G.R. No.

118127

April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of Manila, Petitioner, vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, Respondents. DECISION TINGA, J.: I know only that what is moral is what you feel good after and what is immoral is what you feel bad after. Ernest Hermingway Death in the Afternoon, Ch. 1 It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if performed by someone else, who would be well-intentioned in his dishonesty. J. Christopher Gerald Bonaparte in Egypt, Ch. I The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not hesitate to "make the hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the test of constitutionality. The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.4 The antecedents are as follows: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of operating hotels, motels, hostels and lodging houses.5 It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a hotel.6 On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7 (RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional.8 Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the saidOrdinance is entitled AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.10 The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to: 1. Sauna Parlors 2. Massage Parlors 3. Karaoke Bars 4. Beerhouses 5. Night Clubs 6. Day Clubs 7. Super Clubs 8. Discotheques 9. Cabarets 10. Dance Halls 11. Motels 12. Inns SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of business enumerated in the preceding section. SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area, such as but not limited to: 1. Curio or antique shop 2. Souvenir Shops 3. Handicrafts display centers 4. Art galleries 5. Records and music shops 6. Restaurants 7. Coffee shops 8. Flower shops 9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family entertainment that cater to both local and foreign clientele. 10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.

11. Businesses allowable within the law and medium intensity districts as provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral establishments. SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation and conviction, the premises of the erring establishment shall be closed and padlocked permanently. SEC. 5. This ordinance shall take effect upon approval. Enacted by the City Council of Manila at its regular session today, March 9, 1993. Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied) In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court considering that these were not establishments for "amusement" or "entertainment" and they were not "services or facilities for entertainment," nor did they use women as "tools for entertainment," and neither did they "disturb the community," "annoy the inhabitants" or "adversely affect the social and moral welfare of the community."11 MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv)12 of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of police power as the compulsory closure of the motel business has no reasonable relation to the legitimate municipal interests sought to be protected; (4) The Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court which was a legitimate business prior to its enactment; (5) The Ordinanceviolates MTDC's constitutional rights in that: (a) it is confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area but not outside of this area.14 In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the power to "prohibit certain forms of entertainment in order to protect the social and moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: .... (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: .... (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community.

Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the above-quoted provision included the power to control, to govern and to restrain places of exhibition and amusement.18 Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of Republic Act No. 409,19 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila)20 which reads, thus: ARTICLE III THE MUNICIPAL BOARD . . . Section 18. Legislative powers. The Municipal Board shall have the following legislative powers: . . . (kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for a single offense. Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the burden to prove its illegality or unconstitutionality.21 Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in operation.23 The Ordinance also did not infringe the equal protection clause and cannot be denounced as class legislation as there existed substantial and real differences between the ErmitaMalate area and other places in the City of Manila.24 On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC.26 After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:27 WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this Court against the defendant. No costs. SO ORDERED.28 Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they are elevating the case to this Court under then Rule 42 on pure questions of law.30 On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding that the questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of commercial establishments, except those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32 In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made before the lower court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and plenary power of the State and the general welfare clause exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that theOrdinance is a valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.35 In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid

exercise of police power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions. This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-Malate area being its home for several decades. A long-time resident, the Court witnessed the area's many turn of events. It relished its glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore null and void. The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless. The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.37 Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.39 This relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.40 The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation.41 This delegated police power is found in Section 16 of the Code, known as the general welfare clause, viz: SECTION 16. General WelfareEvery local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.. Local government units exercise police power through their respective legislative bodies; in this case, thesangguniang panlungsod or the city council. The Code empowers the legislative bodies to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the province/city/ municipality provided under the Code.42 The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. The Ordinance contravenes the Constitution The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good.43In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The relevant constitutional provisions are the following:

SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.44 SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.45 SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws.46 Sec. 9. Private property shall not be taken for public use without just compensation.47 A. The Ordinance infringes the Due Process Clause The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of life, liberty or property without due process of law. . . ."48 There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice,49 and as such it is a limitation upon the exercise of the police power.50 The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit of the general law.51 The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are "persons" within the scope of the guaranty insofar as their property is concerned.52 This clause has been interpreted as imposing two separate limits on government, usually called "procedural due process" and "substantive due process." Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.53 Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person's life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government's action.54 Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used.55 For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose.56 The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically57 as its exercise is subject to a qualification, limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare.58 Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property.59 Requisites for the valid exercise of Police Power are not met To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.60 It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of

the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.61 Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights62 a violation of the due process clause. The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila63 had already taken judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-seekers."64 The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Council's police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals and the eradication of the community's social ills can be achieved through means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses "allowed" under the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will notper se protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like which the City Council may lawfully prohibit,65 it is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply because there are no "pure" places where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence and universality of sin in man's history.66 The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only be purged of its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the authorities. The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinancemay to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of "wholesome," "innocent" establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the

establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations;67 and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. Means employed are constitutionally infirm The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which "to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area." Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring establishment shall be closed and padlocked permanently." It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."68 In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.69 The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognizedas essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. In another case, it also confirmed that liberty protected by the due process clause includes personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court explained: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under compulsion of the State.71 Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of the Ordinancemay seek autonomy for these purposes. be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution.Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motel's premises72 Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice.73 Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception. it is the most comprehensive of rights and the right most valued by civilized men.Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedom 74 The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.76 There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their choice. Modality employed is unlawful taking In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property.77 The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and violative of the private property rights of individuals. The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use without just compensation." The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a person's property to benefit society, then society should pay. The principal purpose of the guarantee is "to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.79 There are two different types of taking that can be identified. A "possessory" taking occurs when the government confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no reasonable economically viable use of the property.80 In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if government regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to support the act. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.82 No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by general propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness require that the economic loss caused by public action must be compensated by the government and thus borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action.83 What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.84A regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.85 When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.86 A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with

reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.87 A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner.88 The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months from its approval within which to "wind up business operations or to transfer to any place outside of the ErmitaMalate area or convert said businesses to other kinds of business allowable within the area." The directive to "wind up business operations" amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to accommodate an "allowed" business, the structure which housed the previous business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise leave the entire establishment idle. Consideration must be given to the substantial amount of money invested to build the edifices which the owner reasonably expects to be returned within a period of time. It is apparent that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. are confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the to transfer to any place outside of the Ermita-Malate area or to convert into allowed businessesThe second and third options Ordinance is also equivalent to a "taking" of private property. The second option instructs the owners to abandon their property and build another one outside the ErmitaMalate area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. The proffered solution does not put an end to the "problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation. The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole. Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a "wholesome" property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of justice as we know them. The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking. Distinction should be made between destruction from necessity and eminent domain. It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore "wholesome."89 If it be of public benefit that a "wholesome" property remain unused or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private property for public use.90 Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured.91 Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions.92 Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court struck down an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by." The ordinance was nullified as it imposed no standard at all "because one may never know in advance what 'annoys some people but does not annoy others.' "

Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out its provisions. Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property. Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the illconsidered Ordinance enacted by the City Council. In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating "sexually oriented businesses," which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance required that such businesses be licensed. A group of motel owners were among the three groups of businesses that filed separate suits challenging the ordinance. The motel owners asserted that the city violated the due process clause by failing to produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted in increased crime and other secondary effects. They likewise argued than the ten (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered, was adequate to support the city's determination that motels permitting room rentals for fewer than ten (10 ) hours should be included within the licensing scheme. As regards the second point, the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs. The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable restrictions; hence, its validity was upheld. The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it needs pointing out, is also different from this case in that what was involved therein was a measure which regulated the mode in which motels may conduct business in order to put an end to practices which could encourage vice and immorality. Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not prohibit motels. The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed power to prohibit.97 The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising police power, be upheld as valid. B. The Ordinance violates Equal Protection Clause Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.98 The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances.99 The "equal protection of the laws is a pledge of the protection of equal laws."100 It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.101 The Court has explained the scope of the equal protection clause in this wise: What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: "The ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the idea of law." There is recognition, however, in the opinion that what in fact exists "cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act

assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason." Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.102 Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause.103 The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: 1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class.104 In the Court's view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the ErmitaMalate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. one of the hinted ills theThe standard "where women are used as tools for entertainment" is also discriminatory as prostitution Ordinance is not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to important government objectives.aims to banish105 Thus, the discrimination is invalid. Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws. C. The Ordinance is repugnant to general laws; it is ultra vires The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . .

(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports . . . . While its power to regulate the establishment, operation and maintenance of any entertainment or amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall: . . . (vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement; regulate such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of the same; or, prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court inKwong Sing v. City of Manila106 that: The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with "suppress" or "prohibit." Consequently, under the power to regulate laundries, the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised.107 And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to regulate the same and not prohibit. The Court therein declared that: (A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.109 These doctrines still hold contrary to petitioners' assertion110 that they were modified by the Code vesting upon City Councils prohibitory powers. Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community" are stated in the second and third clauses, respectively of the same Section. The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph.111 These powers, therefore, should not be confused, commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and prohibition.112 The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna

baths, massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City Council may suspend, suppress or prohibit. The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council.113 Moreover, it is a general rule in statutory construction that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or punishments, or otherwise come under the rule of strict construction.114 The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the ruling of the Court in People v. Esguerra,115 is instructive. It held that: The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding the provision of section 2242 (g), would be to make the latter superfluous and nugatory, because the power to prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors. On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will.116 If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter, which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the legislative will which must prevail and override the earlier.117 Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes: those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two can remain in force and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefor. The validity of such a repeal is sustained on the ground that the latest expression of the legislative will should prevail.118 In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at variance with the latter's provisions granting the City Council mere regulatory powers. It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention.119 Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in another section of the Code which is reproduced as follows: Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall:

. . . (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; . . . If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only be regulated in their establishment, operation and maintenance. It is important to distinguish the punishable activities from the establishments themselves. That these establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which means that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place, its proper force and effect, and, if possible, rendering none of them useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where words under consideration appear in different sections or are widely dispersed throughout an act the same principle applies.120 Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law.121 As succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122 The requirement that the enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government units cannot contravene but must obey at all times the will of their principal. In the case before us, the enactment in question, which are merely local in origin cannot prevail against the decree, which has the force and effect of a statute.123 Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right.124 Conclusion All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.

Concededly, the challenged Ordinance we reiterate our support for it. But inspite of its virtuous aims, the enactment of thewas enacted with the best of motives and shares the concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the full endorsement of the judiciary Ordinance not even under the guise of police power.has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their transfer or conversion without infringing the constitutional guarantees of due process and equal protection of laws WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring the Ordinancevoid is AFFIRMED. Costs against petitioners. SO ORDERED. Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur Panganiban, J., in the result. Ynares- Santiago, J., concur in the result only.

Footnotes
1

Dated 11 January 1995; Rollo, pp. 6-73 with annexes. Id. at 64-72. The lower court declared the Ordinance to be null and void.

In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. Lim, etc, et al. before RTC, Branch 55 of Manila, docketed as Civil Case No. 93-66551, Judge Hermogenes R. Liwag declared the Ordinance void and unconstitutional. The defendants elevated the case to the Court of Appeals which denied their petition on procedural grounds in its Decision dated 21 May 2003. It appears that defendants Hon. Alfredo S. Lim and the City Council of Manila did not elevate the case before the Court. Entry of Judgment of the CA Decision was made on 22 April 2003.
5

Rollo, p. 37. Id. at. 75; It now calls itself Hotel Victoria. Id. at 35-47. Id. at 46.

