REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. PROVINCIAL GOVERNOR DELFIN MONTANO, ET AL., RESPONDENTS.

The parties are agreed that the Cavite
Department of Public Safety possesses the nature, attributes, powers and
functions of a police force.  The issue
here is whether a provincial government has the power, by necessary implication
from certain express powers granted to it, to create a provincial police force,
the parties admitting that there is no express or explicit statutory grant of
power.  Neither the
need for such a body nor the wisdom of its creation i3 in question.  The issue is simply one of implied power.

In 1964 the provincial board of Cavite passed Resolution 27
creating a Department of Public Safety “to be manned by trained
technicians and investigators who shall be agents of a person in authority (the
Provincial Governor)” and authorizing the appropriation of funds for its
operation.  The resolution did not define
the powers and functions of the department. 
This was done by means of an administrative order of the respondent
Governor which is hereunder quoted in full:

“PROVINCIAL ADMINISTRATIVE ORDER 65-1

“DEFINING THE GENERAL PURPOSES, POWERS AND FUNCTIONS
OF THE CAVITE DEPARTMENT OF PUBLIC SAFETY

“To insure the effective implementation of the Provincial
Board Resolution No. 27, series of 1964, creating the Cavite
Department of Public Safety as the main law-enforcement arm of the province,
this Administrative Order is hereby promulgated.

“SECTION 1. The
Agency. – The agency shall be officially known a; the CAVITE DEPARTMENT
OF PUBLIC SAFETY (CDPS) or, in Pilipino, KAGAWARAN NG KALIGTA­SAN BAYAN; and
its members, who are agents of the Provincial Governor to be known as Public
Safety Officers.

“SEC. 2. General
Purposes and Functions. – To better insure the safety of residents of Cavite and the well-being of both
public and private interests therein, the Cavite
Department of Public Safety is established with the following purposes and
functions;

“a. Technical Assistance to Local Police Units.
The CDPS shall make readily available to the different local police forces
technical assistance availing of modern and scientific methods of crime
detection.

“b. Elevation of Standard of Police Performance.  It shall aspire to elevate the standard of
police performance, not only by the quality of the services it would render,
but also by assisting in the implementation of a police training program for
local police forces.

“c. Focus on Crimes against Persons and Property.  In order to make the operation of the Agency
more effective, considering that the main problem in the maintenance of peace
and order involves the security of persons and property, its law-enforcement
activities shall more or less be confined to the, investigation and assistance
in the prosecution of crimes against persons and property and violation of
traffic laws.

“d. Central Record System.  Ties CDPS shall establish and maintain a
central provincial record of personal and criminal identification and court and
police documents.  It shall also make
available to municipalities that have enacted ordinances requiring the finger,
printing and/or photographing of all able-bodied citizens the personnel, materials
and equipment needed for said purpose.

“e. Civil Defense.  The CDPS shall also constitute the main civil
defense arm in the province; responsible to the Governor, and shall undertake
such measures as would be required in emergencies in coordination with the
National Civil Defense Administration.

“f. Loose Firearms.  The CDPS shall also give emphasis on the
detection and collection of loose fire arms and the collection and control of
‘misused’ weapons, the root causes of most peace and order problems.

“g. Fire Protection.  The CDPS shall be responsible for the
coordinated utilization and maintenance of all firefighting equipment within
this jurisdiction.

“h. Search end Rescue.  In
times of disaster and distress the CDPS shall conduct search and rescue operations.

“i. Civic Action
Projects.  The Public Safety Officers,
whenever circumstances would allow, shall also undertake such civic action
projects as the Provincial Governor may assign.

“j. Public Safety and Preventive Measures.
The CDPS shall also undertake from time to time other public safety measures
assigned to it by the Provincial Governor, including accident prevention,
elimination of fire and traffic hazards, mob control, and the enforcement, of
safety-measure requirements in resorts, recreation areas and other public
places.

“SEC. 3. Organizational
Setup, Central Office and Sector Stations.  The organizational setup of the CDPS shall be
made in a manner that would make its services readily available and accessible
to the local police forces and residents of the province.

“It Shall maintain its central office
in Trece Martires City
and establish at least three (3) sector stations in strategically located
places in the province.

“SEC. 4. Scope of
Activities and Relations with Other Law Enforcement Agencies.  The CDPS has been created, not for the
purpose of usurping the functions of local law-enforcement agencies, but to
assist and to make available to city a municipal police units its facilities
and the benefit of the intensive training of its members in police science and,
if possible, to ‘contaminate’ other peace officers with their technical
know-how.

