G.R. No.

L-5279 October 31, 1955

PHILIPPINE ASSOCIATION OF COLLEGES AND NI!ERSITIES, ETC., "et#t#o$er,
%&.
SECRETAR' OF EDCATION ($) t*e +OARD OF TE,T+OO-S, re&"o$)e$t&.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for petitioner.
Office of the Solicitor General Pompeo !ia" and #ssistant Solicitor General Francisco Carreon for respondents.
+ENG.ON, J./
The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and ommon!ealth Act
No. "#0 be declared unconstitutional$ because% A. They deprive o!ners o& schools and colleges as !ell as teachers and
parents o& liberty and property !ithout due process o& la!' (. They deprive parents o& their natural rights and duty to rear
their children &or civic e&&iciency' and . Their provisions con&erring on the )ecretary o& *ducation unlimited po!er and
discretion to prescribe rules and standards constitute an unla!&ul delegation o& legislative po!er.
A printed memorandum e+plaining their position in e$tenso is attached to the record.
The ,overnment-s legal representative submitted a mimeographed memorandum contending that$ ."/ the matter
constitutes no 0usticiable controversy e+hibiting unavoidable necessity o& deciding the constitutional questions' .2/
petitioners are in estoppel to challenge the validity o& the said acts' and .3/ the Acts are constitutionally valid.
1etitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in "2"7 is entitled$ 3An Act ma4ing the inspection and recognition o& private schools and colleges
obligatory &or the )ecretary o& 1ublic 5nstruction.3 6nder its provisions$ the 7epartment o& *ducation has$ &or the past 37
years$ supervised and regulated all private schools in this country apparently !ithout audible protest$ nay$ !ith the general
acquiescence o& the general public and the parties concerned.
5t should be understandable$ then$ that this ourt should be doubly reluctant to consider petitioner-s demand &or avoidance
o& the la! a&oresaid$ specially !here$ as respondents assert$ petitioners su&&ered no !rong8nor allege any8&rom the
en&orcement o& the critici9ed statute.
5t must be evident to any one that the po!er to declare a legislative enactment void is one !hich the 0udge$
conscious o& the &allability o& the human 0udgment$ !ill shrin4 &rom e+ercising in any case !here he can
conscientiously and !ith due regard to duty and o&&icial oath decline the responsibility. .ooley onstitutional
:imitations$ #th *d.$ ;ol. 5$ p. 332./
<hen a la! has been long treated as constitutional and important rights have become dependent thereon$ the
ourt may re&use to consider an attac4 on its validity. .. =. ). "6$ p. 20>./
As a general rule$ the constitutionality o& a statute !ill be passed on only i&$ and to the e+tent that$ it is directly and
necessarily involved in a 0usticiable controversy and is essential to the protection o& the rights o& the parties
concerned. ."6 . =. ).$ p. 207./
5n support o& their &irst proposition petitioners contend that the right o& a citi9en to o!n and operate a school is guaranteed
by the onstitution$ and any la! requiring previous governmental approval or permit be&ore such person could e+ercise
said right$ amounts to censorship o& previous restraint$ a practice abhorent to our system o& la! and government.
1etitioners obviously re&er to section 3 o& Act No. 2706 as amended !hich provides that be&ore a private school may be
opened to the public it must &irst obtain a permit &rom the )ecretary o& *ducation. The )olicitor ,eneral on the other hand
points out that none o& the petitioners has cause to present this issue$ because all o& them have permits to operate and
are actuall operating by virtue o& their permits.
"
And they do not assert that the respondent )ecretary o& *ducation has
threatened to revo4e their permits. They have su&&ered no !rong under the terms o& la!8and$ naturally need no relie& in
the &orm they no! see4 to obtain.
5t is an established principle that to entitle a private individual immediately in danger o& sustaining a direct in0ury as
the result o& that action and it is not su&&icient that he has merely a general to invo4e the 0udicial po!er to
determine the validity o& e+ecutive or legislative action he must sho! that he has sustained or is interest common
to all members o& the public. .E$ parte :evitt$ 302 6. ). 633 #2 :. *d. >23./
ourts !ill not pass upon the constitutionality o& a la! upon the complaint o& one !ho &ails to sho! that he is
in0ured by its operation. .Tyler %s. =udges$ "72 6. ). >05' ?endric4 %s. @aryland$ 235 6. ). 6"0' o&&man %s.
