G.R. No.

L-59180 January 29, 1987

CLEMENTINO TORRALBA and RESOLUTION L. RUGAY, petitioners,

vs.
THE MUNICIPALITY OF SIBAGAT, PROVINCE OF AGUSAN DEL SUR and ITS
MUNICIPAL OFFICERS, respondents.

MELENCIO-HERRERA, J.:

Challenged in the instant Petition, as violative of Section 3, Article XI of the 1973 Constitution, is
Batas Pambansa Blg. 56, enacted on 1 February 1980, creating the Municipality of Sibagat, Province
of Agusan del Sur. The pertinent provisions of BP 56 read:

Sec. 1. The barangays of Ilihan, Sinai, Sibagat, El Rio, Afga, Tabontabon, Perez, Magsaysay, Santa
Cruz, Santa Maria, San Isidro, Villangit, Del Rosario, Anahauan Mahayahay, and San Vicente, all
in the Municipality of Bayugan, Province of Agusan del Sur, are hereby separated from said
municipality to form and constitute an independent Municipality of Sibagat without affecting in
any manner the legal existence of the mother Municipality of Bayugan.

Sec. 2. The boundaries of the new Municipality of Sibagat will be: Beginning at the point of
intersection of the Cabadbaran-Old Bayugan and Surigao del Sur boundaries; thence in a
southernly direction following the Old Bayugan and Cabadbaran, Old Bayugan and Butuan City,
Old Bayugan and Las Nieves boundaries, until it reaches the point of intersection of Old Bayugan,
Esperanza and the Municipality of Las Nieves; ...

Sec. 3. The seat of government of the newly created municipality shall be in Barangay Sibagat.

Sec. 4. Except as herein provided, all provisions of laws, now or hereafter applicable to regular
municipalities shall be applicable to the new Municipality of Sibagat.

Sec. 5. After ratification by the majority of the votes cast in a plebiscite to be conducted in the area
or areas affected within a period of ninety (90) days after the approval of this Act, the President
(Prime Minister) shall appoint the Mayor and other Officials of the new Municipality of Sibagat.

Petitioners are residents and taxpayers of Butuan City, with petitioner, Clementino Torralba, being
a member of the Sangguniang Panglunsod of the same City. Respondent municipal officers are the
local public officials of the new Municipality.

Section 3, Article XI of the 1973 Constitution, said to have been infringed, is reproduced hereunder:

Sec. 3. No province, city, municipality, or barrio may be created, divided, merged, abolished, or
its boundary substantially altered, except in accordance with the criteria established in the Local
Government Code, and subject to the approval by a majority of the votes cast in a plebiscite in the
unit or units affected.

The thrust of petitioners' argument is that under the aforequoted provision, the Local Government
Code must first be enacted to determine the criteria for the creation, division, merger, abolition, or
substantial alteration of the boundary of any province, city, municipality, or barrio; and that since
no Local Government Code had as yet been enacted as of the date BP 56 was passed, that statute
could not have possibly complied with any criteria when respondent Municipality was created,
hence, it is null and void.
It is a fact that the Local Government Code came into being only on 10 February 1983 so that when
BP 56 was enacted, the code was not yet in existence. The evidence likewise discloses that a
plebiscite had been conducted among the people of the unit/units affected by the creation of the
new Municipality, who expressed approval thereof; and that officials of the newly created
Municipality had been appointed and had assumed their respective positions as such.

We find no trace of invalidity of BP 56. The absence of the Local Government Code at the time of
its enactment did not curtail nor was it intended to cripple legislative competence to create
municipal corporations. Section 3, Article XI of the 1973 Constitution does not proscribe nor
prohibit the modification of territorial and political subdivisions before the enactment of the Local
Government Code. It contains no requirement that the Local Government Code is a
condition sine qua non for the creation of a municipality, in much the same way that the creation of
a new municipality does not preclude the enactment of a Local Government Code. What the
Constitutional provision means is that once said Code is enacted, the creation, modification or
dissolution of local government units should conform with the criteria thus laid down. In the
interregnum before the enactment of such Code, the legislative power remains plenary except that
the creation of the new local government unit should be approved by the people concerned in a
plebiscite called for the purpose.