“The CDPS shall also establish liaison with the NBI and the PC
in order to achieve their common goal of combating crime effectively.

“Public Safety Officers may only involve themselves in a case
already being handled by other police agencies (a) upon request of the mayor or
chief of police concerned; (b) when the culprit flees outside the boundary of
the municipality where the crime was committed; or (c) upon direction of the
Provincial Governor.

“Done in the City of Trece Martires,
this 1st day of March, in the year of our Lord, Nineteen hundred and
sixty-five.”

The organizational structure of the department was not outlined
or delineated, obviously because this was already done in the budget of the
province for 1963-1964.

Thereafter the respondent Governor appointed the other
respondents as public safety officers, making them his special agents.

On September 20, 1967
the Solicitor General, in behalf of the Government, filed a petition for quo,
warranto, assailing the legality of the
Department of Public safety on the ground that the province
of Cavite
has no authority to create public offices with police functions.  It is alleged that despite the demand of the
President of the Philippine the respondent Governor and the members of the
provincial board of Cavite have refused to dissolve
and disband the public safety department, and that the exercise of police
functions by the agency “affects the lives and liberties” of the
people.

On September 25, 1967 this Court issued a temporary restraining
order enjoining the respondent Governor from carrying out the disputed
resolution and the rest of the respondents from discharging the functions of
public safety officers.

In their answer, the respondents maintain that the power of the
province to create the agency is necessarily implied from section 3 of the
Local Autonomy Act of 1959,^[1]
especially the portion thereof which provides that, “Provincial Boards of
the respective provinces shall have authority (a) To appropriate money for
purposes not specified by law, having in view the general welfare of the
province and the inhabitants.” In support of, the existence of such
implied power, they invoke section 12 of the same Act which reads as follows:

“Rules for the interpretation of
the Local Autonomy Act. –

“1. Implied power of a province, a city or municipality shall
be liberally construed in it favor.  Any
fair and reasonable doubt as to the existence of the power should be
interpreted in favor of the local government and it shall be presumed to exist.

“2. The general welfare clause shall be liberally interpreted
in case of doubt so as to give more power to local governments in promoting the
economic condition, social welfare and material progress of the people in the
community.”

They further contend twat the power to create the police agency
is recognized in the following provisions of the Police Act of 1966:^[2]

“SEC. 9. General
Qualifications for Appointment. – No person shall
be appointed to a local police agency unless he possesses the following
qualifications:

” …..

” (4) For appointment in the
municipalities he must have at least completed high school, and for provinces
and cities, at least completed two years college;

“…..

(8) He must be at least five feet, five inches in height in the
case of provinces and chartered cities and five feet four inches in the
case of municipalities; and”

“…..

“Persons who at the time of the approval of this Act have
rendered at least five years of satisfactory service in a provincial,
city or municipal police agency although they have not qualified in an
appropriate civil service examination are considered as civil service eligibles for the purpose of this Act.”

The power of provincial governments to appropriate honey for the
welfare of their inhabitants is not at all of recent vintage.  As early as 1906, this was granted to
provincial boards by Act 1548^[3]
which amended section 13 of the Organic Act of the Provinces^[4]
by providing that the provincial boards of provinces shall have the power
“(nn) . . . To appropriate moneys from [their]
funds, except those the use of which is otherwise specifically fixed by law,
for other purposes having in view the general welfare of the province and its
inhabitants.”  Similarly, the
Administrative Code of 1916, reenacting with modification this provision of the
Organic Act of the Provinces, provided that “Upon approval of the
Department Head of the particular resolution by which such, action shall be
taken, the provincial boards of the respective provinces shall have
authority:  (a) To appropriate money for
purposes not specified by law, having in view the general welfare of the
province and its inhabitants. . .”^[5]  This provision was in turn reenacted in
section 2106(a) of the Revised Administrative Code.^[6]  In truth, section 3(a) of the Local Autonomy
Act is nothing but a copy of section 2106(a) of the Revised Administrative
Code, with the only difference that prior approval of the Department Head has
been dispensed with, in line with the legislative policy of granting greater
autonomy to local governments.  In a
sense, the elimination of the requisite approval is a return to the original
provision of the old Organic Act of the Provinces.^[7]  It is in this sense that
section 3 of the Local Autonomy Act is entitled “Additional powers of
provincial boards “. . .,” and rightly so, for it removed the fetters that
once bound local governments to the national government.