(ree9e orp.$ 323 6. ). 3"6A325./
The po!er o& courts to declare a la! unconstitutional arises only !hen the interests o& litigant require the use o&
that 0udicial authority &or their protection against actual inter&erence$ a hypothetical threat being insu&&icient.
.6nited 1ublic <or4s %s. @itchell$ 330 6 .). 75' 2" :. *d. 75>./
Bona fide suit.8=udicial po!er is limited to the decision o& actual cases and controversies. The authority to pass
on the validity o& statutes is incidental to the decision o& such cases !here con&licting claims under the
onstitution and under a legislative act assailed as contrary to the onstitution are raised. 5t is legitimate only in
the last resort$ and as necessity in the determination o& real$ earnest$ and vital controversy bet!een litigants.
.TaBada and Cernando$ onstitution o& the 1hilippines$ p. ""3#./
@ere apprehension that the )ecretary o& *ducation might under the la! !ithdra! the permit o& one o& petitioners does not
constitute a 0usticiable controversy. .&. om. e$ rel <at4ins %s. <inchester <ater!or4s .Dy./ "27 ). <. 2d. 77"./
And action$ li4e this$ is brought &or a positive purpose$ nay$ to obtain actual and positive relie&. .)alonga %s. <arner
(arnes$ :A22>5$ =anuary$ "25"./ ourts do not sit to ad0udicate mere academic questions to satis&y scholarly interest
therein$ ho!ever intellectually solid the problem may be. This is specially true !here the issues 3reach constitutional
dimensions$ &or then there comes into play regard &or the court-s duty to avoid decision o& constitutional issues unless
avoidance becomes evasion.3 .Eice %s. )iou+ ity$ 6. ). )up. t. Adv. Eep.$ @ay 23$ "225$ :a! *d.$ ;ol. 22$ p. 5""./
The above not!ithstanding$ in vie! o& the several decisions o& the 6nited )tates )upreme ourt quoted by petitioners$
apparently outla!ing censorship o& the 4ind ob0ected to by them$ !e have decided to loo4 into the matter$ lest they may
allege !e re&use to act even in the &ace o& clear violation o& &undamental personal rights o& liberty and property.
1etitioners complain that &efore opening a school the o!ner must secure a permit &rom the )ecretary o& *ducation. )uch
requirement !as not originally included in Act No. 2706. 5t !as introduced by ommon!ealth Act No. "#0 approved in
"236. <hyF
5n @arch "22> the 1hilippine :egislature approved Act No. 3"62 creating a (oard o& *ducational )urvey to ma4e a study
and survey o& education in the 1hilippines and o& all educational institutions$ &acilities and agencies thereo&. A (oard
chairmaned by 7r. 1aul @unroe$ olumbia 6niversity$ assisted by a sta&& o& care&ully selected technical members
per&ormed the tas4$ made a &iveAmonth thorough and impartial e+amination o& the local educational system$ and submitted
a report !ith recommendations$ printed as a boo4 o& 67" pages. The &ollo!ing paragraphs are ta4en &rom such report%
1E5;AT*AA7;*NT6E* )?GG:)
There is no la! or regulation in the 1hilippine 5slands today to prevent a person$ ho!ever disquali&ied by
ignorance$ greed$ or even immoral character$ &rom opening a school to teach the young. 5t it true that in order to
post over the door 3Eecogni9ed by the ,overnment$3 a private adventure school must &irst be inspected by the
proper ,overnment o&&icial$ but a re&usal to grant such recognition does not by any means result in such a school
ceasing to e+ist. As a matter o& &act$ there are more such unrecogni9ed private schools than o& the recogni9ed
variety. ?o! many$ no one 4no!s$ as the 7ivision o& 1rivate )chools 4eeps records only o& the recogni9ed type.
