The motion for reconsideration and the dissenting opinions are predicated on an erroneous premise or confusion of the creation or existence of a municipal corporation, be it called city or municipality, with the functioning thereof through the officers provided or designated by law to represent or act for said corporation.

If the corning into existence of a juridical entity, such as a city or municipality, and the organization of the government thereof and appointment or election of its officers are one and the same thing, it would not have necessary for Sec. 2168 of the administrative Code to provide as a legal fiction that "Where provision is made for the creation or organization of a new municipality, it shall come into existence as a separate corporate body upon the qualification of the president, vice-president, and a majority of the councilors, unless some other time be fixed therefor by law." And the law could not fix some other time for its coming into existence, different from the organization of its government or appointment and qualification of its officers.

That Congress has expressly fixed the date for the creation or coming into existence of the City of Dagupan in the Republic Act No. 170, that is the date said Act became effective or was approved on June 20, 1947, is evident. Because Sec. 1 of said Act provides that "The City of Dagupan which is hereby created shall comprise the present territorial jurisdiction of Dagupan, Pangasinan," and according to section 90 of the same act, shall take effect upon its approval on June 20 of 1947. (underline ours) And because the President is not authorized to create the City of Dagupan, but only to fix, by Proclamation, the organization of the government of the City, and appoint the officers thereof, the Major and the members of the City Council, if the government of the City is organized before the next general elections for provincial and municipal officials on November 1947, in which the councilors of the City were to be elected or appoint only the Mayor if the organization is mace after tho said elections. The government of the city could not be organized and its officers appointed or elected before the city had been created or come into existence, for it would be absurd to elect or appoint the officers of a public or private corporation or any other entity which does not yet exist.

A juridical institution or entity can not act as such, but it may exist, before the officers provided bylaw to represent and act in its behalf or representation has been appointed or elected. A court of justice or a municipal corporation exist or comes into existence from the moment the law creating or establishing it becomes in force or effective, but it can not act as such court or municipal corporation before the judge to preside the former, or the municipal officers have been elected or appointed and have qualified. So the City of Dagupan comprising the territory of the Municipality of Dagupan came into existence from the date Act No. 170, which created it was approved and became effective, although it could not act or function as such city before the government thereof had been organized or the city officers had been elected or appointed and had qualified.

After Act No. 170 which created the City of Dagupan took effect, and before the organization of the government of the City of Dagupan, the political subdivision which comprises the territory of the Municipality of Dagupan has continued to act as municipality, because the government of the city had not yet been organized and the officers thereof appointed or elected. The conversion of that municipality into a city by the above mentioned Act No. 170 did not make ipso facto the acts of the elected officers of the said municipality acts of the City of Dagupan, because the latter can only act as a city through the city officers designated by law after they have been appointed or elected and have qualified. In the meantime or during the period of transition tho municipality of Dagupan had to act or function temporarily as such; otherwise there would be chaos or no government at all within the boundaries of the territory. The status of the municipality of Dagupan may be likened to that of a public officer who can not abandon his office although his successor has already been appointed and has to continue in office whatever the length of time of the interregnum, until his successor qualified, or takes possession of the office.

We can not take into consideration and discuss the contention in the motion for reconsideration that during the last general election for municipal officers, there were also candidates for the position of Mayor, Vice-Mayor or councilors of the Municipality of Dagupan because there was no allegation to that effect in the verified pleading, of the parties, petition of the petitioners and answer of the respondents, evidencing such fact. It was mentioned for the first time in the memorandum filed by the respondents. This Court can not predicate its conclusion on facts not alleged and admitted in the pleadings or proven during the hearing of the case. But even assuming it to be true, the erroneous filing or such certificates of candidacy can not change the law or vitiate the election of the petitioners as councilors of the City of Dagupan. The only fact that appears in the petition and can be considered as true because not denied but admitted in the answer is that the petitioners have presented their certificates of candidacy as candidates for the positions of councilors of the City of Dagupan.