The principal authors of the Ordinance are: Hons. Bienvenido M. Abante, Jr.; Humberto B. Basco; Nestor C. Ponce, Jr.; Ernesto A. Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez; Ma. Paz E. Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F. Concepcion, Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A. Melendez; Ma. Corazon R. Caballes; Bernardito C. Ang; Roberto C. Ocampo; Rogelio B. dela Paz; Romeo G. Rivera; Alexander S. Ricafort; Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon; Leonardo L. Angat; and Jocelyn B. Dawis.
10

Rollo, p. 8. RTC Records, pp. 10-11. Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads, thus:

11

12

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: . . . (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall:

. . .. (iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports; . . .
13

Presidential Decree No. 499; Dated 28 June 1974; Declaring Portions of the Ermita-Malate Area as Commercial Zones with Certain Restrictions. It reads in full: WHEREAS, the government is committed to the promotion and development of tourism in the country, particularly in the City of Manila which is the hub of commercial and cultural activities in Manila Metropolitan Area; WHEREAS, certain portions of the districts of Ermita and Malate known as the Tourist Belt are still classified as Class "A" Residential Zones and Class "B" Residential Zones where hotels and other business establishments such as curio stores, souvenir shops, handicraft display centers and the like are not allowed under the existing zoning plan in the City of Manila; WHEREAS, the presence of such establishments in the area would not only serve as an attraction for tourists but are dollar earning enterprises as well, which tourist areas all over the world cannot do without; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me under the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081, dated September 21, 1972, and General Order No. 1, dated September 22, 1972, as amended, do hereby order and decree the classification as a Commercial Zone of that portion of the Ermita-Malate area bounded by Teodoro M. Kalaw, Sr. Street in the north; Taft Avenue in the east; Vito Cruz Street in the south and Roxas Boulevard in the west. PROVIDED, HOWEVER, That no permit shall be granted for the establishment of any new warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment in these areas, and PROVIDED, FURTHER, That for purposes of realty tax assessment on properties situated therein, lands and buildings used exclusively for residential purposes by the owners themselves shall remain assessed as residential properties. All laws, ordinances, orders, rules and regulations which are inconsistent with this Decree are hereby repealed or modified accordingly. This Decree shall take effect immediately. Done in the City of Manila this 28th day of June in the year of Our Lord, nineteen hundred and seventy-four.
14

RTC Records, pp. 11-13. Id. at 158-171. Id. at 160.

15

16

17

41 Phil. 103 (1920); see also Samson v. Mayor of Bacolod City, G.R. No. L-28745, 23 October 1974, 60 SCRA 267.
18

RTC Records, p. 161. Approved on 18 June 1949. RTC Records, p. 160. Supra note 18. Id. at 164. Ibid. Id. at 165-169. Id. at 84.

19

20

21

22

23

24

25

26

Id. at 453. Rollo, pp. 6 and 72. Id. at 6. Dated 12 December 1994; Id. at 73. Id. at 2. Supra note 13. Rollo, p. 13. Id. at 190-201. Id. at 16, 194, 198. Id. at 19, 22, 25-26, 199. Id. at 150-180.

27

28

29

30

31

32

33

34

35

36

37

Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor General v.Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 268-267.
38

See ART. 7, par. (3) of the Civil Code which reads, thus: . . .

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.
39

Magtajas v. Pryce Properties Corp, Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 270-271. Id. at 273. Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil. 956, 968-969 (2000).

40

41

42

Metropolitan Manila Devt. Authority v. Bel-Air Village Asso., 385 Phil. 586, 603 (2000), citing Sections 468 (a), 458 (a), and 447 (a), Book III, Local Government Code of 1991.
43

16 C.J.S., pp. 562-565. Art. II, Declaration of principles and state policies, 1987 const. Ibid. Art. III, Bill of Rights, 1987 Const. Ibid. Id. at Sec. 9; See also Cruz, Isagani A., Constitutional Law 97 (1998).

44

45

46

47

48

49

Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 Phil. 849, 860 (1967).
50

See In re Lutker, Okl. Cr., 274 P. 2d 786, 789, 790. Supra note 43 at 1150-1151. See Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919). Chemerinsky, Erwin, Constitutional Law Principles And Policies, 2nd Ed. 523 (2002). Id. at 523-524.

51

52

53

54

55

See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Chemerinsky, supra note 53 at 524.

56

57

Lim v. Court of Appeals, 435 Phil. 857, 868 (2002); This is a related case involving the same Ordinance challenged in this case. The Court denied the petition questioning the writ of prohibitory preliminary injunction issued by the RTC, enjoining the closure of a certain establishment pursuant to the Ordinance.
58

Homeowners' Asso. of the Phil., Inc. v. Municipal Board of the City of Manila, 133 Phil. 903, 907 (1968).
59

Cruz, Isagani A., Constitutional Law 104 (1998).

60

See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila, 21 Phil. 486 (1912); Case v. Board of Health, 24 Phil. 256 (1913).
61

Balacuit v. CFI of Agusan del Norte, No. L-38429, 30 June 1988, 163 SCRA 182, 191-193. Cruz, supra note 59 at 56. Ermita-Malate Hotel and Motel Operators Assoc. Inc. v. City Mayor of Manila, supra note 49. Id. at 858-859. Section 458 (a) 1 (v), the Code.

62

63

64

65

66

Catechism of the Catholic Church, Definitive Edition, p. 101; ECCE and Word & Life Publications, Don Bosco Compound, Makati.
67

Lim v. Court of Appeals, supra note 57 at 867. Rubi v. Provincial Board 39 Phil. 660 (1919), as cited in Morfe v. Mutuc, 130 Phil. 415 (1968). Morfe v. Mutuc, 130 Phil. 415, 440 (1968). 408 U.S. 572. See Lawrence v. Texas, 539 U.S. 558 (2003).

68

69

70

71

72

Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23 November 2004, J. Tinga, ponente.
73

Lawrence v. Texas, supra note 70. Morfe v. Mutuc, supra note 68 at 442. Id. at 442-443, citing Laski, Liberty in the Modern State, 44 (1944).

74

75

76

Id. at 444-445, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law. Rev. 219, 229 (1965).
77

People v. Fajardo, et al., 104 Phil. 443, 447 (1958). Ibid. citing Arverne Bay Const. Co. v. Thatcher (N.Y.) 117 ALR. 1110, 1116. Chemerinsky, supra note 53 at 616. Id. at 617. 260 U.S. 393, 415 (1922). Id. at 413-415. See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

78

79

80

81

82

83

84

Chemerinsky , supra note 53 at 623-626. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Ibid. Chemerinsky, supra note 53 at 166. Supra note 82. Cruz, supra note 59 at 38.

85

86

87

88

89

90

People v. Fajardo, supra note 76 at 443, 448 citing Tews v. Woolhiser (1933) 352 I11. 212, 185 N.E. 827.
91

Id. at 446-447.

92

Id. at 447, citing Schloss Poster Adv. Co., Inc. v. City of Rock Hill, et al., 2 SE (2d), pp. 394-395; People v.Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195.
93

402 U.S. 611 (1971). No. L-44143, 31 August 1988, 165 SCRA 186, 195. 493 U.S. 215 (1990). Supra note 49. De la Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490, 503 (1983). See Ichong v. Hernandez, 101 Phil. 1155 (1957).

94

95

96

97

98

779 299 citing State of Missouri ex rel. Gaines16B Am Jur 2d v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938), reh'g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437 (1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d 217 (1939).
99

779 299 citing Romer16B Am Jur 2d v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 109 Ed. Law Rep. 539, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH) 44013 (1996); Walkerv. Board of Supervisors of Monroe County, 224 Miss. 801, 81 So. 2d 225 (1955), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955); Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951).
100 101

Supra note 52 at 145. Nuez v. Sandiganbayan, 197 Phil. 407 (1982). Cruz, supra note 59 at 125. See People v. Cayat, 68 Phil. 12 (1939). See Craig v. Boren, 429 U.S. 190 (1976). Supra note 17. Id. at 108 (1920). 81 Phil. 33 (1948). Id. at 38. Rollo, p. 19.

102

103

104

105

106

107

108

109

110

111

RTC Records, p. 409; The Decision of the Regional Trial Court of Manila, Branch 55 in the case of Cotton Club Corporation, Inc. v. Hon. Alfredo S. Lim, etc., et al., Civil Case No. 93-66551; Dated 28 July 1993; Penned by Judge Hermogenes R. Liwag; Citing Shaw, Harry, Punctuate it Right! Everday Handbooks 125-126.

112

Id. at 408. City of Ozamis v. Lumapas, No. L-30727, 15 July 1975, 65 SCRA 33, 42.

113

114

Francisco, Vicente J., Statutory Construction, Second Edition 172 (1959); See Pepsi-Cola Bottling Company of the Philippines, Inc. v. Municipality of Tanauan, Leyte, et al., 161 Phil. 591, 605 (1976).
115

Supra note 107 at 33. Agpalo, Ruben F., Statutory Construction 296 (1986). Francisco, supra note 113 at 271.

116

117

118

Crawford, Earl T., The Construction of Statutes 196-197 (1940); See Mecano v. Commission on Audit, G.R. No. 103982, 11 December 1992, 216 SCRA 500, 505.
119

See Estate of Gregoria Francisco v. Court of Appeals, G.R. No. 95279, 25 July 1991, 199 SCRA 595, 601.
120

Francisco, supra note 113 at 178-179; See King, et al. v. Hernaez, etc., et al., 114 Phil. 730, 739 (1962).
121

Chua Lao, etc., et al. v. Raymundo, etc., et al., 104 Phil. 302, 307 (1958). G.R. No. 102782, 11 December 1991, 204 SCRA 837. Id. at 847. Balacuit v. CFI of Agusan del Norte, supra note 61 at 198-199.

122

123

124

JAIME S. PEREZ, both in his personal and official capacity as Chief, Marikina Demolition Office, Petitioner,

G.R. No. 184478 Present: CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, VILLARAMA, JR., and PERLAS-BERNABE, JJ.

- versus -

SPOUSES FORTUNITO L. Promulgated: MADRONA and YOLANDA B. PANTE, Respondents. March 21, 2012 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to set aside the March 31, 2008

Decision[1]and September 10, 2008 Resolution[2] of the Court of Appeals (CA) in CAG.R. CV. No. 83675. The CA affirmed in toto the Decision[3] of the Regional Trial Court (RTC) ofMarikina City, Branch 192 granting respondents prayer for injunction against petitioner. The antecedents follow: Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of a residential property located in Lot 22, Block 5, France Street corner Italy Street, Greenheights Subdivision, Phase II, Marikina City and covered by Transfer Certificate of Title No. 169365[4] of the Registry of Deeds of Marikina. In 1989, respondents built their house thereon and enclosed it with a concrete fence and steel gate. In 1999, respondents received the following letter dated May 25, 1999 from petitioner Jaime S. Perez, Chief of the Marikina Demolition Office:
Owner Judge F.L. Madrona Lot 22 B. 5 Phase II Green Heights[, Concepcion,] Marikina City G./ Gng. F.L. Madrona[:] Ito po ay may kinalaman sa bahay/istruktura na inyong itinayo sa (naturang lugar), Marikina, Kalakhang Maynila. Bakod umusli sa Bangketa Ang naturang pagtatayo ng bahay/istruktura ay isang paglabag sa umiiral na batas/programa na ipatutupad ng Pamahalaang Bayan ng Marikina na nauukol sa: [] PD 1096 (National Building Code of the Philippines) [ ] PD 772 (Anti-Squatting Law) [] Programa sa Kalinisan at Disiplina sa Bangketa [ ] RA 7279 (Urban Development and Housing Act of 1992) [ ] PD 296 (Encroachment on rivers, esteros, drainage channels and other waterways) [] RA 917 as amended by Section 23, PD. No. 17, DO No. 4 Series of 1987 (Illegally occupied/constructed improvements within the road right-of-way) Dahil po dito, kayo ay binibigyan ng taning na Pitong (7) araw simula sa pagkatanggap ng sulat na ito para kusang alisin ang inyong istruktura. Ang hindi ninyo pagsunod sa ipinag-uutos na ito ay magbubunsod sa amin upang gumawa ng kaukulang hakbang na naa[a]yon sa itinatadhana ng Batas. Sa inyong kaalaman, panuntuan at pagtalima.