Conclusion.8An unpre0udiced consideration o& the &act presented under the caption 1rivate Adventure )chools
leads but to one conclusion$ vi9.% the great ma0ority o& them &rom primary grade to university are moneyAma4ing
devices &or the pro&it o& those !ho organi9e and administer them. The people !hose children and youth attend
them are not getting !hat they pay &or. 5t is obvious that the system constitutes a great evil. That it should be
permitted to e+ist !ith almost no supervision is inde&ensible. The suggestion has been made !ith the re&erence to
the private institutions o& university grade that some board o& control be organi9ed under legislative control to
supervise their administration. The ommission believes that the recommendations it o&&ers at the end o& this
chapter are more li4ely to bring about the needed re&orms.
'ecommendations.8The ommission recommends that legislation be enacted to prohibit the opening o& any
school by an individual or organi9ation !ithout the permission o& the )ecretary o& 1ublic 5nstruction. That be&ore
granting such permission the )ecretary assure himsel& that such school measures up to proper standards in the
&ollo!ing respects$ and that the continued e+istence o& the school be dependent upon its continuing to con&orm to
these conditions%
."/ The location and construction o& the buildings$ the lighting and ventilation o& the rooms$ the nature o& the
lavatories$ closets$ !ater supply$ school &urniture and apparatus$ and methods o& cleaning shall be such as to
insure hygienic conditions &or both pupils and teachers.
.2/ The library and laboratory &acilities shall be adequate to the needs o& instruction in the sub0ects taught.
.3/ The classes shall not sho! an e+cessive number o& pupils per teacher. The ommission recommends >0 as a
ma+imum.
.>/ The teachers shall meet quali&ications equal to those o& teachers in the public schools o& the same grade.
+++ +++ +++
5n vie! o& these &indings and recommendations$ can there be any doubt that the ,overnment in the e+ercise o& its police
po!er to correct 3a great evil3 could validly establish the 3previous permit3 system ob0ected to by petitionersF This is !hat
di&&erentiates our la! &rom the other statutes declared invalid in other 0urisdictions. And i& any doubt still e+ists$ recourse
ma no( &e had to the provision o& our onstitution that 3All educational institutions shall be under the supervision and
sub0ect to regulation by the )tate.3 .Art. H5;$ sec. 5./ The po!er to regulate establishments or business occupations
implies the po!er to require a permit or license. .53 . =. ). >./
<hat goes &or the 3previous permit3 naturally goes &or the po!er to revo4e such permit on account o& violation o& rules or
regulations o& the 7epartment.
55. This brings us to the petitioners- third proposition that the questioned statutes 3con&erring on the )ecretary o& *ducation
unlimited po!er and discretion to prescribe rules and standards constitute an unla!&ul delegation o& legislative po!er.3
This attac4 is speci&ically aimed at section " o& Act No. 2706 !hich$ as amended$ provides%
5t shall be the duty o& the )ecretary o& 1ublic 5nstruction to maintain a general standard o& e&&iciency in all private
schools and colleges o& the 1hilippines so that the same shall &urnish adequate instruction to the public$ in
accordance !ith the class and grade o& instruction given in them$ and &or this purpose said )ecretary or his duly
authori9ed representative shall have authority to advise$ inspect$ and regulate said schools and colleges in order
to determine the e&&iciency o& instruction given in the same$
3No!here in this Act3 petitioners argue 3can one &ind any description$ either general or speci&ic$ o& !hat constitutes a
-general standard o& e&&iciency.- No!here in this Act is there any indication o& any basis or condition to ascertain !hat is
-adequate instruction to the public.- No!here in this Act is there any statement o& conditions$ acts$ or &actors$ !hich the
)ecretary o& *ducation must ta4e into account to determine the -e&&iciency o& instruction.-3
The attac4 on this score is also e+tended to section 6 !hich provides%
The 7epartment o& *ducation shall &rom time to time prepare and publish in pamphlet &orm the minimum
standards required o& primary$ intermediate$ and high schools$ and colleges granting the degrees o& (achelor o&
Arts$ (achelor o& )cience$ or any other academic degree. 5t shall also &rom time to time prepare and publish in
pamphlet &orm the minimum standards required o& la!$ medical$ dental$ pharmaceutical$ engineering$ agricultural
and other medical or vocational schools or colleges giving instruction o& a technical$ vocational or pro&essional
character.