The creation of the new Municipality of Sibagat conformed to said requisite. A plebiscite was
conducted and the people of the unit/units affected endorsed and approved the creation of the
new local government unit (parag. 5, Petition; p. 7, Memorandum). In fact, the conduct of said
lwphl@itç

plebiscite is not questioned herein. The officials of the new Municipality have effectively taken
their oaths of office and are performing their functions. A dejure entity has thus been created.

It is a long-recognized principle that the power to create a municipal corporation is essentially

legislative in nature. In the absence of any constitutional limitations a legislative body may Create
any corporation it deems essential for the more efficient administration of government (I
McQuillin, Municipal Corporations, 3rd ed., 509). The creation of the new Municipality of Sibagat
was a valid exercise of legislative power then vested by the 1973 Constitution in the Interim
Batasang Pambansa.

We are not unmindful of the case of Tan vs. COMELEC (142 SCRA 727 [1986]), striking down as
unconstitutional BP Blg. 885 creating a new province in the Island of Negros known as the
Province of Negros del Norte, and declaring the plebiscite held in connection therewith as illegal
There are significant differences, however, in the two cases among which may be mentioned the
following. in the Tan case, the Local Government Code already existed at the time that the
challenged statute was enacted on 3 December 1985; not so in the case at bar. Secondly, BP Blg.
885 in the Tan case confined the plebiscite to the "proposed new province" to the exclusion of the
voters in the remaining areas, in contravention of the Constitutional mandate and of the Local
Government Code that the plebiscite should be held "in the unit or units affected." In contrast, BP
56 specifically provides for a plebiscite "in the area or areas affected." In fact, as previously stated,
no question is raised herein as to the legality of the plebiscite conducted. Thirdly, in the Tan case,
even the requisite area for the creation of a new province was not complied with in BP Blg. 885.
No such issue in the creation of the new municipality has been raised here. And lastly, "indecent
haste" attended the enactment of BP Blg. 885 and the holding of the plebiscite thereafter in
the Tan case; on the other hand, BP 56 creating the Municipality of Sibagat, was enacted in the
normal course of legislation, and the plebiscite was held within the period specified in that law.

WHEREFORE, the Petition is hereby dismissed. No costs.

SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Alampay, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla and
Bidin, JJ., concur.

Separate Opinions

CRUZ, J., concurring:

I concur on the assumption that the required plebiscite, although not questioned here, nevertheless
complied with Article XI, Section 3, of the 1973 Constitution, and was duly held "in the unit or
units affected," i.e. not only in the proposed municipality but also in the mother municipality, in
line with Tan v. Commission on Elections (142 SCRA 727), reversing Paredes v. Executive
Secretary (128 SCRA 6) and Lopez v. Metro Manila Commission (136 SCRA 633) insofar as these
cases held that the plebiscite could be confined only to the political unit proposed to be created.

Separate Opinions

CRUZ, J., concurring:

I concur on the assumption that the required plebiscite, although not questioned here, nevertheless
complied with Article XI, Section 3, of the 1973 Constitution, and was duly held "in the unit or
units affected," i.e. not only in the proposed municipality but also in the mother municipality, in
line with Tan v. Commission on Elections (142 SCRA 727), reversing Paredes v. Executive
Secretary (128 SCRA 6) and Lopez v. Metro Manila Commission (136 SCRA 633) insofar as these
cases held that the plebiscite could be confined only to the political unit proposed to be created.
G.R. No. 103702 December 6, 1994
MUNICIPALITY OF SAN NARCISO, QUEZON; MAYOR JUAN K. UY; COUNCILORS:
DEOGRACIAS R. ARGOSINO III, BENITO T. CAPIO, EMMANUEL R. CORTEZ,
NORMANDO MONTILLA, LEONARDO C. UY, FIDEL C. AURELLANA, PEDRO C.
CARABIT, LEONARDO D. AURELLANA, FABIAN M. MEDENILLA, TRINIDAD F.
CORTEZ, SALVADOR M. MEDENILLA, CERELITO B. AUREADA and FRANCISCA A.
BAMBA, petitioners,
vs.
HON. ANTONIO V. MENDEZ, SR., Presiding Judge, Regional Trial Court, Branch 62, 4th
Judicial Region, Gumaca, Quezon; MUNICIPALITY OF SAN ANDRES, QUEZON; MAYOR
FRANCISCO DE LEON; COUNCILORS: FE LUPINAC, TOMAS AVERIA, MANUEL O.
OSAS, WILFREDO O. FONTANIL, ENRICO U. NADRES, RODELITO LUZOIR, LENAC,
JOSE L. CARABOT, DOMING AUSA, VIDAL BANQUELES and CORAZON M.
MAXIMO, respondents.
Manuel Laserna, Jr. for petitioners.
Florante Pamfilo for private respondents.

