disturbance of peace and order, to temporarily take over and operate the stations of the
the campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided that the
grantee, to temporarily suspend the operation of any station in the interest of public
time allocated shall be "free of charge," just as 92 requires such time to be given "free of charge."
safety, security and public welfare, or to authorize the temporary use and operation
The amendment appears to be a reaction to petitioner's claim in this case that the original
thereof by any agency of the Government, upon due compensation to the grantee, for the
provision was unconstitutional because it allegedly authorized the taking of property without just
use of said stations during the period when they shall be so operated.
compensation.

The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time
The Solicitor General, relying on the amendment, claims that there should be no more dispute
constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under
because the payment of compensation is now provided for. It is basic, however, that an
92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television
administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since 2
stations but only the allocation of air time to the candidates for the purpose of ensuring, among
of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.
other things, equal opportunity, time, and the right to reply as mandated by the Constitution. 23

Law Allows Flextime for Programming

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg.
881, which is said to have amended R.A. No. 7252, actually antedated it. 24 The provision of 92 of
B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of the by Stations, Not Confiscation of
latter statute does.
Air Time by COMELEC
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate
public service time" implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time
government to communicate with the people on matters of public interest. Thus, R.A. No. 7252
and that "theoretically the COMELEC can demand all of the air time of such stations." 25 Petitioners
provides:
do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television
time. What they claim is that because of the breadth of the statutory language, the provision in
Sec. 4. Responsibility to the Public. The grantee shall provide adequate public service question is susceptible of "unbridled, arbitrary and oppressive exercise." 26
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced
The contention has no basis. For one, the COMELEC is required to procure free air time for
programming; promote public participation such as in community programming; assist
candidates "within the area of coverage" of a particular radio or television broadcaster so that it
in the functions of public information and education; conform to the ethics of honest
cannot, for example, procure such time for candidates outside that area. At what time of the day
enterprise; and not use its station for the broadcasting of obscene and indecent language,
and how much time the COMELEC may procure will have to be determined by it in relation to the
speech, act or scene, or for the dissemination of deliberately false information or willful
overall objective of informing the public about the candidates, their qualifications and their
misrepresentation, or to the detriment of the public interest, or to incite, encourage, or
programs of government. As stated in Osmea v. COMELEC, the COMELEC Time provided for in
assist in subversive or treasonable acts. (Emphasis added).
92, as well as the COMELEC Space provided for in 90, is in lieu of paid ads which candidates are
prohibited to have under 11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind
It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly in determining the details of the COMELEC Time as well as those of the COMELEC Space.
provided that the COMELEC Time should "be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of public information and
There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as
education under their respective franchises or permits." There is no reason to suppose that 92 of
to leave no room for accommodation of the demands of radio and television programming. For
B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public
were that the case, there could be an intrusion into the editorial prerogatives of radio and television
service which petitioner is required to render under 4 of its charter (R.A. No. 7252). In sum, B.P.
stations.
Differential Treatment of Reasonable Exercise of the

Broadcast Media Justified State's Power to Regulate

Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide free
air time. They contend that newspapers and magazines are not similarly required as, in fact,
in Philippine Press Institute v. COMELEC, 27 we upheld their right to the payment of just
compensation for the print space they may provide under 90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however, which justify their
differential treatment for free speech purposes. Because of the physical limitations of the broadcast
spectrum, the government must, of necessity, allocate broadcast frequencies to those wishing to
use them. There is no similar justification for government allocation and regulation of the print
media. 28
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees
or licensees. The reason for this is that, as already noted, the government spends public funds for
the allocation and regulation of the broadcast industry, which it does not do in the case of the print
media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print
media." 29
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C,
4 of the Constitution does not include the power to prohibit. In the first place, what the
COMELEC is authorized to supervise or regulate by Art. IX-C, 4 of the Constitution, 31 among
other things, is the use by media of information of their franchises or permits, while what Congress
(not the COMELEC) prohibits is the sale or donation of print space or air time for political ads. In
other words, the object of supervision or regulation is different from the object of the prohibition.
It is another fallacy for petitioners to contend that the power to regulate does not include the power
to prohibit. This may have force if the object of the power were the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory
provision in the statute. The other half is the mandate to the COMELEC to procure print space and
air time for allocation to candidates. As we said in Osmea v. COMELEC:
The term political "ad ban" when used to describe 11(b) of R.A. No. 6646, is misleading,
for even as 11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates
space and time in the media. There is no suppression of political ads but only a regulation
of the time and manner of advertising.
xxx xxx xxx

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates
The broadcast media have also established a uniquely pervasive presence in the lives of all
to advertise freely in the mass media, the law provides for allocation, by the COMELEC of
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
print space and air time to give all candidates equal time and space for the purpose of
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low
ensuring "free, orderly, honest, peaceful, and credible elections."
income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their
On the other hand, the transistor radio is found everywhere. The television set is also
qualifications and programs of government. More than merely depriving their qualifications and
becoming universal. Their message may be simultaneously received by a national or
programs of government. More than merely depriving candidates of time for their ads, the failure
regional audience of listeners including the indifferent or unwilling who happen to be
of broadcast stations to provide air time unless paid by the government would clearly deprive the
within reach of a blaring radio or television set. The materials broadcast over the
people of their right to know. Art III, 7 of the Constitution provides that "the right of the people to
airwaves reach every person of every age, persons of varying susceptibilities to
information on matters of public concern shall be recognized," while Art. XII, 6 states that "the
persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to
use of property bears a social function [and] the right to own, establish, and operate economic
inflammatory or offensive speech would he difficult to monitor or predict. The impact of
enterprises [is] subject to the duty of the State to promote distributive justice and to intervene
the vibrant speech is forceful and immediate. Unlike readers of the printed work, the
when the common good so demands."
radio audience has lesser opportunity to cogitate, analyze, and reject the utterance. 30

To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see
Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the law
to it that the variety and vigor of public debate on issues in an election is maintained. For while
has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban on
broadcast media are not mere common carriers but entities with free speech rights, they are also
paid political ads) should be invalidated would pave the way for a return to the old regime where
public trustees charged with the duty of ensuring that the people have access to the diversity of
moneyed candidates could monopolize media advertising to the disadvantage of candidates with
views on political issues. This right of the people is paramount to the autonomy of broadcast
less resources. That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646.
media. To affirm the validity of 92, therefore, is likewise to uphold the people's right to
We are not free to set aside the judgment of Congress, especially in light of the recent failure of
information on matters of public concern. The use of property bears a social function and is subject
interested parties to have the law repealed or at least modified.
to the state's duty to intervene for the common good. Broadcast media can find their just and
highest reward in the fact that whatever altruistic service they may render in connection with the
Requirement of COMELEC Time, a holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and
Quisumbing, JJ., concur.

U.S. Supreme Court

Buck v. Bell, 274 U.S. 200 (1927)

Buck v. Bell
No. 292
Argued April 22, 1927
Decided May 2, 1927
274 U.S. 200
ERROR TO THE SUPREME COURT OF APPEALS
OF THE STATE OF VIRGINIA
Syllabus
1. The Virginia statute providing for the sexual sterilization of inmates of institutions supported by
the State who shall be found to be afflicted with an hereditary form of insanity or imbecility, is
within the power of the State under the Fourteenth Amendment. P. 274 U. S. 207.
2. Failure to extend the provision to persons outside the institutions named does not render it
obnoxious to the Equal Protection Clause. P. 274 U. S. 208.
143 Va. 310, affirmed.
ERROR to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a
judgment ordering
Page 274 U. S. 201
the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation
of salpingectomy on Carrie Buck, the plaintiff in error.
Page 274 U. S. 205
Mr. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error to review a judgment of the Supreme Court of Appeals of the State of Virginia
affirming a judgment of the Circuit Court of Amherst County by which the defendant in error, the
superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the
operation of salpingectomy upon Carrie Buck, the plaintiff in error, for the purpose of making her
sterile. 143 Va. 310. The case comes here upon the contention that the statute authorizing the
judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process
of law and the equal protection of the laws.
Carrie Buck is a feeble minded white woman who was committed to the State Colony above
mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and
the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial
of her case in the Circuit Court, in the latter part of 1924. An Act of Virginia, approved March 20,
1924, recites that the health of the patient and the welfare of society may be promoted in certain
cases by the sterilization of mental defectives, under careful safeguard, &c.; that the sterilization
may be effected in males by vasectomy and in females by salpingectomy, without serious pain or
substantial danger to life; that the Commonwealth is supporting in various institutions many
defective persons who, if now discharged, would become
Page 274 U. S. 206
a menace, but, if incapable of procreating, might be discharged with safety and become self-
supporting with benefit to themselves and to society, and that experience has shown that heredity
plays an important part in the transmission of insanity, imbecility, &c. The statute then enacts that,
whenever the superintendent of certain institutions, including the above-named State Colony, shall
be of opinion that it is for the best interests of the patients and of society that an inmate under his
care should be sexually sterilized, he may have the operation performed upon any patient afflicted
with hereditary forms of insanity, imbecility, &c., on complying with the very careful provisions by
which the act protects the patients from possible abuse.
The superintendent first presents a petition to the special board of directors of his hospital or
colony, stating the facts and the grounds for his opinion, verified by affidavit. Notice of the petition
and of the time and place of the hearing in the institution is to be served upon the inmate, and also
upon his guardian, and if there is no guardian, the superintendent is to apply to the Circuit Court of
the County to appoint one. If the inmate is a minor, notice also is to be given to his parents, if any,
with a copy of the petition. The board is to see to it that the inmate may attend the hearings if
desired by him or his guardian. The evidence is all to be reduced to writing, and, after the board
has made its order for or against the operation, the superintendent, or the inmate, or his guardian,
may appeal to the Circuit Court of the County. The Circuit Court may consider the record of the
board and the evidence before it and such other admissible evidence as may be offered, and may
affirm, revise, or reverse the order of the board and enter such order as it deems just. Finally any
party may apply to the Supreme Court of Appeals, which, if it grants the appeal, is to hear the case
upon the record of the trial
Page 274 U. S. 207
in the Circuit Court, and may enter such order as it thinks the Circuit Court should have entered.
There can be no doubt that, so far as procedure is concerned, the rights of the patient are most
carefully considered, and, as every step in this case was taken in scrupulous compliance with the
statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error
has had due process of law.
The attack is not upon the procedure, but upon the substantive law. It seems to be contended that
in no circumstances could such an order be justified. It certainly is contended that the order cannot
be justified upon the existing grounds. The judgment finds the facts that have been recited, and
that Carrie Buck
"is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be
sexually sterilized without detriment to her general health, and that her welfare and that of society
will be promoted by her sterilization,"

and thereupon makes the order. In view of the general declarations of the legislature and the
specific findings of the Court, obviously we cannot say as matter of law that the grounds do not
exist, and, if they exist, they justify the result. We have seen more than once that the public welfare
may call upon the best citizens for their lives. It would be strange if it could not call upon those who
already sap the strength of the State for these lesser sacrifices, often not felt to be such by those
concerned, in order to prevent our being swamped with incompetence. It is better for all the world
if, instead of waiting to execute degenerate offspring for crime or to let them starve for their
imbecility, society can prevent those who are manifestly unfit from continuing their kind. The
principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian
tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.

Page 274 U. S. 208

But, it is said, however it might be if this reasoning were applied generally, it fails when it is
confined to the small number who are in the institutions named and is not applied to the
multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings
of this sort. But the answer is that the law does all that is needed when it does all that it can,
indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly
situated so far and so fast as its means allow. Of course, so far as the operations enable those who
otherwise must be kept confined to be returned to the world, and thus open the asylum to others,
the equality aimed at will be more nearly reached.

Judgment affirmed.

MR. JUSTICE BUTLER dissents.


