G.R. No. L-18740 April 28, 1922WALTER E. OLSEN & CO., INC.,petitioner,vs.VICENTE ALDANESE, as Insular Collector of Customs of the Philippine Islands, and W. TRINIDAD, as Collector of Internal Revenue,respondents.Gibbs, McDonough & Johnson for petitioner.Attorney-General Villa-Real for respondents.Araneta & Zaragoza (amici curiae) for "Manila Tobacco Association."STATEMENTOn March 29, 1922, respondents' demurrer to the petition was overruled; on April 3, an answer was duly filed; and on April 21, the petitioner filed a motion for judgment on the pleadings.The facts are fully stated in the former opinion.1Paragraph 4 of the petition contains certain subdivisions of section 6 of Act No. 2613 of the Philippine Legislature, passed February 4, 1916, entitled "an act to improve the methods of production and the quality of tobacco in the Philippine and to develop the export trade therein." They empower the Collector of Internal Revenue to establish certain general and local rules respecting the classification, marking and parking of tobacco for domestic sale or for exportation to the United States, and, among other things, provide:No leaf tobacco or manufactured tobacco shall be exported from the Philippine Islands to the United States until it shall have been inspected by the Collector of Internal Revenue or his duly authorized representative and found to be standard for export ...In order to facilitate the free entry of tobacco products from the Philippine Islands into the United States, the Collector of Internal Revenue is authorized to act as stamp agent for the Untied States Commissioner of Internal Revenue, and to certify to the Insular Collector of Customs that the standard tobacco exported is the growth and product of the Philippine Islands. The Insular Collector of Customs upon certificate from the Collector of Internal Revenue as aforesaid, shall issue such certificate of origin as may be necessary to insure the speedy admission of the standard tobacco into the United States free of customs duties.Paragraph 5 of the petition alleges that under clause B of section 6 of the Act, the Collector of Internal Revenue promulgated Administrative Order No. 35, known as "Tobacco Inspection Regulations," in which it is said:To be classed as standard, cigars must be manufactured under sanitary conditions from good, clean, selected tobacco, properly cured and seasoned, of a crop which has been harvested at least six months, exclusively the product of the provinces of Cagayan, Isabela, or Nueva Vizcaya. The cigars must be well made, with suitable spiral wrapper and with long filler, etc.Paragraph 6 pleads the provisions of section 1 of article 1 of the Constitution of the United States, and paragraph 7 pleads section 10 of the "Jones Law."The answer admits paragraphs 4, 5, 6, and 7 of the petition.Paragraph 6 of the answer says:They admit the facts alleged in Paragraph XI of the petition in so far as they refer to the Insular Collector of Customs, but they deny that the acts performed by the said officer are wrongful or illegal; and they also deny the others facts alleged in the same paragraph except as they may hereinafter be impliedly admitted, that is, that on or about February 6, 1922, the petitioner applied to the Collector of Internal Revenue for a certificate of origin covering a consignment of 10,000 machine-made cigars to San Francisco, and as the petitioner himself stated on making such application that the cigars sought to be exported must have been manufactured from short-filler tobacco which was not the product of the provinces of Cagayan, Isabela, and Nueva Vizcaya, the Collector of Internal Revenue did not deem it necessary to make an actual examination and inspection of said cigars and stated to the petitioner that he did not see his ways clear to the granting of petitioner's request, in view of the fact that the cigars which the petitioner's request, in view of the fact that the cigars which the petitioner was seeking to export were not made with long-filler nor were they made from tobacco exclusively the product of any of the three mentioned provinces, and the said cigars were neither inspected nor examined by the Collector of Internal Revenue.As a special defense, the respondents allege that under section 11 of Act No. 2613 and section 5 of the Administrative Code of 1917, the Collector of Internal Revenue has discretionary power to decide whether the manufactured tobacco that the petitioner seeks to export to the United States fulfills the requisites prescribed by Administrative Order No. 35. That it is not within the jurisdiction of this court to order the Collector of Internal Revenue to issue a certificate to the petitioner to the effect that the manufactured tobacco that the petitioner seeks to export is a product of the Philippine Islands, but it is for the Collector of Internal Revenue to exercise the power of issuing said certificate if after an inspection of said tobacco, he should find that "it conforms to the conditions required by Administrative order No. 35 with the exclusion of those conditions which, according to the said decision of the Supreme Courts, the Collector of Internal Revenue is not authorized to required under Act No. 2613."That the cigars which petitioner seeks to export to the United States have not as yet been examined or inspected by the Collector of Internal Revenue.Wherefore, the defendants pray that the petition be dismissed, with costs.The question presented is whether under the facts admitted, the answer is a good defense to the petition.

JOHNS,J.:The defendants are public officers of the Philippine Islands, and the acts of which the petitioner complains are their official acts.In paragraph 11 of the petition, among other things, it is alleged:That on the 6th day of February the said respondent Collector of Internal Revenue wrongfully and unlawfully refused and neglected and still unlawfully refuses and neglects to issue such certificate of origin on the ground that said cigars were not manufactured of long-filler tobacco produced exlusively in the provisions of Cagayan, Isabela, or Nueva Vizcaya.Paragraph 6 of the answer says:"The petitioner applied to the Collector of Internal Revenue for a certificate of origin covering a consignment of 10,000 machine-made cigars to San Francisco," and represented that the cigars were made from short-filler tobacco which was not the product of Cagayan, Isabela, and Nueva Vizcaya. The Collector of Internal Revenue did not deem it necessary to make an actual examination and inspection of said cigars, and stated to the petitioner that he did not see his way clear to the granting of petitioner's request, in view of the fact that the cigars which the petitioner was seeking to export were not made with long-filler nor were they made from tobacco exclusively the product of any of the three provinces, and the said cigars were neither inspected nor examined by the Collector of Internal Revenue.In its final analysis, this is an admission by the defendants the cigars in question were rejected by the Collector of Internal Revenue, for the specified reason that they were not long-filler cigars manufactured from tobacco grown in one of the three provinces. That the Collector accepted and treated the statement to the petitioner as true, and, relying thereon, refused to use the certificate of origin, for the sole reason that the cigars in question were not long-filler cigars, and were not manufactured from tobacco grown in one of the three provinces.If, when the cigars were presented, the Collector of Internal Revenue had simply refused to issue the certificate of origin and had not specified any grounds for such refusal he would then have a legal right to plead and rely upon any and all grounds of refusal. But where, as in the instant case, it is alleged in the petition, and, in legal effects, admitted in the answer, that the cigars were rejected because they were not long-filler and were not manufactured from tobacco grown in one of the three provinces, then, under the authorities and rule of construction, the defendants are confined and limited to the specified grounds of refusal, and cannot be heard to say that the cigars were rejected upon any other or different grounds than those specified in the refusal.Again, it appears from the whole purport and tenor of the answer that, in their refusal, the defendant were acting under, and relying upon, those portions of Administrative Order No. 35, known as "Tobacco Inspection Regulations," which this court held to be null and void in its former opinion.Although in this class of cases, as a general rule, a demand and refusal is prerequisite to the granting of a writ, it is not necessary where it appears from the record that the demand, if made, would have been refused.Merrill on Mandamus, section 225, says:The law never demands a vain thing, and when the conduct and action of the officer is equivalent to a refusal to perform the duty desired, it is not necessary to go through the useless formality of demanding its performance. Anything showing that the defendant does not intend to perform the duty is sufficient to warrant the issue of amandamus.Cyc., vol. 26, p. 182, says:Where it appears that a demand would be unavailing it need not be made, as where the course and conduct of officers is such as to show a settled purpose not to perform the imposed duty.In the case of Chicago, K. & W. R. Co.vs.Harris (30 Pac., 456), on page 459, the court says:The action of the officers before and since the commencement of this action clearly shows that a formal demand would have been unavailing. The commencement of this proceeding was at least a sufficient demand; and the defendants, instead of indicating a willingness to execute the bonds, expressly denied the right of the plaintiff to the bonds, and denied the existence of any obligation or duty to issue and deliver them. Having distinctly manifested their purpose not to perform this duty, the question of a formal demand is no longer important. It appears that it would have been useless and foolish, and the law rarely requires the doing of a useless act. (Citing a number of authorities.)In United Statesvs.Auditors of Town of Brooklyn (8 Fe. Rep., 473), the court says:But while it is generally true that a court will not issue amandamusto compel the performance of an act which it is merely anticipated the defendant will not perform, still if the defendant has shown by his conduct that he does not intend to perform the act, and that fact is apparent to the court, it would be a work of supererogation to require that a demand should be made for its performance.The facts in this case are peculiar.Under the provisions of Act No. 2613, the Collector of Internal Revenue of the Philippine Islands promulgated Administrative Order No. 35, known as "Tobacco Inspections Regulations." Such rules and regulations, having been promulgated by that officer, we have a right to assume that he was acting under such rules and regulations when he refused to issue the certificate of origin.It appears from the record that the cigars in question were not long-filler cigars, and that they were not manufactured from tobacco grown in one of the three provinces.By the express terms and provisions of such rules and regulations promulgated by the Collector of Internal Revenue, it was his duty to refuse petitioner's request, and decline the certificate or origin, because the cigars tendered were not of the specified kind, and we have a right to assume that he performed his official duty as the understood it. After such refusal and upon such grounds, it would indeed, have been a vain and useless thing for the Collector of Internal Revenue to his examined or inspected the cigars.Having refused to issue the certificate of origin for the reason above assigned, it is very apparent that a request thereafter made examine or inspect the cigars would also have been refused.The motion for judgment on the pleadings is sustained, and the writ will issue, as prayed for in the petition, without costs. So ordered.Malcolm, Avancea, Villamor, Ostrand, and Romualdez, JJ., concur.