VITUG, J.:
On 20 August 1959, President Carlos P. Garcia, issued, pursuant to the then Sections 68 and 2630
of the Revised Administrative Code, as amended, Executive Order No. 353 creating the municipal
district of San Andres, Quezon, by segregating from the municipality of San Narciso of the same
province, the barrios of San Andres, Mangero, Alibijaban, Pansoy, Camflora and Tala along with
their respective sitios.
Executive Order No. 353 was issued upon the request, addressed to the President and coursed
through the Provincial Board of Quezon, of the municipal council of San Narciso, Quezon, in its
Resolution No. 8 of 24 May 1959.1
By virtue of Executive Order No. 174, dated 05 October 1965, issued by President Diosdado
Macapagal, the municipal district of San Andres was later officially recognized to have gained the
status of a fifth class municipality beginning 01 July 1963 by operation of Section 2 of Republic Act
No. 1515.2 The executive order added that "(t)he conversion of this municipal district into (a)
municipality as proposed in House Bill No. 4864 was approved by the House of Representatives."
On 05 June 1989, the Municipality of San Narciso filed a petition for quo warranto with the Regional
Trial Court, Branch 62, in Gumaca, Quezon, against the officials of the Municipality of San Andres.
Docketed Special Civil Action No. 2014-G, the petition sought the declaration of nullity of
Executive Order No. 353 and prayed that the respondent local officials of the Municipality of San
Andres be permanently ordered to refrain from performing the duties and functions of their
respective offices.3 Invoking the ruling of this Court in Pelaez v. Auditor General,4 the petitioning
municipality contended that Executive Order No. 353, a presidential act, was a clear usurpation of
the inherent powers of the legislature and in violation of the constitutional principle of separation
of powers. Hence, petitioner municipality argued, the officials of the Municipality or Municipal
District of San Andres had no right to exercise the duties and functions of their respective offices
that righfully belonged to the corresponding officials of the Municipality of San Narciso.
In their answer, respondents asked for the dismissal of the petition, averring, by way of affirmative
and special defenses, that since it was at the instance of petitioner municipality that the
Municipality of San Andres was given life with the issuance of Executive Order No. 353, it
(petitioner municipality) should be deemed estopped from questioning the creation of the new
municipality;5 that because the Municipality of San Andred had been in existence since 1959, its
corporate personality could no longer be assailed; and that, considering the petition to be one
for quo warranto, petitioner municipality was not the proper party to bring the action, that
prerogative being reserved to the State acting through the Solicitor General.6
On 18 July 1991, after the parties had submitted their respective pre-trial briefs, the trial court
resolved to defer action on the motion to dismiss and to deny a judgment on the pleadings.
On 27 November 1991, the Municipality of San Andres filed anew a motion to dismiss alleging
that the case had become moot and academic with the enactment of Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, which took effect on 01 January 1991.
The movant municipality cited Section 442(d) of the law, reading thusly:
Sec. 442. Requisites for Creation. — . . .
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts organized pursuant to presidential issuances or
executive orders and which have their respective set of elective municipal officials holding office
at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.
The motion was opposed by petitioner municipality, contending that the above provision of law
was inapplicable to the Municipality of San Andres since the enactment referred to legally existing
municipalities and not to those whose mode of creation had been void ab initio.7
In its Order of 02 December 1991, the lower court8 finally dismissed the petition9 for lack of cause
of action on what it felt was a matter that belonged to the State, adding that "whatever defects
(were) present in the creation of municipal districts by the President pursuant to presidential
issuances and executive orders, (were) cured by the enactment of R.A. 7160, otherwise known as
Local Government Code of 1991." In an order, dated 17 January 1992, the same court denied
petitioner municipality's motion for reconsideration.
Hence, this petition "for review on certiorari." Petitioners 10 argue that in issuing the orders of 02
December 1991 and 17 January 1992, the lower court has "acted with grave abuse of discretion
amounting to lack of or in excess of jurisdiction." Petitioners assert that the existence of a
municipality created by a null and void presidential order may be attacked either directly or even
collaterally by anyone whose interests or rights are affected, and that an unconstitutional act is not
a law, creates no office and is inoperative such as though its has never been passed. 11