U.S. Supreme Court
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
Jacobson v. Massachusetts
No. 70
Argued December 6, 1904
Decided February 20, 1905
197 U.S. 11
ERROR TO THE SUPREME COURT
OF THE STATE OF MASSACHUSETTS
Syllabus
The United States does not derive any of its substantive powers from the Preamble of the
Constitution. It cannot exert any power to secure the declared objects of the Constitution unless,
apart from the Preamble, such power be found in, or can properly be implied from, some express
delegation in the instrument.
While the spirit of the Constitution is to be respected not less than its letter, the spirit is to be
collected chiefly from its words.
While the exclusion of evidence in the state court in a case involving the constitutionality of a state
statute may not strictly present a Federal question, this court may consider the rejection of such
evidence upon the ground of incompetency or immateriality under the statute as showing its scope
and meaning in the opinion of the state court.
The police power of a State embraces such reasonable regulations relating to matters completely
within its territory, and not affecting the people of other States, established directly by legislative
enactment, as will protect the public health and safety.
While a local regulation, even if based on the acknowledged police power of a State, must always
yield in case of conflict with the exercise by the General Government of any power it possesses
under the Constitution, the mode or manner of exercising its police power is wholly within the
discretion of the State so long as the Constitution of the United States is not contravened, or any
right granted or secured thereby is not infringed, or not exercised in such an arbitrary and
oppressive manner as to justify the interference of the courts to prevent wrong and oppression.
The liberty secured by the Constitution of the United States does not import an absolute right in
each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an
element in such liberty that one person, or a minority of persons residing in any community and
enjoying the benefits of its local government, should have power to dominate the majority when
supported in their action by the authority of the State.
It is within the police power of a State to enact a compulsory vaccination law, and it is for the
legislature, and not for the courts, to determine
Page 197 U. S. 12
in the first instance whether vaccination is or is not the best mode for the prevention of smallpox
and the protection of the public health.
There being obvious reasons for such exception, the fact that children, under certain
circumstances, are excepted from the operation of the law does not deny the equal protection of the
laws to adults if the statute is applicable equally to all adults in like condition.
The highest court of Massachusetts not having held that the compulsory vaccination law of that
State establishes the absolute rule that an adult must be vaccinated even if he is not a fit subject at
the time or that vaccination would seriously injure his health or cause his death, this court holds
that, as to an adult residing in the community, and a fit subject of vaccination, the statute is not
invalid as in derogation of any of the rights of such person under the Fourteenth Amendment.
This case involves the validity, under the Constitution of the United States, of certain provisions in
the statutes of Massachusetts relating to vaccination.
The Revised Laws of that Commonwealth, c. 75, 137, provide that
"the board of health of a city or town if, in its opinion, it is necessary for the public health or safety
shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall
provide them with the means of free vaccination. Whoever, being over twenty-one years of age and
not under guardianship, refuses or neglects to comply with such requirement shall forfeit five
dollars."
An exception is made in favor of "children who present a certificate, signed by a registered
physician that they are unfit subjects for vaccination." 139.
Proceeding under the above statutes, the Board of Health of the city of Cambridge, Massachusetts,
on the twenty-seventh day of February, 1902, adopted the following regulation:
"Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues
to increase; and whereas it is necessary for the speedy extermination of the disease that all persons
not protected by vaccination should be vaccinated, and whereas, in the opinion of the board, the
public health and safety require the vaccination or revaccination of all the inhabitants of
Cambridge; be it ordered, that
Page 197 U. S. 13
all the inhabitants of the city who have not been successfully vaccinated since March 1, 1897, be
vaccinated or revaccinated."
Subsequently, the Board adopted an additional regulation empowering a named physician to
enforce the vaccination of persons as directed by the Board at its special meeting of February 27.
The above regulations being in force, the plaintiff in error, Jacobson, was proceeded against by a
criminal complaint in one of the inferior courts of Massachusetts. The complaint charged that, on
the seventeenth day of July, 1902, the Board of Health of Cambridge, being of the opinion that it
was necessary for the public health and safety, required the vaccination and revaccination of all the
inhabitants thereof who had not been successfully vaccinated since the first day of March, 1897,
and provided them with the means of free vaccination, and that the defendant, being over twenty-
one years of age and not under guardianship, refused and neglected to comply with such
requirement.
The defendant, having been arraigned, pleaded not guilty. The government put in evidence the
above regulations adopted by the Board of Health, and made proof tending to show that its
chairman informed the defendant that, by refusing to be vaccinated, he would incur the penalty
provided by the statute, and would be prosecuted therefor; that he offered to vaccinate the
defendant without expense to him, and that the offer was declined, and defendant refused to be
vaccinated.
The prosecution having introduced no other evidence, the defendant made numerous offers of
proof. But the trial court ruled that each and all of the facts offered to be proved by the defendant
were immaterial, and excluded all proof of them.
The defendant, standing upon his offers of proof and introducing no evidence, asked numerous
instructions to the jury, among which were the following:
That section 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of the rights
secured to the defendant by the Preamble to the Constitution of the United
Page 197 U. S. 14
States, and tended to subvert and defeat the purposes of the Constitution as declared in its
Preamble;
That the section referred to was in derogation of the rights secured to the defendant by the
Fourteenth Amendment of the Constitution of the United States, and especially of the clauses of
that amendment providing that no State shall make or enforce any law abridging the privileges or
immunities of citizens of the United States, nor deprive any person of life, liberty or property
without due process of law, nor deny to any person within its jurisdiction the equal protection of
the laws; and
That said section was opposed to the spirit of the Constitution.
Each of the defendant's prayers for instructions was rejected, and he duly excepted. The defendant
requested the court, but the court refused, to instruct the jury to return a verdict of not guilty. And
the court instructed the jury, in substance, that, if they believed the evidence introduced by the
Commonwealth and were satisfied beyond a reasonable doubt that the defendant was guilty of the
offense charged in the complaint, they would be warranted in finding a verdict of guilty. A verdict
of guilty was thereupon returned.
The case was then continued for the opinion of the Supreme Judicial Court of Massachusetts. That
court overruled all the defendant's exceptions, sustained the action of the trial court, and
thereafter, pursuant to the verdict of the jury, he was sentenced by the court to pay a fine of five
dollars. And the court ordered that he stand committed until the fine was paid.
Page 197 U. S. 22
MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.
We pass without extended discussion the suggestion that the particular section of the statute of
Massachusetts now in question ( 137, c. 75) is in derogation of rights secured by the Preamble of
the Constitution of the United States. Although that Preamble indicates the general purposes for
which the people ordained and established the Constitution, it has never been regarded as the
source of any substantive power conferred on the Government of the United States or on any of its
Departments. Such powers embrace only those expressly granted in the body of the Constitution
and such as may be implied from those so granted. Although, therefore, one of the declared objects
of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and
authority of the United States, no power can be exerted to that end by the United States unless,
apart from the Preamble, it be found in some express delegation of power or in some power to be
properly implied therefrom. 1 Story's Const. 462.
We also pass without discussion the suggestion that the above section of the statute is opposed to
the spirit of the Constitution. Undoubtedly, as observed by Chief Justice Marshall, speaking for the
court in Sturges v. Crowninshield, 4 Wheat. 122, 17 U. S. 202,
"the spirit of an instrument, especially of a constitution, is to be respected not less than its letter,
yet the spirit is to be collected chiefly from its words."
We have no need in this case to go beyond the plain, obvious meaning of the words in those
provisions of the Constitution which, it is contended, must control our decision.
What, according to the judgment of the state court, is the
Page 197 U. S. 23
scope and effect of the statute? What results were intended to be accomplished by it? These
questions must be answered.
The Supreme Judicial Court of Massachusetts said in the present case:
"Let us consider the offer of evidence which was made by the defendant Jacobson. The ninth of the The authority of the State to enact this statute is to be
propositions which he offered to prove, as to what vaccination consists of, is nothing more than a
fact of common knowledge, upon which the statute is founded, and proof of it was unnecessary and Page 197 U. S. 25
immaterial. The thirteenth and fourteenth involved matters depending upon his personal opinion,
which could not be taken as correct, or given effect, merely because he made it a ground of refusal
referred to what is commonly called the police power -- a power which the State did not surrender
to comply with the requirement. Moreover, his views could not affect the validity of the statute, nor
when becoming a member of the Union under the Constitution. Although this court has refrained
entitle him to be excepted from its provisions. Commonwealth v. Connelly, 163 Massachusetts
from any attempt to define the limits of that power, yet it has distinctly recognized the authority of
539; Commonwealth v. Has, 122 Massachusetts 40; Reynolds v. United States, 98 U. S.
a State to enact quarantine laws and "health laws of every description;" indeed, all laws that relate
145; Regina v. Downes, 13 Cox C.C. 111. The other eleven propositions all relate to alleged injurious
to matters completely within its territory and which do not, by their necessary operation, affect the
or dangerous effects of vaccination. The defendant 'offered to prove and show by competent
people of other States. According to settled principles, the police power of a State must be held to
evidence' these so-called facts. Each of them, in its nature, is such that it cannot be stated as a
embrace, at least, such reasonable regulations established directly by legislative enactment as will
truth, otherwise than as a matter of opinion. The only 'competent evidence' that could be presented
protect the public health and the public safety. Gibbons v. Ogden, 9 Wheat. 1, 22 U. S.
to the court to prove these propositions was the testimony of experts, giving their opinions. It
203; Railroad Company v. Husen, 95 U. S. 465, 95 U. S. 470; Beer Company v. Massachusetts, 97
would not have been competent to introduce the medical history of individual cases. Assuming that
U. S. 25; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 115 U. S. 661; Lawton v.
medical experts could have been found who would have testified in support of these propositions,
Steele, 152 U. S. 133. It is equally true that the State may invest local bodies called into existence for
and that it had become the duty of the judge, in accordance with the law as stated
purposes of local administration with authority in some appropriate way to safeguard the public
in Commonwealth v. Anthes, 5 Gray 185, to instruct the jury as to whether or not the statute is
health and the public safety. The mode or manner in which those results are to be accomplished is
constitutional, he would have been obliged to consider the evidence in connection with facts of
within the discretion of the State, subject, of course, so far as Federal power is concerned, only to
common knowledge, which the court will always regard in passing upon the constitutionality of a
the condition that no rule prescribed by a State, nor any regulation adopted by a local
statute. He would have considered this testimony of experts in connection with the facts, that for
governmental agency acting under the sanction of state legislation, shall contravene the
nearly a century, most of the members of the medical profession
Constitution of the United States or infringe any right granted or secured by that instrument. A
local enactment or regulation, even if based on the acknowledged police powers of a State, must
Page 197 U. S. 24 always yield in case of conflict with the exercise by the General Government of any power it
possesses under the Constitution, or with any right which that instrument gives or
have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they secures. Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 210; Sinnot v. Davenport, 22 How. 227, 63 U. S.
have recognized the possibility of injury to an individual from carelessness in the performance of it, 243; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 169 U. S. 626.
or even, in a conceivable case, without carelessness, they generally have considered the risk of such
an injury too small to be seriously weighed as against the benefits coming from the discreet and We come, then, to inquire whether any right given or secured by the Constitution is invaded by the
proper use of the preventive, and that not only the medical profession and the people generally statute as interpreted
have for a long time entertained these opinions, but legislatures and courts have acted upon them
with general unanimity. If the defendant had been permitted to introduce such expert testimony as
Page 197 U. S. 26
he had in support of these several propositions, it could not have changed the result. It would not