1etitioners reason out$ 3this section leaves everything to the uncontrolled discretion o& the )ecretary o& *ducation or his
department. The )ecretary o& *ducation is given the po!er to &i+ the standard. 5n plain language$ the statute turns over to
the )ecretary o& *ducation the e+clusive authority o& the legislature to &ormulate standard. . . ..3
5t is quite clear the t!o sections empo!er and require the )ecretary o& *ducation to prescribe rules &i+ing minimum
standards o& adequate and e&&icient instruction to be observed by all such private schools and colleges as may be
permitted to operate. The petitioners contend that as the legislature has not &i+ed the standards$ 3the provision is
e+tremely vague$ inde&inite and uncertain38and &or that reason constitutionality ob0ectionable. The best ans!er is that
despite such alleged vagueness the )ecretary o& *ducation has fi$ed standards to ensure adequate and e&&icient
instruction$ as sho!n by the memoranda &i+ing or revising curricula$ the school calendars$ entrance and &inal
e+aminations$ admission and accreditation o& students etc.' and the system o& private education has$ in general$ been
satis&actorily in operation &or 37 years. <hich only sho!s that the :egislature did and could$ validly rely upon the
educational e+perience and training o& those in charge o& the 7epartment o& *ducation to ascertain and &ormulate
minimum requirements o& adequate instruction as the basis o& government recognition o& any private school.
At any rate$ petitioners do not sho! ho! these standards have in0ured any o& them or inter&ered !ith their operation.
<here&ore$ no reason e+ists &or them to assail the validity o& the po!er nor the e+ercise o& the po!er by the )ecretary o&
*ducation.
True$ the petitioners assert that$ the )ecretary has issued rules and regulations 3!himsical and capricious3 and that such
discretionary po!er has produced arrogant inspectors !ho 3bully heads and teachers o& private schools.3 Nevertheless$
their remedy is to challenge those regulations speci&ically$ andIor to ring those inspectors to boo4$ in proper administrative
or 0udicial proceedings8not to invalidate the la!. Cor it needs no argument$ to sho! that abuse by the o&&icials entrusted
!ith the e+ecution o& a statute does not per se demonstrate the unconstitutionality o& such statute.
Any!ay$ !e &ind the de&endants- position to be su&&iciently sustained by the decision in #legra %s. Collector of Customs, 53
1hil.$ 32> upon holding the statute that authori9ed the 7irector o& Agriculture to )designate standards for the commercial
grades o& abaca$ maguey and sisal3 against vigorous attac4s on the ground o& invalid delegation o& legislative po!er.
5ndeed 3adequate and e&&icient instruction3 should be considered su&&icient$ in the same !ay as 3public !el&are3
3necessary in the interest o& la! and order3 3public interest3 and 30ustice and equity and substantial merits o& the case3
have been held su&&icient as legislative standards 0usti&ying delegation o& authority to regulate. .)ee TaBada and Cernando$
onstitution o& the 1hilippines$ p. 723$ citing 1hilippine cases./
Gn this phase o& the litigation !e conclude that there has been no undue delegation o& legislative po!er.
5n this connection$ and to support their position that the la! and the )ecretary o& *ducation have transcended the
governmental po!er o& supervision and regulation$ the petitioners appended a list o& circulars and memoranda issued by
the said 7epartment. ?o!ever they &ailed to indicate !hich o& such o&&icial documents !as constitutionally ob0ectionable
&or being 3capricious$3 or pain 3nuisance3' and it is one o& our decisional practices that unless a constitutional point is
speci&ically raised$ insisted upon and adequately argued$ the court !ill not consider it. .)antiago %s. Car *astern$ 73 1hil.$
>0#./
<e are told that such list !ill give an idea o& ho! the statute has placed in the hands o& the )ecretary o& *ducation
complete control o& the various activities o& private schools$ and !hy the statute should be struc4 do!n as
unconstitutional. 5t is clear in our opinion that the statute does not in e+press terms give the )ecretary complete control. 5t
gives him po!ers to inspect private schools$ to regulate their activities$ to give them o&&icial permits to operate under
certain conditions$ and to revo4e such permits &or cause. This does not amount to complete control. 5& any o& such
7epartment circulars or memoranda issued by the )ecretary go beyond the bounds o& regulation and see4s to establish
complete control$ it !ould surely be invalid. onceivably some o& them are o& this nature$ but besides not having be&ore us
the te+t o& such circulars$ the petitioners have omitted to speci&y. 5n any event !ith the recent approval o& Eepublic Act No.