G.R. No. L-5612 October 31, 1953SY MAN, doing business under the name and style of "United China Import Trading", petitioner-appellee,vs.ALFREDO JACINTO, Commissioner of Customs, and MELECIO FABROS, Collector of Customs for the Port of Manila,respondents-appellants.Assistant Solicitor General Francisco Carreon and Solicitor Jesus A. Avancea for appellants.David & Guevarra for appellee.MONTEMAYOR,J.:This is an appeal by respondents Alfredo Jacinto, Commissioner of Customs and Melecio Fabros, Collector of Customs for the Port of Manila (hereafter to be referred to as Commissioner and Collector, respectively), from a decision of the Court of First Instance of Manila, granting a petition for a writ ofcertiorari, prohibition and mandamus against them. The appeal involves only questions of law. The facts of the case are contained in a portion of the decision appealed from, which we quote:On January 2, 1951, the Collector of Customs for the Port of Manila ordered the seizure of two shipments of textile and a number of sewing machines, consigned to this petitioner.On June 4, 1951, the Collector of Customs for the Port of Manila, after due hearing, rendered a decision, the dispositive part of which reads as follows:Wherefore, for all the foregoing, it is ordered and decreed that the articles covered by Seizure Identification No. 1006 be, as they are hereby delivered to the importer after payment of the necessary customs duty, sales tax and other charges due thereon, in addition to a fine of One hundred fifty-five pesos(P155) representing five (5) times the difference in duty of the printed paper in sheets, except the sewing machines which are hereby declared forfeited to the Government of the Republic of the Philippines to be sold at public auction in conformity with law if found saleable, otherwise, to be destroyed.The Surveyor of the Port shall return the original of this decision showing action taken.On June 27, 1951, the herein petitioner (appellee) received a copy of the aforesaid decision of the Collector of Customs for the Port of Manila.On July 12, 1951, counsel for the petitioner (appellee) sent a letter to the Collector of Customs for the Port of Manila, asking for the execution of the decision, in view of the fact that it had become final and could no longer be reviewed by the Commissioner of Customs after the lapse of fifteen days from the date of notification thereof was given to the herein petitioner who did not appeal from said decision to the Commissioner of Customs within the aforesaid period of time.On August 21, 1951, counsel for the petitioner sent another letter to the Collector of Customs, reiterating the request contained in his letter of July 12, 1951, and urging that the goods which were found not to have been imported in violation of law, be released to the petitioner under the terms and conditions of the aforementioned decision of June 4, 1951.On August 24, 1951, the Collector of Customs for the Port of Manila sent a letter to petitioner's attorneys, informing them that their letter of July 12, 1951, was endorsed to the Commissioner of Customs on July 13, 1951, "requesting information whether the merchandise covered by Seizure Identification No. 1006 may now be delivered to the owner upon showing that the decision has become final and executory after fifteen (15) days from the receipt of a copy of the same by the claimant," to which no reply had been received from the Commissioner of Customs. (pp. 64-66, rec.)The petition of Sy Man above mentioned sought (1) to declare null and void that portion of the Memorandum Order promulgated by the Insular Collector of Customs dated August 18, 1947, which provides that as in protected cases, decisions of the Collector of Customs in seizure cases, whether appealed or not, are subject to review by the Insular Collector (now commissioner); that such decisions and their supporting papers be submitted to his office, and that pending action by him on such decisions, final disposal of the goods involved shall not be made; and (2) to order the Collector to deliver to the petitioner the shipment of textiles covered by Seizure Identification No. 1006 pursuant to its decision of June 4, 1951, claimed to be final and executory.As already said, the trial court granted the petition and ordered the Commissioner and the Collector to execute the decision of the latter dated June 4, 1951, on the ground that said decision had already become final.For the purposes of clarification, it should be stated that before the year 1947, the Bureau of Customs had one chief and one assistant chief, known respectively as Insular Collector of Customs and Insular Deputy Collector of Customs (section 1138, Revised Administrative Code).The Insular Collector and the Insular Deputy Collector acted as the Collector of Customs and Deputy Collector of Customs for the Port of Manila (section 1152, Revised Administrative Code). Pursuant to Republic Act No. 51, authorizing the Chief Executive to reorganize the different executive departments, bureaus and offices, the President issued Executive Order No. 94 signed on October 4, 1947.Under sections 51 and 52 of said order, the designation of Insular Collector of Customs, and the position of Deputy Collector of Customs was changed to that of Collector of Customs for the Port of Manila.It is the contention of the applicants that the Commissioner as head of the Bureau of Customs and the chief executive and administrative officer thereof under section 550, Revised Administrative Code, and also by virtue of section 1152 of the same Code has supervision and control over the Collector, and that by reason of said supervision and control, he maymotu propioreview and revise decisions of the Collector in seizure cases even when not appealed by the importer. Under that theory, the Commissioner of Customs promulgated his Memorandum Order of August 18, 1947. For reference, we reproduce said order.DEPARTMENT OF FINANCEBUREAU OF CUSTOMSMANILAAugust 18,1947MEMORANDUM ORDERTo all Collectors of Customs at Sub-Ports:It has been observed that in seizure cases some Collectors of Customs merely submit to this Office reports of their seizures and the subsequent final disposition they made of the articles seized. They do not transmit the records of the proceedings and their decisions thereon in due form, as required by Sections 1380 and 1381 of the Revised Administrative Code.As in protest cases, decisions of Collectors of Customs in seizure cases, whether appealed or not, are subject to review by the Insular Collector. To this end, it is necessary that such decisions and their supporting papers be submitted to this Office. Pending action by the Insular Collector on such decisions, final disposition of the goods involved shall not be made, except upon previous authority from this Office, or except in cases where such goods are perishable in nature or liable to deterioration in which case the same may be disposed of Section 1399 of the Revised Administrative Code.Where the articles seized are subject to forfeiture under section 1363 of the Revised Administrative Code and a fine is imposed in lieu of forfeiture under Section 1365 of the same code, the decision thereon in due form and all the supporting papers shall be transmitted to this office for confirmation or such other action as may be deemed proper. Pending receipt of such confirmation the decision shall not be given effect.All concerned shall be guided accordingly.ALFREDO DE LEONInsular Collector of Customs

The petitioner-appellee, however, equally claims that when a decision of the Collector in a seizure case is not appealed by the importer to the Commissioner within 15 days as provided for in Section 1380, Revised Administrative Code, then said decision becomes final not only as to said importer but as to the Government as well, so that thereafter nothing remains to be done except the execution of the decision of the Collector, that is to say, the release of the goods seized, if not forfeited to the Government and the payment of the amounts mentioned and ordered in the decision.We are given the impression and we realize that this is the first time that the Courts have been called upon to interpret the law on this point and to determine whether or not this supposed power of revision by the Commissioner of unappealed decisions of the Collector in seizure cases, is supported by law, and for this reason we have exerted and exercised extra effort and care in examining the law on the subject.As we understand it, when merchandise or goods are imported through any of the ports of the Philippines, under normal circumstances, said goods are assessed for purposes of payment of custom duties, fees and other money charges. If the importer is satisfied with the assessment he pays the amount assessed and withdraws the goods. Failure to protest renders the action of the Collector conclusive against the importer. (See sections 1370 and 1371, Revised Administrative Code). If dissatisfied he pays the amount of the assessment anyhow and then files a protest under section 1372, Revised Administrative Code, and the Collector re-examines the matter thus presented. (Section 1379, Revised Administrative Code.)However, when property imported is subject to forfeiture under the customs laws (section 1363, Revised Administrative Code), the goods are seized, a warrant for their detention is issued, the owner or his agent is notified in writing and after giving a hearing with reference to the offense or delinquency which gave rise to the seizure, the Collector in writing makes a declaration of forfeiture or fixes the amount of the fine to be imposed or takes such other appropriate steps he may deem proper. (Sections 1374, 1375, 1379 [paragraph 2], Revised Administrative Code.)Both under protest and seizure cases the person aggrieved by the decision of the Collector may appeal to the Commissioner within 15 days. (Section 1380, Revised Administrative Code.) Because of its importance to this case, and for purposes of reference, we are reproducing said section.SEC. 1380. Review by Commissioner. The person aggrieved by the decision of the collector of customs in any matter presented upon protest or by his action in any case of seizure may, within fifteen days after notification in writing by the collector of his action or decision, give written notice to the collector signifying his desire to have the matter reviewed by the Commissioner.Thereupon, the collector of customs shall forthwith transmit all the papers in the cause to the Commissioner, who shall approve, modify, or reverse the action of his subordinate and shall take such steps and make such order or orders as may be necessary to give effect to his decision.If the person aggrieved by the decision of the Collector in a seizure case does not make such appeal, the decision evidently becomes final, at least as to him. That was the reason why petitioner-appellee, in the belief that because he failed or did not choose to appeal from the decision of June 4, 1951, the same had become final, asked the court that the same be executed, that is to