CLEMENTINO TORRALBA AND RE L. RUGAY, PETITIONERS, VS. THE MUNICIPALITY OF SIBAGAT, PROVINCE OF AGUSAN DEL SUR AND ITS MUNICIPAL OFFICERS, RESPONDENTS.

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 southerly direction following the Old Bayugan and Caoadoaran, 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;
x x x

“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 intarregnum,
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 plebiscite is not questioned
herein.  The officials of the new Municipality have effectively
taken their oaths of office and are performing their functions.  A
de jure 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.

Cruz, J., see concurring
opinion.

CRUZ, J., concurring:

I concur on the assumption that the required plebicite although not
questioned herem nevertheless complied with Article XI, Section 3, of the 1973
Constitution, and was duly held “in the unot 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), revisiong Paredes
v. Executive Secretary (128 SCRA 6) and Lopez v. Metro Manila
Commission (136 SCRA 633) insofar as these cases held that the plebescite
couled be confined only of the political unit proposed to be created.