Not once, since 1906, has the power to create public offices been
asserted.  But this power is now urged as
a necessary corollary of the power to appropriate, this because section 12(1)(2) of the Local Autonomy Act commands that the implied
powers of municipal corporations shall be liberally construed and that all
doubts as to the existence of the power must be resolved in their favor.

We cannot accept this view.

The case of Fred v. Mayor and Council,
of Sorough, of Old Tappan^[8]
indicates the proper construction that should be placed, on a provision like
section 12(1)(2). 
There a similar provision of the New Jersey Constitution of 1947 was
invoked to justify the validity of a municipal ordinance regulating the removal
of soil.  The Constitutional provision
states:

“The provisions of this Constitution and of any law,
concerning municipal corporations formed for local government, or concerning
counties, shall be liberally construed in their favor.  The powers of counties and such municipal corporations
shall include not only those granted in express terms but also those of
necessary or fair implication, or incident to the powers expressly conferred,
or essential thereto, and not inconsistent with or prohibited by this Constitution
or by law.”

It was argued that this clause of the
Constitution, which had no counterpart in its predecessor constitution,
introduced a new concept of home rule, being in effect a direct grant of the
police power to all municipalities.  This
contention was rejected (although the ordinance was upheld on other grounds),
the Supreme Court of New Jersey stating:

“We find no merit in this contention of the defendant.  The quoted provision of the Constitution on
its face does not purport to be a grant of general police powers to all
municipalities, its plain language is not susceptible of being so construed,
the proceedings of the Constitutional Convention referred to do not indicate
that it was so intended, and during the five years since its adoption our
courts have never so interpreter it.  On
the contrary, it is well settled in this State that a municipality has only
those powers granted to it by statute, albeit by virtue of the constitutional
provision here under discussion those powers are to be liberally construed in favor
of the municipality and express grants of power are deemed to include ‘those of
necessary or fair implication, or incident to the powers expressly conferred,
or essential thereto.’ . . .”^[9]

It bears strong emphasis to state here that provincial governments,
like other municipal corporations, are governments of enumerated powers.^[10]  The assumption, although historically
inaccurate,^[11]
is that municipal corporations are more creatures of the state with no inherent
powers of their own.^[12]  This same assumption underlies the grant of
autonomy to local governments,^[13]
for implicit in the grant is precisely the recognition that they exercise only
delegated powers which should be enlarged and, in case of “fair and
reasonable doubt,” should be resolved in their favor.

Section 12 (1) (2) of the Local Autonomy Act, which is reproduced
in section 23 of the Decentralization Act of 1967, did not alter the basic
nature of municipal governments as governments of limited power.  What it, changed was the prevailing rule at the
time of its enactment that the grant of powers to municipal corporations must
be strictly construed against them.^[14]
As a rule of interpretation it does not purport to supply power where none
exists, not even by necessary implication.

Here the power to create a provincial police force appears to be
denied to provincial governments.^[15]
Thus, whereas section 2105(c) of the Revised Administrative Code gives them the
power to appropriate money “for the organization, equipment and maintenance
of a police force in any municipality or municipal dis­trict of the province
where local funds are insufficient to bear such expenses,” nothing is said
of their power to provide for the organization of their own police.  Again, while cities^[16]
and municipalities^[17] are
authorized to provide uniforms for their police forces no such authority is
conferred on provinces.  This power given
to cities and municipalities is in addition to their power “to appropriate
money for purposes not specified by law, having in view the general welfare of
the city and its inhabitants,^[18]
undoubtedly because the former cannot be fairly embraced in the latter.  Section 2081 cannot be invoked because that
provision authorizes the appointment of subordinate employees in existing
offices, not the creation of the offices themselves.

Indeed municipal offices can be created only by legislative
authority.  This creative act must be
either immediate or delegated.^[19]  In the Philippines, national and local police
bodies are directly created by statute.  Thus the Philippine Constabulary was
constituted as a national police force by virtue of a statute.^[20]  So is the organization of police forces in
cities and municipalities specifically provided for by an Act of Congress.^[21]  Even the formation of posses
commitatus in towns to assist the police in
the apprehension of criminals is a matter of express statutory enactment.^[22]  Thus there is a national police force and
there are city and municipal police forces, but the remarkable thing is that
there is no provision far provincial police forces.