The case of the City of Dansalan is a very different from the case at bar. The City of Dagupan was created directly by Act No. 170, which provides in its Sec. 2 that the city is thereby created, and therefore became a city from the date the said act took effect or approved on June 20, 1947. While Act No. 592 does not contain, expressly or impliedly, similar provision as it only provides for the charter of the City of Dansalan, which would come into existence only upon the organization of the government of the city by the appointment of the City Mayor and the majority sf the members of the city council by the President, because the law creating it does not provide otherwise, that is, it does not fix the time of its creation different from that of the organization of its government or appointment and election of its officers, as in the case at bar. Sec. 2168 of the Administrative Code, applicable by analogy, provides that "Where provision is made for the creation or organization of a new municipality, it shall come into existence as a separate corporate body upon the qualification of the president, vice-president, and a majority of the councilors, unless some other time be fixed therefore by law." (underline ours)

Having come to the conclusion that the City of Dagupan was created and came into existence on June 20, 1947, it follows that the phrase "pending the next general elections for provincial and municipal officials" in Sec. 88 of Act No. 170, must be construed to refer to the general election for provincial and municipal officials in November 1947, which was the next one after the creation or coming into existence of the City of Dagupan on June 20, 1947, and not any general election for provincial or municipal officials after the organization of the government of the city of Dagupan by Presidential Proclamation, for the following reasons:

First, because Sec. 11 of said Act No. 170 expressly provides that the "municipal councilors of the city of Dagupan shall be elected during every general election for provincial and municipal officials in accordance with the Election Code," and according to Sec. 7 of the Election Code, "When a new political division is created, the inhabitants of which are entitled to participate in the elections, the elective officers thereof shall, unless otherwise provided, be chosen at the next general election" (underline ours). And there is nothing in Act No. 170 which provides otherwise. On the contrary said Act follows the general provision of Sec. 7 of the Election Code, with the modification that the President is authorized only to appoint the elective officers pending the election, and not to order a special election of such officers, taking into consideration the short time intervening between the reaction of the City on June 20, and the election of its officers ran November, 1947, and their qualification on January 1, 1948.

Secondly, Sec. 88 of Act No. 170, provides that the city government of Dagupan "shall be organized on such a date as may be fixed by the President of the Philippines, and upon qualification of the city Mayor and the appointment or election of the members of the Municipal Board." To hold that the next general elections to which the law refers are those to be held after the date of the organization of the City Government, set by the President, would make the alternative provision, "or election of the members of the Municipal Board," nugatory of superfluous, because on the date set for the organization of the Government of the City of Dagupan, there would never be members of the Municipal Board elected.

And, finally, because to construe that the next general election for provincial or municipal officers, refers to the general election next or after the organization of the government of the City by Presidential Proclamation, would be to grant the latter discretion to defeat the purpose of the law or the creation of the City of Dagupan by Congress, because as Act No. 170 does not fix the time within which the President should proclaim the organization of the government of the City, the President may never fix the date of such organization which is untenable.

Motion for reconsideration is denied.

Moran, Perfecto, Briones, Tuason, and Reyes, JJ., concur. Feria, J., concurro con eta disidencica.

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OZAETA, J.:

I vote to grant respondents' motion for reconsideration so that the court may re-examine its decision herein and rectify what I consider an erroneous construction of the statute involved.

The case hinges on whether the city of Dagupan came into existence as a public corporation or political entity upon the approval of its charter (Republic Act No. 170) on June 20, 1947, or upon the organization of the city government and the qualification of its officers on January 1, 1948, as fixed by Executive Order No. 96 (later superseded by Executive Order No. 115) by virtue of section 88 of the charter.

By a vote of six to two, the court held in effect that the former municipality of Dagupan, Pangasinan, ipso facto became a city that is to say, a political entity separate from and independent of the province of Pangasinan by the mere approval of Republic Act No. 170, on the ground that said Act took effect upon its approval on June 20, 1947. I think that conclusion is erroneous and fraught with absurd consequences, as I shall presently endeavor to demonstrate:

1. A city as a municipal corporation cannot be said to exist until and unless it is organized and enabled to exercise the powers and prerogatives conferred upon it by its charter. And since those powers and prerogatives can only be exercised by its officers and agents, it is patent that the corporation cannot be said to have come to life until said officers and agents have been appointed or elected and have duly qualified. It is futile, as the Majority opinion attempts, to distinguish between the "organization of the city of Dagupan" and the "organization of the city government of Dagupan," as if a city could be organized without organizing its government. The city of Dagupan was a mere geographical expression and did not become a political entity until its government was organized and inaugurated by appointing its officers and installing them in office. The majority opinion itself says that "as a city is a public corporation or a juridical entity, and as such can not operate or transact business by itself but through its agents or officers, it was necessary that the government of the city be organized, that is, that the officials thereof be appointed or elected in order that it Bay act or transact business as such public corporation or city." Yet the opinion adds that "the date of the organization of the city government of Dagupan which the President is authorized to fix by the provisions of Sec. 88 is not and can not be the date of the creation of the city, not only because the city of Dagupan came into existence of the same date, June 20, on which Act No. 170 creating said city became effective, but because what was to be organized, according to said Sec. 88, is the city government, and not the city as an entity . . ." The error lies in the false assumption that there can be a city without a city government; that the mere enactment of a city charter ipso facto converts the territory comprised within the city limits into a living political entity. We say such assumption is false because a city cannot come into existence as a political entity independent from the province of which it formerly formed part unless these two indispensable steps are taken: first, it must be created by law and, second, its government must be organized according to that law. These two steps have to be taken successively. They cannot be taken simultaneously because in order to appoint or elect officers the lav authorizing such appointment or election must first be approved. When that law says that it shall take effect upon its approval, it simply means that once it is approved the second step may be taken and the city government thus organized shall function in accordance with the provisions of that law.