Lubos na gumagalang, (Sgd.) JAIME S. PEREZ Tagapamahala Marikina Demolition Office[5]

As response, respondent Madrona sent petitioner a three-page letter[6] dated June 8, 1999 stating that the May 25, 1999 letter (1) contained an accusation libelous in nature as it is condemning him and his property without due process; (2) has no basis and authority since there is no court order authorizing him to demolish their structure; (3) cited legal bases which do not expressly give petitioner authority to demolish; and (4) contained a false accusation since their fence did not in fact extend to the sidewalk. On June 9, 1999, respondents received a letter[7] from petitioner requesting them to provide his office a copy of the relocation survey on the subject property. Respondents, however, did not oblige because it was as if petitioner was fishing evidence from them. More than a year later or on February 28, 2001, petitioner sent another letter[8] with the same contents as the May 25, 1999 letter but this time giving respondents ten days from receipt thereof to remove the structure allegedly protruding to the sidewalk. This prompted respondents to file a complaint[9] for injunction before the Marikina City RTC onMarch 12, 2001. In respondents injunction complaint, they alleged that (1) petitioners l etters made it appear that their fence was encroaching on the sidewalk and directed them to remove it, otherwise he would take the corresponding action; (2) petitioners threat of action would be damaging and adverse to respondents and appears real, earnest and imminent; (3) the removal of their fence, which would include the main gate, would certainly expose the premises and its occupants to intruders or third persons; (4) petitioner has no legal authority to demolish structures in private properties and the laws he cited in his letters do not give him any authority to do so; (5) respondents enjoy the legal presumption of rightful possession of every inch of their property; (6) if petitioner accuses them of erroneous possession, he should so prove only through the proper forum which is the courts; (7) their fence is beside the sidewalk and the land on which it stands has never been the subject of acquisition either by negotiation or expropriation from the government; (8) petitioners intended act of demolition even in the guise of a road right of way has no factual or legal basis since there is no existing infrastructure project of the national government or Marikina City government; and (9) petitioners letter and his intended act of demolition are malicious, unfounded, meant only to harass respondents in gross violation of their rights and in excess and outside the scope of his authority, thereby rendering him accountable both in his personal and official capacity.

Respondents likewise sought the issuance of a temporary restraining order (TRO) and a writ of preliminary injunction to enjoin petitioner and all persons acting under him from doing any act of demolition on their property and that after trial, the injunction be made permanent. They also prayed for moral and exemplary damages and attorneys fees. On March 14, 2001, petitioner was served the corresponding summons.[10] On March 16, 2001, the RTC issued a TRO against petitioner.[11] On March 29, 2001, petitioner filed an Urgent Ex Parte Motion for Extension to File Answer[12] until April 13, 2001. It appears however that petitioners counsel failed to file an Answer within the extended period requested. Thus, on motion[13] of respondents, petitioner was declared in default on July 13, 2001.[14] On July 25, 2001, petitioner filed a Motion to Lift Order of Default (with Ex-Parte Motion to Admit Answer and Notice Entry of Appearance).[15] According to petitioners new counsel, an answer was not filed due to the former counsels voluminous work load as lone lawyer in the City Legal Office. On December 10, 2001, the RTC issued an Order[16] denying the motion to lift the order of default. Aside from finding that the motion failed to include a notice of hearing, the RTC also held that the alleged cause of delay is not excusable as voluminous work load of the counsel cannot justify the disregard of court processes or failure to abide by the period fixed by the rules and since the delay consisted not only a few days but over a hundred and three days. Petitioner moved to reconsider the order but the same was denied by the RTC in its March 6, 2002 Order.[17] Petitioner thereafter filed a petition for certiorari[18] before the CA assailing the default order. Thus, on April 18, 2002, the RTC issued an order suspending the proceedings of the injunction case until such time when the Petition for Certiorari shall have been disposed of with finality.[19] On August 20, 2002, the CA rendered a decision[20] dismissing the petition for certiorari for lack of merit. Petitioner moved to reconsider the appellate courts decision, but the motion was denied by Resolution[21] dated January 30, 2003. On September 15, 2003, the RTC issued an Order[22] dismissing the injunction complaint without prejudice. It held that respondents have not instituted any action before th[e] Court showing that they are still interested in further prosecuting th[e] case and [i]n accordance with Section 3, Rule 17 of the Rules of Court, the Court is

constrained to dismiss the complaint for failure of [respondents] to prosecute their complaint for an unreasonable length of time. However, upon motion of respondents, the dismissal order was set aside and the complaint was reinstated by Order[23] dated December 3, 2003. The RTC agreed with the observation of respondents that it was the court which suspended the proceedings in the injunction case pending final disposition of the petition for certiorari before the CA, and when the RTC issued the dismissal order, there was yet no entry of judgment from the CA and so it cannot be said that the petition was already disposed of with finality. Respondents were then allowed to present their evidence ex parte before the branch clerk of court. On July 27, 2004, the RTC rendered respondents. The fallo of the RTC decision reads: a Decision[24] in favor of

WHEREFORE, Judgment is hereby rendered in favor of the plaintiffs. As prayed for, defendant Jaime S. Perez, Chief of the Demolition Office of Marikina City, or any person acting for and in his behalf as well as the successors to his office, is permanently enjoined from performing any act which would tend to destroy or demolish the perimeter fence and steel gate of the plaintiffs property situated at Lot 22, Block 5, France Street corner Italy Street, Phase II, Greenheights Subdivision, Concepcion, Marikina City. Defendant is further ordered to pay the amount of Twenty Thousand (P20,000.00) Pesos as attorneys fees and Five Thousand (P5,000.00) Pesos for the costs of suit.[25]

The RTC held that respondents, being lawful owners of the subject property, are entitled to the peaceful and open possession of every inch of their property and petitioners threat to demolish the concrete fence around their property is tantamount to a violation of their rights as property owners who are entitled to protection under the Constitution and laws. The RTC also ruled that there is no showing that respondents fence is a nuisance per se and presents an immediate danger to the communitys welfare, nor is there basis for petitioners claim that the fence has encroached on the sidewalk as to justify its summary demolition. Petitioner appealed the RTC decision to the CA. On March 31, 2008, the appellate court rendered the assailed decision affirming the RTC decision. Hence this petition based on the following grounds:
I. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN AFFIRMING THE ACTION OF THE LOWER COURT IN REINSTATING/REVIVING THE COMPLAINT FILED BY THE RESPONDENTS. II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN AFFIRMING THE RULING OF THE LOWER COURT THAT THE RESPONDENTS ARE ENTITLED TO PERMANENT INJUNCTION, THEREBY RESTRAINING THE PETITIONER OR ANYONE ACTING FOR AND ON HIS BEHALF FROM

CARRYING OUT THE THREATENED DEMOLITION OF THEIR PERIMETER FENCE AND STEEL GATE. III. THE COURT OF APPEALS COMMITTED A REVERSIBLE [ERROR] IN AFFIRMING THE RULING OF THE LOWER COURT ORDERING THE PETITIONER TO PAY THE RESPONDENTS THE AMOUNTS OF TWENTY THOUSAND PESOS (P20,000.00) AS ATTORNEYS FEES AND FIVE THOUSAND [26] PESOS (P5,000.00) AS COSTS OF SUIT.

Essentially, the issues to be resolved in the instant case are: (1) Did the trial court err in reinstating the complaint of respondents? (2) Are the requisites for the issuance of a writ of injunction present? and (3) Is petitioner liable to pay attorneys fees and costs of suit? Petitioner argues that there was express admission of negligence by respondents and therefore, reinstatement of their dismissed complaint was not justified. We disagree. A perusal of the respondents motion for reconsideration[27] of the order of dismissal reveals that there was no admission of negligence by respondents, either express or implied. Respondents only contended that (1) they were under the impression that it would be the RTC which would issue the order to continue the proceedings once it considers that the petition before the CA had already been disposed of with finality, and (2) their counsels records do not show that the CA had already issued an entry of judgment at the time the dismissal order was issued. They also only stated that they followed up with the CA the issuance of the entry of judgment but they were just told to wait for its delivery by mail. Petitioners imputation that respondents expressly admitted negligence is therefore clearly unfounded. Additionally, as correctly found by both the RTC and the CA, it did not appear that respondent lost interest in prosecuting their case nor was their counsel negligent in handling it. Accordingly, there was no basis for the dismissal order and reinstatement of respondents complaint was justified. As to the propriety of the issuance of the writ of injunction, petitioner claims that the requisites therefor are not present in the instant case. Petitioner contends that service of a mere notice cannot be construed as an invasion of a right and only presupposes the giving of an opportunity to be heard before any action could be taken. He also claims that it is clear from the records of the case that respondents concrete fence was constructed on a part of the sidewalk in gross violation of existing laws and ordinance and thus, they do not have absolute right over the same. According to petitioner, the encroachment is clearly apparent in the Sketch Plan of the government geodetic engineer

as compared to the Location Plan attached to respondents complaint. He likewise contends that the clearing of the sidewalks is an infrastructure project of the Marikina City Government and cannot be restrained by the courts as provided in Presidential Decree No. 1818.[28] Lastly, petitioner points out that the trial court should not have merely relied on the testimonies of respondents alleging that his men were already in the subdivision and destroying properties on other streets to prove that there was urgent necessity for the issuance of the writ. We disagree. For injunction to issue, two requisites must concur: first, there must be a right to be protected and second, the acts against which the injunction is to be directed are violative of said right.[29] Here, the two requisites are clearly present: there is a right to be protected, that is, respondents right over their concrete fence which cannot be removed without due process; and the act, the summary demolition of the concrete fence, against which the injunction is directed, would violate said right. If petitioner indeed found respondents fence to have encroached on the sidewalk, his remedy is not to demolish the same summarily after respondents failed to heed his request to remove it. Instead, he should go to court and prove respondents supposed violations in the construction of the concrete fence. Indeed, unless a thing is a nuisanceper se, it may not be abated summarily without judicial intervention.[30] Our ruling in Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., on the need for judicial intervention when the nuisance is not a nuisance per se, is well worth mentioning. In said case, we ruled:
Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. [Underscoring supplied.] In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellantmunicipality similarly argued that the terminal involved therein is a nuisance that may be abated by the Municipal Council via an ordinance, this Court held: Suffice it to say that in the abatement of nuisances the provisions of the Civil Code (Articles 694-707) must be [31] observed and followed. This appellant failed to do.

Respondents fence is not a nuisance per se. By its nature, it is not injurious to the health or comfort of the community. It was built primarily to secure the property of respondents and prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still exists. If petitioner believes that respondents fence

indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary abatement without judicial intervention is unwarranted. Regarding the third issue, petitioner argues that he was just performing his duties and as public officer, he is entitled to the presumption of regularity in the performance of his official functions. Unless there is clear proof that he acted beyond his authority or in evident malice or bad faith, he contends that he cannot be held liable for attorneys fees and costs of suit. Respondents, for their part, counter that the presumption of regularity has been negated by the fact that despite their reply to the first notice, which put petitioner on notice that what he was doing was ultra vires, he still reiterated his earlier demand and threat of demolition. Having been warned by respondents that his acts were in fact violations of law, petitioner should have been more circumspect in his actions and should have pursued the proper remedies that were more in consonance with the dictates of due process. Respondents further pray for moral damages for the serious anxieties and sleepless nights they suffered and exemplary damages to serve as an example to other public officials that they should be more circumspect in the performance of their duties. We agree with respondents. As respondents were forced to file a case against petitioner to enjoin the impending demolition of their property, the award of attorneys fees and costs of suit is justified. Clearly, respondents wanted to settle the problem on their alleged encroachment without resorting to court processes when they replied by letter after receiving petitioners first notice. Petitioner, however, instead of considering the points raised in respondents reply-letter, required them to submit the relocation plan as if he wants respondents to prove that they are not encroaching on the sidewalk even if it was he who made the accusation of violation in the first place. And when he did not get the proof he was requiring from respondents, he again sent a notice with a threat of summary demolition. This gave respondents no other choice but to file an injunction complaint against petitioner to protect their rights. With regard to respondents claim for moral damages, this Court rules that they are entitled thereto in the amount of P10,000.00 pursuant to Article 2217[32] of the Civil Code. As testified to by respondents, they suffered anxiety and sleepless nights since they were worried what would happen to their children who were left by themselves in their Marikina residence while they were in Ormoc City if petitioner would make real his threat of demolition on their fence.

We likewise hold that respondents are entitled to exemplary damages in the amount of P5,000.00 to serve as an example to other public officials that they should be more circumspect in the performance of their duties. WHEREFORE, the March 31, 2008 Decision and September 10, 2008 Resolution of the Court of Appeals in CA-G.R. CV. No. 83675 are AFFIRMED with MODIFICATION. Petitioner Jaime S. Perez, Chief of the Demolition Office of Marikina City is ORDERED to pay respondent Spouses Fortunito L. Madrona and Yolanda B. Pante moral damages in the amount of P10,000.00 and exemplary damages in the amount of P5,000.00. SO ORDERED.

G.R. No. 94759 January 21, 1991 TECHNOLOGY DEVELOPERS, INC., petitioner, vs. COURT OF APPEALS, HON. NARCISO T. ATIENZA as Presiding Judge, Bulacan, RTC, and HON. VICENTE CRUZ, Acting Mayor and the MUNICIPALITY OF STA. MARIA, BULACAN, respondents. Diosdado P. Peralta for petitioner.