have justified the court in holding that the legislature had transcended its power in enacting this
statute on their judgment of what the welfare of the people demands." by the state court. The defendant insists that his liberty is invaded when the State subjects him to
fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory
vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent
Commonwealth v. Jacobson, 183 Massachusetts 242.
right of every freeman to care for his own body and health in such way as to him seems best, and
that the execution of such a law against one who objects to vaccination, no matter for what reason,
While the mere rejection of defendant's offers of proof does not strictly present a federal question, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the
we may properly regard the exclusion of evidence upon the ground of its incompetency or United States to every person within its jurisdiction does not import an absolute right in each
immateriality under the statute as showing what, in the opinion of the state court, is the scope and person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold
meaning of the statute. Taking the above observations of the state court as indicating the scope of restraints to which every person is necessarily subject for the common good. On any other basis,
the statute -- and such is our duty, Leffingwell v. Warren, 2 Black 599, 67 U. S. 603, Morley v. organized society could not exist with safety to its members. Society based on the rule that each one
Lake Shore Railway Co., 146 U. S. 162, 146 U. S. 167, Tullis v. L. E. & W. R.R. Co., 175 U. S. is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could
348, W. W. Cargill Co. v. Minnesota,180 U. S. 452, 180 U. S. 466 -- we assume for the purposes of not exist under the operation of a principle which recognizes the right of each individual person to
the present inquiry that its provisions require, at least as a general rule, that adults not under use his own, whether in respect of his person or his property, regardless of the injury that may be
guardianship and remaining within the limits of the city of Cambridge must submit to the done to others. This court has more than once recognized it as a fundamental principle that
regulation adopted by the Board of Health. Is the statute, so construed, therefore, inconsistent with
the liberty which the Constitution of the United States secures to every person against deprivation
by the State?
"persons and property are subjected to all kinds of restraints and burdens, in order to secure the
general comfort, health, and prosperity of the State, of the perfect right of the legislature to do
which no question ever was, or upon acknowledged general principles ever can be, made so far as
natural persons are concerned."
Railroad Co. v. Husen, 95 U. S. 465, 95 U. S. 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169
U. S. 613, 169 U. S. 628, 169 U. S. 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont 140, 148.
In Crowley v. Christensen, 137 U. S. 86, 137 U. S. 89, we said:
"The possession and enjoyment of all rights are subject to such reasonable conditions as may be
deemed by the governing authority of the country essential to the safety, health, peace, good order
and morals of the community. Even liberty
Page 197 U. S. 27
itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is
only freedom from restraint under conditions essential to the equal enjoyment of the same right by
others. It is then liberty regulated by law."
In the constitution of Massachusetts adopted in 1780, it was laid down as a fundamental principle
of the social compact that the whole people covenants with each citizen, and each citizen with the
whole people, that all shall be governed by certain laws for "the common good," and that
government is instituted
"for the common good, for the protection, safety, prosperity and happiness of the people, and not
for the profit, honor or private interests of anyone man, family or class of men."
The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the
basis on which the police power rests in Massachusetts. Commonwealth v. Alger, 7 Cush. 53, 84.
Applying these principles to the present case, it is to be observed that the legislature of
Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion
of the Board of Health, that was necessary for the public health or the public safety. The authority
to determine for all what ought to be done in such an emergency must have been lodged
somewhere or in some body, and surely it was appropriate for the legislature to refer that question,
in the first instance, to a Board of Health, composed of persons residing in the locality affected and
appointed, presumably, because of their fitness to determine such questions. To invest such a body
with authority over such matters was not an unusual nor an unreasonable or arbitrary
requirement. Upon the principle of self-defense, of paramount necessity, a community has the
right to protect itself against an epidemic of disease which threatens the safety of its members. It is
to be observed that, when the regulation in question was adopted, smallpox, according to the
recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city
of Cambridge, and the disease was increasing. If such was
Page 197 U. S. 28
the situation -- and nothing is asserted or appears in the record to the contrary -- if we are to attach
any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples
touching smallpox and the methods most usually employed to eradicate that disease, it cannot be
adjudged that the present regulation of the Board of Health was not necessary in order to protect
the public health and secure the public safety. Smallpox being prevalent and increasing at
Cambridge, the court would usurp the functions of another branch of government if it adjudged, as
matter of law, that the mode adopted under the sanction of the State, to protect the people at large
was arbitrary and not justified by the necessities of the case. We say necessities of the case because
it might be that an acknowledged power of a local community to protect itself against an epidemic
threatening the safety of all, might be exercised in particular circumstances and in reference to
particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was
reasonably required for the safety of the public, as to authorize or compel the courts to interfere for
the protection of such persons. Wisconsin &c. R.R. Co. v. Jacobson, 179 U. S. 27, 179 U. S. 301; 1
Dillon Mun. Corp., 4th ed., 319 to 325, and authorities in notes; Freund's Police Power, 63 et
seq. In Railroad Company v. Husen, 95 U. S. 465, 95 U. S. 471-473, this court recognized the right
of a State to pass sanitary laws, laws for the protection of life, liberty, heath or property within its
limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or
convicts, from coming within its borders. But as the laws there involved went beyond the necessity
of the case and under the guise of exerting a police power invaded the domain of Federal authority,
and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws
invalid. If the mode adopted by the Commonwealth of Massachusetts for the protection of its local
communities against smallpox proved to be distressing, inconvenient or objectionable to some -- if
nothing more could be reasonably
Page 197 U. S. 29
affirmed of the statute in question -- the answer is that it was the duty of the constituted authorities
primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests
of the many to be subordinated to the wishes or convenience of the few. There is, of course, a
sphere within which the individual may assert the supremacy of his own will and rightfully dispute
the authority of any human government, especially of any free government existing under a written
constitution, to interfere with the exercise of that will. But it is equally true that, in every well
ordered society charged with the duty of conserving the safety of its members the rights of the
individual in respect of his liberty may at times, under the pressure of great dangers, be subjected
to such restraint, to be enforced by reasonable regulations, as the safety of the general public may
demand. An American citizen, arriving at an American port on a vessel in which, during the voyage,
there had been cases of yellow fever or Asiatic cholera, although apparently free from disease
himself, may yet, in some circumstances, be held in quarantine against his will on board of such
vessel or in a quarantine station until it be ascertained by inspection, conducted with due diligence,
that the danger of the spread of the disease among the community at large has disappeared. The
liberty secured by the Fourteenth Amendment, this court has said, consists, in part, in the right of a
person "to live and work where he will," Allgeyer v. Louisiana, 165 U. S. 578, and yet he may be
compelled, by force if need be, against his will and without regard to his personal wishes or his
pecuniary interests, or even his religious or political convictions, to take his place in the ranks of
the army of his country and risk the chance of being shot down in its defense. It is not, therefore,
true that the power of the public to guard itself against imminent danger depends in every case
involving the control of one's body upon his willingness to submit to reasonable regulations
established by the constituted authorities, under the
Page 197 U. S. 30
sanction of the State, for the purpose of protecting the public collectively against such danger.
It is said, however, that the statute, as interpreted by the state court, although making an exception
in favor of children certified by a registered physician to be unfit subjects for vaccination, makes no
exception in the case of adults in like condition. But this cannot be deemed a denial of the equal
protection of the laws to adults, for the statute is applicable equally to all in like condition, and
there are obviously reasons why regulations may be appropriate for adults which could not be
safely applied to persons of tender years.
Looking at the propositions embodied in the defendant's rejected offers of proof, it is clear that
they are more formidable by their number than by their inherent value. Those offers, in the main,
seem to have had no purpose except to state the general theory of those of the medical profession
who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who
think that vaccination causes other diseases of the body. What everybody knows, the court must
know, and therefore the state court judicially knew, as this court knows, that an opposite theory
accords with the common belief and is maintained by high medical authority. We must assume
that, when the statute in question was passed, the legislature of Massachusetts was not unaware of
these opposing theories, and was compelled, of necessity, to choose between them. It was not
compelled to commit a matter involving the public health and safety to the final decision of a court
or jury. It is no part of the function of a court or a jury to determine which one of two modes was
likely to be the most effective for the protection of the public against disease. That was for the
legislative department to determine in the light of all the information it had or could obtain. It
could not properly abdicate its function to guard the public health and safety. The state legislature
proceeded upon the theory which recognized vaccination as at least an effective, if not the best,
known way in which to meet and suppress the
Page 197 U. S. 31
evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to
the relations existing between the different departments of government can the court review this
action of the legislature? If there is any such power in the judiciary to review legislative action in
respect of a matter affecting the general welfare, it can only be when that which the legislature has
done comes within the rule that,
"if a statute purporting to have been enacted to protect the public health, the public morals, or the
public safety has no real or substantial relation to those objects, or is, beyond all question, a plain,
palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so
adjudge, and thereby give effect to the Constitution."
Mugler v. Kansas, 123 U. S. 623, 123 U. S. 661; Minnesota v. Barber, 136 U. S. 313, 136 U. S.
320; Atkin v. Kansas, 191 U. S. 207,191 U. S. 223.
Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond
question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp
out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to
that end has no real or substantial relation to the protection of the public health and the public
safety. Such an assertion would not be consistent with the experience of this and other countries
whose authorities have dealt with the disease of smallpox. * And the principle of vaccination as a
means to
Page 197 U. S. 32
prevent the spread of smallpox has been enforced in many States by statutes making the
vaccination of children a condition of their right to enter or remain in public schools. Blue v.
Beach, 155 Indiana 121; Morris v. City of Columbus, 102
Page 197 U. S. 33
Georgia 792; State v. Hay, 126 N.Car. 999; Abeel v. Clark, 84 California 226; Bissell v.
Davidson, 65 Connecticut 18; Hazen v. Strong, 2 Vermont 427; Duffield v. Williamsport School
District, 162 Pa.St. 476.
Page 197 U. S. 34
The latest case upon the subject of which we are aware is Viemeister v. White, President
&c., decided very recently by the Court of Appeals of New York, and the opinion in which has not
yet appeared in the regular reports. That case involved the validity of a statute excluding from the
public schools all children who had not been vaccinated. One contention was that the statute and
the regulation adopted in exercise of its provisions was inconsistent with the rights, privileges and
liberties of the citizen. The contention was overruled, the court saying, among other things:
"Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to
prevent the transmission or spread of this disease, it logically follows that children may be refused
admission to the public schools until they have been vaccinated. The appellant claims that
vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it
does much harm, with no good."
"It must be conceded that some laymen, both learned and unlearned, and some physicians of great
skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief,
however, is that it has a decided tendency to prevent the spread of this fearful disease and to render
it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of
the people, as well as by most members of the medical profession. It has been general in our State
and in most civilized nations for generations. It is
Page 197 U. S. 35
generally accepted in theory and generally applied in practice, both by the voluntary action of the
people and in obedience to the command of law. Nearly every State of the Union has statutes to
encourage, or directly or indirectly to require, vaccination, and this is true of most nations of
Europe."