This lack of statutory basis for the creation of provincial
police forces stands in sharp contrast to the proliferation of statutory
materials on municipal and city police forces. 
Not that peace and order are less a responsibility of the
provinces.  The reason is simply that the
Governors are already clothed with ample powers and resources.  They can temporarily transfer policemen from
one municipality to another when public interest so re­quires.^[23]  They can call on the Philippine Constabulary
or even on the Armed Forces of the Philippines
to quell any “disorder, riot, lawless violence or rebellious or seditious
conspiracy or to apprehend violators of law.”^[24]

It seems quite clear indeed that the legislature intended to
reserve for itself the field of legislation on this matter and thereby exclude
from it like actions by local governments Precedents in support of this view
are not wanting.  In Fluker
v. City of Union Point^[25]
it was held that where the charter authorizes the appointment of a marshal and,
in case of “special emergencies,” of a special police, the city could
not create an office of a night watchman with powers to arrest persons violating
the laws end ordinances.  Not even the
plea that the office was necessary for the preservation of peace and order
justified the creation of the office. 
Similarly, in Stout v. Stinnett^[26]
it was held that a stature creating the office of Chief of the Police” did
not authorize a city to appoint a day chief of police and a night chief of
police and that an ordi­nance so providing was invalid.

The power of provinces to create provincial police forces cannot
be inferred.  Neither can the existence
of such bodies be implied from the fact that in prescribing the qualifications of
members of local police agencies section 9 of the Police Act of 1966 mentions
“provincial police agencies” and the like.  The reference to such bodies is a misnomer as
is evident from the following discussion^[27]
on the bill which became the Police Act:

“MR. PEREZ (L.).  This
bill carries phrases like ‘po­lice agencies of a province or chartered city or
municipality,’ Under the present set-up, what would
you consider as constituting the police agencies of a province?

“MR. AMANTE.  That is a
misnomer here.  The original bill
includes the organization of the provincial guards; hence it is suggested here
that they be included in this bill.  Even
at the conference called by the President in connection with the peace and
order condition, he suggested that the provincial guards be included under the
supervision of the Commission.

“MR. PEREZ (L.). I support such proposal.  This bill should state the number of
provincial guards which each province, in accordance with its class, can
employ; and also provide additional powers, because today such provincial
guards only keep the security of the provincial jail.

“MR. AMANTE.  They guard
prisoners.

“MR. PEREZ (L.).  Will
these guards enjoy the police powers of other police agencies contemplated
under this bill?

“MR. AMANTE.  No, they
are only guards.  However, their
qualifications and their discipline shall be governed by this bill.  In connection with the inclusion of
provincial guards in the proposed measure, the Committee will welcome amendments.

“MR. PEREZ (L.).  I will
propose some amendments to that effect.

AMANTE. 
Thank you.

In fact, the term is used in other legislation before the
enactment of the Police Act of 1966 and it has always been understood to refer
to provincial guards assigned to provincial jails.  It is used in Commonwealth Act 343 which
constituted the Philippine Constabulary as a national police force^[28]
and returned to the control of the Governors the “provincial… police
bodies or provincial guards“^[29]
who earlier, had been organized into a State Police, along with the police
forces of the cities and municipalities.^[30]  President Quezon’s
Executive Order 153^[31]
as well as Executive Order 175,^[32]
issued to implement Commonwealth Act 343, likewise spoke of “local police
bodies in each province and “provincial police service” but that the
term meant no more than provincial guards is evident
from the text thereof.

Like the power to appropriate money for the general welfare, the
reference in statutes to provincial police agencies is nothing new.

Apart from this, since a municipal office can be Created only by legislative authority exercised either
directly or through a grant of the power to municipal corporation, the
existence of such an of­fice as a fact cannot be inferred.  This is the thrust of the rulings in City
of Metropolis v. Industrial
Commission,^[33]
and in Murphy v. Industrial Commission.^[34]  In the first case, the Cities and Villages
Act provided that offices must be created by ordinance.  It was argued that certain provisions of the
Municipal Code of the City of Metropolis prescribed the powers and duties of
police men and hence that the office of night policeman “necessarily
exists in that city.” In disposing of this contention, the Illinois
Supreme Court held that “neither provision of that character nor an
appropriation of public money to pay the salary or compensation of a person
acting as a policeman can operate,’ standing alone, to create the particular
office.”