Petitioners consider the instant petition to be one for "review on certiorari" under Rules 42 and 45
of the Rules of Court; at the same time, however, they question the orders of the lower court for
having been issued with "grave abuse of discretion amounting to lack of or in excess of jurisdiction,
and that there is no other plain, speedy and adequate remedy in the ordinary course of law
available to petitioners to correct said Orders, to protect their rights and to secure a final and
definitive interpretation of the legal issues involved." 12 Evidently, then, the petitioners intend to
submit their case in this instance under Rule 65. We shall disregard the procedural incongruence.
The special civil action of quo warranto is a "prerogative writ by which the Government can call
upon any person to show by what warrant he holds a public office or exercises a public
franchise." 13 When the inquiry is focused on the legal existence of a body politic, the action is
reserved to the State in a proceeding for quo warranto or any other credit proceeding. 14 It must be
brought "in the name of the Republic of the Philippines" 15 and commenced by the Solicitor General
or the fiscal "when directed by the President of the Philippines . . . ." 16 Such officers may, under
certain circumstances, bring such an action "at the request and upon the relation of another person"
with the permission of the court. 17 The Rules of Court also allows an individual to commence an
action for quo warranto in his own name but this initiative can be done when he claims to be
"entitled to a public office or position usurped or unlawfully held or exercised by
another." 18 While the quo warranto proceedings filed below by petitioner municipality has so
named only the officials of the Municipality of San Andres as respondents, it is virtually, however,
a denunciation of the authority of the Municipality or Municipal District of San Andres to exist
and to act in that capacity.
At any rate, in the interest of resolving any further doubt on the legal status of the Municipality of
San Andres, the Court shall delve into the merits of the petition.
While petitioners would grant that the enactment of Republic Act
No. 7160 may have converted the Municipality of San Andres into a de facto municipality, they,
however, contend that since the petition for quo warranto had been filed prior to the passage of said
law, petitioner municipality had acquired a vested right to seek the nullification of Executive
Order No. 353, and any attempt to apply Section 442 of Republic Act 7160 to the petition would
perforce be violative of due process and the equal protection clause of the Constitution.
Petitioners' theory might perhaps be a point to consider had the case been seasonably brought.
Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August
1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San
Narciso finally decided to challenge the legality of the executive order. In the meantime, the
Municipal District, and later the Municipality, of San Andres, began and continued to exercise the
powers and authority of a duly created local government unit. In the same manner that the failure
of a public officer to question his ouster or the right of another to hold a position within a one-year
period can abrogate an action belatedly filed, 19 so also, if not indeed with greatest imperativeness,
must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely
raised. 20 Public interest
demands it.
Granting the Executive Order No. 353 was a complete nullity for being the result of an
unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case
hardly could offer a choice other than to consider the Municipality of San Andres to have at least
attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de
facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959
by virtue of Executive Order No. 353, the Municipality of San Andres had been in existence for
more than six years when, on 24 December 1965, Pelaez v. Auditor General was promulgated. The
ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive
Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed
to the State's recognition of the continued existence of the Municipality of San Andres. Thus, after
more than five years as a municipal district, Executive Order No. 174 classified the Municipality
of San Andres as a fifth class municipality after having surpassed the income requirement laid out
in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal
Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits
organized under Administrative Order No. 33, dated 13 June 1978, issued by this Court pursuant
to Presidential Decree No. 537. Under this administrative order, the Municipality of San Andres
had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the
province of Quezon.
At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under
the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of
Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been
considered to be one of the twelve (12) municipalities composing the Third District of the province
of Quezon. Equally significant is Section 442(d) of the Local Government Code to the effect that