"A common belief, like common knowledge, does not require evidence to establish its existence,
but may be acted upon without proof by the legislature and the courts."
"The fact that the belief is not universal is not controlling, for there is scarcely any belief that is
accepted by everyone. The possibility that the belief may be wrong, and that science may yet show
it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to
the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free
country, where the government is by the people, through their chosen representatives, practical
legislation admits of no other standard of action; for what the people believe is for the common
welfare must be accepted as tending to promote the common welfare, whether it does, in fact, or
not. Any other basis would conflict with the spirit of the Constitution, and would sanction
measures opposed to a republican form of government. While we do not decide and cannot decide
that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the
common belief of the people of the State, and, with this fact as a foundation, we hold that the
statute in question is a health law, enacted in a reasonable and proper exercise of the police
power."
72 N.E.Rep. 97.
Since, then, vaccination, as a means of protecting a community against smallpox, finds strong
support in the experience of this and other countries, no court, much less a jury, is justified in
disregarding the action of the legislature simply because, in its or their opinion, that particular
method was -- perhaps or possibly -- not the best either for children or adults.
Did the offers of proof made by the defendant present a case which entitled him, while remaining
in Cambridge, to
Page 197 U. S. 36
claim exemption from the operation of the statute and of the regulation adopted by the Board of
Health? We have already said that his rejected offers, in the main, only set forth the theory of those
who had no faith in vaccination as a means of preventing the spread of smallpox, or who thought
that vaccination, without benefiting the public, put in peril the health of the person vaccinated. But
there were some offers which it is contended embodied distinct facts that might properly have been
considered. Let us see how this is.
The defendant offered to prove that vaccination " quite often" caused serious and permanent injury
to the health of the person vaccinated; that the operation "occasionally" resulted in death; that it
was "impossible" to tell "in any particular case" what the results of vaccination would be or whether
it would injure the health or result in death; that "quite often," one's blood is in a certain condition
of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which
to determine "with any degree of certainty" whether one's blood is in such condition of impurity as
to render vaccination necessarily unsafe or dangerous; that vaccine matter is "quite often" impure
and dangerous to be used, but whether impure or not cannot be ascertained by any known practical
test; that the defendant refused to submit to vaccination for the reason that he had, "when a child,"
been caused great and extreme suffering for a long period by a disease produced by vaccination,
and that he had witnessed a similar result of vaccination not only in the case of his son, but in the
cases of others.
These offers, in effect, invited the court and jury to go over the whole ground gone over by the
legislature when it enacted the statute in question. The legislature assumed that some children, by
reason of their condition at the time, might not be fit subjects of vaccination, and it is suggested --
and we will not say without reason -- that such is the case with some adults. But the defendant did
not offer to prove that, by reason of his then condition, he was, in fact, not a fit subject of
vaccination
Page 197 U. S. 37
at the time he was informed of the requirement of the regulation adopted by the Board of Health. It
is entirely consistent with his offer of proof that, after reaching full age, he had become, so far as
medical skill could discover, and, when informed of the regulation of the Board of Health, was, a fit
subject of vaccination, and that the vaccine matter to be used in his case was such as any medical
practitioner of good standing would regard as proper to be used. The matured opinions of medical
men everywhere, and the experience of mankind, as all must know, negative the suggestion that it
is not possible in any case to determine whether vaccination is safe. Was defendant exempted from
the operation of the statute simply because of his dread of the same evil results experienced by him
when a child and had observed in the cases of his son and other children? Could he reasonably
claim such an exemption because, "quite often" or "occasionally," injury had resulted from
vaccination, or because it was impossible, in the opinion of some, by any practical test, to
determine with absolute certainty whether a particular person could be safely vaccinated?
It seems to the court that an affirmative answer to these questions would practically strip the
legislative department of its function to care for the public health and the public safety when
endangered by epidemics of disease. Such an answer would mean that compulsory vaccination
could not, in any conceivable case, be legally enforced in a community, even at the command of the
legislature, however widespread the epidemic of smallpox, and however deep and universal was the
belief of the community and of its medical advisers, that a system of general vaccination was vital
to the safety of all.
We are not prepared to hold that a minority, residing or remaining in any city or town where
smallpox is prevalent, and enjoying the general protection afforded by an organized local
government, may thus defy the will of its constituted authorities, acting in good faith for all, under
the legislative sanction of the State. If such be the privilege of a minority,
Page 197 U. S. 38
then a like privilege would belong to each individual of the community, and the spectacle would be
presented of the welfare and safety of an entire population being subordinated to the notions of a
single individual who chooses to remain a part of that population. We are unwilling to hold it to be
an element in the liberty secured by the Constitution of the United States that one person, or a
minority of persons, residing in any community and enjoying the benefits of its local government,
should have the power thus to dominate the majority when supported in their action by the
authority of the State. While this court should guard with firmness every right appertaining to life,
liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last
importance that it should not invade the domain of local authority except when it is plainly
necessary to do so in order to enforce that law. The safety and the health of the people of
Massachusetts are, in the first instance, for that Commonwealth to guard and protect. They are
matters that do not ordinarily concern the National Government. So far as they can be reached by
any government, they depend, primarily, upon such action as the State in its wisdom may take, and
we do not perceive that this legislation has invaded any right secured by the Federal Constitution.
Before closing this opinion, we deem it appropriate, in order to prevent misapprehension as to our
views, to observe -- perhaps to repeat a thought already sufficiently expressed, namely -- that the
police power of a State, whether exercised by the legislature or by a local body acting under its
authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in
particular cases as to justify the interference of the courts to prevent wrong and oppression.
Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the
administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced
by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his
health
Page 197 U. S. 39
or body, would be cruel and inhuman in the last degree. We are not to be understood as holding
that the statute was intended to be applied to such a case, or, if it as so intended, that the judiciary
would not be competent to interfere and protect the health and life of the individual concerned.
"All laws," this court has said,
"should receive a sensible construction. General terms should be so limited in their application as
not to lead to injustice, oppression or absurd consequence. It will always, therefore, be presumed
that the legislature intended exceptions to its language which would avoid results of that character.
The reason of the law in such cases should prevail over its letter."
United States v. Kirby, 7 Wall. 482; Lau Ow Bew v. United States, 144 U. S. 47, 144 U. S. 58. Until
otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the
statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be
shown with reasonable certainty that he is not at the time a fit subject of vaccination or that
vaccination, by reason of his then condition, would seriously impair his health or probably cause
his death. No such case is here presented. It is the case of an adult who, for aught that appears, was
himself in perfect health and a fit subject of vaccination, and yet, while remaining in the
community, refused to obey the statute and the regulation adopted in execution of its provisions
for the protection of the public health and the public safety, confessedly endangered by the
presence of a dangerous disease
We now decide only that the statute covers the present case, and that nothing clearly appears that
would justify this court in holding it to be unconstitutional and inoperative in its application to the
plaintiff in error.
The judgment of the court below must be affirmed.
It is so ordered.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent.
*
"State supported facilities for vaccination began in England in 1808 with the National Vaccine
Establishment. In 1840, vaccination fees were made payable out of the rates. The first compulsory
act was passed in 1853, the guardians of the poor being entrusted with the carrying out of the law;
in 1854, the public vaccinations under one year of age were 408,825 as against an average of
180,960 for several years before. In 1867, a new Act was passed, rather to remove some technical
difficulties than to enlarge the scope of the former Act, and in 1871, the Act was passed which
compelled the boards of guardians to appoint vaccination officers. The guardians also appoint a
public vaccinator, who must be duly qualified to practice medicine and whose duty it is to vaccinate
(for a fee of one shilling and sixpence) any child resident within his district brought to him for that
purpose, to examine the same a week after, to give a certificate, and to certify to the vaccination
officer the fact of vaccination or of insusceptibility. . . . Vaccination was made compulsory in
Bavaria in 1807, and subsequently in the following countries: Denmark (1810), Sweden (1814),
Wurtemburg, Hesse, and other German states (1818), Prussia (1835), Roumania (1874), Hungary
(1876), and Servia (1881). It is compulsory by cantonal law in ten out of the twenty-two Swiss
cantons; an attempt to pass a federal compulsory law was defeated by a plebiscite in 1881. In the
following countries, there is no compulsory law, but Government facilities and compulsion on
various classes more or less directly under Government control, such as soldiers, state employes,
apprentices, school pupils, etc.: France, Italy, Spain, Portugal, Belgium, Norway, Austria, Turkey. . .
. Vaccination has been compulsory in South Australia since 1872, in Victoria since 1874, and in
Western Australia since 1878. In Tasmania, a compulsory Act was passed in 1882. In New South
Wales, there is no compulsion, but free facilities for vaccination. Compulsion was adopted at
Calcutta in 1880, and since then at eighty other towns of Bengal, at Madras in 1884, and at Bombay
and elsewhere in the presidency a few years earlier. Revaccination was made compulsory in
Denmark in 1871, and in Roumania in 1874; in Holland it was enacted for all school pupils in 1872.
The various laws and administrative orders which had been for many years in force as to
vaccination and revaccination in the several German states were consolidated in an imperial
statute of 1874."
24 Encyclopaedia Britannica (1894), Vaccination.
"In 1857, the British Parliament received answers from 552 physicians to questions which were
asked them in reference to the utility of vaccination, and only two of these spoke against it. Nothing
proves this utility more clearly than the statistics obtained. Especially instructive are those which
Flinzer compiled respecting the epidemic in Chemitz which prevailed in 1870-71. At this time in the
town, there were 64,255 inhabitants, of whom 53,891, or 83.87 percent., were vaccinated, 5,712, or
8.89 percent. were unvaccinated, and 4,652, or 7.24 percent., had had the smallpox before. Of
those vaccinated, 953, or 1.77 percent., became affected with smallpox, and of the uninocculated,
2,643, or 46.3 percent., had the disease. In the vaccinated, the mortality from the disease was O.73
percent., and in the unprotected it was 9.16 percent. In general, the danger of infection is six times
as great, and the mortality 68 times as great, in the unvaccinated as in the vaccinated. Statistics
derived from the civil population are in general not so instructive as those derived from armies,
where vaccination is usually more carefully performed and where statistics can be more accurately
collected. During the Franco-German war (1870-71) there was in France a widespread epidemic of
smallpox, but the German army lost during the campaign only 450 cases, or 58 men to the
100,000; in the French army, however, where vaccination was not carefully carried out, the
number of deaths from smallpox was 23,400."
8 Johnson's Universal Cyclopaedia (1897), Vaccination.
"The degree of protection afforded by vaccination thus became a question of great interest. Its
extreme value was easily demonstrated by statistical researches. In England, in the last half of the
eighteenth century, out of every 1,000 deaths, 96 occurred from smallpox; in the first half of the
present century, out of every 1,000 deaths, but 35 were caused by that disease. The amount of
mortality in a country by smallpox seems to bear a fixed relation to the extent to which vaccination
is carried out. In all England and Wales, for some years previous to 1853, the proportional
mortality by smallpox was 21.9 to 1,000 deaths from causes; in London, it was but 16 to 1,000; in
Ireland, where vaccination was much less general, it was 49 to 1,000, while in Connaught it was 60
to 1,000. On the other hand, in a number of European countries where vaccination was more or
less compulsory, the proportionate number of deaths from smallpox about the same time varied
from 2 per 1,000 of causes in Bohemia, Lombardy, Venice, and Sweden, to 8.33 per 1,000 in
Saxony. Although in many instances persons who had been vaccinated were attacked with
smallpox in a more or less modified form, it was noticed that the persons so attacked had been
commonly vaccinated many years previously."