""2> creating the National (oard o& *ducation$ opportunity &or administrative correction o& the supposed anomalies or
encroachments is amply a&&orded herein petitioners. A more e+peditious and perhaps more technically competent &orum
e+ists$ !herein to discuss the necessity$ convenience or relevancy o& the measures critici9ed by them. .)ee also Eepublic
Act No. "76./
5& ho!ever the statutes in question actually give the )ecretary control over private schools$ the question arises !hether
the po!er o& supervision and regulation granted to the )tate by section 5 Article H5; !as meant to include control o&
private educational institutions. 5t is enough to point out that local educators and !riters thin4 the onstitution provides &or
control o& *ducation by the )tate. .)ee Tolentino$ ,overnment o& the 1hilippine onstitution$ ;ol. 55$ p. 6"5' (enite9$
1hilippine )ocial :i&e and 1rogress$ p. 335./
The onstitution .it/ 3provides &or state control o& all educational institutions3 even as it enumerates certain &undamental
ob0ectives o& all education to !it$ the development o& moral character$ personal discipline$ civic conscience and vocational
e&&iciency$ and instruction in the duties o& citi9enship. .@alcolm J :aurel$ 1hilippine onstitutional :a!$ "236./
The )olicitor ,eneral cities many authorities to sho! that the po!er to regulate means po!er to control$ and quotes &rom
the proceedings o& the onstitutional onvention to prove that )tate control o& private education !as intended by the
organic la!. 5t is signi&icant to note that the onstitution grants po!er to supervise and to regulate. <hich may mean
greater po!er than mere regulation.
555. Another grievance o& petitioners8probably the most signi&icant8is the assessment o& " per cent levied on gross
receipts o& all private schools &or additional ,overnment e+penses in connection !ith their supervision and regulation. The
statute is section ""AA o& Act No. 2706 as amended by Eepublic Act No. 7> !hich reads as &ollo!s%
)*. ""AA. The total annual e+pense o& the G&&ice o& 1rivate *ducation shall be met by the regular amount
appropriated in the annual Appropriation Act% Pro%ided, ho(e%er, That &or additional e+penses in the supervision
and regulation o& private schools$ colleges and universities and in the purchase o& te+tboo4 to be sold to student
o& said schools$ colleges and universities and 1resident o& the 1hilippines may authori9e the )ecretary o&
5nstruction to levy an equitable assessment &rom each private educational institution equivalent to one percent o&
the total amount accruing &rom tuition and other &ees% . . . and nonApayment o& the assessment herein provided by
any private school$ college or university shall be su&&icient cause &or the cancellation by the )ecretary o&
5nstruction o& the permit &or recognition granted to it.
1etitioners maintain that this is a ta+ on the e+ercise o& a constitutional right8the right to open a school$ the liberty to
teach etc. They claim this is unconstitutional$ in the same !ay that ta+es on the privilege o& selling religious literature or o&
publishing a ne!spaper8both constitutional privileges8have been held$ in the 6nited )tates$ to be invalid as ta+es on
the e+ercise o& a constitutional right.
The )olicitor ,eneral on the other hand argues that inso&ar as petitioners- action attempts to restrain the &urther collection
o& the assessment$ courts have no 0urisdiction to restrain the collection o& ta+es by in0unction$ and in so &ar as they see4 to
recover &ees already paid the suit$ it is one against the )tate !ithout its consent. Any!ay he concludes$ the action
involving 3the legality o& any ta+ impost or assessment3 &alls !ithin the original 0urisdiction o& ourts o& Cirst 5nstance.
There are good grounds in support o& ,overnment-s position. 5& this levy o& " per cent is truly a mere &ee8and not a ta+8
to &inance the cost o& the 7epartment-s duty and po!er to regulate and supervise private schools$ the e+action may be
upheld' but such point involves investigation and e+amination o& relevant data$ !hich should best be carried out in the
lo!er courts. 5& on the other hand it is a ta+$ petitioners- issue !ould still be !ithin the original 0urisdiction o& the ourts o&
Cirst 5nstance.