say, that he be allowed to pay the amounts fixed in the decision and that the merchandise be released, with the exception of the sewing machines which were declared subject to forfeiture. The Commissioner, however, as already stated, believes that the decision of the Collector in a seizure case the unappealed does not become final as against the Government as long as it has not been reviewed and acted upon by him. He does not state the period if any within which he may or has to make such revision. In other words, the appellants' claim seems to be that he (the Commissioner) may hold without action an appealed seizure case, the decision of which is already final as to the importer, indefinitely, for months if not for years, as for instance, when there are too may such cases to study and decide, or there are other matters that have preference to this attention and action, a period of time without limit.From the standpoint of the importer, such a rule or theory is decidedly unsatisfactory and even unjust, if not oppressive. He is willing to abide by the decision of the Collector; he wants to pay the amounts fixed and stated in the decision, including the fines, and desires to get the goods released so as to be able to dispose of them. The Commissioner, however, relying exclusively on his power of supervision and control, as head of the Bureau of Customs, over Collectors of Customs as his subordinates in that bureau, and presumably on his Memorandum Order of August 18, 1947, contends that the seizure case involving goods seized way back on January 2, 1951, and decided by the Collector on June 4,1 951, tho unappealed by the importer and thereby binding on him, is still unfinished business as far as the Government is concerned, because he(the Commissioner) has not yet gotten around to act upon it. For that matter, we understand that up to the present, the latter part of 1953, the Commissioner has not yet taken any action, approving, reversing or modifying the decision of the Collector of Customs. As we have already had occasion to pay, said rule or procedure claimed for the Government would appear to be unsatisfactory, intolerable if not oppressive to importers.As regards the Memorandum Order of August 18, 1947, by the Insular Collector of Customs to Collectors of Customs, we are afraid that appellants cannot find support and comfort therein. We are given to understand by the parties or at least appellants do not deny appellee's assertion that said memorandum order was never approved by the department head and was never published in theOfficial Gazette. Section 551 of the Revised Administrative Code provides that every chief of bureau shall prescribe forms and make regulations or general ordersnot inconsistent with lawto carry into full effect the laws relating to matters within the bureau's jurisdiction. But to become effective said forms and regulations must be approved by the Department head and published in theOfficial Gazetteor otherwise publicly promulgated. Because of this failure of approval by the department head and of publication, the memorandum order of August 18, 1947 has therefore no legal effect. Moreover, a form or regulation promulgated by a Bureau Chief must not be inconsistent with law. Therefore, if the law does not give the Commissioner the power to review and revise unappealed decisions of the Collector of Customs in seizure cases, then the memorandum order even if duly approved and published in theOfficial Gazette, would equally have no effect for being inconsistent with law.Let us now see if there is any law giving authority to the Commissioner of Customs to review and revise unappealed decisions in seizure cases. In cases involving assessment of duties, even when the importer fails to protest the decision of the Collector of Customs, the Commissioner may order a reliquidation if he believes that the decision of the Collector was erroneous and unfavorable to the Government; and the Department Head in his turn if he believes that the decision of the Commissioner in any unprotested case of assessment of duties is erroneous and unfavorable to the Government, may require the Commissioner to order a reliquidation or he may direct the Commissioner to certify the case to the Court of First Instance of Manila. We are reproducing said section 1393..SEC. 1393. Supervisory authority of Commissioner and of Department Head in certain cases. If in any case involving the assessment of duties the importer shall fail to protest the decision of the collector of customs and the Commissioner shall be of the opinion that the decision was erroneous and unfavorable to the Government, the latter may order a reliquidation; and if the decision of the Commissioner in any unprotested case should, in the opinion of the Department Head, be erroneous and unfavorable to the Government, the Department Head may require the Commissioner to order a reliquidation or he may, if in his opinion the public interest requires, direct the Commissioner to certify the cause to the Court of First Instance of Manila, in the manner provided in section one thousand three hundred and eighty-six hereof, there to be reviewed by the court as other customs cases removed thereto.Except as in the preceding paragraph provided, the supervisory authority of the Department Head over the Bureau of Customs shall not extend to the administrative revisal of the decisions of the Commissioner in matters removable into court.It will be noticed that the section is entitled "supervisory authority of the Commissioner and of the Department Head in certain cases." We find no similar legal provision in seizure cases. The logical inference is that the lawmakers did not deem it necessary or advisable to provide for this supervisory authority or power of revision by the Commissioner and the Department Head on unappealed seizure cases; and it is highly possible that up to and until 1947, when the memorandum order of August 18th of that year was issued, it was not the practice of the Bureau of Customs to have unappealed seizure cases sent up by Collectors to the Commissioner's office for review and revision. This we may gather from the memorandum order itself, where the Commissioner observes that in seizure cases some collectors of customs merely submit to him their reports of their seizure and the subsequent final disposition thereof without transmitting the records of their proceedings, and he therein asserts the right of the Commissioner of Customs to review decisions of Collector of Customs in seizure cases though unappealed. If that right and that practice had existed from the beginning, it is not likely that Collectors would disregard and ignore it, to the extent that it was necessary to remind them of it by means of a memorandum order.Moreover, under section 1380 of the Revised Administrative Code above reproduced, it would seem that in a seizure case, the Collector transmits all the papers in the cause to the Commissioner only when and after the importer notifies him in writing signifying his desire to have the matter reviewed by the Commissioner. The section does not say that without the notice of appeal, the Collector is called upon to submit the papers of the case to the Commissioner. If this be true, then legally, a case of seizure unappealed ends right in the office of the Collector, with-out prejudice of course to the Collector subsequently making a report of his action to the Commissioner. Furthermore, section 1388 of the Revised Administrative Code provides thus:SEC. 1388. Settlement of cause by payment of fine or redemption of forfeited property. If, in any seizure case, the owner or agent shall, while the cause is yet before the collector of the district of seizure, pay to such collector the fine imposed by him or, in case of forfeiture, shall pay the appraised value of the property, or if, after removal of the cause, he shall pay to the Commissioner the amount of the fine as finally determined by him, or, in case of forfeiture, shall pay the appraised value of the property, such property shall be forthwith surrendered, and all liability which may or might attach to the property by virtue of the offense which was the occasion of the seizure and all liability which might have been incurred under any bond given by the owner or agent in respect to such property shall thereupon be deemed to be discharged.Redemption of forfeited property shall not be allowed in any case where the importation is absolutely prohibited or where the surrender of the property to the person offering to redeem the same would be contrary to law.If under the above provisions, in a seizure case the owner or agent may, while the cause is yet before the collector, pay the fine imposed, or in case of forfeiture, pay the appraised value of the property, and thereafter such properties shall be surrendered and all liability which may attach to said property by virtue of the offense causing the seizure is to be deemed discharged, the conclusion to be drawn is that it is within the power and right of an importer, owner or agent to end the case in the office of the Collector, thereby precluding any intervention by the Commissioner in the way of reviewing and revising the decision of the Collector. Again, under section 1389 immediately following which reads SEC. 1389. Right of protest in such cases. Where payment is made or redemption effected as allowed under the preceding section, the party making payment or effecting the redemption may, if he desires to test the validity of the proceedings, make formal protest at the time of making such payment or affecting such redemption, or within fifteen days thereafter, and make claim for the repayment of the whole or any part of the sum so paid by him, whereupon the proceedings shall take the same course as in ordinary cases of protest against customs duties and charges generally.the importer or owner of goods seized, after payment is made or redemption effected, is allowed if he desires to test the validity or correctness of the decision of the Collector, to appeal the same to the Commissioner of Customs presumably, to decrease the amount of his liability or annul the seizure altogether and have all the amounts paid by him refunded. The inference follows that by making payment and redeeming the property seized under the decision of the Collector of Customs, the owner may terminate the case right there, altho notwithstanding his payment he still has the right to have the case elevated to the Office of the Commissioner of Customs. It would seem that the elevation of the case and the transmittal of the papers thereof to the Commissioner lies within the owner's exclusive power and discretion. This argues against the pre-tended power of the Commissioner of automatic review and revision of decisions of Collectors in unappealed seizure cases.It is argued that if this power of review and revision by the Commissioner of unappealed seizure cases is not conceded, then in cases where the Collector in his decision commits a blunder prejudicial to the interests of the Government, or renders a decision through