16 American Cyclopedia, Vaccination (1883).

"'Dr. Buchanan, the medical officer of the London Government Board, reported [1881] as the result
of statistics that the smallpox death rate among adult persons vaccinated was 90 to a million,
whereas, among those unvaccinated, it was 3,350 to a million; whereas among vaccinated children
under 5 years of age, 42 per million; whereas among unvaccinated children of the same age it was
5,950 per million.' Hardway's Essentials of Vaccination (1881). The same author reports that
among other conclusions reached by the Academie de Medicine of France, was one that, 'without
vaccination, hygienic measures (isolation, disinfection, etc.) are of themselves insufficient for
preservation from smallpox.'"
Ib.
"The Belgian Academy of Medicine appointed a committee to make an exhaustive examination of
the whole subject, and among the conclusions reported by them were:"
"1. Without vaccination, hygienic measures and means, whether public or private, are powerless in
preserving mankind from smallpox. . . . 3. Vaccination is always an inoffensive operation when
practiced with proper care on healthy subjects. . . . 4. It is highly desirable, in the interests of the
health and lives of our countrymen, that vaccination should be rendered compulsory."
Edwards' Vaccination (1882).
The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at
its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence
of, and mortality from, smallpox, reported, after several years of investigation:
"We think that it diminishes the liability to be attacked by the disease; that it modifies the
character of the disease and renders it less fatal, of a milder and less severe type; that the
protection it affords against attacks of the disease is greatest during the years immediately
succeeding the operation of vaccination."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10572 December 21, 1915
FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees,
vs.
JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-appellant.
Attorney-General Avancea for appellant.
Aitken and DeSelms for appellees.
TRENT, J.:
The judgment appealed from in this case perpetually restrains and prohibits the defendant and his
deputies from collecting and enforcing against the plaintiffs and their property the annual tax
mentioned and described in subsection (b) of section 100 of Act No. 2339, effective July 1, 1914,
and from destroying or removing any sign, signboard, or billboard, the property of the plaintiffs,
for the sole reason that such sign, signboard, or billboard is, or may be, offensive to the sight; and
decrees the cancellation of the bond given by the plaintiffs to secure the issuance of the preliminary
injunction granted soon after the commencement of this action.
This case divides itself into two parts and gives rise to two main questions; (1) that relating to the
power of the court to restrain by injunction the collection of the tax complained of, and (2) that
relating to the validity of those provisions of subsection (b) of section 100 of Act No. 2339,
conferring power upon the Collector of Internal Revenue to remove any sign, signboard, or
billboard upon the ground that the same is offensive to the sight or is otherwise a nuisance.
The first question is one of the jurisdiction and is of vital importance to the Government. The
sections of Act No. 2339, which bear directly upon the subject, are 139 and 140. The first expressly
forbids the use of an injunction to stay the collection of any internal revenue tax; the second
provides a remedy for any wrong in connection with such taxes, and this remedy was intended to
be exclusive, thereby precluding the remedy by injunction, which remedy is claimed to be
constitutional. The two sections, then, involve the right of a dissatisfied taxpayers to use an
exceptional remedy to test the validity of any tax or to determine any other question connected
therewith, and the question whether the remedy by injunction is exceptional.
Preventive remedies of the courts are extraordinary and are not the usual remedies. The origin and
history of the writ of injunction show that it has always been regarded as an extraordinary,
preventive remedy, as distinguished from the common course of the law to redress evils after they
have been consummated. No injunction issues as of course, but is granted only upon the oath of a
party and when there is no adequate remedy at law. The Government does, by section 139 and 140,
take away the preventive remedy of injunction, if it ever existed, and leaves the taxpayer, in a
contest with it, the same ordinary remedial actions which prevail between citizen and citizen. The
Attorney-General, on behalf of the defendant, contends that there is no provisions of the
paramount law which prohibits such a course. While, on the other hand, counsel for plaintiffs urge
that the two sections are unconstitutional because (a) they attempt to deprive aggrieved taxpayers
of all substantial remedy for the protection of their property, thereby, in effect, depriving them of
their property without due process of law, and (b) they attempt to diminish the jurisdiction of the
courts, as conferred upon them by Acts Nos. 136 and 190, which jurisdiction was ratified and
confirmed by the Act of Congress of July 1, 1902.
In the first place, it has been suggested that section 139 does not apply to the tax in question
because the section, in speaking of a "tax," means only legal taxes; and that an illegal tax (the one
complained of) is not a tax, and, therefore, does not fall within the inhibition of the section, and
may be restrained by injunction. There is no force in this suggestion. The inhibition applies to all
internal revenue taxes imposes, or authorized to be imposed, by Act No. 2339. (Snyder vs. Marks,
109 U.S., 189.) And, furthermore, the mere fact that a tax is illegal, or that the law, by virtue of
which it is imposed, is unconstitutional, does not authorize a court of equity to restrain its
collection by injunction. There must be a further showing that there are special circumstances
which bring the case under some well recognized head of equity jurisprudence, such as that
irreparable injury, multiplicity of suits, or a cloud upon title to real estate will result, and also that
there is, as we have indicated, no adequate remedy at law. This is the settled law in the United
States, even in the absence of statutory enactments such as sections 139 and 140.
(Hannewinkle vs. Mayor, etc., of Georgetown, 82 U.S., 547; Indiana Mfg. Co. vs. Koehne, 188 U.S.,
681; Ohio Tax cases, 232 U. S., 576, 587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works,
172 U. S., 32; Shelton vs. Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.) Therefore,
this branch of the case must be controlled by sections 139 and 140, unless the same be held
unconstitutional, and consequently, null and void.
The right and power of judicial tribunals to declare whether enactments of the legislature
exceed the constitutional limitations and are invalid has always been considered a grave
responsibility, as well as a solemn duty. The courts invariably give the most careful
consideration to questions involving the interpretation and application of the
Constitution, and approach constitutional questions with great deliberation, exercising
their power in this respect with the greatest possible caution and even reluctance; and
they should never declare a statute void, unless its invalidity is, in their judgment, beyond
reasonable doubt. To justify a court in pronouncing a legislative act unconstitutional, or a
provision of a state constitution to be in contravention of the Constitution of the United
States, the case must be so clear to be free from doubt, and the conflict of the statute with
the constitution must be irreconcilable, because it is but a decent respect to the wisdom,
the integrity, and the patriotism of the legislative body by which any law is passed to
presume in favor of its validity until the contrary is shown beyond reasonable doubt.
Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary
to the constitution. To doubt the constitutionality of a law is to resolve the doubt in favor
of its validity. (6 Ruling Case Law, secs. 71, 72, and 73, and cases cited therein.)
It is also the settled law in the United States that "due process of law" does not always require, in
respect to the Government, the same process that is required between citizens, though it generally
implies and includes regular allegations, opportunity to answer, and a trial according to some well
settled course of judicial proceedings. The case with which we are dealing is in point. A citizen's
property, both real and personal, may be taken, and usually is taken, by the government in
payment of its taxes without any judicial proceedings whatever. In this country, as well as in the
United States, the officer charged with the collection of taxes is authorized to seize and sell the
property of delinquent taxpayers without applying to the courts for assistance, and the
constitutionality of the law authorizing this procedure never has been seriously questioned. (City of
Philadelphia vs. [Diehl] The Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.)
This must necessarily be the course, because it is upon taxation that the Government chiefly relies
to obtain the means to carry on its operations, and it is of the utmost importance that the modes
adopted to enforce the collection of the taxes levied should be summary and interfered with as little
as possible. No government could exist if every litigious man were permitted to delay the collection
of its taxes. This principle of public policy must be constantly borne in mind in determining cases
such as the one under consideration.
With these principles to guide us, we will proceed to inquire whether there is any merit in the two
propositions insisted upon by counsel for the plaintiffs. Section 5 of the Philippine Bill provides:
"That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person therein the equal protection of the law."
The origin and history of these provisions are well-known. They are found in substance in the
Constitution of the United States and in that of ever state in the Union.
Section 3224 of the Revised Statutes of the United States, effective since 1867, provides that: "No
suit for the purpose of restraining the assessment or collection of any tax shall be maintained in
any court."
Section 139, with which we have been dealing, reads: "No court shall have authority to grant an
injunction to restrain the collection of any internal-revenue tax."
A comparison of these two sections show that they are essentially the same. Both expressly prohibit
the restraining of taxes by injunction. If the Supreme Court of the United States has clearly and
definitely held that the provisions of section 3224 do not violate the "due process of law" and
"equal protection of the law" clauses in the Constitution, we would be going too far to hold that
section 139 violates those same provisions in the Philippine Bill. That the Supreme Court of the
United States has so held, cannot be doubted.
In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of an income tax levied
by an act of Congress prior to the one in issue in the case of Pollock vs. Farmers' Loan & Trust Co.
(157 U.S., 429) the court, through Mr. Justice Miller, said: "If there existed in the courts, state or
National, any general power of impeding or controlling the collection of taxes, or relieving the
hardship incident to taxation, the very existence of the government might be placed in the power of
a hostile judiciary. (Dows vs. The City of Chicago, 11 Wall., 108.) While a free course of
remonstrance and appeal is allowed within the departments before the money is finally exacted,
the General Government has wisely made the payment of the tax claimed, whether of customs or of
internal revenue, a condition precedent to a resort to the courts by the party against whom the tax
is assessed. In the internal revenue branch it has further prescribed that no such suit shall be
brought until the remedy by appeal has been tried; and, if brought after this, it must be within six
months after the decision on the appeal. We regard this as a condition on which alone the
government consents to litigate the lawfulness of the original tax. It is not a hard condition. Few
governments have conceded such a right on any condition. If the compliance with this condition
requires the party aggrieved to pay the money, he must do it."
Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: "That there might be no
misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that "no
suit for the purpose of restraining the assessment or collection of any tax shall be maintained in
any court." (Rev, Stat., sec. 3224.) And though this was intended to apply alone to taxes levied by
the United States, it shows the sense of Congress of the evils to be feared if courts of justice could,
in any case, interfere with the process of collecting taxes on which the government depends for its
continued existence. It is a wise policy. It is founded in the simple philosophy derived from the
experience of ages, that the payment of taxes has to be enforced by summary and stringent means
against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalities
and other modes of procedure are necessary, than those which belong to courts of justice."
And again, in Snyder vs. Marks (109 U.S., 189), the court said: "The remedy of a suit to recover
back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden.
The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the
current of decisions in the Circuit Courts of the United States, and we are satisfied it is a correct
view of the law."itc-a1f
In the consideration of the plaintiffs' second proposition, we will attempt to show (1) that the
Philippine courts never have had, since the American occupation, the power to restrain by
injunction the collection of any tax imposed by the Insular Government for its own purpose and
benefit, and (2) that assuming that our courts had or have such power, this power has not been
diminished or curtailed by sections 139 and 140.
We will first review briefly the former and present systems of taxation. Upon the American
occupation of the Philippine, there was found a fairly complete system of taxation. This system was
continued in force by the military authorities, with but few changes, until the Civil Government
assumed charge of the subject. The principal sources of revenue under the Spanish regime were
derived from customs receipts, the so-called industrial taxes, the urbana taxes, the stamp tax, the
personal cedula tax, and the sale of the public domain. The industrial and urbana taxes constituted
practically an income tax of some 5 per cent on the net income of persons engaged in industrial and
commercial pursuits and on the income of owners of improved city property. The sale of stamped
paper and adhesive stamp tax. The cedula tax was a graduated tax, ranging from nothing up to
P37.50. The revenue derived from the sale of the public domain was not considered a tax. The
American authorities at once abolished the cedula tax, but later restored it in a modified form,
charging for each cedula twenty centavos, an amount which was supposed to be just sufficient to
cover the cost of issuance. The urbana tax was abolished by Act No. 223, effective September 6,
1901.
The "Municipal Code" (Act No. 82) and the Provincial Government Act (No. 83), both enacted in
1901, authorize municipal councils and provincial boards to impose an ad valorem tax on real
estate. The Municipal Code did not apply to the city of Manila. This city was given a special charter
(Act No. 183), effective August 30, 1901; Under this charter the Municipal Board of Manila is
authorized and empowered to impose taxes upon real estate and, like municipal councils, to license
and regulate certain occupations. Customs matters were completely reorganized by Act No. 355,
effective at the port of Manila on February 7, 1902, and at other ports in the Philippine Islands the
day after the receipt of a certified copy of the Act. The Internal Revenue Law of 1904 (Act No.
1189), repealed all existing laws, ordinances, etc., imposing taxes upon the persons, objects, or
occupations taxed under that act, and all industrial taxes and stamp taxes imposed under the
Spanish regime were eliminated, but the industrial tax was continued in force until January 1,
1905. This Internal Revenue Law did not take away from municipal councils, provincial boards,
and the Municipal Board of the city of Manila the power to impose taxes upon real estate. This Act
(No. 1189), with its amendments, was repealed by Act No. 2339, an act "revising and consolidating
the laws relative to internal revenue."
Section 84 of Act No. 82 provides that "No court shall entertain any suit assailing the validity of a
tax assessed under this act until the taxpayer shall have paid, under protest, the taxes assessed
against him, . . . ."
This inhibition was inserted in section 17 of Act No. 83 and applies to taxes imposed by provincial
boards. The inhibition was not inserted in the Manila Charter until the passage of Act No. 1793,
effective October 12, 1907. Act No. 355 expressly makes the payment of the exactions claimed a
condition precedent to a resort to the courts by dissatisfied importers. Section 52 of Act No. 1189
provides "That no courts shall have authority to grant an injunction restraining the collection of
any taxes imposed by virtue of the provisions of this Act, but the remedy of the taxpayer who claims
that he is unjustly assessed or taxed shall be by payment under protest of the sum claimed from
him by the Collector of Internal Revenue and by action to recover back the sum claimed to have
been illegally collected."
Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the same prohibition and
remedy. The result is that the courts have been expressly forbidden, in every act creating or
imposing taxes or imposts enacted by the legislative body of the Philippines since the American