GANCAYCO, J.:p The authority of the local executive to protect the community from pollution is the center of this controversy. The antecedent facts are related in the appealed decision of the Court of Appeals as follows: Petitioner, a domestic private corporation engaged in the manufacture and export of charcoal briquette, received a letter dated February 16, 1989 from private respondent acting mayor Pablo N. Cruz, ordering the full cessation of the operation of the petitioner's plant located at Guyong, Sta. Maria, Bulacan, until further order. The letter likewise requested Plant Manager Mr. Armando Manese to bring with him to the office of the mayor on February 20, 1989 the following: a) Building permit; b) Mayor's permit; c) Region III-Pollution of Environment and Natural Resources Anti-Pollution Permit; and of other document. At the requested conference on February 20, 1989, petitioner, through its representative, undertook to comply with respondent's request for the production of the required documents. In compliance with said undertaking, petitioner commenced to secure "Region III-Department of Environmental and Natural Resources Anti-Pollution Permit," although among the permits previously secured prior to the operation of petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued by the then National Pollution Control Commission (now Environmental Management Bureau) and is now at a stage where the Environmental Management Bureau is trying to determine the correct kind of anti-pollution devise to be installed as part of petitioner's request for the renewal of its permit. Petitioner's attention having been called to its lack of mayor's permit, it sent its representatives to the office of the mayor to secure the same but were not entertained. On April 6, 1989, without previous and reasonable notice upon petitioner, respondent acting mayor ordered the Municipality's station commander to padlock the premises of petitioner's plant, thus effectively causing the stoppage of its operation. Left with no recourse, petitioner instituted an action for certiorari, prohibition, mandamus with preliminary injunction against private respondent with the court a quo which is presided by

the respondent judge. In its prayer for the issuance of a writ of preliminary mandatory injunction, it alleged therein that the closure order was issued in grave abuse of discretion. During the hearing of the application for the issuance of a writ of preliminary injunction on April 14, 1989, herein parties adduced their respective evidences. The respondent judge, April 19, 1989, found that petitioner is entitled to the issuance of the writ of preliminary mandatory injunction, hence, it ordered as follows: In view of the foregoing, upon petitioner's posting of a bond in the amount of P50,000.00 to answer for such damages that respondents may sustain should petitioner eventually be found not entitled to the injunctive relief hereby issued, let a PRELIMINARY MANDATORY INJUNCTION issue ordering the respondent Hon. Pablo N. Cruz, and other person acting in his behalf and stead to immediately revoke his closure order dated April 6, 1989, and allow petitioner to resume its normal business operations until after the instant case shall have been adjudicated on the merits without prejudice to the inherent power of the court to alter, modify or even revoke this order at any given time. SO ORDERED. The writ of preliminary mandatory injunction was issued on April 28, 1989, upon petitioner's posting a bond in the amount of P50,000.00. Private respondent filed his motion for reconsideration dated May 3, 1989. Said motion for reconsideration was heard on May 30, 1989. Petitioner's counsel failed to appear and the hearing proceeded with the Provincial Prosecutor presenting his evidence. The following documents were submitted: a) Exhibit "A", Investigation report on the Technology Developers Inc., prepared by one Marivic Guina, and her conclusion and recommendation read: Due to the manufacturing process and nature of raw materials used, the fumes coming from the factory may contain particulate matters which are hazardous to the health of the people. As such, the company should cease operating until such a time that the proper air pollution device is installed and operational. b) Exhibits "B", "B-1", "B-2", three (3) sheets of coupon bond containing signatures of residents of Barangay Guyong, Sta. Maria, Bulacan; c) Exhibit "B-3", a letter addressed to Hon. Roberto Pagdanganan Governor of the Province of Bulacan, dated November 22, 1988, complaining about the smoke coming out of the chimney of the company while in operation. Reassessing all the evidence adduced, the lower court, on June 14, 1989, issued an order (a) setting aside the order dated April 28, 1989, which granted a Writ of Preliminary Mandatory Injunction, and (b) dissolving the writ consequently issued. A motion for reconsideration dated July 6, 1989 was filed by petitioner. Said motion drew an opposition dated July 19, 1989 from private respondent.
Resolving the petitioner's motion for reconsideration, the respondent judge issued an order dated August 9, 1989, denying said motion for reconsideration. 1

Hence a petition for certiorari and prohibition with preliminary injunction was filed by petitioner in the Court of Appeals seeking to annul and set aside (a) the order issued by the trial court on June 14, 1989, setting aside the order dated April 28, 1989, and (b) the order of August 9, 1989, denying petitioner's motion for reconsideration of the order of June 14, 1989. In due course the petition was denied for lack of merit by the appellate court in a decision dated January 26, 1990. 2 A motion for reconsideration thereof filed by petitioner was denied on August 10, 1990. Thus, the herein petition for review on certiorari filed with this Court. Six errors are alleged to have been committed by the appellate court which may be synthesized into the singular issue of whether or not the appellate court committed a grave abuse of discretion in rendering its question decision and resolution. The petition is devoid of merit.

The well-known rule is that the matter of issuance of a writ of preliminary injunction is addressed to the sound judicial discretion of the trial court and its action shall not be disturbed on appeal unless it is demonstrated that it acted without jurisdiction or in excess of jurisdiction or otherwise, in grave abuse of its discretion. By the same token the court that issued such a preliminary relief may recall or dissolve the writ as the circumstances may warrant. To the mind of the Court the following circumstances militate against the maintenance of the writ of preliminary injunction sought by petitioner: 1. No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control if not prohibition of the operation of a business is essentially addressed to the then National Pollution Control Commission of the Ministry of Human Settlements, now the Environmental Management Bureau of the Department of Environment and Natural Resources, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virture of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriate measures are taken to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business. 2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also affect the health of the residents in the area," so that petitioner was ordered to stop its operation until further orders and it was required to bring the following: (1) Building permit; (2) Mayor's permit; and
(3) Region III-Department of Environment and Natural Resources Anti-Pollution permit. 3 3. This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels. 4 The alleged NBI finding that some of the signatures in the four-page petition were written by one person, 5 appears to be true in some instances, (particularly as among members of the same family), but on the whole the many signatures appear to be written by different persons. The certification of the barrio captain of said barrio that he has not received any complaint on the matter 6 must be because the complaint was sent directly to the Governor through the Acting Mayor. 4. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic Guina who in her report of December 8, 1988 observed that the fumes emitted by the plant of petitioner goes directly to the surrounding houses and that no proper air pollution device has been installed. 7 5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati on March 6,1987. 8 6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988. 9 Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community.

All these factors justify the dissolution of the writ of preliminary injunction by the trial court and the appellate court correctly upheld the action of the lower court. Petitioner takes note of the plea of petitioner focusing on its huge investment in this dollar-earning industry. It must be stressed however, that concomitant with the need to promote investment and contribute to the growth of the economy is the equally essential imperative of protecting the health, nay the very lives of the people, from the deleterious effect of the pollution of the environment. WHEREFORE, the petition is DENIED, with costs against petitioner. SO ORDERED.

G.R. Nos. 120865-71 December 7, 1995

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE HERCULANO TECH, PRESIDING JUDGE, BRANCH 70, REGIONAL TRIAL COURT OF BINANGONAN RIZAL; FLEET DEVELOPMENT, INC. and CARLITO ARROYO; THE MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE AURELIO C. TRAMPE, PRESIDING JUDGE, BRANCH 163, REGIONAL TRIAL COURT OF PASIG; MANILA MARINE LIFE BUSINESS RESOURCES, INC. represented by, MR. TOBIAS REYNALD M. TIANGCO; MUNICIPALITY OF TAGUIG, METRO MANILA and/or MAYOR RICARDO D. PAPA, JR., respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE ALEJANDRO A. MARQUEZ, PRESIDING JUDGE, BRANCH 79, REGIONAL TRIAL COURT OF MORONG, RIZAL; GREENFIELD VENTURES INDUSTRIAL DEVELOPMENT CORPORATION and R. J. ORION DEVELOPMENT CORPORATION; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA VEGA, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE MANUEL S. PADOLINA, PRESIDING JUDGE, BRANCH 162, REGIONAL TRIAL COURT OF PASIG, METRO MANILA; IRMA FISHING & TRADING CORP.; ARTM FISHING CORP.; BDR CORPORATION, MIRT CORPORATION and TRIM CORPORATION; MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING JUDGE, BRANCH 78, REGIONAL TRIAL COURT OF MORONG, RIZAL; BLUE LAGOON FISHING CORP. and ALCRIS CHICKEN GROWERS, INC.; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA VEGA, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING JUDGE, BRANCH 78, REGIONAL TRIAL COURT OF MORONG, RIZAL; AGP FISH VENTURES, INC., represented by its PRESIDENT ALFONSO PUYAT; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA VEGA, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE EUGENIO S. LABITORIA, PRESIDING JUDGE, BRANCH 161, REGIONAL TRIAL COURT OF PASIG, METRO MANILA; SEA MAR TRADING CO. INC.; EASTERN LAGOON FISHING CORP.; MINAMAR FISHING CORP.; MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS,respondents.

HERMOSISIMA, JR., J.: It is difficult for a man, scavenging on the garbage dump created by affluence and profligate consumption and extravagance of the rich or fishing in the murky waters of the Pasig River and the Laguna Lake or making a clearing in the forest so that he can produce food for his family, to understand why protecting birds, fish, and trees is more important than protecting him and keeping his family alive. How do we strike a balance between environmental protection, on the one hand, and the individual personal interests of people, on the other? Towards environmental protection and ecology, navigational safety, and sustainable development, Republic Act No. 4850 created the "Laguna Lake Development Authority." This Government Agency is supposed to carry out and effectuate the aforesaid declared policy, so as to accelerate the development and balanced growth of the Laguna Lake area and the surrounding provinces, cities and towns, in the act clearly named, within the context of the national and regional plans and policies for social and economic development. Presidential Decree No. 813 of former President Ferdinand E. Marcos amended certain sections of Republic Act No. 4850 because of the concern for the rapid expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna de Bay, combined with current and prospective uses of the lake for municipal-

industrial water supply, irrigation, fisheries, and the like. Concern on the part of the Government and the general public over: the environment impact of development on the water quality and ecology of the lake and its related river systems; the inflow of polluted water from the Pasig River, industrial, domestic and agricultural wastes from developed areas around the lake; the increasing urbanization which induced the deterioration of the lake, since water quality studies have shown that the lake will deteriorate further if steps are not taken to check the same; and the floods in Metropolitan Manila area and the lakeshore towns which will influence the hydraulic system of Laguna de Bay, since any scheme of controlling the floods will necessarily involve the lake and its river systems, likewise gave impetus to the creation of the Authority. Section 1 of Republic Act No. 4850 was amended to read as follows:
Sec. 1. Declaration of Policy. It is hereby declared to be the national policy to promote, and accelerate the development and balanced growth of the Laguna Lake area and the surrounding provinces, cities and towns hereinafter referred to as the region, within the context of the national and regional plans and policies for social and economic development and to carry out the development of the Laguna Lake region with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution. 1

Special powers of the Authority, pertinent to the issues in this case, include: Sec. 3. Section 4 of the same Act is hereby further amended by adding thereto seven new paragraphs to be known as paragraphs (j), (k), (l), (m), (n), (o), and (p) which shall read as follows: xxx xxx xxx (j) The provisions of existing laws to the contrary notwithstanding, to engage in fish production and other aqua-culture projects in Laguna de Bay and other bodies of water within its jurisdiction and in pursuance thereof to conduct studies and make experiments, whenever necessary, with the collaboration and assistance of the Bureau of Fisheries and Aquatic Resources, with the end in view of improving present techniques and practices. Provided, that until modified, altered or amended by the procedure provided in the following sub-paragraph, the present laws, rules and permits or authorizations remain in force; (k) For the purpose of effectively regulating and monitoring activities in Laguna de Bay,the Authority shall have exclusive jurisdiction to issue new permit for the use of the lake waters for any projects or activities in or affecting the said lake including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like, and to impose necessary safeguards for lake quality control and management and to collect necessary fees for said activities and projects: Provided, That the fees collected for fisheries may be shared between the Authority and other government agencies and political sub-divisions in such proportion as may be determined by the President of the Philippines upon recommendation of the Authority's Board: Provided, further, That the Authority's Board may determine new areas of fishery development or activities which it may place under the supervision of the Bureau of Fisheries and Aquatic Resources taking into account the overall development plans and programs for Laguna de Bay and related bodies of water: Provided, finally, That the Authority shall subject to the approval of the President of the Philippines promulgate such rules and regulations which shall govern fisheries development activities in Laguna de Bay which shall take into consideration among others the following: socioeconomic amelioration of bonafide resident fishermen whether individually or collectively in the form of cooperatives, lakeshore town development, a master plan for fishpen construction and operation, communal fishing ground for lake shore town residents, and preference to lake shore town residents in hiring laborer for fishery projects; (l) To require the cities and municipalities embraced within the region to pass appropriate zoning ordinances and other regulatory measures necessary to carry out the objectives of the Authority and enforce the same with the assistance of the Authority; (m) The provisions of existing laws to the contrary notwithstanding, to exercise water rights over public waters within the Laguna de Bay region whenever necessary to carry out the Authority's projects;