The last grievance o& petitioners relates to the validity o& Eepublic Act No. "32 !hich in its section " provides%
The te+tboo4s to be used in the private schools recogni9ed or authori9ed by the government shall be submitted to
the (oard .(oard o& Te+tboo4s/ !hich shall have the po!er to prohibit the use o& any o& said te+tboo4s !hich it
may &ind to be against the la! or to o&&end the dignity and honor o& the government and people o& the 1hilippines$
or !hich it may &ind to be against the general policies o& the government$ or !hich it may deem pedagogically
unsuitable.
This po!er o& the (oard$ petitioners aver$ is censorship in 3its baldest &orm3. They cite t!o 6. ). cases .@iss. and
@innesota/ outla!ing statutes that impose previous restraints upon publication o& ne!spapers$ or curtail the right o&
individuals to disseminate teachings critical o& government institutions or policies.
?erein lies another important issue submitted in the cause. The question is really !hether the la! may be enacted in the
e+ercise o& the )tate-s constitutional po!er .Art. H5;$ sec. 5/ to supervise and regulate private schools. 5& that po!er
amounts to control o& private schools$ as some thin4 it is$ maybe the la! is valid. 5n this connection !e do not share the
belie& that section 5 has added ne( po(er to !hat the )tate inherently possesses by virtue o& the police po!er. An
e+press po!er is necessarily more e+tensive than a mere implied po!er. Cor instance$ i& there is con&lict bet!een an
e+press individual right and the e+press po!er to control private education it cannot o&&Ahand be said that the latter must
yield to the &ormer8con&lict o& t!o e+press po!ers. (ut i& the po!er to control education is merel implied &rom the police
po!er$ it is &easible to uphold the e+press individual right$ as !as probably the situation in the t!o decisions brought to our
attention$ o& @ississippi and @innesota$ states !here constitutional control o& private schools is not e+pressly produced.
?o!ever$ as herein previously noted$ no 0usticiable controversy has been presented to us. <e are not in&ormed that the
(oard on Te+tboo4s has prohibited this or that te+t$ or that the petitioners re&used or intend to re&use to submit some
te+tboo4s$ and are in danger o& losing substantial privileges or rights &or so re&using.
The average la!yer !ho reads the above quoted section o& Eepublic Act "32 !ill &ail to perceive anything ob0ectionable.
<hy should not the )tate prohibit the use o& te+tboo4s that are illegal$ or o&&ensive to the Cilipinos or adverse to
governmental policies or educationally improperF <hat-s the po!er o& regulation and supervision &orF (ut those trained to
the investigation o& constitutional issues are li4ely to apprehend the danger to civil liberties$ o& possible educational
dictatorship or thought control$ as petitioners- counsel &oresee !ith obvious alarm. @uch depends$ ho!ever$ upon the
e+ecution and implementation o& the statute. Not that constitutionality depends necessarily upon the la!-s e&&ects. (ut i&
the (oard on Te+tboo4s in its actuations strictly adheres to the letter o& the section and !isely steers a middle course
bet!een the )cylla o& 3dictatorship3 and the harybdis o& 3thought control3$ no cause &or complaint !ill arise and no
occasion &or 0udicial revie! !ill develop. Any!ay$ and again$ petitioners no! have a more e+peditious remedy thru an
administrative appeal to the National (oard o& *ducation created by Eepublic Act ""2>.
G& course it is necessary to assure herein petitioners$ that !hen and i&$ the dangers they apprehend materiali9e and
0udicial intervention is suitably invo4ed$ a&ter all administrative remedies are e+hausted$ the courts !ill not shrin4 &rom their
duty to delimit constitutional boundaries and protect individual liberties.
5;. Cor all the &oregoing considerations$ reserving to the petitioners the right to institute in the proper court$ and at the
proper time$ such actions as may call &or decision o& the issue herein presented by them$ this petition &or prohibition !ill be
denied. )o ordered.
Paras, C. *., Padilla, Montemaor, 'ees, #., and *ugo, **., concur.