In the second case, an ordinance, enacted under the same Cities
and Villages Act, provided that “The mayor shall, with the advice and
consent of the city council, appoint for the term of one year, and until their
respective successors in office are appointed and qualified, additional police
officers in such number as said mayor and city council may deem expedient, to
assist the chief of police in his official duty.”  In denying that an office was thereby
created, the same court said:  “That
section does not purport to create the office of policeman or assistant chief
of police.  The provision that the mayor
shall appoint additional police officers cannot be construed as an ordinance to
create the office of policeman.”

Upon all the foregoing, it follows ineluctably that the creation
of the Cavite Department of Public Safety is an
unlawful exercise of power, and is without basis in law.

ACCORDINGLY, Resolution 27, dated January 27, 1964, of the
Provincial Board of Cavite and Administrative Order
65-1 of the respondent Governor dated March 1, 1965 are declared void, the Cavite Department of Public Safety is ordered dissolved,
and the respondent public safety officers are ousted their positions.  No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Angeles, and Fernando, JJ., concur.

^[1] Rep. Act 2264, 14 Laws & Res. 244.

^[2] Rep. Act 4864 (emphasis supplied).

^[3] 6 Pub. Laws 20 (1906).

^[4] Act 83, 1 Pub. Laws 14.2 (1901).

^[5] Act 2657, sec. 2032(a).

^[6] Act 2711.

^[7]
Sec. 13(nn).

^[8] 10 N.J. 515, 92 A.2d 473 (1952).

^[9] Id. at 474 (citations omitted).

^[10] E.g.,
Hopewell Tp.
v. Gruchowski, 29 N.J. Super. 605, 103 A. 2??? 177 (1954); Markey v. City
of Bayonne, 24 N.J. Super. 105, 93 A.2d 589 (1952); Edwards v. Mayor & Council of Borough of Moonachie, 3. N.J. 17, 68 A.2d 744 (1949).

^[11]
Although historically inaccurate, the theory is that the state antedates the
municipal corporation. V. Sinco, Philippine
Political Law 708 (11th ed. 1962) [hereinafter cited as Sinco]

^[12] E. g., Davis v. City of Charlotte, 242
N.C. 670, 89 S.E.2d 406 (1955); Horner v. Chamber of Commerce, 231 N.C.
440, 57 S.E. 2d 789 (1950).

^[13] See
generally Local Autonomy Act of 1959; Decentralization Act of 1967, Rep.
Act 5185.

^[14] See
Sinco,
supra note 11, at, 712.

^[15] Cf. Morris v. Peters, 203 Ga. 350, 46
S.E.2d 729 (1948).

^[16] Local Autonomy Act, sec. 3.

^[17] Rev. Adm. Code sec. 2263.

^[18] Local Autonomy Act, sec. 3.

^[19]Benson v. Hines, 166 Ga. 781, 144
S.E. 287, 288. (1928); Accord, Ritchie v. Barker,
216 Ga. 194, 115 S.E.2 539 (1960).

^[20] Commw.
Act 343 (1938).

^[21] Police Act of 1966, sec. 6; Rev. Adm. Code sec. 2258.

^[22] Rev. Adm. Code sec. 2275.

^[23] Id.,
see. 2084.

^[24] Id.,
sec. 2085; see also secs. 832-840, 848.

^[25] 132 Ga. 568, 64 S.B. 468 (1909).

^[26]
210 Ark. 684, 197 S.E.2d 564
(1946); see also People ex rel. Seigal v. Rogers, 397 III. 187, 73 N.E.2ed 316
(1947)

^[27]
1 Cong. Rec. No. 64, 160-61 (1966); see also Explanatory Note,
H.R. 6951, 6th Cong., 1st Sess., id. at 57; 1 Cong. Rec. No. 65, 29, 35 (1966).

^[28] Sec. 2.

^[29] Commw. Act 343, sec. 6.

^[30] Commw. Act 88, sec. 1. Section 2 created an office of Commissioner
of Public Safety.

In the United States, Departments of Public
Safety can be found in New Jersey, Blair v. Brady, 11 N.J. Misc. 854,
168 A. 668 (1933) and in Ohio, State v. Searcey,
31 Ohio Cir. Ct. R. 83 (1909).

^[31] 36 O.G. 1750 (1938).

^[32]  36 O.G. 3112 (1938).

^[33] 339 Ill. 141, 171 N.E. 167 (1930).

^[34] 355 III. 419, 189 N.E. 302 (1934).