fraud or in collusion with the importer, the Government cannot protect itself. The argument is not without merit; but we must bear in mind that the law is promulgated to operate on ordinary, common, routine cases. The rule is and the law presumes that in seizure cases Collector of Customs act honestly and correctly and as Government officials, always with an eye to the protection of the interests of the Government employing them. If mistakes are committed at all more often than not they are in favor of the Government and not against it, and that is the reason why when the importer feels aggrieved by their decision, he is given every chance and facility to protest the decision and appeal to the Commissioner. Cases of erroneous decisions against the interest of the Government of decisions rendered in collusion and connivance with importers are the exception. To protect the Government in such exceptional cases, we find that in every seizure case, section 1378 of the Revised Administrative Code requires the Collector to immediately notify the Commissioner and the Auditor General. It maybe that this requirement has for its main purpose the recording of and accounting for the articles seized so that in case of confiscation the Commissioner and the Auditor General will know what articles have become government property. But the notice will also inform the Commissioner and the Auditor General of the seizure. If the seizure is important or unusual, the Commissioner may, if he so desires, order the Collector as his subordinate to withhold action on the seizure, or hold in abeyance, within a reasonable time, the promulgation of his decision until after he had conferred with the Commissioner or the latter had studied the case and given suggestions. At that stage of the proceedings before definite action is taken by the Collector, and a decision rendered by him, it would seem that any action by him as a subordinate is still subject to the supervisory authority and control of the Commissioner as his Chief, and the latter may still influence and direct the Collector's action if he finds occasion for doing so.But if the Government deems it necessary to provide for review and revision by the Commissioner or even by the Department Head of the decisions of the Collector of Customs in unappealed seizure cases, the Legislature may be requested to insert a section in the Revised Administrative Code similar to Section 1393 which applies to unprotested cases of assessment duties. The defect in said section however is that it does not fix the period within which the automatic review and revision or reliquidation to be ordered by the Commission and the Secretary of Finance must be effected. This defect should be remedied.In conclusion, we find and hold that under the present law governing the Bureau of Customs, the decision of the Collector of Customs in a seizure case if not protested and appealed by the importer to the Commissioner of Customs on time, becomes final not only as to him but against the Government as well, and neither the Commissioner nor the Department Head has the power to review, revise or modify such unappealed decision. We also find and hold that the memorandum order of the Insular Collector of Customs of August 18, 1947, is void and of no effect, not only because it has not been duly approved by the Department Head and duly published as required by section 551 of the Revised Administrative Code but also because it is inconsistent with law. For the foregoing reasons, the decision appealed from is hereby affirmed. No pronouncement as to costs.Paras, C.J., Pablo, Jugo and Bautista Angelo, JJ.,concur.

Separate OpinionsREYES,J.,concurring:Without denying the power of the Commissioner of Customs at his own instance to review, alter or revoke the decision of a collector of customs in seizure cases a power reasonably to be inferred from section 1152 of the Revised Administrative Code, which places all collectors of customs "under the supervision and control of the Commissioner" I vote for the execution of the decision of the Collector of Customs for the port of Manila which the Commissioner has not chosen to alter or revoke, it appearing that, though the said decision was brought to his attention on July 30,1951, he has not "up to the present, the latter part of 1953," taken any action thereon.Bengzon and Padilla, JJ.,concur.

G.R. No. L-32166 October 18, 1977THE PEOPLE OF THE PHILIPPINES,plaintiff-appellant,vs.HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLO DEL ROSARIO,accused-appellees.Office of the Solicitor General for appellant.Rustics F. de los Reyes, Jr. for appellees.AQUINO,J.:t.hqwThis is a case involving the validity of a 1967 regulation, penalizing electro fishing in fresh water fisheries, promulgated by the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries under the old Fisheries Law and the law creating the Fisheries Commission.On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and Carlito del Rosario were charged by a Constabulary investigator in the municipal court of Sta. Cruz, Laguna with having violated Fisheries Administrative Order No. 84-1.It was alleged in the complaint that the five accused in the morning of March 1, 1969 resorted to electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by "using their own motor banca, equipped with motor; with a generator colored green with attached dynamo colored gray or somewhat white; and electrocuting device locally known as sensored with a somewhat webbed copper wire on the tip or other end of a bamboo pole with electric wire attachment which was attached to the dynamo direct and with the use of these devices or equipments catches fish thru electric current, which destroy any aquatic animals within its cuffed reach, to the detriment and prejudice of the populace" (Criminal Case No. 5429).Upon motion of the accused, the municipal court quashed the complaint. The prosecution appealed. The Court of First Instance of Laguna affirmed the order of dismissal (Civil Case No. SC-36). The case is now before this Court on appeal by the prosecution under Republic Act No. 5440.The lower court held that electro fishing cannot be penalize because electric current is not an obnoxious or poisonous substance as contemplated in section I I of the Fisheries Law and that it is not a substance at all but a form of energy conducted or transmitted by substances. The lower court further held that, since the law does not clearly prohibit electro fishing, the executive and judicial departments cannot consider it unlawful.As legal background, it should be stated that section 11 of the Fisheries Law prohibits "the use of any obnoxious or poisonous substance" in fishing.Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance in fishing with a fine of not more than five hundred pesos nor more than five thousand, and by imprisonment for not less than six months nor more than five years.It is noteworthy that the Fisheries Law does not expressly punish .electro fishing." Notwithstanding the silence of the law, the Secretary of Agriculture and Natural Resources, upon the recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative Order No. 84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters. The order is quoted below:+.wph!1SUBJECT: PROHIBITING ELECTRO FISHING IN ALL WATERS+.wph!1OF THE PHILIPPINES.Pursuant to Section 4 of Act No. 4003, as amended, and Section 4 of R.A. No. 3512, the following rules and regulations regarding the prohibition of electro fishing in all waters of the Philippines are promulgated for the information and guidance of all concerned.+.wph!1SECTION 1. Definition. Words and terms used in this Order 11 construed as follows:(a) Philippine waters or territorial waters of the Philippines' includes all waters of the Philippine Archipelago, as defined in the t between the United States and Spain, dated respectively the tenth of December, eighteen hundred ninety eight and the seventh of November, nineteen hundred. For the purpose of this order, rivers, lakes and other bodies of fresh waters are included.(b) Electro Fishing. Electro fishing is the catching of fish with the use of electric current. The equipment used are of many electrical devices which may be battery or generator-operated and from and available source of electric current.(c) 'Persons' includes firm, corporation, association, agent or employee.(d) 'Fish' includes other aquatic products.SEC. 2. Prohibition. It shall be unlawful for any person to engage in electro fishing or to catch fish by the use of electric current in any portion of the Philippine waters except for research, educational and scientific purposes which must be covered by a permit issued by the Secretary of Agriculture and Natural Resources which shall be carried at all times.SEC. 3. Penalty. Any violation of the provisions of this Administrative Order shall subject the offender to a fine of not exceeding five hundred pesos (P500.00) or imprisonment of not extending six (6) months or both at the discretion of the Court.SEC. 4. Repealing Provisions. All administrative orders or parts thereof inconsistent with the provisions of this Administrative Order are hereby revoked.SEC. 5. Effectivity. This Administrative Order shall take effect six (60) days after its publication in the Office Gazette.On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation of the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section 2 of Administrative Order No. 84, by restricting the ban against electro fishing tofresh water fisheries(63 O.G. 9963).Thus, the phrase "in any portion of the Philippine waters" found in section 2, was changed by the amendatory order to read as follows: "infresh water fisheriesin the Philippines, such as rivers, lakes, swamps, dams, irrigation canals and other bodies of fresh water."The Court of First Instance and the prosecution (p. 11 of brief) assumed that electro fishing is punishable under section 83 of the Fisheries Law (not under section 76 thereof), which provides that any other violation of that law "or of any rules and regulations promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos (P200), or in t for not more than six months, or both, in the discretion of the court."That assumption is incorrect because 3 of the aforequoted Administrative Order No. 84 imposes a fm of not exceeding P500 on a person engaged in electro fishing, which amount the 83. It seems that the Department of Fisheries prescribed their own penalty for swift fishing which penalty is less than the severe penalty imposed in section 76 and which is not Identified to the at penalty imposed in section 83.Had Administrative Order No. 84 adopted the fighter penalty prescribed in on 83, then the crime of electro fishing would be within theexclusive original jurisdictionof the inferior court (Sec. 44 [f], Judiciary Law; People vs. Ragasi, L-28663, September 22,We have discussed this pre point, not raised in the briefs, because it is obvious that the crime of electro fishing which is punishable with a sum up to P500, falls within theconcurrent original jurisdictionof the