municipal districts "organized pursuant to presidential issuances or executive orders and which
have their respective sets of elective municipal officials holding office at the time of the effectivity
of (the) Code shall henceforth be considered as regular municipalities." No pretension of
unconstitutionality per se of Section 442(d) of the Local Government Code is proferred. It is
doubtful whether such a pretext, even if made, would succeed. The power to create political
subdivisions is a function of the legislature. Congress did just that when it has incorporated Section
442(d) in the Code. Curative laws, which in essence are retrospective, 21 and aimed at giving
"validity to acts done that would have been invalid under existing laws, as if existing laws have
been complied with," are validly accepted in this jurisdiction, subject to the usual qualification
against impairment of vested rights. 22
All considered, the de jure status of the Municipality of San Andres in the province of Quezon must
now be conceded.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and
Mendoza, JJ. concur.
Feliciano, J., is on leave.
# Footnotes
1 Present at the meeting when the municipal council of San Narciso, Quezon adopted Resolution
No. 8 were Municipal Mayor Godofredo M. Tan, Vice-Mayor Jesus R. Cortez, and Councilors
Maximino F. Rivadulla, Eleuterio Aurellana, Juanito Conjares, Dominador Nadres and Felix
Aurellana. Councilor Eduardo L. Ausa was absent. The reasons for the adoption of Resolution No.
8 are stated in the following clauses:
"WHEREAS, this body has been informed that the chance for the approval of the bill creating the
barrios of San Andres, Mangero, Alibijaban, Pansoy, Camflora and Tala, into a regular
Municipality is very slim;
WHEREAS, the reason behind such disapproval is the patent inability of the proposed
Municipality to pay its would-to-be (sic) employees at the rate required in the Minimum Wage
Law;
WHEREAS, this body in particular, and the great majority of the people of San Andres in general,
nowithstanding the provision of the Minimum Wage Law, agitate for the separation or segregation
of the abovementioned barrios so as to have a corporate personality in the eyes of the Provincial
Board, in the eyes of Congress and in the eyes of the President;
WHEREAS, once said barrios acquire a corporate personality in the eyes of the Provincial Board,
of Congress and of the President, the development of said barrios and practically the whole
southern tip of the Bondoc Peninsula will be hastened. (Rollo, p. 162.)
2 This act has provided for a more autonomous government for municipal districts, amending for
the purpose Art. VI, Chapter 64 of the Administrative Code. Sec. 2 thereof states that "any first
class municipal district the annual receipts of which shall average more than four thousand pesos
for four consecutive fiscal years shall ipso facto be classified as a fifth class municipality and shall
thereafter be governed by the provisions of Articles one to five, Chapter 64 of the same Code."
3 Rollo, pp. 77-80.
4 15 SCRA 569, holding that the authority to create municipalities is essentially legislative in
nature.
5 Invoked was the Court's ruling in Municipality of Malabang v. Benito 27 SCRA 533.
6 Rollo, pp. 81-83.
7 Rollo, p. 102.
8 Presided by Judge Antonio V. Mendez, Sr.
9 Rollo, pp. 71-74.
10 Named co-petitioners of the Municipality of San Narciso before this Court are its municipal
mayor and thirten (13) councilors.
11 Rollo, pp. 183-185.
12 Ibid., pp. 2 & 21; Ibid., p. 50.
13 Moran, COMMENTS ON THE RULES OF COURT, Vol. 3, 1970 ed., p. 208 citing Newman v.
U.S., 238 U.S. 537, 545, 56 L.Ed. 513.
14 Only in few exceptions may a private person exercise this function of government, an example
of which is when the state law allows a private person to question the regularity of the
incorporation of an entity; see E. McQuillin, THE LAW OF MUNICIPAL CORPORATION, sec.
3.49, p. 592 (3rd ed. 1949).
15 Sec. 1(c), Rule 66, Rules of Court.
16 Sec. 3, ibid.
17 Sec. 4, ibid.
18 Sec. 6, ibid.
19 Tumulak v. Egay, 82 Phil. 828; Tavora v. Ofiana, 83 Phil. 672; Unabia v. City Mayor (99 Phil.
253). In Castro v. Del Rosario (19 SCRA 196), the Court stated that the one-year limitation for filing
a quo warranto proceedings is "an expression of policy on the part of the State that persons claiming
a right to an office of which they are illegally dispossessed should immediately take steps to
recover said office and that if they do not do so within a period of one year, they shall be considered
as having lost their right thereto by abandonment."
20 Noteworthy is Section 16, Rule 16, of the Rules of Court which sets a five-year limitation for
filing a quo warranto action if its purpose is to bring about the "forfeiture of charter" of a
corporation, that period to be counted from the time "the act complained of was done or
committed."
21 Briad Agro Development Corporation v. De la Serna, supra at p. 534; SSK Parts Corporation v.
Camas, 181 SCRA 675.
22 Briad Agro Development Corporation v. De la Serna, 174 SCRA 524, 532 citing Government of
P.I. v. Municipality of Binalonan, 32 Phil. 634.