occupation, to entertain any suit assailing the validity of any tax or impost thus imposed until the
tax shall have been paid under protest. The only taxes which have not been brought within the
express inhibition were those included in that part of the old Spanish system which completely
disappeared on or before January 1, 1905, and possibly the old customs duties which disappeared
in February, 1902.
Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides that "Courts of First
Instance shall have original jurisdiction:
xxx xxx xxx
2. In all civil actions which involve the ... legality of any tax, impost, or assessment, . . . .
xxx xxx xxx
7. Said courts and their judges, or any of them, shall have power to issue writs of
injunction, mandamus, certiorari, prohibition, quo warranto, and habeas corpus in
their respective provinces and districts, in the manner provided in the Code of Civil
Procedure.
The provisions of the Code of Civil Procedure (Act No. 190), effective October 1, 1901, which deals
with the subject of injunctions, are sections 162 to 172, inclusive. Injunctions, as here defined, are
of two kinds; preliminary and final. The former may be granted at any time after the
commencement of the action and before final judgment, and the latter at the termination of the
trial as the relief or part of the relief prayed for (sec. 162). Any judge of the Supreme Court may
grant a preliminary injunction in any action pending in that court or in any Court of First Instance.
A preliminary injunction may also be granted by a judge of the Court of First Instance in actions
pending in his district in which he has original jurisdiction (sec. 163). But such injunctions may be
granted only when the complaint shows facts entitling the plaintiff to the relief demanded (sec.
166), and before a final or permanent injunction can be granted, it must appear upon the trial of
the action that the plaintiff is entitled to have commission or continuance of the acts complained of
perpetually restrained (sec. 171). These provisions authorize the institution in Courts of First
Instance of what are known as "injunction suits," the sole object of which is to obtain the issuance
of a final injunction. They also authorize the granting of injunctions as aiders in ordinary civil
actions. We have defined in Davesa vs. Arbes (13 Phil. Rep., 273), an injunction to be "A "special
remedy" adopted in that code (Act 190) from American practice, and originally borrowed from
English legal procedure, which was there issued by the authority and under the seal of a court of
equity, and limited, as in other cases where equitable relief is sought, to those cases where there is
no "plain, adequate, and complete remedy at law,"which will not be granted while the rights
between the parties are undetermined, except in extraordinary cases where material and
irreparable injury will be done,"which cannot be compensated in damages . . .
By paragraph 2 of section 56 of Act No. 136, supra, and the provisions of the various subsequent
Acts heretofore mentioned, the Insular Government has consented to litigate with aggrieved
persons the validity of any original tax or impost imposed by it on condition that this be done in
ordinary civil actions after the taxes or exactions shall have been paid. But it is said that paragraph
2 confers original jurisdiction upon Courts of First Instance to hear and determine "all civil
actions" which involve the validity of any tax, impost or assessment, and that if the all-inclusive
words "all" and "any" be given their natural and unrestricted meaning, no action wherein that
question is involved can arise over which such courts do not have jurisdiction.
(Barrameda vs. Moir, 25 Phil. Rep., 44.) This is true. But the term "civil actions" had its well
defined meaning at the time the paragraph was enacted. The same legislative body which enacted
paragraph 2 on June 16, 1901, had, just a few months prior to that time, defined the only kind of
action in which the legality of any tax imposed by it might be assailed. (Sec. 84, Act 82, enacted
January 31, 1901, and sec. 17, Act No. 83, enacted February 6, 1901.) That kind of action being
payment of the tax under protest and an ordinary suit to recover and no other, there can be no
doubt that Courts of First Instance have jurisdiction over all such actions. The subsequent
legislation on the same subject shows clearly that the Commission, in enacting paragraph 2, supra,
did not intend to change or modify in any way section 84 of Act No. 82 and section 17 of Act No.
83, but, on the contrary, it was intended that "civil actions," mentioned in said paragraph, should
be understood to mean, in so far as testing the legality of taxes were concerned, only those of the
kind and character provided for in the two sections above mentioned. It is also urged that the
power to restrain by injunction the collection of taxes or imposts is conferred upon Courts of First
Instance by paragraph 7 of section 56, supra. This paragraph does empower those courts to grant
injunctions, both preliminary and final, in any civil action pending in their districts, provided
always, that the complaint shows facts entitling the plaintiff to the relief demanded. Injunction
suits, such as the one at bar, are "civil actions," but of a special or extraordinary character. It
cannot be said that the Commission intended to give a broader or different meaning to the word
"action," used in Chapter 9 of the Code of Civil Procedure in connection with injunctions, than it
gave to the same word found in paragraph 2 of section 56 of the Organic Act. The Insular
Government, in exercising the power conferred upon it by the Congress of the United States, has
declared that the citizens and residents of this country shall pay certain specified taxes and
imposts. The power to tax necessarily carries with it the power to collect the taxes. This being true,
the weight of authority supports the proposition that the Government may fix the conditions upon
which it will consent to litigate the validity of its original taxes. (Tennessee vs. Sneed, 96 U.S., 69.)
We must, therefore, conclude that paragraph 2 and 7 of section 56 of Act No. 136, construed in the
light of the prior and subsequent legislation to which we have referred, and the legislative and
judicial history of the same subject in the United States with which the Commission was familiar,
do not empower Courts of firs Instance to interfere by injunction with the collection of the taxes in
question in this case.1awphil.net
If we are in error as to the scope of paragraph 2 and 7, supra, and the Commission did intend to
confer the power upon the courts to restrain the collection of taxes, it does not necessarily follow
that this power or jurisdiction has been taken away by section 139 of Act No. 2339, for the reason
that all agree that an injunction will not issue in any case if there is an adequate remedy at law. The
very nature of the writ itself prevents its issuance under such circumstances. Legislation forbidding
the issuing of injunctions in such cases is unnecessary. So the only question to be here determined
is whether the remedy provided for in section 140 of Act No. 2339 is adequate. If it is, the writs
which form the basis of this appeal should not have been issued. If this is the correct view, the
authority to issue injunctions will not have been taken away by section 139, but rendered
inoperative only by reason of an adequate remedy having been made available.
The legislative body of the Philippine Islands has declared from the beginning (Act No. 82) that
payment under protest and suit to recover is an adequate remedy to test the legality of any tax or
impost, and that this remedy is exclusive. Can we say that the remedy is not adequate or that it is
not exclusive, or both? The plaintiffs in the case at bar are the first, in so far as we are aware, to
question either the adequacy or exclusiveness of this remedy. We will refer to a few cases in the
United States where statutes similar to sections 139 and 140 have been construed and applied.
In May, 1874, one Bloomstein presented a petition to the circuit court sitting in Nashville,
Tennessee, stating that his real and personal property had been assessed for state taxes in the year
1872 to the amount of $132.60; that he tendered to the collector this amount in "funds receivable
by law for such purposes;" and that the collector refused to receive the same. He prayed for an
alternative writ of mandamus to compel the collector to receive the bills in payment for such taxes,
or to show cause to the contrary. To this petition the collector, in his answer, set up the defense
that the petitioner's suit was expressly prohibited by the Act of the General Assembly of the State of
Tennessee, passed in 1873. The petition was dismissed and the relief prayed for refused. An appeal
to the supreme court of the State resulted in the affirmance of the judgment of the lower court. The
case was then carried to the Supreme Court of the United States (Tennessee vs. Sneed, 96 U. S.,
69), where the judgment was again affirmed.
The two sections of the Act of [March 21,] 1873, drawn in question in that cases, read as follows:
1. That in all cases in which an officer, charged by law with the collection of revenue due
the State, shall institute any proceeding, or take any steps for the collection of the same,
alleged or claimed to be due by said officer from any citizen, the party against whom the
proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or
against any statute or clause of the Constitution of the State, pay the same under protest;
and, upon his making said payment, the officer or collector shall pay such revenue into
the State Treasury, giving notice at the time of payment to the Comptroller that the same
was paid under protest; and the party paying said revenue may, at any time within thirty
days after making said payment, and not longer thereafter, sue the said officer having
collected said sum, for the recovery thereof. And the same may be tried in any court
having the jurisdiction of the amount and parties; and, if it be determined that the same
was wrongfully collected, as not being due from said party to the State, for any reason
going to the merits of the same, then the court trying the case may certify of record that
the same was wrongfully paid and ought to be refunded; and thereupon the Comptroller
shall issue his warrant for the same, which shall be paid in preference to other claims on
the Treasury.
 2. That there shall be no other remedy, in any case of the collection of revenue, or attempt It was claimed by the complainants that the above quoted provisions of the Act of 1885 were
to collect revenue illegally, or attempt to collect revenue in funds only receivable by said unconstitutional and void as being in conflict with article 6, sec. 8, of the Constitution, which
officer under the law, the same being other or different funds than such as the tax payer provides that: "The circuit courts shall have original jurisdiction in all matters, civil and criminal,
may tender, or claim the right to pay, than that above provided; and no writ for the not excepted in this Constitution, and not prohibited by law. ... They shall also have power to issue
prevention of the collection of any revenue claimed, or to hinder or delay the collection of writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs
the same, shall in anywise issue, either injunction, supersedeas, prohibition, or any other necessary to carry into effect their orders, judgments, and decrees."
writ or process whatever; but in all cases in which, for any reason, any person shall claim
that the tax so collected was wrongfully or illegally collected, the remedy for said party
Mr. Justice Champlin, speaking for the court, said: "I have no doubt that the Legislature has the
shall be as above provided, and in no other manner."
constitutional authority, where it has provided a plain, adequate, and complete remedy at law to
recover back taxes illegally assessed and collected, to take away the remedy by injunction to
In discussing the adequacy of the remedy provided by the Tennessee Legislature, as above set restrain their collection."
forth, the Supreme Court of the United States, in the case just cited, said: "This remedy is simple
and effective. A suit at law to recover money unlawfully exacted is as speedy, as easily tried, and
Section 9 of the Philippine Bill reads in part as follows: "That the Supreme Court and the Courts of
less complicated than a proceeding by mandamus. ... In revenue cases, whether arising upon its
First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore
(United States) Internal Revenue Laws or those providing for the collection of duties upon foreign
provided and such additional jurisdiction as shall hereafter be prescribed by the Government of
imports, it (United States) adopts the rule prescribed by the State of Tennessee. It requires the
said Islands, subject to the power of said Government to change the practice and method of
contestant to pay the amount as fixed by the Government, and gives him power to sue the collector,
procedure."
and in such suit to test the legality of the tax. There is nothing illegal or even harsh in this. It is a
wise and reasonable precaution for the security of the Government."
It will be seen that this section has not taken away from the Philippine Government the power to
change the practice and method of procedure. If sections 139 and 140, considered together, and
Thomas C. Platt commenced an action in the Circuit Court of the United States for the Eastern
this must always be done, are nothing more than a mode of procedure, then it would seem that the
District of Tennessee to restrain the collection of a license tax from the company which he
Legislature did not exceed its constitutional authority in enacting them. Conceding for the moment
represented. The defense was that sections 1 and 2 of the Act of 1873, supra, prohibited the
that the duly authorized procedure for the determination of the validity of any tax, impost, or
bringing of that suit. This case also reached the Supreme Court of the United States.
assessment was by injunction suits and that this method was available to aggrieved taxpayers prior
(Shelton vs. Platt, 139 U. 591.) In speaking of the inhibitory provisions of sections 1 and 2 of the Act
to the passage of Act No. 2339, may the Legislature change this method of procedure? That the
of 1873, the court said: "This Act has been sanctioned and applied by the Courts of Tennessee.
Legislature has the power to do this, there can be no doubt, provided some other adequate remedy
(Nashville vs. Smith, 86 Tenn., 213; Louisville & N. R. Co. vs. State, 8 Heisk., 663, 804.) It is, as
is substituted in lieu thereof. In speaking of the modes of enforcing rights created by contracts, the
counsel observe, similar to the Act of Congress forbidding suit for the purpose of restraining the
Supreme Court of the United States, in Tennessee vs. Sneed, supra, said: "The rule seems to be
assessment or collection of taxes under the Internal Revenue Laws, in respect to which this court
that in modes of proceedings and of forms to enforce the contract the Legislature has the control,
held that the remedy by suit to recover back the tax after payment, provided for by the Statute, was
and may enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it
exclusive. (Snyder vs. Marks, of this character has been called for by the embarrassments resulting
with conditions and restrictions as seriously to impair the value of the right."
from the improvident employment of the writ of injunction in arresting the collection of the public
revenue; and, even in its absence, the strong arm of the court of chancery ought not to be
interposed in that direction except where resort to that court is grounded upon the settled In that case the petitioner urged that the Acts of 1873 were laws impairing the obligation of the
principles which govern its jurisdiction." contract contained in the charter of the Bank of Tennessee, which contract was entered into with
the State in 1838. It was claimed that this was done by placing such impediments and obstructions
in the way of its enforcement, thereby so impairing the remedies as practically to render the
In Louisville & N.R. Co. vs. State (8 Heisk. [64 Tenn.], 663, 804), cited by the Supreme Court of the
obligation of no value. In disposing of this contention, the court said: "If we assume that prior to
United States in Shelton vs. Platt, supra, the court said: "It was urged that this statute (sections 1
1873 the relator had authority to prosecute his claim against the State by mandamus, and that by
and 2 of the Act of 1873, supra) is unconstitutional and void, as it deprives the citizen of the
the statutes of that year the further use of that form was prohibited to him, the question remains.
remedy by certiorari, guaranteed by the organic law."
whether an effectual remedy was left to him or provided for him. We think the regulation of the
statute gave him an abundant means of enforcing such right as he possessed. It provided that he
By the 10th section of the sixth article of the Constitution, [Tennessee] it is provided that: "The might pay his claim to the collector under protest, giving notice thereof to the Comptroller of the
judges or justices of inferior courts of law and equity shall have power in all civil cases to issue Treasury; that at any time within thirty days thereafter he might sue the officer making the
writs of certiorari, to remove any cause, or the transcript of the record thereof, from any inferior collection; that the case should be tried by any court having jurisdiction and, if found in favor of the
jurisdiction into such court of law, on sufficient cause, supported by oath or affirmation." plaintiff on the merits, the court should certify that the same was wrongfully paid and ought to be
refunded and the Comptroller should thereupon issue his warrant therefor, which should be paid
in preference to other claim on the Treasury."
The court held the act valid as not being in conflict with these provisions of the State constitution.