(n) To act in coordination with existing governmental agencies in establishing water quality standards for industrial, agricultural and municipal waste discharges into the lake and to cooperate with said existing agencies of the government of the Philippines in enforcing such standards, or to separately pursue enforcement and penalty actions as provided for in Section 4 (d) and Section 39-A of this Act: Provided, That in case of conflict on the appropriate water quality standard to be enforced such conflict shall be resolved thru the NEDA Board. 2

To more effectively perform the role of the Authority under Republic Act No. 4850, as though Presidential Decree No. 813 were not thought to be completely effective, the Chief Executive, feeling that the land and waters of the Laguna Lake Region are limited natural resources requiring judicious management to their optimal utilization to insure renewability and to preserve the ecological balance, the competing options for the use of such resources and conflicting jurisdictions over such uses having created undue constraints on the institutional capabilities of the Authority in the light of the limited powers vested in it by its charter, Executive Order No. 927 further defined and enlarged the functions and powers of the Authority and named and enumerated the towns, cities and provinces encompassed by the term "Laguna de Bay Region". Also, pertinent to the issues in this case are the following provisions of Executive Order No. 927 which include in particular the sharing of fees: Sec 2. Water Rights Over Laguna de Bay and Other Bodies of Water within the Lake Region: To effectively regulate and monitor activities in the Laguna de Bay region, the Authority shall have exclusive jurisdiction to issue permit for the use of all surface water for any projects or activities in or affecting the said region including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. For the purpose of this Executive Order, the term "Laguna de Bay Region" shall refer to the Provinces of Rizal and Laguna; the Cities of San Pablo, Pasay, Caloocan, Quezon, Manila and Tagaytay; the towns of Tanauan, Sto. Tomas and Malvar in Batangas Province; the towns of Silang and Carmona in Cavite Province; the town of Lucban in Quezon Province; and the towns of Marikina, Pasig, Taguig, Muntinlupa, and Pateros in Metro Manila. Sec 3. Collection of Fees. The Authority is hereby empowered to collect fees for the use of the lake water and its tributaries for all beneficial purposes including but not limited to fisheries, recreation, municipal, industrial, agricultural, navigation, irrigation, and waste disposal purpose; Provided, that the rates of the fees to be collected, and the sharing with other government agencies and political subdivisions, if necessary, shall be subject to the approval of the President of the Philippines upon recommendation of the Authority's Board, except fishpen fee, which will be shared in the following manner; 20 percent of the fee shall go to the lakeshore local governments, 5 percent shall go to the Project Development Fund which shall be administered by a Council and the remaining 75 percent shall constitute the share of LLDA. However, after the implementation within the three-year period of the Laguna Lake Fishery Zoning and Management Plan, the sharing will be modified as follows: 35 percent of the fishpen fee goes to the lakeshore local governments, 5 percent goes to the Project Development Fund and the remaining 60 percent shall be retained by LLDA; Provided, however, that the share of LLDA shall form part of its corporate funds and shall not be remitted to the National Treasury as an exception to the provisions of Presidential Decree No. 1234. (Emphasis supplied) It is important to note that Section 29 of Presidential Decree No. 813 defined the term "Laguna Lake" in this manner: Sec 41. Definition of Terms. (11) Laguna Lake or Lake. Whenever Laguna Lake or lake is used in this Act, the same shall refer to Laguna de Bay which is that area covered by the lake water when it is at the average annual maximum lake level of elevation 12.50 meters, as referred to a datum 10.00 meters below mean lower low water (M.L.L.W). Lands located at and below such elevation are public lands which form part of the bed of said lake. Then came Republic Act No. 7160, the Local Government Code of 1991. The municipalities in the Laguna Lake Region interpreted the provisions of this law to mean that the newly passed law gave municipal governments the exclusive jurisdiction to issue fishing privileges within their municipal waters because R.A. 7160 provides: Sec. 149. Fishery Rentals, Fees and Charges.

(a) Municipalities shall have the exclusive authority to grant fishery privileges in the municipal waters and impose rental fees or charges therefor in accordance with the provisions of this Section. (b) The Sangguniang Bayan may: (1) Grant fishing privileges to erect fish corrals, oyster, mussel or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, as determined by it; . . . . (2) Grant privilege to gather, take or catch bangus fry, prawn fry or kawagkawag or fry of other species and fish from the municipal waters by nets, traps or other fishing gears to marginal fishermen free from any rental fee, charges or any other imposition whatsoever. xxx xxx xxx Sec. 447. Power, Duties, Functions and Compensation. . . . . xxx xxx xxx (XI) Subject to the provisions of Book II of this Code, grant exclusive privileges of constructing fish corrals or fishpens, or the taking or catching of bangus fry, prawn fry orkawag-kawag or fry of any species or fish within the municipal waters. xxx xxx xxx Municipal governments thereupon assumed the authority to issue fishing privileges and fishpen permits. Big fishpen operators took advantage of the occasion to establish fishpens and fishcages to the consternation of the Authority. Unregulated fishpens and fishcages, as of July, 1995, occupied almost one-third of the entire lake water surface area, increasing the occupation drastically from 7,000 hectares in 1990 to almost 21,000 hectares in 1995. The Mayor's permit to construct fishpens and fishcages were all undertaken in violation of the policies adopted by the Authority on fishpen zoning and the Laguna Lake carrying capacity. To be sure, the implementation by the lakeshore municipalities of separate independent policies in the operation of fishpens and fishcages within their claimed territorial municipal waters in the lake and their indiscriminate grant of fishpen permits have already saturated the lake area with fishpens, thereby aggravating the current environmental problems and ecological stress of Laguna Lake. In view of the foregoing circumstances, the Authority served notice to the general public that: In compliance with the instructions of His Excellency PRESIDENT FIDEL V. RAMOS given on June 23, 1993 at Pila, Laguna pursuant to Republic Act 4850 as amended by Presidential Decree 813 and Executive Order 927 series of 1983 and in line with the policies and programs of the Presidential Task Force on Illegal Fishpens and Illegal Fishing, the general public is hereby notified that: 1. All fishpens, fishcages and other aqua-culture structures in the Laguna de Bay Region, which were not registered or to which no application for registration and/or permit has been filed with Laguna Lake Development Authority as of March 31, 1993 are hereby declared outrightly as illegal. 2. All fishpens, fishcages and other aqua-culture structures so declared as illegal shall be subject to demolition which shall be undertaken by the Presidential Task Force for Illegal Fishpen and Illegal Fishing. 3. Owners of fishpens, fishcages and other aqua-culture structures declared as illegal shall, without prejudice to demolition of their structures be criminally charged in accordance with Section 39-A of Republic Act 4850 as amended by P.D. 813 for violation of the same laws. Violations of these laws carries a penalty of imprisonment of not exceeding 3 years or a fine not exceeding Five Thousand Pesos or both at the discretion of the court. All operators of fishpens, fishcages and other aqua-culture structures declared as illegal in accordance with the foregoing Notice shall have one (1) month on or before 27 October 1993 to show cause before the LLDA why their said fishpens, fishcages and other aqua-culture structures should not be demolished/dismantled.

One month, thereafter, the Authority sent notices to the concerned owners of the illegally constructed fishpens, fishcages and other aqua-culture structures advising them to dismantle their respective structures within 10 days from receipt thereof, otherwise, demolition shall be effected. Reacting thereto, the affected fishpen owners filed injunction cases against the Authority before various regional trial courts, to wit: (a) Civil Case No. 759-B, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 70, Binangonan, Rizal, filed by Fleet Development, Inc. and Carlito Arroyo; (b) Civil Case No. 64049, for Injunction, Regional Trial Court, Branch 162, Pasig, filed by IRMA Fishing and Trading Corp., ARTM Fishing Corp., BDR Corp., MIRT Corp. and TRIM Corp.; (c) Civil Case No. 566, for Declaratory Relief and Injunction, Regional Trial Court, Branch 163, Pasig, filed by Manila Marine Life Business Resources, Inc. and Tobias Reynaldo M. Tianco; (d) Civil Case No. 556-M, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 78, Morong, Rizal, filed by AGP Fishing Ventures, Inc.; (e) Civil Case No. 522M, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 78, Morong, Rizal, filed by Blue Lagoon and Alcris Chicken Growers, Inc.; (f) Civil Case No. 554-, for Certiorari and Prohibition, Regional Trial Court, Branch 79, Morong, Rizal, filed by Greenfields Ventures Industrial Corp. and R.J. Orion Development Corp.; and (g) Civil Case No. 64124, for Injunction, Regional Trial Court, Branch 15, Pasig, filed by SEA-MAR Trading Co., Inc. and Eastern Lagoon Fishing Corp. and Minamar Fishing Corporation. The Authority filed motions to dismiss the cases against it on jurisdictional grounds. The motions to dismiss were invariably denied. Meanwhile, temporary restraining order/writs of preliminary mandatory injunction were issued in Civil Cases Nos. 64124, 759 and 566 enjoining the Authority from demolishing the fishpens and similar structures in question. Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos. 120865-71, were filed by the Authority with this court. Impleaded as parties-respondents are concerned regional trial courts and respective private parties, and the municipalities and/or respective Mayors of Binangonan, Taguig and Jalajala, who issued permits for the construction and operation of fishpens in Laguna de Bay. The Authority sought the following reliefs,viz.: (A) Nullification of the temporary restraining order/writs of preliminary injunction issued in Civil Cases Nos. 64125, 759 and 566; (B) Permanent prohibition against the regional trial courts from exercising jurisdiction over cases involving the Authority which is a co-equal body; (C) Judicial pronouncement that R.A. 7610 (Local Government Code of 1991) did not repeal, alter or modify the provisions of R.A. 4850, as amended, empowering the Authority to issue permits for fishpens, fishcages and other aqua-culture structures in Laguna de Bay and that, the Authority the government agency vested with exclusive authority to issue said permits. By this Court's resolution of May 2, 1994, the Authority's consolidated petitions were referred to the Court of Appeals. In a Decision, dated June 29, 1995, the Court of Appeals dismissed the Authority's consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among those quasi-judicial agencies of government whose decision or order are appealable only to the Court of Appeals; (B) the LLDA charter does vest LLDA with quasi-judicial functions insofar as fishpens are concerned; (C) the provisions of the LLDA charter insofar as fishing privileges in Laguna de Bay are concerned had been repealed by the Local Government Code of 1991; (D) in view of the aforesaid repeal, the power to grant permits devolved to and is now vested with their respective local government units concerned. Not satisfied with the Court of Appeals decision, the Authority has returned to this Court charging the following errors: 1. THE HONORABLE COURT OF APPEALS PROBABLY COMMITTED AN ERROR WHEN IT RULED THAT THE LAGUNA LAKE DEVELOPMENT AUTHORITY IS NOT A QUASIJUDICIAL AGENCY. 2. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT RULED THAT R.A. 4850 AS AMENDED BY P.D. 813 AND E.O. 927 SERIES OF 1983 HAS BEEN REPEALED BY REPUBLIC ACT 7160. THE SAID RULING IS CONTRARY TO ESTABLISHED PRINCIPLES AND JURISPRUDENCE OF STATUTORY CONSTRUCTION. 3. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT RULED THAT THE POWER TO ISSUE FISHPEN PERMITS IN LAGUNA DE BAY HAS BEEN DEVOLVED TO CONCERNED (LAKESHORE) LOCAL GOVERNMENT UNITS.