inferior courts and the Court of First instance (People vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531 and the cases cited therein).And since the instant case was filed in the municipal court of Sta. Cruz, Laguna, a provincial capital, the order of d rendered by that municipal court was directly appealable to the Court, not to the Court of First Instance of Laguna (Sec. 45 and last par. of section 87 of the Judiciary Law; Esperat vs. Avila, L-25992, June 30, 1967, 20 SCRA 596).It results that the Court of First Instance of Laguna had no appellate jurisdiction over the case. Its order affirming the municipal court's order of dismissal is void for lack of motion. This appeal shall be treated as a direct appeal from the municipal court to this Court. (See People vs. Del Rosario, 97 Phil. 67).In this appeal, the prosecution argues that Administrative Orders Nos. 84 and 84-1 were not issued under section 11 of the Fisheries Law which, as indicated above, punishes fishing by means of an obnoxious or poisonous substance. This contention is not well-taken because, as already stated, the Penal provision of Administrative Order No. 84 implies that electro fishing is penalized as a form of fishing by means of an obnoxious or poisonous substance under section 11.The prosecution cites as the legal sanctions for the prohibition against electro fishing in fresh water fisheries (1) the rule-making power of the Department Secretary under section 4 of the Fisheries Law; (2) the function of the Commissioner of Fisheries to enforce the provisions of the Fisheries Law and the regulations Promulgated thereunder and to execute the rules and regulations consistent with the purpose for the creation of the Fisheries Commission and for the development of fisheries (Sec. 4[c] and [h] Republic Act No. 3512; (3) the declared national policy to encourage, Promote and conserve our fishing resources (Sec. 1, Republic Act No. 3512), and (4) section 83 of the Fisheries Law which provides that "any other violation of" the Fisheries Law or of any rules and regulations promulgated thereunder "shall subject the offender to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the court."As already pointed out above, the prosecution's reference to section 83 is out of place because the penalty for electro fishing under Administrative order No. 84 is not the same as the penalty fixed in section 83.We are of the opinion that the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders Nos. 84 and 84-1 and that those orders are not warranted under the Fisheries Commission, Republic Act No. 3512.The reason is that the Fisheries Law does not expressly prohibit electro fishing. As electro fishing is not banned under that law, the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries are powerless to penalize it. In other words, Administrative Orders Nos. 84 and 84-1, in penalizing electro fishing, are devoid of any legal basis.Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could have been easily embodied in the old Fisheries Law.That law punishes (1) the use of obnoxious or poisonous substance, or explosive in fishing; (2) unlawful fishing in deepsea fisheries; (3) unlawful taking of marine molusca, (4) illegal taking of sponges; (5) failure of licensed fishermen to report the kind and quantity of fish caught, and (6) other violations.Nowhere in that law is electro fishing specifically punished. Administrative Order No. 84, in punishing electro fishing, does not contemplate that such an offense fails within the category of "other violations" because, as already shown, the penalty for electro fishing is the penalty next lower to the penalty for fishing with the use of obnoxious or poisonous substances, fixed in section 76, and is not the same as the penalty for "other violations" of the law and regulations fixed in section 83 of the Fisheries Law.The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute an offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. (People vs. Exconde 101 Phil. 11 25, citing 11 Am. Jur. 965 on p. 11 32).Originally, Administrative Order No. 84 punished electro fishing in all waters. Later, the ban against electro fishing was confined tofresh water fisheries. The amendment created the impression that electro fishing is not condemnable per se. It could be tolerated in marine waters. That circumstances strengthens the view that the old law does not eschew all forms of electro fishing.However, at present, there is no more doubt that electro fishing is punishable under the Fisheries Law and that it cannot be penalized merely by executive revolution because Presidential Decree No. 704, which is a revision and consolidation of all laws and decrees affecting fishing and fisheries and which was promulgated on May 16, 1975 (71 O.G. 4269), expressly punishes electro fishing in fresh water and salt water areas.That decree provides:+.wph!1SEC. 33.Illegal fishing, dealing in illegally caught fish or fishery/aquatic products. It shall he unlawful for any person to catch, take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (1), (m) and (d), respectively, of Section 3 hereof: ...The decree Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos. 43, 534 and 553, and all , Acts, Executive Orders, rules and regulations or parts thereof inconsistent with it (Sec. 49, P. D. No. 704).The inclusion in that decree of provisions defining and penalizing electro fishing is a clear recognition of the deficiency or silence on that point of the old Fisheries Law. It is an admission that a mere executive regulation is not legally adequate to penalize electro fishing.Note that the definition of electro fishing, which is found in section 1 (c) of Fisheries Administrative Order No. 84 and which is not provided for the old Fisheries Law, is now found in section 3(d) of the decree. Note further that the decree penalty electro fishing by "imprisonment from two (2) to four (4) years", a punishment which is more severe than the penalty of a time of not excluding P500 or imprisonment of not more than six months or both fixed in section 3 of Fisheries Administrative Order No. 84.An examination of the rule-making power of executive officials and administrative agencies and, in particular, of the Secretary of Agriculture and Natural Resources (now Secretary of Natural Resources) under the Fisheries Law sustains the view that he ex his authority in penalizing electro fishing by means of an administrative order.Administrative agent are clothed with rule-making powers because the lawmaking body finds it impracticable, if not impossible, to anticipate and provide for the multifarious and complex situations that may be encountered in enforcing the law. All that is required is that the regulation should be germane to the defects and purposes of the law and that it should conform to the standards that the law prescribes (People vs. Exconde 101 Phil. 1125; Director of Forestry vs. Mu;oz, L-24796, June 28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706, 712).The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute (U.S. vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs. Grimaud 220 U.S. 506; Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6).The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the nondeleption of legislative, powers. Administrative regulations or "subordinate legislation calculated to promote the public interest are necessary because of "the growing complexity of modem life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law" Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osme;a, 68 Phil. 328).Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. (U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the d of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it his been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax A 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see of Internal Revenue vs. Villaflor 69 Phil. 319, Wise & Co. vs. Meer, 78 Phil. 655, 676; Del March vs. Phil. Veterans Administrative, L-27299, June 27, 1973, 51 SCRA 340, 349).There is no question that the Secretary of Agriculture and Natural Resources has rule-making powers. Section 4 of the Fisheries law provides that the Secretary "shall from time to time issue instructions, orders, and regulations consistent" with that law, "as may be and proper to carry into effect the provisions thereof." That power is now vested in the Secretary of Natural Resources by on 7 of the Revised Fisheries law, Presidential December No. 704.Section 4(h) of Republic Act No. 3512 empower the Co of Fisheries "to prepare and execute upon the approval of the Secretary of Agriculture and Natural Resources, forms instructions, rules and regulations consistent with the purpose" of that enactment "and for the development of fisheries."Section 79(B) of the Revised Administrative Code provides that "the Department Head shall have the power to promulgate, whenever he may see fit do so, all rules, regulates, orders, memorandums, and other instructions,not contrary to law, to regulate the proper working and harmonious and efficient administration of each and all of the offices and dependencies of his Department, and for the strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said Department; but none of said rules or orders shall prescribe penalties for the violation thereof, except as expressly authorized by law."Administrative regulations issued by a Department Head in conformity with law have the force of law (Valerie vs. Secretary of culture and Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc. vs. Zayco, L- 20051, May 30, 1966, 17 SCRA 316). As he exercises the rule-making power by delegation of the lawmaking body, it is a requisite that he should not transcend the bound demarcated by the statute for the exercise of that power; otherwise, he would be improperly exercising legislative power in his own right and not as a surrogate of the lawmaking body.Article 7 of the Civil Code embodies the basic principle that administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution."As noted by Justice Fernando, "except for constitutional officials who can trace their competence to act to the fundamental law itself, a public office must be in the statute relied upon a grant of power before he can exercise it." "department zeal may not be permitted to outrun the authority conferred by statute." (Radio Communications of the Philippines, Inc. vs. Santiago, L-29236, August 21, 1974, 58 SCRA 493, 496-8)."Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute, and compliance therewith may be enforced by a penal sanction provided in the law. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are oftentimes left to the administrative agency entrusted with its enforcement. In this sense, it has been said that rules and regulations are the product of a delegated power to create new or additional legal provisions that have the effect of law." The rule or regulation should be within the scope of the statutory authority granted by the legislature to the administrative agency. (Davis, Administrative Law, p. 194, 197, cited in Victories Milling Co., Inc. vs. Social Security Commission, 114 Phil. 555, 558).In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People vs. Lim, 108 Phil. 1091).This Court in its decision in the Lim case,supra, promulgated on July 26, 1960, called the attention of technical men in the executive departments, who draft rules and regulations, to the importance and necessity of closely following the legal provisions which they intend to implement so as to avoid any possible misunderstanding or confusion.The rule is that the violation of a regulation prescribed by an executive officer of the government in conformity with and based upon a statute authorizing such regulation constitutes an offense and renders the offender liable to punishment in accordance with the provisions of the law (U.S. vs. Tupasi Molina, 29 Phil. 119, 124).In other words, a violation or infringement of a rule or regulation validly issued can constitute a crime punishable as provided in the authorizing statute and by virtue of the latter (People vs. Exconde 101 Phil. 1125, 1132).It has been held that "to declare what shall constitute a crime and how it shall be punished is a power vested exclusively in the legislature, and it may not be delegated to any other body or agency" (1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F. Supp. 527).In the instant case the regulation penalizing electro fishing is not strictly in accordance with the Fisheries Law, under which the regulation was issued,because the law itself does not expressly punish electro fishing.The instant case is similar toPeople vs. Santos, 63 Phil. 300. TheSantoscase involves section 28 of Fish and Game Administrative Order No. 2 issued by the Secretary of Agriculture and Natural Resources pursuant to the aforementioned section 4 of the Fisheries Law.Section 28 contains the proviso that a fishing boat not licensed under the Fisheries Law and under the said administrative order may fish within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military reservations authorities of the United States only upon receiving written permission therefor, which permission may be granted by the Secretary upon recommendation of the military or naval authorities concerned. A violation of the proviso may be proceeded against under section 45 of the Federal Penal Code.Augusto A. Santos was prosecuted under that provision in the Court of First Instance of Cavite for having caused his two fishing boats to fish, loiter and anchor without permission from the Secretary within three kilometers from the shoreline of Corrigidor Island.This Court held that the Fisheries Law does not prohibit boats not subject to license from fishing within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military authorities of the United States, without permission from the Secretary of Agriculture and Natural Resources upon recommendation of the military and naval authorities concerned.As the said law does not penalize the act mentioned in section 28 of the administrative order, the promulgation of that provision by the Secretary "is equivalent to legislating on the matter, a power which has not been and cannot be delegated to him, it being expressly reserved" to the lawmaking body. "Such an act constitutes not only an excess of the regulatory power conferred upon the Secretary but also an exercise of a legislative power which he does not have, and therefore" the said provision "is null and void and without effect". Hence, the charge against Santos was dismiss.A penal statute is strictly construed. While an administrative agency has the right to make ranks and regulations to carry into effect a law already enacted, that power should not be confused with the power to enact a criminal statute. An administrative agency can have only the administrative or policing powers expressly or by necessary implication conferred upon it. (Glustrom vs. State, 206 Ga. 734, 58 Second 2d 534; See 2 Am. Jr. 2nd 129-130).Where the legislature has delegated to executive or administrative officers and boards authority to promulgate rules to carry out an express legislative purpose, the rules of administrative officers and boards, which have the effect of extending, or which conflict with the authority granting statute, do not represent a valid precise of the rule-making power but constitute an attempt by an administrative body to legislate (State vs. Miles, Wash. 2nd 322, 105 Pac. 2nd 51).In a prosecution for a violation of an administrative order, it must clearly appear that the order is one which falls within the scope of the authority conferred upon the administrative body, and the order will be scrutinized with special care. (State vs. Milessupra).TheMilescase involved a statute which authorized the State Game Commission "to adopt, promulgate, amend and/or repeal, and enforce reasonable rules and regulations governing and/or prohibiting thetakingof the various classes of game.Under that statute, the Game Commission promulgated a rule that "it shall be unlawful to offer, pay or receive any reward, prize or compensation for the hunting, pursuing, taking, killing ordisplayingof any game animal, game bird or game fish or any part thereof."Beryl S. Miles, the owner of a sporting goods store, regularly offered a ten-down cash prize to the person displaying the largest deer in his store during the open for hunting such game animals. For that act, he was charged with a violation of the rule Promulgated by the State Game Commission.It was held that there was no statute penalizing thedisplayof game. What the statute penalized was the taking of game. If the lawmaking body desired to prohibit the display of game, it could have readily said so. It was not lawful for the administrative board to extend or modify the statute. Hence, the indictment against Miles was quashed. The Miles case is similar to this case.WHEREFORE, the lower court's decision of June 9, 1970 is set aside for lack of appellate jurisdiction and the order of dismissal rendered by the municipal court of Sta. Cruz, Laguna in Criminal Case No. 5429 is affirmed. Costsde oficio.SO ORDERED.

G.R. No. 92646-47 October 4, 1991AUGUSTO TOLEDO,petitioner,vs.CIVIL SERVICE COMMISSION and COMMISSION ON ELECTIONS,respondents.Toledo & Toledo for petitioner.Itaas-Fetalino, Limare and Huerta for CSC.PARAS,J.:pPetitioner Atty. Augusto Toledo was appointed by then Comelec Chairman Ramon Felipe as Manager of the Education and Information Department of the Comelec, on May 21, 1986. At the time of his appointment, petitioner, having been born on July 8, 1927 was already more than fifty-seven (57) years old. It was the first time petitioner joined the government service as he was then engaged in active private practice prior to said appointment.Petitioner's appointment papers, particularly Civil Service Form No. 333 and his oath of office were endorsed by the Comelec to the Civil Service Commission (CSC, for brevity) on June 11, 1986, for approval and attestation. However, no prior request for exemption from the provisions of Section 22, Rule III of the Civil Service Rules on Personnel Action and Policies (CSRPAP, for brevity) was secured. Said provision prohibits the appointment of persons 57 years old or above into the government service without prior approval by the Civil Service Commission (CSC Memorandum Circular No. 5, Series of 1983).Petitioner officially reported for work and assumed the functions of his office on June 16, 1986.On January 29, 1989, public respondent Comelec, upon discovery of the lack of authority required under Section 22, Rule III of the CSRPAP, and CSC Memorandum Circular No. 5, Series of 1983 issued Resolution No. 2066, the pertinent portion of which is hereinbelow quoted, to wit:WHEREAS, for the validity then of the appointment of Atty. Toledo as Manager of the Education and Information Department it was necessary that not only must prior authority from the Civil Service Commission be obtained considering that he was more than fifty-seven (57) years old at the time, it must as well be shown that (a) the exigencies of the service so required, (b) Atty. Toledo possesses special qualification not possessed by other officers or employees in the Commission, and (c) the vacancy cannot be filled by promotion of qualified officers or employees in the Commission;WHEREAS, there is nothing in the 120 File of Atty. Toledo that indicates that such authority was even obtained from the Civil Service Commission or from the President of the Philippines; moreover, conditions (a), (b) and (c) stated in the immediately preceding clause did not then exist;WHEREAS, the appointment then of Atty. Toledo was made in violation of law and pursuant to Section 7, Rule III of the Civil Service Rules on Personnel Action, the appointment was void from the beginning.NOW, THEREFORE, be it resolved, as it is hereby resolved, to DECLARE as VOID from the beginning the appointment of Atty. Augusto Toledo as Manager of the Education and Information Department of this Commission. (pp. 49-50, Rollo)Petitioner appealed the foregoing Comelec Resolution No. 2066 to public respondent CSC on February 4, 1989.On July 12, 1989, public respondent CSC promulgated Resolution No. 89-468 which disposed of the appeal, thus:WHEREFORE, foregoing premises considered, the Commission resolved to declare, as it hereby declares the appointment of Augusto V. Toledo as Manager, Information and Education Department, Commission on Elections, there being no basis in law, merely voidable and not voidab initio. Hence, Atty. Toledo is considered a de facto officer from the time he assumed office on June 16, 1986, until and up to the promulgation of COMELEC Resolution No. 2066 on January 29, 1989. (pp. 35-36, Rollo)Unable to obtain a reconsideration from the aforesaid Resolution, petitioner filed the present petition for certiorari.It is first contended by petitioner that CSC Resolution No. 89-468 is without legal basis because the CSRPAP is invalid and unenforceable for not having been published in the Official Gazette or in any newspaper of general circulation as required under Section 9(b) of P.D. 807. This being the case, petitioner argues that the requirement of prior CSC authority to appoint persons 57 years or older under Section 22, Rule III of the CSRPAP has not "become effective" and cannot be invoked against him.It will be recalled that the Civil Service Act of 1959 (Republic Act No. 2260) took effect on June 19, 1959. That act, among other things, established a Civil Service Commission one of the functions of which was, "with the approval by the President, to prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of ... the Civil Service Law," said rules "to become effective thirty days after publication in the Official Gazette" [Sec. 16 (e)].The Commission subsequently adopted and promulgated rules intended to carry the law into effect, known as the Revised Civil Service Rules. Those rules were published in the supplement to Vol. 58, No. 49 of the Official Gazette, dated December 3, 1962.Section 5, Rule VI of those Revised Civil Service Rules