But great stress is laid upon the fact that the plaintiffs in the case under consideration are unable to
In Eddy vs. The Township of Lee (73 Mich., 123), the complainants sought to enjoin the collection
pay the taxes assessed against them and that if the law is enforced, they will be compelled to
of certain taxes for the year 1886. The defendants, in support of their demurrer, insisted that the
suspend business. This point may be best answered by quoting from the case of
remedy by injunction had been taken away by section 107 of the Act of 1885, which section reads as
Youngblood vs. Sexton (32 Mich., 406), wherein Judge Cooley, speaking for the court, said: "But if
follows: "No injunction shall issue to stay proceedings for the assessment or collection of taxes
this consideration is sufficient to justify the transfer of a controversy from a court of law to a court
under this Act."
of equity, then every controversy where money is demanded may be made the subject of equitable
cognizance. To enforce against a dealer a promissory note may in some cases as effectually break
up his business as to collect from him a tax of equal amount. This is not what is known to the law as
irreparable injury. The courts have never recognized the consequences of the mere enforcement of
a money demand as falling within that category."
Certain specified sections of Act No. 2339 were amended by Act No. 2432, enacted December 23,
1914, effective January 1, 1915, by imposing increased and additional taxes. Act No. 2432 was
amended, were ratified by the Congress of the United States on March 4, 1915. The opposition
manifested against the taxes imposed by Acts Nos. 2339 and 2432 is a matter of local history. A
great many business men thought the taxes thus imposed were too high. If the collection of the new
taxes on signs, signboards, and billboards may be restrained, we see no well-founded reason why
injunctions cannot be granted restraining the collection of all or at least a number of the other
increased taxes. The fact that this may be done, shows the wisdom of the Legislature in denying the
use of the writ of injunction to restrain the collection of any tax imposed by the Acts. When this was
done, an equitable remedy was made available to all dissatisfied taxpayers.
The question now arises whether, the case being one of which the court below had no jurisdiction,
this court, on appeal, shall proceed to express an opinion upon the validity of provisions of
subsection (b) of section 100 of Act No. 2339, imposing the taxes complained of. As a general rule,
an opinion on the merits of a controversy ought to be declined when the court is powerless to give
the relief demanded. But it is claimed that this case is, in many particulars, exceptional. It is true
that it has been argued on the merits, and there is no reason for any suggestion or suspicion that it
is not a bona fide controversy. The legal points involved in the merits have been presented with
force, clearness, and great ability by the learned counsel of both sides. If the law assailed were still
in force, we would feel that an opinion on its validity would be justifiable, but, as the amendment
became effective on January 1, 1915, we think it advisable to proceed no further with this branch of
the case.
The next question arises in connection with the supplementary complaint, the object of which is to
enjoin the Collector of Internal Revenue from removing certain billboards, the property of the
plaintiffs located upon private lands in the Province of Rizal. The plaintiffs allege that the
billboards here in question "in no sense constitute a nuisance and are not deleterious to the health,
morals, or general welfare of the community, or of any persons." The defendant denies these
allegations in his answer and claims that after due investigation made upon the complaints of the
British and German Consuls, he "decided that the billboard complained of was and still is offensive
to the sight, and is otherwise a nuisance." The plaintiffs proved by Mr. Churchill that the
"billboards were quite a distance from the road and that they were strongly built, not dangerous to
the safety of the people, and contained no advertising matter which is filthy, indecent, or
deleterious to the morals of the community." The defendant presented no testimony upon this
point. In the agreed statement of facts submitted by the parties, the plaintiffs "admit that the
billboards mentioned were and still are offensive to the sight."
The pertinent provisions of subsection (b) of section 100 of Act No. 2339 read: "If after due
investigation the Collector of Internal Revenue shall decide that any sign, signboard, or billboard
displayed or exposed to public view is offensive to the sight or is otherwise a nuisance, he may by
summary order direct the removal of such sign, signboard, or billboard, and if same is not removed
within ten days after he has issued such order he my himself cause its removal, and the sign,
signboard, or billboard shall thereupon be forfeited to the Government, and the owner thereof
charged with the expenses of the removal so effected. When the sign, signboard, or billboard
ordered to be removed as herein provided shall not comply with the provisions of the general
regulations of the Collector of Internal Revenue, no rebate or refund shall be allowed for any
portion of a year for which the tax may have been paid. Otherwise, the Collector of Internal
Revenue may in his discretion make a proportionate refund of the tax for the portion of the year
remaining for which the taxes were paid. An appeal may be had from the order of the Collector of
Internal Revenue to the Secretary of Finance and Justice whose decision thereon shall be final."
The Attorney-General, on behalf of the defendant, says: "The question which the case presents
under this head for determination, resolves itself into this inquiry: Is the suppression of advertising
signs displayed or exposed to public view, which are admittedly offensive to the sight, conducive to
the public interest?"
And cunsel for the plaintiffs states the question thus: "We contend that that portion of section 100
of Act No. 2339, empowering the Collector of Internal Revenue to remove billboards as nuisances,
if objectionable to the sight, is unconstitutional, as constituting a deprivation of property without
due process of law."
From the position taken by counsel for both sides, it is clear that our inquiry is limited to the
question whether the enactment assailed by the plaintiffs was a legitimate exercise of the police
power of the Government; for all property is held subject to that power.
As a consequence of the foregoing, all discussion and authorities cited, which go to the power of the
state to authorize administrative officers to find, as a fact, that legitimate trades, callings, and
businesses are, under certain circumstances, statutory nuisances, and whether the procedure
prescribed for this purpose is due process of law, are foreign to the issue here presented.
There can be no doubt that the exercise of the police power of the Philippine Government belongs
to the Legislature and that this power is limited only by the Acts of Congress and those
fundamentals principles which lie at the foundation of all republican forms of government. An Act
of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police
power and interferes with the ordinary enjoyment of property would, without doubt, be held to be
invalid. But where the Act is reasonably within a proper consideration of and care for the public
health, safety, or comfort, it should not be disturbed by the courts. The courts cannot substitute
their own views for what is proper in the premises for those of the Legislature. In Munn vs. Illinois
(94 U.S., 113), the United States Supreme Court states the rule thus: "If no state of circumstances
could exist to justify such statute, then we may declare this one void because in excess of the
legislative power of this state; but if it could, we must presume it did. Of the propriety of legislative
interference, within the scope of the legislative power, a legislature is the exclusive judge."
This rule very fully discussed and declared in Powell vs. Pennsylvania (127 U.S., 678) "oleo-
margarine" case. (See also Crowley vs. Christensen, 137 U.S., 86, 87; Camfield vs. U.S., 167 U.S.,
518.) While the state may interfere wherever the public interests demand it, and in this particular a
large discretion is necessarily vested in the legislature to determine, not only what the interest of
the public require, but what measures are necessary for the protection of such interests; yet, its
determination in these matters is not final or conclusive, but is subject to the supervision of the
courts. (Lawton vs. Steele, 152 U.S., 133.) Can it be said judicially that signs, signboards, and
billboards, which are admittedly offensive to the sight, are not with the category of things which
interfere with the public safety, welfare, and comfort, and therefore beyond the reach of the police
power of the Philippine Government?
The numerous attempts which have been made to limit by definition the scope of the police power
are only interesting as illustrating its rapid extension within comparatively recent years to points
heretofore deemed entirely within the field of private liberty and property rights. Blackstone's
definition of the police power was as follows: "The due regulation and domestic order of the
kingdom, whereby the individuals of the state, like members of a well governed family, are bound
to conform their general behavior to the rules of propriety, good neigborhood, and good manners,
to be decent, industrious, and inoffensive in their respective stations." (Commentaries, vol. 4, p.
162.)
Chanceller Kent considered the police power the authority of the state "to regulate unwholesome
trades, slaughter houses, operations offensive to the senses." Chief Justice Shaw of Massachusetts
defined it as follows: "The power vested in the legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall judge to be for the good and
welfare of the commonwealth, and of the subjects of the same." (Com. vs. Alger, 7 Cush., 53.)
In the case of Butchers' Union Slaughter-house, etc. Co. vs. Crescent City Live Stock Landing, etc.
Co. (111 U.S., 746), it was suggested that the public health and public morals are matters of
legislative concern of which the legislature cannot divest itself. (See State vs. Mountain Timber Co.
[1913], 75 Wash., 581, where these definitions are collated.)
In Champer vs. Greencastle (138 Ind., 339), it was said: "The police power of the State, so far, has
not received a full and complete definition. It may be said, however, to be the right of the State, or
state functionary, to prescribe regulations for the good order, peace, health, protection, comfort,
convenience and morals of the community, which do not ... violate any of the provisions of the
organic law." (Quoted with approval in Hopkins vs. Richmond [Va., 1915], 86 S.E., 139.)
In Com. vs. Plymouth Coal Co. ([1911] 232 Pa., 141), it was said: "The police power of the state is
difficult of definition, but it has been held by the courts to be the right to prescribe regulations for
the good order, peace, health, protection, comfort, convenience and morals of the community,
which does not encroach on a like power vested in congress or state legislatures by the federal
constitution, or does not violate the provisions of the organic law; and it has been expressly held
that the fourteenth amendment to the federal constitution was not designed to interfere with the
exercise of that power by the state."
In People vs. Brazee ([Mich., 1914], 149 N.W., 1053), it was said: "It [the police power] has for its
object the improvement of social and economic conditioned affecting the community at large and
collectively with a view to bring about "he greatest good of the greatest number."Courts have
consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of
this power. It is elastic and is exercised from time to time as varying social conditions demand
correction."
In 8 Cyc., 863, it is said: "Police power is the name given to that inherent sovereignty which it is the
right and duty of the government or its agents to exercise whenever public policy, in a broad sense,
demands, for the benefit of society at large, regulations to guard its morals, safety, health, order or
to insure in any respect such economic conditions as an advancing civilization of a high complex
character requires." (As quoted with approval in Stettler vs. O'Hara [1914], 69 Ore, 519.)
Finally, the Supreme Court of the United States has said in Noble State Bank vs. Haskell (219 U.S.
[1911], 575: "It may be said in a general way that the police power extends to all the great public
needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality
or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."
This statement, recent as it is, has been quoted with approval by several courts.
(Cunningham vs. Northwestern Imp. Co. [1911], 44 Mont., 180; State vs. Mountain Timber Co.
[1913], 75 Wash., 581; McDavid vs. Bank of Bay Minette [Ala., 1915], 69 Sou., 452; Hopkins vs. City
of Richmond [Va., 1915], 86 S.E., 139; State vs. Philipps [Miss. 1915], 67 Sou., 651.)
It was said in Com. vs. Alger (7 Cush., 53, 85), per Shaw, C.J., that: "It is much easier to perceive
and realize the existence and sources of this police power than to mark its boundaries, or to
prescribe limits to its exercise." In Stone vs. Mississippi (101 U.S., 814), it was said: "Many
attempts have been made in this court and elsewhere to define the police power, but never with
entire success. It is always easier to determine whether a particular case comes within the general
scope of the power, than to give an abstract definition of the power itself, which will be in all
respects accurate."
Other courts have held the same vow of efforts to evolve a satisfactory definition of the police
power. Manifestly, definitions which fail to anticipate cases properly within the scope of the police
power are deficient. It is necessary, therefore, to confine our discussion to the principle involved
and determine whether the cases as they come up are within that principle. The basic idea of civil
polity in the United States is that government should interfere with individual effort only to the
extent necessary to preserve a healthy social and economic condition of the country. State
interference with the use of private property may be exercised in three ways. First, through the
power of taxation, second, through the power of eminent domain, and third, through the police
power. Buy the first method it is assumed that the individual receives the equivalent of the tax in
the form of protection and benefit he receives from the government as such. By the second method
he receives the market value of the property taken from him. But under the third method the
benefits he derived are only such as may arise from the maintenance of a healthy economic
standard of society and is often referred to as damnum absque injuria. (Com. vs. Plymouth Coal
Co. 232 Pa., 141; Bemis vs. Guirl Drainage Co., 182 Ind., 36.) There was a time when state
interference with the use of private property under the guise of the police power was practically
confined to the suppression of common nuisances. At the present day, however, industry is
organized along lines which make it possible for large combinations of capital to profit at the
expense of the socio-economic progress of the nation by controlling prices and dictating to
industrial workers wages and conditions of labor. Not only this but the universal use of mechanical
contrivances by producers and common carriers has enormously increased the toll of human life
and limb in the production and distribution of consumption goods. To the extent that these
businesses affect not only the public health, safety, and morals, but also the general social and
economic life of the nation, it has been and will continue to be necessary for the state to interfere
by regulation. By so doing, it is true that the enjoyment of private property is interfered with in no
small degree and in ways that would have been considered entirely unnecessary in years gone by.
The regulation of rates charged by common carriers, for instance, or the limitation of hours of work
in industrial establishments have only a very indirect bearing upon the public health, safety, and
morals, but do bear directly upon social and economic conditions. To permit each individual unit of
society to feel that his industry will bring a fair return; to see that his work shall be done under
conditions that will not either immediately or eventually ruin his health; to prevent the artificial
inflation of prices of the things which are necessary for his physical well being are matters which
the individual is no longer capable of attending to himself. It is within the province of the police
power to render assistance to the people to the extent that may be necessary to safeguard these
rights. Hence, laws providing for the regulation of wages and hours of labor of coal miners (Rail &
River Coal Co. vs. Taylor, 234 U.S., 224); requiring payment of employees of railroads and other
industrial concerns in legal tender and requiring salaries to be paid semimonthly (Erie R.R.
Co. vs. Williams, 233 U.S., 685); providing a maximum number of hours of labor for women
(Miller vs. Wilson, U.S. Sup. Ct. [Feb. 23, 1915], Adv. Opns., p. 342); prohibiting child labor
(Sturges & Burn vs. Beauchamp, 231 U.S., 320); restricting the hours of labor in public laundries
(In re Wong Wing, 167 Cal., 109); limiting hours of labor in industrial establishment generally
(State vs. Bunting, 71 Ore., 259); Sunday Closing Laws (State vs. Nicholls [Ore., 1915], 151 Pac.,
473; People vs. C. Klinck Packing Co. [N.Y., 1915], 108 N. E., 278; Hiller vs. State [Md., 1914], 92
Atl., 842; State vs. Penny, 42 Mont., 118; City of Springfield vs. Richter, 257 Ill., 578, 580;
State vs. Hondros [S.C., 1915], 84 S.E., 781); have all been upheld as a valid exercise of the police
power. Again, workmen's compensation laws have been quite generally upheld. These statutes
discard the common law theory that employers are not liable for industrial accidents and make
them responsible for all accidents resulting from trade risks, it being considered that such
accidents are a legitimate charge against production and that the employer by controlling the
prices of his product may shift the burden to the community. Laws requiring state banks to join in
establishing a depositors' guarantee fund have also been upheld by the Federal Supreme Court in
Noble State Bank vs. Haskell (219 U. S., 104), and Assaria State Bank vs. Dolley (219 U.S., 121).
Offensive noises and smells have been for a long time considered susceptible of suppression in
thickly populated districts. Barring livery stables from such locations was approved of in
Reinman vs. Little Rock (U.S. Sup. Ct. [Apr. 5, 1915], U.S. Adv. Opns., p. 511). And a municipal
ordinance was recently upheld (People vs. Ericsson, 263 Ill., 368), which prohibited the location of
garages within two hundred feet of any hospital, church, or school, or in any block used exclusively
for residential purposes, unless the consent of the majority of the property owners be obtained.
Such statutes as these are usually upheld on the theory of safeguarding the public health. But we
apprehend that in point of fact they have little bearing upon the health of the normal person, but a
great deal to do with his physical comfort and convenience and not a little to do with his peace of
mind. Without entering into the realm of psychology, we think it quite demonstrable that sight is as
valuable to a human being as any of his other senses, and that the proper ministration to this sense
conduces as much to his contentment as the care bestowed upon the senses of hearing or smell,
and probably as much as both together. Objects may be offensive to the eye as well as to the nose or
ear. Man's esthetic feelings are constantly being appealed to through his sense of sight. Large
investments have been made in theaters and other forms of amusement, in paintings and
spectacular displays, the success of which depends in great part upon the appeal made through the
sense of sight. Moving picture shows could not possible without the sense of sight. Governments
have spent millions on parks and boulevards and other forms of civic beauty, the first aim of which
is to appeal to the sense of sight. Why, then, should the Government not interpose to protect from
annoyance this most valuable of man's senses as readily as to protect him from offensive noises and
smells?
The advertising industry is a legitimate one. It is at the same time a cause and an effect of the great
industrial age through which the world is now passing. Millions are spent each year in this manner
to guide the consumer to the articles which he needs. The sense of sight is the primary essential to
advertising success. Billboard advertising, as it is now conducted, is a comparatively recent form of
advertising. It is conducted out of doors and along the arteries of travel, and compels attention by
the strategic locations of the boards, which obstruct the range of vision at points where travelers