We take a simplistic view of the controversy. Actually, the main and only issue posed is: Which agency of the Government the Laguna Lake Development Authority or the towns and municipalities comprising the region should exercise jurisdiction over the Laguna Lake and its environs insofar as the issuance of permits for fishery privileges is concerned? Section 4 (k) of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, the provisions of Presidential Decree No. 813, and Section 2 of Executive Order No. 927, cited above, specifically provide that the Laguna Lake Development Authority shall have exclusive jurisdiction to issue permits for the use of all surface water for any projects or activities in or affecting the said region, including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. On the other hand, Republic Act No. 7160, the Local Government Code of 1991, has granted to the municipalities the exclusive authority to grant fishery privileges in municipal waters. The Sangguniang Bayan may grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry area within a definite zone of the municipal waters. We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the aforementioned laws creating the Laguna Lake Development Authority and granting the latter water rights authority over Laguna de Bay and the lake region. The Local Government Code of 1991 does not contain any express provision which categorically expressly repeal the charter of the Authority. It has to be conceded that there was no intent on the part of the legislature to repeal Republic Act No. 4850 and its amendments. The repeal of laws should be made clear and expressed. It has to be conceded that the charter of the Laguna Lake Development Authority constitutes a special law. Republic Act No. 7160, the Local Government Code of 1991, is a general law. It is basic in statutory construction that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law. It is a well-settled rule in this jurisdiction that "a special statute, provided for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law." 3 Where there is a conflict between a general law and a special statute, the special statute should prevail since it evinces the legislative intent more clearly than the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. This is because implied repeals are not favored and as much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. 4 Thus, it has to be concluded that the charter of the Authority should prevail over the Local Government Code of 1991. Considering the reasons behind the establishment of the Authority, which are environmental protection, navigational safety, and sustainable development, there is every indication that the legislative intent is for the Authority to proceed with its mission. We are on all fours with the manifestation of petitioner Laguna Lake Development Authority that "Laguna de Bay, like any other single body of water has its own unique natural ecosystem. The 900 km lake surface water, the eight (8) major river tributaries and several other smaller rivers that drain into the lake, the 2,920 km basin or watershed transcending the boundaries of Laguna and Rizal provinces, greater portion of Metro Manila, parts of Cavite, Batangas, and Quezon provinces, constitute one integrated delicate natural ecosystem that needs to be protected with uniform set of policies; if we are to be serious in our aims of attaining sustainable development. This is an exhaustible natural resource a very limited one which requires judicious management and optimal utilization to ensure renewability and preserve its ecological integrity and balance." "Managing the lake resources would mean the implementation of a national policy geared towards the protection, conservation, balanced growth and sustainable development of the region with due regard to the inter-generational use of its resources by the inhabitants in this part of the earth. The authors of Republic Act 4850 have foreseen this need when they passed this LLDA law the special law designed to govern the management of our Laguna de Bay lake resources." "Laguna de Bay therefore cannot be subjected to fragmented concepts of management policies where lakeshore local government units exercise exclusive dominion over specific portions of the lake water. The garbage thrown or sewage discharged into the lake, abstraction of water therefrom or construction of fishpens by enclosing its certain area, affect not only that specific portion but the entire 900 km of lake water. The implementation of a cohesive and integrated lake water resource management policy, therefore, is necessary to conserve, protect and sustainably develop Laguna de Bay." 5

The power of the local government units to issue fishing privileges was clearly granted for revenue purposes. This is evident from the fact that Section 149 of the New Local Government Code empowering local governments to issue fishing permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the heading, "Specific Provisions On The Taxing And Other Revenue Raising Power Of Local Government Units." On the other hand, the power of the Authority to grant permits for fishpens, fishcages and other aqua-culture structures is for the purpose of effectively regulating and monitoring activities in the Laguna de Bay region (Section 2, Executive Order No. 927) and for lake quality control and management. 6 It does partake of the nature of police power which is the most pervasive, the least limitable and the most demanding of all State powers including the power of taxation. Accordingly, the charter of the Authority which embodies a valid exercise of police power should prevail over the Local Government Code of 1991 on matters affecting Laguna de Bay. There should be no quarrel over permit fees for fishpens, fishcages and other aqua-culture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927 provides for the proper sharing of fees collected. In respect to the question as to whether the Authority is a quasi-judicial agency or not, it is our holding that, considering the provisions of Section 4 of Republic Act No. 4850 and Section 4 of Executive Order No. 927, series of 1983, and the ruling of this Court in Laguna Lake Development Authority vs. Court of Appeals, 231 SCRA 304, 306, which we quote: xxx xxx xxx As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication Board (PAB), except in cases where the special law provides for another forum. It must be recognized in this regard that the LLDA, as a specialized administrative agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws to carry out and make effective the declared national policy of promoting and accelerating the development and balanced growth of the Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution. Under such a broad grant of power and authority, the LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna Lake region from the deleterious effects of pollutants emanating from the discharge of wastes from the surrounding areas. In carrying out the aforementioned declared policy, the LLDA is mandated, among others, to pass upon and approve or disapprove all plans, programs, and projects proposed by local government offices/agencies within the region, public corporations, and private persons or enterprises where such plans, programs and/or projects are related to those of the LLDA for the development of the region. xxx xxx xxx . . . . While it is a fundamental rule that an administrative agency has only such powers as are expressly granted to it by law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily implied in the exercise of its express powers. In the exercise, therefore, of its express powers under its charter, as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region, the authority of the LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it may well be reduced to a "toothless" paper agency. there is no question that the Authority has express powers as a regulatory and quasi-judicial body in respect to pollution cases with authority to issue a "cease and desist order" and on matters affecting the construction of illegal fishpens, fishcages and other aqua-culture structures in Laguna de Bay. The Authority's pretense, however, that it is co-equal to the Regional Trial Courts such that all actions against it may only be instituted before the Court of Appeals cannot be sustained. On actions necessitating the resolution of legal questions affecting the powers of the Authority as provided for in its charter, the Regional Trial Courts have jurisdiction. In view of the foregoing, this Court holds that Section 149 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, has not repealed the provisions of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it. Removal from the Authority of the aforesaid licensing authority will render nugatory its avowed purpose of protecting and developing the Laguna Lake Region. Otherwise stated, the abrogation of this power would

render useless its reason for being and will in effect denigrate, if not abolish, the Laguna Lake Development Authority. This, the Local Government Code of 1991 had never intended to do. WHEREFORE, the petitions for prohibition, certiorari and injunction are hereby granted, insofar as they relate to the authority of the Laguna Lake Development Authority to grant fishing privileges within the Laguna Lake Region. The restraining orders and/or writs of injunction issued by Judge Arturo Marave, RTC, Branch 78, Morong, Rizal; Judge Herculano Tech, RTC, Branch 70, Binangonan, Rizal; and Judge Aurelio Trampe, RTC, Branch 163, Pasig, Metro Manila, are hereby declared null and void and ordered set aside for having been issued with grave abuse of discretion. The Municipal Mayors of the Laguna Lake Region are hereby prohibited from issuing permits to construct and operate fishpens, fishcages and other aqua-culture structures within the Laguna Lake Region, their previous issuances being declared null and void. Thus, the fishing permits issued by Mayors Isidro B. Pacis, Municipality of Binangonan; Ricardo D. Papa, Municipality of Taguig; and Walfredo M. de la Vega, Municipality of Jala-jala, specifically, are likewise declared null and void and ordered cancelled. The fishpens, fishcages and other aqua-culture structures put up by operators by virtue of permits issued by Municipal Mayors within the Laguna Lake Region, specifically, permits issued to Fleet Development, Inc. and Carlito Arroyo; Manila Marine Life Business Resources, Inc., represented by, Mr. Tobias Reynald M. Tiangco; Greenfield Ventures Industrial Development Corporation and R.J. Orion Development Corporation; IRMA Fishing And Trading Corporation, ARTM Fishing Corporation, BDR Corporation, Mirt Corporation and Trim Corporation; Blue Lagoon Fishing Corporation and ALCRIS Chicken Growers, Inc.; AGP Fish Ventures, Inc., represented by its President Alfonso Puyat; SEA MAR Trading Co., Inc., Eastern Lagoon Fishing Corporation, and MINAMAR Fishing Corporation, are hereby declared illegal structures subject to demolition by the Laguna Lake Development Authority. SO ORDERED. Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Separate Opinions

PADILLA, J., concurring: I fully concur with the decision written by Mr. Justice R. Hermosisima, Jr.. I would only like to stress what the decision already states, i.e., that the local government units in the Laguna Lake area are not precluded from imposing permits on fishery operations for revenue raising purposes of such local government units. In other words, while the exclusive jurisdiction to determine whether or not projects or activities in the lake area should be allowed, as well as their regulation, is with the Laguna Lake Development Authority, once the Authority grants a permit, the permittee may still be subjected to an additional local permit or license for revenue purposes of the local government units concerned. This approach would clearly harmonize the special law, Rep. Act No. 4850, as amended, with Rep. Act No. 7160, the Local Government Code. It will also enable small towns and municipalities in the lake area, like Jala-Jala, to rise to some level of economic viability. Separate Opinions PADILLA, J., concurring: I fully concur with the decision written by Mr. Justice R. Hermosisima, Jr.. I would only like to stress what the decision already states, i.e., that the local government units in the Laguna Lake area are not precluded from imposing permits on fishery operations for revenue raising purposes of such local government units. In other words, while the exclusive jurisdiction to determine whether or not projects or activities in the lake area should be allowed, as well as their regulation, is with the Laguna Lake Development Authority, once the Authority grants a permit, the permittee may still be subjected to an additional local permit or license for revenue purposes of the local government units concerned. This approach would clearly harmonize the special law, Rep. Act No. 4850, as amended, with Rep. Act No. 7160, the Local Government Code. It will

also enable small towns and municipalities in the lake area, like Jala-Jala, to rise to some level of economic viability. Footnotes 1 Section 1, PD No. 813. 2 At pages 64-65. 3 Manila Railroad Company vs. Rafferty, 40 Phils. 225; National Power Corporation vs. Arca, 25 SCRA 935; Province of Misamis Oriental vs. Cagayan Electric Power and Light Company, Inc., 181 SCRA 43. 4 Fajardo vs. Villafuerte, G.R. No. 89135, December 21, 1989. 5 Petition, under caption, "Nature of Petition". 6 Section 3 (k), Presidential Decree No. 813.

G.R. No. 107916 February 20, 1997 PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners, vs. COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR AND MUNICIPALITY OF BUNAWAN, respondents.