To say that a city can exist as a political entity without a city government is just as absurd as to say that an automobile can function without an engine. The approval of the charter of the city of Dagupan by the Congress with the transitory provision in section 88 providing for the organization of the city government by the President of the Philippines on such date as he may fix, may properly be likened to the manufacture of the body of an automobile; and the selection and inauguration of the officers of the city, to the selection and installation of the engine of the automobile. Just as the manufactured vehicle did not become an automobile until its engine was properly installed, the city of Dagupan did not become a political entity until its government was organized and its officers installed in office.

2. The opinion of the majority that the municipality of Dagupan was ipso facto converted into the city of Dagupan on June 20, 1947, by the mere approval and the taking effect en that date of Republic Act No. 170, necessarily implies that the municipality of Dagupan became a city, or a political entity independent of the province of Pangasinan, on said date. Such a result, however, is utterly unacceptable, not to say absurd, for no one will contend that the municipal mayor and municipal councilors of the municipality of Dagupan who were holding office as such on and before June 20, 1947, ipso facto became city mayor and city councilors of the city of Dagupan on said date and hence free from any supervision or intervention whatsoever by the provincial governor and provincial board of Pangasinan by the mere approval of Republic Act No. 170. In reality, as everybody knows, Dagupan continued to be a municipality and a part of the province of Pangasinan, and its officers were subject to the supervision of the provincial governor and the provincial board, until the government of the city of Dagupan was inaugurated on January 1, 1948.

Under section 2188 of the Revised Administrative Code, the provincial governor has supervisory authority over municipal officers. Section 2232 of the same Code requires the municipal secretary to forward to the provincial board a correct copy of each resolution and ordinance passed at a session of the municipal council within thirty-six hours after such session; and section 2233 authorizes the provincial board to declare invalid any such resolution or ordinance and "the effect of such action shall be to annul the resolution or ordinance in question." Suppose that between June 20 and December 31, 1947, the municipal council of Dagupan passed an ordinance which, under section 2233, the provincial board declared invalid. May the city of Dagupan sow insist on enforcing said ordinance on the ground that in accordance with the decision of this court in this case the provincial board of Pangasinan no longer had any jurisdiction to annul said ordinance because Dagupan had become a city and independent of the province when said ordinance was approved by the municipal council? Moreover, following the decision of this court, Dagupan may claim from the province of Pangasinan all the land taxes collected in Dagupan corresponding to the period from June 20 to December 31, 1947, on the ground that during said period it was independent from the province. The absurdity of such claims makes patent the absurdity of the decision on which they are based.

3. The case of the city of Dansalan cited by the respondents is also in point. Commonwealth Act No. 592, which was approved and took effect on August 19, 1940, created the city of Dansalan out of the territory comprised within the boundaries and limits of the municipality of Dansalan (sections 1, 2, and 3). Section 4 provided that "the President of the Philippines shall appoint, with the consent of the Commission on Appointments of the National Assembly, the mayor, the vice-mayor, the city secretary, the members of the city council, the city health officer, the city engineer, the chief of police, the city treasurer, the city assessor, and the city attorney, and he may remove at pleasure any of them"; and section 33, entitled "Change of government," provided that "the City Government provided for in this Charter shall be organized immediately after the appointment and qualifications of the city mayor and a majority of the members of the city council." Nevertheless, the President has not appointed said officers, and the city government of Dansalan has never been organized, with the result that Dansalan has up to this date continued to be a municipality and a part of the province of Lanao. Following the decision of this court in this case the municipality of Dansalan may now consider itself a city and proclaim its independence from the province of Lanao.

What a serious political turmoil the decision of this court in this case would entail!