are most likely to direct their eyes. Beautiful landscapes are marred or may not be seen at all by the
traveler because of the gaudy array of posters announcing a particular kind of breakfast food, or
underwear, the coming of a circus, an incomparable soap, nostrums or medicines for the curing of
all the ills to which the flesh is heir, etc. It is quite natural for people to protest against this
indiscriminate and wholesale use of the landscape by advertisers and the intrusion of tradesmen
upon their hours of leisure and relaxation from work. Outdoor life must lose much of its charm and
pleasure if this form of advertising is permitted to continue unhampered until it converts the
streets and highways into veritable canyons through which the world must travel in going to work
or in search of outdoor pleasure.
The success of billboard advertising depends not so much upon the use of private property as it
does upon the use of the channels of travel used by the general public. Suppose that the owner of
private property, who so vigorously objects to the restriction of this form of advertising, should
require the advertiser to paste his posters upon the billboards so that they would face the interior
of the property instead of the exterior. Billboard advertising would die a natural death if this were
done, and its real dependency not upon the unrestricted use of private property but upon the
unrestricted use of the public highways is at once apparent. Ostensibly located on private property,
the real and sole value of the billboard is its proximity to the public thoroughfares. Hence, we
conceive that the regulation of billboards and their restriction is not so much a regulation of private
property as it is a regulation of the use of the streets and other public thoroughfares.
We would not be understood as saying that billboard advertising is not a legitimate business any
more than we would say that a livery stable or an automobile garage is not. Even a billboard is
more sightly than piles of rubbish or an open sewer. But all these businesses are offensive to the
senses under certain conditions.
It has been urged against ministering to the sense of sight that tastes are so diversified that there is
no safe standard of legislation in this direction. We answer in the language of the Supreme Court in
Noble State Bank vs. Haskell (219 U.S., 104), and which has already been adopted by several state
courts (see supra), that "the prevailing morality or strong and preponderating opinion" demands
such legislation. The agitation against the unrestrained development of the billboard business has
produced results in nearly all the countries of Europe. (Ency. Britannica, vol. 1, pp. 237-240.) Many
drastic ordinances and state laws have been passed in the United States seeking to make the
business amenable to regulation. But their regulation in the United states is hampered by what we
conceive an unwarranted restriction upon the scope of the police power by the courts. If the police
power may be exercised to encourage a healthy social and economic condition in the country, and if
the comfort and convenience of the people are included within those subjects, everything which
encroaches upon such territory is amenable to the police power. A source of annoyance and
irritation to the public does not minister to the comfort and convenience of the public. And we are
of the opinion that the prevailing sentiment is manifestly against the erection of billboards which
are offensive to the sight.
We do not consider that we are in conflict with the decision in Eubank vs. Richmond (226 U.S.,
137), where a municipal ordinance establishing a building line to which property owners must
conform was held unconstitutional. As we have pointed out, billboard advertising is not so much a
use of private property as it is a use of the public thoroughfares. It derives its value to the power
solely because the posters are exposed to the public gaze. It may well be that the state may not
require private property owners to conform to a building line, but may prescribe the conditions
under which they shall make use of the adjoining streets and highways. Nor is the law in question
to be held invalid as denying equal protection of the laws. In Keokee Coke Co. vs. Taylor (234 U.S.,
224), it was said: "It is more pressed that the act discriminates unconstitutionally against certain
classes. But while there are differences of opinion as to the degree and kind of discrimination
permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute
aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most
felt, is not to be upset by thinking up and enumerating other instances to which it might have been
applied equally well, so far as the court can see. That is for the legislature to judge unless the case is
very clear."
But we have not overlooked the fact that we are not in harmony with the highest courts of a
number of the states in the American Union upon this point. Those courts being of the opinion that
statutes which are prompted and inspired by esthetic considerations merely, having for their sole
purpose the promotion and gratification of the esthetic sense, and not the promotion or protection
of the public safety, the public peace and good order of society, must be held invalid and contrary
to constitutional provisions holding inviolate the rights of private property. Or, in other words, the
police power cannot interfere with private property rights for purely esthetic purposes. The courts,
taking this view, rest their decisions upon the proposition that the esthetic sense is disassociated
entirely from any relation to the public health, morals, comfort, or general welfare and is,
therefore, beyond the police power of the state. But we are of the opinion, as above indicated, that
unsightly advertisements or signs, signboards, or billboards which are offensive to the sight, are
not disassociated from the general welfare of the public. This is not establishing a new principle,
but carrying a well recognized principle to further application. (Fruend on Police Power, p. 166.)
For the foregoing reasons the judgment appealed from is hereby reversed and the action dismissed
upon the merits, with costs. So ordered.
Arellano, C.J., Torres, Carson, and Araullo, JJ., concur.
DECISION ON THE MOTION FOR A REHEARING, JANUARY 24, 1916.
TRENT, J.:
Counsel for the plaintiffs call our attention to the case of Ex parte Young (209 U.S., 123); and say
that they are of the opinion that this case "is the absolutely determinative of the question of
jurisdiction in injunctions of this kind." We did not refer to this case in our former opinion because
we were satisfied that the reasoning of the case is not applicable to section 100 (b), 139 and 140 of
Act No. 2339. The principles announced in the Young case are stated as follows: "It may therefore
be said that when the penalties for disobedience are by fines so enormous and imprisonment so
severe as to intimidate the company and its officers from resorting to the courts to test the validity
of the legislation, the result is the same as if the law in terms prohibited the company from seeking
judicial construction of laws which deeply affect its rights.
It is urged that there is no principle upon which to base the claim that a person is entitled
to disobey a statute at least once, for the purpose of testing its validity without subjecting
himself to the penalties for disobedience provided by the statute in case it is valid. This is
not an accurate statement of the case. Ordinarily a law creating offenses in the nature of
misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature
is complete in any event. In these case, however, of the establishment of certain rates
without any hearing, the validity of such rates necessarily depends upon whether they are
high enough to permit at least some return upon the investment (how much it is not now
necessary to state), and an inquiry as to that fact is a proper subject of judicial
investigation. If it turns out that the rates are too low for that purpose, then they are
illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision
of such a question (no prior hearing having ever been given) only upon the condition that,
if unsuccessful, he must suffer imprisonment and pay fines as provided in these acts, is,
in effect, to close up all approaches to the courts, and thus prevent any hearing upon the
question whether the rates as provided by the acts are not too low, and therefore invalid.
The distinction is obvious between a case where the validity of the acts depends upon the
existence of a fact which can be determined only after investigation of a very complicated
and technical character, and the ordinary case of a statute upon a subject requiring no
such investigation and over which the jurisdiction of the legislature is complete in any
event.
An examination of the sections of our Internal Revenue Law and of the circumstances under which
and the purposes for which they were enacted, will show that, unlike the statutes under
consideration in the above cited case, their enactment involved no attempt on the part of the
Legislature to prevent dissatisfied taxpayers "from resorting to the courts to test the validity of the
legislation;" no effort to prevent any inquiry as to their validity. While section 139 does prevent the
testing of the validity of subsection (b) of section 100 in injunction suits instituted for the purpose
of restraining the collection of internal revenue taxes, section 140 provides a complete remedy for
that purpose. And furthermore, the validity of subsection (b) does not depend upon "the existence
of a fact which can be determined only after investigation of a very complicated and technical
character," but the jurisdiction of the Legislature over the subject with which the subsection deals
"is complete in any event." The judgment of the court in the Young case rests upon the proposition
that the aggrieved parties had no adequate remedy at law.
Neither did we overlook the case of General Oil Co. vs. Crain (209 U.S., 211), decided the
same day and citing Ex parte Young, supra. In that case the plaintiff was a Tennessee
corporation, with its principal place of business in Memphis, Tennessee. It was engaged
in the manufacture and sale of coal oil, etc. Its wells and plant were located in
Pennsylvania and Ohio. Memphis was not only its place of business, at which place it sold
oil to the residents of Tennessee, but also a distributing point to which oils were shipped
from Pennsylvania and Ohio and unloaded into various tanks for the purpose of being
forwarded to the Arkansas, Louisiana, and Mississippi customers. Notwithstanding the
fact that the company separated its oils, which were designated to meet the requirements
of the orders from those States, from the oils for sale in Tennessee, the defendant insisted
that he had a right, under the Act of the Tennessee Legislature, approved April 21, 1899,
to inspect all the oils unlocated in Memphis, whether for sale in that State or not, and
charge and collect for such inspection a regular fee of twenty-five cents per barrel. The
company, being advised that the defendant had no such right, instituted this action in the
inferior States court for the purpose of enjoining the defendant, upon the grounds stated
in the bill, from inspecting or attempting to inspect its oils. Upon trial, the preliminary
injunction which had been granted at the commencement of the action, was continued in
force. Upon appeal, the supreme court of the State of Tennessee decided that the suit was
one against the State and reversed the judgment of the Chancellor. In the Supreme Court
of the United States, where the case was reviewed upon a writ of error, the contentions of
the parties were stated by the court as follows: "It is contended by defendant in error that
this court is without jurisdiction because no matter sought to be litigated by plaintiff in
error was determined by the Supreme Court of Tennessee. The court simply held, it is
paid, that, under the laws of the State, it had no jurisdiction to entertain the suit for any
purpose. And it is insisted "hat this holding involved no Federal question, but only the
powers and jurisdiction of the courts of the State of Tennessee, in respect to which the
Supreme Court of Tennessee is the final arbiter."
Opposing these contentions, plaintiff in error urges that whether a suit is one against a
State cannot depend upon the declaration of a statute, but depends upon the essential
nature ofthe suit, and that the Supreme Court recognized that the statute "aded nothing
to the axiomatic principle that the State, as a sovereign, is not subject to suit save by its
own consent."And it is hence insisted that the court by dismissing the bill gave effect to
the law which was attacked. It is further insisted that the bill undoubtedly present rights
under the Constitution of the United States and conditions which entitle plaintiff in error
to an injunction for the protection of such rights, and that a statute of the State which
operates to deny such rights, or such relief, `is itself in conflict with the Constitution of
the United States."
That statute of Tennessee, which the supreme court of that State construed and held to be
prohibitory of the suit, was an act passed February 28, 1873, which provides: "That no court in the
State of Tennessee has, nor shall hereafter have, any power, jurisdiction, or authority to entertain
any suit against the State, or any officer acting by the authority of the State, with a view to reach the
State, its treasury, funds or property; and all such suits now pending, or hereafter brought, shall be
dismissed as to the State, or such officer, on motion, plea or demurrer of the law officer of the
State, or counsel employed by the State."
The Supreme Court of the United States, after reviewing many cases, said: "Necessarily, to give
adequate protection to constitutional rights a distinction must be made between valid and invalid
state laws, as determining the character of the suit against state officers. And the suit at bar
illustrates the necessity. If a suit against state officer is precluded in the national courts by the
Eleventh Amendment to the Constitution, and may be forbidden by a State to its courts, as it is
contended in the case at bar that it may be, without power of review by this court, it must be
evident that an easy way is open to prevent the enforcement of many provisions of the
Constitution; and the Fourteenth Amendment, which is directed at state action, could be nullified
as to much of its operation. ... It being then the right of a party to be protected against a law which
violates a constitutional right, whether by its terms or the manner of its enforcement, it is manifest
that a decision which denies such protection gives effect to the law, and the decision is reviewable
by this court."
The court then proceeded to consider whether the law of 1899 would, if administered against the
oils in question, violate any constitutional right of the plaintiff and after finding and adjudging that
the oils were not in movement through the States, that they had reached the destination of their billboard upon police, sanitary, and moral grounds have been, as pointed out by counsel for
first shipment, and were held there, not in necessary delay at means of transportation but for the Churchill and Tait, duly considered by numerous high courts in the United States, and, with one
business purposes and profit of the company, and resting its judgment upon the taxing power of exception, have been rejected as without foundation. The exception is the Supreme Court of
the State, affirmed the decree of the supreme court of the State of Tennessee. Missouri, which advances practically the same line of reasoning as has the Illinois court in this
recent case. (St. Louis Gunning Advt. Co. vs. City of St. Louis, 137 S. W., 929.) In fact, the Illinois
court, in Haller Sign Works vs. Physical Culture Training School (249 Ill., 436), "distinguished" in
From the foregoing it will be seen that the Supreme Court of Tennessee dismissed the case for want
the recent case, said: "There is nothing inherently dangerous to the health or safety of the public in
of jurisdiction because the suit was one against the State, which was prohibited by the Tennessee
structures that are properly erected for advertising purposes."
Legislature. The Supreme Court of the United States took jurisdiction of the controversy for the
reasons above quoted and sustained the Act of 1899 as a revenue law.
If a billboard is so constructed as to offer no room for objections on sanitary or moral grounds, it
would seem that the ordinance above quoted would have to be sustained upon the very grounds
The case of Tennessee vs. Sneed (96 U.S., 69), and Shelton vs. Platt (139 U.S., 591), relied upon in
which we have advanced in sustaining our own statute.
our former opinion, were not cited in General Oil Co. vs. Crain, supra, because the questions
presented and the statutes under consideration were entirely different. The Act approved March 31,
1873, expressly prohibits the courts from restraining the collection of any tax, leaving the It might be well to note that billboard legislation in the United States is attempting to eradicate a
dissatisfied taxpayer to his exclusive remedy payment under protest and suit to recover while business which has already been firmly established. This business was allowed to expand
the Act approved February 28, 1873, prohibits suits against the State. unchecked until its very extent called attention to its objectionable features. In the Philippine
Islands such legislation has almost anticipated the business, which is not yet of such proportions
that it can be said to be fairly established. It may be that the courts in the United States have
In upholding the statute which authorizes the removal of signboards or billboards upon the sole
committed themselves to a course of decisions with respect to billboard advertising, the full
ground that they are offensive to the sight, we recognized the fact that we are not in harmony with
consequences of which were not perceived for the reason that the development of the business has
various state courts in the American Union. We have just examined the decision of the Supreme
been so recent that the objectionable features of it did not present themselves clearly to the courts
Court of the State of Illinois in the recent case (October [December], 1914) of Thomas Cusack
nor to the people. We, in this country, have the benefit of the experience of the people of the United
Co. vs. City of Chicago (267 Ill., 344), wherein the court upheld the validity of a municipal
States and may make our legislation preventive rather than corrective. There are in this country,
ordinances, which reads as follows: "707. Frontage consents required. It shall be unlawful for any
moreover, on every hand in those districts where Spanish civilization has held sway for so many
person, firm or corporation to erect or construct any bill-board or sign-board in any block on any
centuries, examples of architecture now belonging to a past age, and which are attractive not only
public street in which one-half of the buildings on both sides of the street are used exclusively for
to the residents of the country but to visitors. If the billboard industry is permitted without
residence purposes, without first obtaining the consent, in writing, of the owners or duly
constraint or control to hide these historic sites from the passerby, the country will be less
authorized agents of said owners owning a majority of the frontage of the property, on both sides of
attractive to the tourist and the people will suffer a district economic loss.
the street, in the block in which such bill-board or sign-board is to be erected, constructed or
located. Such written consent shall be filed with the commissioner of buildings before a permit
shall be issued for the erection, construction or location of such bill-board or sign-board." The motion for a rehearing is therefore denied.

The evidence which the Illinois court relied upon was the danger of fires, the fact that billboards Arellano, C.J., Torres, and Carson, JJ., concur.
promote the commission of various immoral and filthy acts by disorderly persons, and the
inadequate police protection furnished to residential districts. The last objection has no virtue
unless one or the other of the other objections are valid. If the billboard industry does, in fact,
promote such municipal evils to noticeable extent, it seems a curious inconsistency that a majority
of the property owners on a given block may legalize the business. However, the decision is
undoubtedly a considerable advance over the views taken by other high courts in the United States
and distinguishes several Illinois decisions. It is an advance because it permits the suppression of
billboards where they are undesirable. The ordinance which the court approved will no doubt cause
the virtual suppression of the business in the residential districts. Hence, it is recognized that
under certain circumstances billboards may be suppressed as an unlawful use of private property.
Logically, it would seem that the premise of fact relied upon is not very solid. Objections to the