ROMERO, J.: The main issue presented in this case is whether a municipality may expropriate private property by virtue of a municipal resolution which was disapproved by the Sangguniang Panlalawigan. Petitioner seeks the reversal of the Court of Appeals decision and resolution, promulgated on July 15, 1992 and October 22, 1992 respectively, 1 and a declaration that Municipal Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void. On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No. 43-89, "Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports Facilities." 2 In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the Sangguniang Panlalawigan for its approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved said Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still available lots in Bunawan for the establishment of the government center." 3 The Municipality of Bunawan, herein public respondent, subsequently filed a petition for Eminent Domain against petitioner Percival Moday before the Regional Trial Court at Prosperidad, Agusan del Sur. 4 The complaint was later amended to include the registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party defendants. On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon the Possession of Subject Matter of This Case stating that it had already deposited with the municipal treasurer the necessary amount in accordance with Section 2, Rule 67 of the Revised Rules of Court and that it would be in the government's best interest for public respondent to be allowed to take possession of the property. Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court granted respondent municipality's motion to take possession of the land. The lower court held that the Sangguniang Panlalawigan's failure to declare the resolution invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review the ordinances and resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old Local Government Code and that the exercise of eminent domain is not one of the two acts enumerated in Section 19 thereof requiring the approval of the Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's Order dated July 2, 1991 reads:

WHEREFORE, it appearing that the amount of P632.39 had been deposited as per Official Receipt No. 5379647 on December 12, 1989 which this Court now determines as the provisional value of the land, the Motion to Take or Enter Upon the Possession of the Property filed by petitioner through counsel is hereby GRANTED. The Sheriff of this Court is ordered to forthwith place the plaintiff in possession of the property involved. Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose of ascertaining the just compensation or fair market value of the property sought to be taken, with notice to all the parties concerned.
SO ORDERED. 6

Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991. Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion on the part of the trial court, but the same was dismissed by respondent appellate court on July 15, 1992. 7 The Court of Appeals held that the public purpose for the expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed. Respondent appellate court also denied petitioners' motion for reconsideration on October 22, 1992. 8 Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of Barangay Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal Gymnasium, which is made of concrete. In the instant petition for review filed on November 23, 1992, petitioner seeks the reversal of the decision and resolution of the Court of Appeals and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null and void. On December 8, 1993, the Court issued a temporary restraining order enjoining and restraining public respondent Judge Evangeline Yuipco from enforcing her July 2, 1991 Order and respondent municipality from using and occupying all the buildings constructed and from further constructing any building on the land subject of this petition. 9 Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a Resolution on March 15, 1995, citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to demolish the "blocktiendas" which were built in violation of the restraining order. 10 Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8, 1995 election. 11 The incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of the Temporary Restraining Order" and Memorandum on June 11, 1996 for the Municipality of Bunawan. 12 Petitioners contend that the Court of Appeals erred in upholding the legality of the condemnation proceedings initiated by the municipality. According to petitioners, the expropriation was politically motivated and Resolution No. 43-89 was correctly disapproved by the Sangguniang Panlalawigan, there being other municipal properties available for the purpose. Petitioners also pray that the former Mayor Anuncio C. Bustillo be ordered to pay damages for insisting on the enforcement of a void municipal resolution. The Court of Appeals declared that the Sangguniang Panlalawigan's reason for disapproving the resolution "could be baseless, because it failed to point out which and where are those available lots.'" Respondent court also concluded that since the Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid, expropriation of petitioners' property could proceed. 13 The Court finds no merit in the petition and affirms the decision of the Court of Appeals. Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. 14 It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. 15 Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. 16 For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation. 17

The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly provided for in Batas Pambansa Blg. 337, the local Government Code 18 in force at the time expropriation proceedings were initiated. Section 9 of said law states: Sec. 9. Eminent Domain. A local government unit may, through its head and acting pursuant to a resolution of its sanggunian, exercise the right of eminent domain and institute condemnation proceedings for public use or purpose. What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang Panlalawigan disapproved Resolution No. 43-89. Section 153 of B.P. Blg. 337 provides: Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days after receiving copies of approved ordinances, resolutions and executive orders promulgated by the municipal mayor, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial fiscal, who shall examine them promptly and inform the sangguniang panlalawigan in writing of any defect or impropriety which he may discover therein and make such comments or recommendations as shall appear to him proper. (2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such ordinance, resolution or executive order invalid in whole or in part, entering its actions upon the minutes and advising the proper municipal authorities thereof. The effect of such an action shall be to annul the ordinance, resolution or executive order in question in whole or in part. The action of the sangguniang panlalawigan shall be final. xxx xxx xxx (Emphasis supplied.) The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not render said resolution null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual milieu then obtaining, the Court's pronouncements in Velazco v. Blas, 19 where we cited significant early jurisprudence, are applicable to the case at bar.
The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the council or president making the same." Absolutely no other ground is recognized by the law. A strictly legal question is before the provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative function of the municipal council or president. Such has been the consistent course of executive authority. 20

Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 4389 for the Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property. As regards the accusation of political oppression, it is alleged that Percival Moday incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch plan. 21 The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process of law must be observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking, 23 has ruled that the necessity of exercising eminent domain must be genuine and of a public character. 24 Government may not capriciously choose what private property should be taken. After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations. The uncertified photocopy of the sketch plan does not conclusively prove that the municipality

does own vacant land adjacent to petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent appellate court similarly held that the pleadings and documents on record have not pointed out any of respondent municipality's "other available properties available for the same purpose." 25 The accusations of political reprisal are likewise unsupported by competent evidence. Consequently, the Court holds that petitioners' demand that the former municipal mayor be personally liable for damages is without basis. WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and Resolution of the Court of Appeals in the case of "Percival Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are AFFIRMED. The Temporary Restraining Order issued by the Court on December 8, 1993 is LIFTED. SO ORDERED. Regalado, Puno, Mendoza and Torres, Jr., JJ., concur. Footnotes 1 "Percival Moday V. Municipality of Bunawan, et.al." CA G.R. SP No. 26712, penned by Justice Artemon D. Luna, with Justices Jose A.R. Melo (now a member of this Court) and Segundino G. Chua, concurring. Rollo, p. 21, 36. 2 The lot is part of 5.6610 hectares covered by Transfer Certificate of Title No. T-3132 in the name of Zotico Moday, married to Leonora Moday. The assessed value of the entire lot in 1989 was P3,580.00 while the assessed value of one hectare is about P632.39. 3 Excerpts From the Minutes of the Regular Session of the Sangguniang Panlalawigan of Agusan del Sur Held at the Session Hall, Training Center, Prosperidad, on September 11, 1989. Rollo, p. 85. 4 "Municipality of Bunawan, Agusan del Sur v. Percival Moday, et al.," Special Civil Case No. 719, Judge Evangeline S. Yuipco, presiding. 5 "Sec. 19. Certain Acts of the Sangguniang Bayan Requiring Approval of the Sangguniang Panlalawigan. The following acts of the sangguniang bayan shall be subject to the approval of the sangguniang panlalawigan: (1) Permanent closure of a public road, street, alley, park or square; and (2) Donation of municipal funds or property."

[G.R. No. 152230. August 9, 2005]

JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION, INC., petitioner, vs. MUNICIPALITY (now CITY) OF PASIG, METRO MANILA, respondent. DECISION
CALLEJO, SR., J.:

Before us is a petition for review of the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 59050, and its Resolution dated February 18, 2002, denying the motion for reconsideration thereof. The assailed decision affirmed the order of the Regional Trial Court (RTC) of Pasig, Branch 160, declaring the respondent Municipality (now City) of Pasig as having the right to expropriate and take possession of the subject property.
[1]

The Antecedents

The Municipality of Pasig needed an access road from E. R. Santos Street, a municipal road near the Pasig Public Market, to Barangay Sto. Tomas Bukid, Pasig, where 60 to 70 houses, mostly made of light materials, were located. The road had to be at least three meters in width, as required by the Fire Code, so that fire trucks could pass through in case of conflagration. Likewise, the residents in the area needed the road for water and electrical outlets. The municipality then decided to acquire 51 square meters out of the 1,791-square meter property of Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto Ching Cuanco Kho covered by Transfer Certificate of Title (TCT) No. PT-66585, which is abutting E. R. Santos Street.
[2] [3] [4]

On April 19, 1993, the Sangguniang Bayan of Pasig approved an Ordinance authorizing the municipal mayor to initiate expropriation proceedings to acquire the said property and appropriate the fund therefor. The ordinance stated that the property owners were notified of the municipalitys intent to purchase the property for public use as an access road but they rejected the offer.
[5]

On July 21, 1993, the municipality filed a complaint, amended on August 6, 1993, against the Ching Cuancos for the expropriation of the property under Section 19 of Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code. The plaintiff alleged therein that it notified the defendants, by letter, of its intention to construct an access road on a portion of the property but they refused to sell the same portion. The plaintiff appended to the complaint a photocopy of the letter addressed to defendant Lorenzo Ching Cuanco.
[6]

The plaintiff deposited with the RTC 15% of the market value of the property based on the latest tax declaration covering the property. On plaintiffs motion, the RTC issued a writ of possession over the property sought to be expropriated. On November 26, 1993, the plaintiff caused the annotation of a notice of lis pendens at the dorsal portion of TCT No. PT-92579 under the name of the Jesus Is Lord Christian School Foundation, Incorporated (JILCSFI) which had purchased the property. Thereafter, the plaintiff constructed therein a cemented road with a width of three meters; the road was called Damayan Street.
[7]

In their answer, the defendants claimed that, as early as February 1993, they had sold the said property to JILCSFI as evidenced by a deed of sale bearing the signature of defendant Ernesto Ching Cuanco Kho and his wife.
[8] [9]

When apprised about the complaint, JILCSFI filed a motion for leave to intervene as defendant-in-intervention, which motion the RTC granted on August 26, 1994.
[10]

In its answer-in-intervention, JILCSFI averred, by way of special and affirmative defenses, that the plaintiffs exercise of eminent domain was only for a particular class and not for the benefit of the poor and the landless. It alleged that the property sought to be expropriated is not the best portion for the road and the least burdensome to it. The intervenor filed a crossclaim against its co-defendants for reimbursement in case the subject property is expropriated. In its amended answer, JILCSFI also averred that it has been denied the use and enjoyment of its property because the road was constructed in the middle portion and that the plaintiff was not the real party-in-interest. The intervenor, likewise, interposed counterclaims against the plaintiff for moral damages and attorneys fees.
[11] [12]

During trial, Rolando Togonon, the plaintiffs messenger, testified on direct examination that on February 23, 1993, he served a letter of Engr. Jose Reyes, the Technical Assistant to the Mayor on Infrastructure, to Lorenzo Ching Cuanco at his store at No. 18 Alkalde Jose Street, Kapasigan, Pasig. A lady received the same and brought it inside the store. When she returned the letter to him, it already bore the signature of Luz Bernarte. He identified a photocopy of the letter as similar to

the one he served at the store. On cross-examination, he admitted that he never met Luz Bernarte.
[13]

Edgardo del Rosario, a resident of Sto. Tomas Bukid since 1982 declared that he would pass through a wooden bridge to go to E. R. Santos Street. At times, the bridge would be slippery and many had met accidents while walking along the bridge. Because of this, they requested Mayor Vicente Eusebio to construct a road therein. He attested that after the construction of the cemented access road, the residents had water and electricity.
[14]

Augusto Paz of the City Engineers Office testified that, sometime in 1992, the plaintiff constructed a road perpendicular from E. R. Santos Street to Sto. Tomas Bukid; he was the Project Engineer for the said undertaking. Before the construction of the road, the lot was raw and they had to put filling materials so that vehicles could use it. According to him, the length of the road which they constructed was 70 meters long and 3 meters wide so that a fire truck could pass through. He averred that there is no other road through which a fire truck could pass to go to Sto. Tomas Bukid.
[15]

Manuel Tembrevilla, the Fire Marshall, averred that he had seen the new road, that is, Damayan Street, and found that a fire truck could pass through it. He estimated the houses in the area to be around 300 to 400. Tembrevilla also stated that Damayan Street is the only road in the area.
[16]

Finally, Bonifacio Maceda, Jr., Tax Mapper IV, testified that, according to their records, JILCSFI became the owner of the property only on January 13, 1994.
[17]

The plaintiff offered in evidence a photocopy of the letter of Engr. Jose Reyes addressed to Lorenzo Ching Cuanco to prove that the plaintiff made a definite and valid offer to acquire the property to the co-owners. However, the RTC rejected the same letter for being a mere photocopy.
[18]

For the defendant-intervenor, Normita del Rosario, owner of the property located across the subject property, testified that there are other roads leading to E. R. Santos Street. She asserted that only about ten houses of the urban poor are using the new road because the other residents are using an alternative right-of-way. She averred that she did not actually occupy her property; but there were times that she visited it.
[19]

Danilo Caballero averred that he had been a resident of Sto. Tomas Bukid for seven years. From his house, he could use three streets to go to E. R. Santos Street, namely, Catalina Street, Damayan Street and Bagong Taon Street. On cross-examination, he admitted that no vehicle could enter Sto. Tomas Bukid except through the newly constructed Damayan Street.
[20]

Eduardo Villanueva, Chairman of the Board of Trustees and President of JILCSFI, testified that the parcel of land was purchased for purposes of constructing a school building and a church as worship center. He averred that the realization of these projects was delayed due to the passing of the ordinance for expropriation.
[21]

The intervenor adduced documentary evidence that on February 27, 1993, Lorenzo Ching Cuanco and the co-owners agreed to sell their property covered by TCT No. PT-66585 forP1,719,000.00. It paid a down payment of P1,000,000.00 for the property. After payment of the total purchase price, the Ching Cuancos executed a Deed of Absolute Sale over the property on December 13, 1993. On December 21, 1993, TCT No. PT-92579 was issued in the name of JILCSFI. It declared the property for taxation purposes under its name.
[22] [23] [24] [25]