provided that:SEC. 5. No person shall be appointed or reinstated in the service if he is already 57 years old, unless the President of the Philippines, President of the Senate, Speaker of the House of Representatives, or the Chief Justice of the Supreme Court, as the case may be, determines that he possesses special qualifications and his services are needed.It is worthy of note, however, that the statute itself (RA 2260) contained no provision prohibiting appointment or reinstatement in the Government service of any person who was already 57 years old, or otherwise requiring that some limitation as regards to age be placed on employment in the Government service. This prohibition was purely a creation of the Civil Service Commission.On October 6, 1975, pursuant to the 1973 Constitution, Presidential Decree No. 807 was issued by President Marcos, establishing "an independent Civil Service Commission." The decree, known as the "Civil Service Decree of the Philippines," repealed or accordingly modified all laws, rules, and regulations or parts thereof inconsistent" with its provisions (Sec. 59), although it declared that "the former Civil Service Commission created under Republic Act No. 2260, as amended, and as organized under the Integrated Reorganization Plan may serve as the nucleus of the Civil Service Commission" (Fourth Whereas Clause, Preamble). Like RA 2260 which it superseded, PD 807 empowered the Commission to "prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of the Decree," and also provided that said "rules and regulations shall become effective thirty (30) days after publication in the Official Gazette or in any newspaper of general circulation."The new Civil Service Commission adopted "rules and regulations for carrying into effect the provisions" of the Civil Service Decree on November 20, 1983. The rules were named, "Civil Service Rules on Personnel Actions and Policies" (CSRPAP). Section 22, Rule III of the CSRPAP is substantially the same as Section 5, Rule VI of the quondam "Revised Civil Service Rules" and it reads as follows:SEC. 22. No person shall be appointed, reinstated, or re-employed in the service if he is already 57 years old, unless the President, or the Chief Justice of the Supreme Court, in the case of employees in the judiciary, determines that he possesses special qualifications urgently needed by the hiring agency.Omitted, it will be observed, was reference to the "President of the Senate" and the "Speaker of the House of Representatives," both of whom were expressly mentioned in the counterpart provision in the former rules (Section 5, Rule VI,supra).Noteworthy, too, is that there is no provision at all in PD 807 dealing in any manner with the appointment, reinstatement or re-employment in the Government service of any person already 57 years or any particular age, for that matter. Again, the provision regarding persons 57 years of age was purely a creation of the Commission, having no reference to any provision in the decree intended to be implemented.It was this provision of the CSRPAP (Sec. 22, Rule III) which was applied to Toledo. According to the CSC, since prior authority for Toledo's appointment had never been obtained indeed, it would appear that the appointment papers were not transmitted by the COMELEC to the CSC until February, 1989 at which time Toledo's appointment was "approved as permanent" by the Executive Director of said CSCthe appointment had to be struck down.Now, these rules and regulations (CSRPAP) were never published either in the Official Gazette or any newspaper of general circulation, at least as of the time that Section 22, Rule III thereof was applied to Toledo to the latter's prejudice. As much was admitted by the Chairman of the Commission, Hon. Patricia A. Sto. Tomas in a letter written by her to Toledo dated February 2, 1989. In that letter, the Chairman stated that (a) the Commission had "no record of the publication of said Rules ("Rules on Personnel Actions and Policies") in newspapers of general circulation" although said Rules were "published and distributed by the National Media Production Center in 1975," and that (b) only "the Rule on Promotion embodied in CSC Resolution No. 83-343 repealing Rule V of the said Rules was published on August 15, 1983 in Volume 79 No. 33 of the Official Gazette" (Annex I, petition). The lack of publication is also attested by the Director of the National Printing Office who, in a Certification issued by him on January 30, 1989, stated that "the RULES ON PERSONNEL ACTIONS AND POLICIES' promulgated on November 20, 1975 by the Civil Service Commission implementing Presidential Decree No. 807 was not submitted to this office for publication" (Annex J, petition).The Revised Civil Service Rules implementing R.A. No. 2260 cannot be considered valid and effective after RA 2260 was repealed and superseded by PD 807. PD 807 was obviously intended to take the place of RA 2260. In all matters dealt with by both laws, the provisions of PD 807 were obviously intended to be controlling. So, also, the rules promulgated by the Civil Service Commission to carry the provisions of PD 807 into effect were meant to supersede or take the place of the rules implementing RA 2260. In other words, PD 807 and the CSRPAP were intended to make RA 2260 and its implementing rulesfunctus officio, render them without force and effect except only as regards any provision, if at all, not dealt with by PD 807 or the CSRPAP.Now, it may reasonably be assumed that the law-making authority at the time, the President, was aware of the provision on 57-year old persons in the Revised Civil Service Rules promulgated under RA 2260. Yet when he promulgated PD 807 the President did not see fit to incorporate therein any provision regarding 57-year old persons or for that matter, to prescribe any age beyond which persons could become ineligible for appointment, reintatement or re-employment. This surely is an indication of an intention not to continue the provision in effect.In any event, the provision on 57-year old persons in the Revised Civil Service Rules (under said RA 2260) cannot be accorded validity. As already pointed out, it is entirely a creation of the Civil Service Commission, having no basis in the law itself which it was meant to implement. It cannot be related to or connected with any specific provision of the law which it is meant to carry into effect, such as a requirement, for instance, that age should be reckoned as a factor in the employment or reinstatement of an individual, or a direction that there be a determination of some point in a person's life at which he becomes unemployable, or employable only under specific conditions. It was therefore an unauthorized act of legislation on the part of the Civil Service Commission. It cannot be justified as a valid exercise of its function of promulgating rules and regulations for that function, to repeat, may legitimately be exercised only for the purpose of carrying the provisions of the law into effect; and since there is no prohibition or restriction on the employment of 57-year old persons in the statuteor any provision respecting age as a factor in employmentthere was nothing to carry into effect through an implementing rule on the matter.The power vested in the Civil Service Commission was to implement the law or put it into effect, not to add to it; to carry the law into effect or execution, not to supply perceived omissions in it. "By its administrative regulations, of course, the law itself can not be extended; said regulations 'cannot amend an act of Congress.' " (Teoxon v. Members of the Board of Administrators, Philippine Veterans Administration, 33 SCRA 585, 589 [1970], citing Santos v. Estenzo, 109 Phil. 419 [1960]; see also, Animos v. Philippine Veterans Affairs Office, 174 SCRA 214, 223-224 [1989] in turn citing Teoxon).The considerations just expounded also conduce to the conclusion of the invalidity of Section 22, Rule III of the CSRPAP. The enactment of said section, relative to 57-year old persons, was also an act of supererogation on the part of the Civil Service Commission since the rule has no relation to or connection with any provision of the law supposed to be carried into effect. The section was an addition to or extension of the law, not merely a mode of carrying it into effect.Apart from this, the CSRPAP cannot be considered effective as of the time of the application to Toledo of a provision thereof, for the reason that said rules were never published, as is admitted on all sides. The argument that the CSRPAP need not be published, because they were "a mere reiteration of existing law" and had been "circularized," flies in the teeth of the explicit and categorical requirement of PD 807 that rules and regulations for carrying into effect the provisions of the Decree shall become effective thirty (30) days after publication in the Official Gazette or in any newspaper of general circulation. Moreover, the CSRPAP cannot properly be considered a mere reiteration of existing law, for as already discussed, the implementing rule governing 57-year old persons is invalid and cannot in any sense be considered "existing law."Assuming without conceding that the rule regarding employment of 57-year old persons is valid and enforceable, it can only apply, according to its express terms, to employees under the supervision of the Chief Justice of the Supreme Court, or of the President of the Philippines, these two being the only officials mentioned as having to give consent to the employment of said persons. It cannot be construed as applying to employees over whom neither the President nor the Chief Justice exercises supervision, such as the Senate or the House of Representatives, or the COMELEC or other Constitutional Commissions.One last word. There is absolutely no question about the fact that the only reason for Toledo's separation from the service was the fact that he was already more than 57 years old when he was invited to work in the COMELEC by its former Chairman, but through no fault of his own, not all the conditions for his employment appear to have been satisfied. There is no question that it was not Toledo's fault that his papers were tardily submitted to the Civil Service Commission and approval of his appointment was made only by the Executive Director of the Commission and not by the Chairman thereof (to whom the function of the President of approving appointments like those of Toledo had been delegated under LOI 47, CSC Memo Circular No. 5, Series of 1983). There is no question, too, that he was actively engaged in law practice when taken into the COMELEC. There is absolutely no question about the fact that he was otherwise a competent and efficient officer of the COMELEC and had not given the remotest cause for dismissal. These are equitable considerations proscribing application to him of the provision in question, assuming its validity, or impelling at least a restrictive application thereof so that it may not work to his prejudice.Premises considered, the petition is hereby GRANTED.SO ORDERED.

G.R. No. 108358 January 20, 1995COMMISSIONER OF INTERNAL REVENUE,petitioner,vs.THE HON. COURT OF APPEALS, R.O.H. AUTO PRODUCTS PHILIPPINES, INC. and THE HON. COURT OF TAX APPEALS,respondents.VITUG,J.:On 22 August 1986, during the period when the President of the Republic still wielded legislative powers, Executive Order No. 41 was promulgated declaring a one-time tax amnesty on unpaid income taxes, later amended to include estate and donor's taxes and taxes on business, for the taxable years 1981 to 1985.Availing itself of the amnesty, respondent R.O.H. Auto Products Philippines, Inc., filed, in October 1986 and November 1986, its Tax Amnesty Return No. 34-F-00146-41 and Supplemental Tax Amnesty Return No. 34-F-00146-64-B, respectively, and paid the corresponding amnesty taxes due.Prior to this availment, petitioner Commissioner of Internal Revenue, in a communication received by private respondent on 13 August 1986, assessed the latter deficiency income and business taxes for its fiscal years ended 30 September 1981 and 30 September 1982 in an aggregate amount of P1,410,157.71. The taxpayer wrote back to state that since it had been able to avail itself of the tax amnesty, the deficiency tax notice should forthwith be cancelled and withdrawn. The request was denied by the Commissioner, in his letter of 22 November 1988, on the ground that Revenue Memorandum Order No. 4-87, dated 09 February 1987, implementing Executive Order No. 41, had construed the amnesty coverage to include only assessments issued by the Bureau of Internal Revenue after the promulgation of the executive order on 22 August 1986 and not to assessments theretofore made. The invoked provisions of the memorandum order read:TO: All Internal Revenue Officers and Others Concerned:1.0. To give effect and substance to the immunity provisions of the tax amnesty under Executive Order No. 41, as expanded by Executive Order No. 64, the following instructions are hereby issued:xxx xxx xxx1.02. A certification by the Tax Amnesty Implementation Officer of the fact of availment of the said tax amnesty shall be a sufficient basis for:xxx xxx xxx1.02.3. In appropriate cases, the cancellation/withdrawal ofassessment notices and letters of demand issued after August 21, 1986 for the collection of income, business, estate or donor's taxes due during the same taxable years.1(Emphasis supplied)Private respondent appealed the Commissioner's denial to the Court of Tax Appeals. Ruling for the taxpayer, the tax court said:Respondent (herein petitioner Commissioner) failed to present any case or law which proves that an assessment can withstand or negate the force and effects of a tax amnesty. This burden of proof on the petitioner (herein respondent taxpayer) was created by the clear and express terms of the executive order's intention qualified availers of the amnesty may pay an amnesty tax in lieu of said unpaid taxes which are forgiven (Section 2, Section 5, Executive Order No. 41, as amended). More specifically, the plain provisions in the statute granting tax amnesty for unpaid taxes for the period January 1, 1981 to December 31, 1985 shifted the burden of proof on respondent to show how the issuance of an assessment before the date of the promulgation of the executive order could have a reasonable relation with the objective periods of the amnesty, so as to make petitioner still answerable for a tax liability which, through the statute, should have been erased with the proper availment of the amnesty.Additionally, the exceptions enumerated in Section 4 of Executive Order No. 41, as amended, do not indicate any reference to an assessment or pending investigation aside from one arising from information furnished by an informer. . . . Thus, we deem that the rule in Revenue Memorandum Order No. 4-87 promulgating that only assessments issued after August 21, 1986 shall be abated by the amnesty is beyond the contemplation of Executive Order No. 41, as amended.2On appeal by the Commissioner to the Court of Appeals, the decision of the tax court was affirmed. The appellate court further observed:In the instant case, examining carefully the words used in Executive Order No. 41, as amended, we find nothing which justifies petitioner Commissioner's ground for denying respondent taxpayer's claim to the benefits of the amnesty law. Section 4 of the subject law enumerates, in no uncertain terms, taxpayers who may not avail of the amnesty granted,. . . .Admittedly, respondent taxpayer does not fall under any of the . . . exceptions. The added exception urged by petitioner Commissioner based on Revenue Memorandum Order No. 4-87, further restricting the scope of the amnesty clearly amounts to an act of administrative legislation quite contrary to the mandate of the law which the regulation ought to implement.xxx xxx xxxLastly, by its very nature, a tax amnesty, being a general pardon or intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of evasion or violation of a revenue or tax law, partakes of an absolute forgiveness or waiver by the Government of its right to collect what otherwise would be due it, and in this sense, prejudicial thereto, particularly to give tax evaders, who wish to relent and are willing to reform a chance to do so and thereby become a part of the new society with a clean slate. (Republic vs. Intermediate Appellate Court. 196 SCRA 335, 340 [1991] citing Commissioner of Internal Revenue vs. Botelho Shipping Corp., 20 SCRA 487) To follow [the restrictive application of Revenue Memorandum Order No. 4-87 pressed by petitioner Commissioner would be to work against theraison d'etreof E.O. 41, as amended, i.e., to raise government revenues by encouraging taxpayers to declare their untaxed income and pay the tax due thereon. (E.O. 41, first paragraph)]3In this petition for review, the Commissioner raises these related issues:1. WHETHER OR NOT REVENUE MEMORANDUM ORDER NO. 4-87, PROMULGATED TO IMPLEMENT E.O. NO. 41, IS VALID;2. WHETHER OR NOT SAID DEFICIENCY ASSESSMENTS IN QUESTION WERE EXTINGUISHED BY REASON OR PRIVATE RESPONDENT'S AVAILMENT OF EXECUTIVE ORDER NO. 41 AS AMENDED BY EXECUTIVE ORDER NO. 64;3. WHETHER OR NOT PRIVATE RESPONDENT HAS OVERCOME THE PRESUMPTION OF VALIDITY OF ASSESSMENTS.4The authority of the Minister of Finance (now the Secretary of Finance), in conjunction with the Commissioner of Internal Revenue, to promulgate all needful rules and regulations for the effective enforcement of internal revenue laws cannot be controverted. Neither can it be disputed that such rules and regulations, as well as administrative opinions and rulings, ordinarily should deserve weight and respect by the courts. Much more fundamental than either of the above, however, is that all such issuances must not override, but must remain consistent and in harmony with, the law they seek to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law.The real and only issue is whether or not the position taken by the Commissioner coincides with the meaning and intent of executive Order No. 41.We agree with both the court of Appeals and court of Tax Appeals that Executive Order No. 41 is quite explicit and requires hardly anything beyond a simple application of its provisions. It reads:Sec. 1. Scope of Amnesty. A one-time tax amnesty covering unpaid income taxes for the years 1981 to 1985 is hereby declared.Sec. 2. Conditions of the Amnesty. A taxpayer who wishes to avail himself of the tax amnesty shall, on or before October 31, 1986;a) file a sworn statement declaring his net worth as of December 31, 1985;b) file a certified true copy of his statement declaring his net worth as of December 31, 1980 on record with the Bureau of Internal Revenue, or if no such record exists, file a statement of said net worth therewith, subject to verification by the Bureau of Internal Revenue;c) file a return and pay a tax equivalent to ten per cent (10%) of t