On September 3, 1997, the RTC issued an Order in favor of the plaintiff, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing and in accordance with Section 4, Rule 67 of the Revised Rules of Court, the Court Resolves to DECLARE the plaintiff as having a lawful right to take the property in question for purposes for which the same is expropriated. The plaintiff and intervenor are hereby directed to submit at least two (2) names of their recommended commissioners for the determination of just compensation within ten (10) days from receipt hereof. SO ORDERED.
[26]

The RTC held that, as gleaned from the declaration in Ordinance No. 21, there was substantial compliance with the definite and valid offer requirement of Section 19 of R.A. No. 7160, and that the expropriated portion is the most convenient access to the interior of Sto. Tomas Bukid. Dissatisfied, JILCSFI elevated the case to the CA on the following assignment of errors: First Assignment of Error THE LOWER COURT SERIOUS[LY] ERRED WHEN IT RULED THAT PLAINTIFFAPPELLEE SUBSTANTIALLY COMPLIED WITH THE LAW WHEN IT EXPROPRIATED JILS PROPERTY TO BE USED AS A RIGHT OF WAY. Second Assignment of Error THE LOWER COURT ERRED IN DISREGARDING JILS EVIDENCE PROVING THAT THERE WAS NO PUBLIC NECESSITY TO WARRANT THE EXPROPRIATION OF THE SUBJECT PROPERTY.
[27]

The Court of Appeals Decision In a Decision dated March 13, 2001, the CA affirmed the order of the RTC. The CA agreed with the trial court that the plaintiff substantially complied with Section 19 of R.A. No. 7160, particularly the requirement that a valid and definite offer must be made to the owner. The CA declared that the letter of Engr. Reyes, inviting Lorenzo Ching Cuanco to a conference to discuss with him the road project and the price of the lot, was a substantial compliance with the valid and definite offer requirement under said Section 19. In addition, the CA noted that there was also constructive notice to the defendants of the expropriation proceedings since a notice of lis pendens was annotated at the dorsal portion of TCT No. PT-92579 on November 26, 1993.
[28] [29]

Finally, the CA upheld the public necessity for the subject property based on the findings of the trial court that the portion of the property sought to be expropriated appears to be, not only the most convenient access to the interior of Sto. Tomas Bukid, but also an easy path for vehicles entering the area, particularly fire trucks. Moreover, the CA took into consideration the provision of Article 33 of the Rules and Regulations Implementing the Local Government Code, which regards the construction or extension of roads, streets, sidewalks as public use, purpose or welfare.
[30]

On April 6, 2001, JILCSFI filed a motion for reconsideration of the said decision alleging that the CA erred in relying on the photocopy of Engr. Reyes letter to Lorenzo Ching Cuanco because the same was not admitted in evidence by the trial court for being a mere photocopy. It also contended that the CA erred in concluding

that constructive notice of the expropriation proceeding, in the form of annotation of the notice of lis pendens, could be considered as a substantial compliance with the requirement under Section 19 of the Local Government Code for a valid and definite offer. JILCSFI also averred that no inspection was ever ordered by the trial court to be conducted on the property, and, if there was one, it had the right to be present thereat since an inspection is considered to be part of the trial of the case.
[31]

The CA denied the motion for reconsideration for lack of merit. It held that it was not precluded from considering the photocopy of the letter, notwithstanding that the same was excluded by the trial court, since the fact of its existence was duly established by corroborative evidence. This corroborative evidence consisted of the testimony of the plaintiffs messenger that he personally served the letter to Lorenzo Ching Cuanco, and Municipal Ordinance No. 21 which expressly stated that the property owners were already notified of the expropriation proceeding. The CA noted that JILCSFI failed to adduce controverting evidence, thus the presumption of regularity was not overcome.
[32] [33]

The Present Petition In this petition, petitioner JILCSFI raises the following issues: (1) whether the respondent complied with the requirement, under Section 19 of the Local Government Code, of a valid and definite offer to acquire the property prior to the filing of the complaint; (2) whether its property which is already intended to be used for public purposes may still be expropriated by the respondent; and (3) whether the requisites for an easement for right-of-way under Articles 649 to 657 of the New Civil Code may be dispensed with. The petitioner stresses that the law explicitly requires that a valid and definite offer be made to the owner of the property and that such offer was not accepted. It argues that, in this case, there was no evidence to show that such offer has been made either to the previous owner or the petitioner, the present owner. The petitioner contends that the photocopy of the letter of Engr. Reyes, notifying Lorenzo Ching Cuanco of the respondents intention to construct a road on its property, cannot be considered because the trial court did not admit it in evidence. And assuming that such letter is admissible in evidence, it would not prove that the offer has been made to the previous owner because mere notice of intent to purchase is not equivalent to an offer to purchase. The petitioner further argues that the offer should be made to the proper party, that is, to the owner of the property. It noted that the records in this case show that as of February 1993, it was already the owner of the property. Assuming, therefore, that there was an offer to purchase the property, the same should have been addressed to the petitioner, as present owner.
[34]

The petitioner maintains that the power of eminent domain must be strictly construed since its exercise is necessarily in derogation of the right to property ownership. All the requirements of the enabling law must, therefore, be strictly complied with. Compliance with such requirements cannot be presumed but must be proved by the local government exercising the power. The petitioner adds that the local government should, likewise, comply with the requirements for an easement of right-of-way; hence, the road must be established at a point least prejudicial to the owner of the property. Finally, the petitioner argues that, if the property is already devoted to or intended to be devoted to another public use, its expropriation should not be allowed.
[35]

For its part, the respondent avers that the CA already squarely resolved the issues raised in this petition, and the petitioner failed to show valid and compelling

reason to reverse the CAs findings. Moreover, it is not the function of the Supreme Court to weigh the evidence on factual issues all over again. The respondent contends that the Ching Cuancos were deemed to have admitted that an offer to purchase has been made and that they refused to accept such offer considering their failure to specifically deny such allegation in the complaint. In light of such admission, the exclusion of the photocopy of the letter of Engr. Reyes, therefore, is no longer significant.
[36] [37]

The Ruling of the Court The petition is meritorious. At the outset, it must be stressed that only questions of law may be raised by the parties and passed upon by the Supreme Court in petitions for review on certiorari. Findings of fact of the CA, affirming those of the trial court, are final and conclusive and may not be reviewed on appeal.
[38] [39]

Nonetheless, where it is shown that the conclusion is a finding grounded on speculations, surmises or conjectures or where the judgment is based on misapprehension of facts, the Supreme Court may reexamine the evidence on record.
[40]

Eminent Domain: Nature and Scope The right of eminent domain is usually understood to be an ultimate right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose. The nature and scope of such power has been comprehensively described as follows: It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare. Thus, the right of eminent domain appertains to every independent government without the necessity for constitutional recognition. The provisions found in modern constitutions of civilized countries relating to the taking of property for the public use do not by implication grant the power to the government, but limit the power which would, otherwise, be without limit. Thus, our own Constitution provides that [p]rivate property shall not be taken for public use without just compensation. Furthermore, the due process and equal protection clauses act as additional safeguards against the arbitrary exercise of this governmental power.
[41]

Strict Construction and Burden of Proof The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is necessarily in derogation of private rights. It is one of the harshest proceedings known to the law. Consequently, when the sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting the power. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. When the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained.
[42] [43] [44] [45]

Corollarily, the respondent, which is the condemnor, has the burden of proving all the essentials necessary to show the right of condemnation. It has the burden of
[46]

proof to establish that it has complied with all the requirements provided by law for the valid exercise of the power of eminent domain. The grant of the power of eminent domain to local government units is grounded on Section 19 of R.A. No. 7160 which reads: SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws; Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That the amount to be paid for the expropriated property shall be determined by the proper court based on the fair market value at the time of the taking of the property. The Court declared that the following requisites for the valid exercise of the power of eminent domain by a local government unit must be complied with: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.
[47]

Valid and Definite Offer Article 35 of the Rules and Regulations Implementing the Local Government Code provides: ARTICLE 35. Offer to Buy and Contract of Sale. (a) The offer to buy private property for public use or purpose shall be in writing. It shall specify the property sought to be acquired, the reasons for its acquisition, and the price offered. (b) If the owner or owners accept the offer in its entirety, a contract of sale shall be executed and payment forthwith made. (c) If the owner or owners are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The chairman of the appropriation or finance committee of the sanggunian, or in his absence, any member of the sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed. (d) The contract of sale shall be supported by the following documents:

(1) Resolution of the sanggunian authorizing the local chief executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract; (2) Ordinance appropriating the amount specified in the contract; and

(3) Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disbursed or spent for any purpose other than to pay for the purchase of the property involved. The respondent was burdened to prove the mandatory requirement of a valid and definite offer to the owner of the property before filing its complaint and the rejection thereof by the latter. It is incumbent upon the condemnor to exhaust all reasonable efforts to obtain the land it desires by agreement. Failure to prove compliance with the mandatory requirement will result in the dismissal of the complaint.
[48] [49] [50]

An offer is a unilateral proposition which one party makes to the other for the celebration of a contract. It creates a power of acceptance permitting the offeree, by accepting the offer, to transform the offerors promise into a contractual obligation. Corollarily, the offer must be complete, indicating with sufficient clearness the kind of contract intended and definitely stating the essential conditions of the proposed contract. An offer would require, among other things, a clear certainty on both the object and the cause or consideration of the envisioned contract.
[51] [52] [53] [54]

The purpose of the requirement of a valid and definite offer to be first made to the owner is to encourage settlements and voluntary acquisition of property needed for public purposes in order to avoid the expense and delay of a court action. The law is designed to give to the owner the opportunity to sell his land without the expense and inconvenience of a protracted and expensive litigation. This is a substantial right which should be protected in every instance. It encourages acquisition without litigation and spares not only the landowner but also the condemnor, the expenses and delays of litigation. It permits the landowner to receive full compensation, and the entity acquiring the property, immediate use and enjoyment of the property. A reasonable offer in good faith, not merely perfunctory or pro forma offer, to acquire the property for a reasonable price must be made to the owner or his privy. A single bona fide offer that is rejected by the owner will suffice.
[55] [56] [57]

The expropriating authority is burdened to make known its definite and valid offer to all the owners of the property. However, it has a right to rely on what appears in the certificate of title covering the land to be expropriated. Hence, it is required to make its offer only to the registered owners of the property. After all, it is well-settled that persons dealing with property covered by a Torrens certificate of title are not required to go beyond what appears on its face.
[58]

In the present case, the respondent failed to prove that before it filed its complaint, it made a written definite and valid offer to acquire the property for public use as an access road. The only evidence adduced by the respondent to prove its compliance with Section 19 of the Local Government Code is the photocopy of the letter purportedly bearing the signature of Engr. Jose Reyes, to only one of the coowners, Lorenzo Ching Cuanco. The letter reads: MR. LORENZO CHING CUANCO 18 Alcalde Jose Street Capasigan, Pasig

Metro Manila Dear Mr. Cuanco: This refers to your parcel of land located along E. Santos Street, Barangay Palatiw, Pasig, Metro Manila embraced in and covered by TCT No. 66585, a portion of which with an area of fifty-one (51) square meters is needed by the Municipal Government of Pasig for conversion into a road-right of way for the benefit of several residents living in the vicinity of your property. Attached herewith is the sketch plan for your information. In this connection, may we respectfully request your presence in our office to discuss this project and the price that may be mutually agreed upon by you and the Municipality of Pasig. Thank you. Very truly yours, (Sgd.) ENGR. JOSE L. REYES Technical Asst. to the Mayor on Infrastructure
[59]

It bears stressing, however, that the respondent offered the letter only to prove its desire or intent to acquire the property for a right-of-way. The document was not offered to prove that the respondent made a definite and valid offer to acquire the property. Moreover, the RTC rejected the document because the respondent failed to adduce in evidence the original copy thereof. The respondent, likewise, failed to adduce evidence that copies of the letter were sent to and received by all the coowners of the property, namely, Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto Kho.
[60] [61]

The respondent sought to prove, through the testimony of its messenger, Rolando Togonon, that Lorenzo Ching Cuanco received the original of the said letter. But Togonon testified that he merely gave the letter to a lady, whom he failed to identify. He stated that the lady went inside the store of Lorenzo Ching Cuanco, and later gave the letter back to him bearing the signature purportedly of one Luz Bernarte. However, Togonon admitted, on cross-examination, that he did not see Bernarte affixing her signature on the letter. Togonon also declared that he did not know and had never met Lorenzo Ching Cuanco and Bernarte:
Q A Q And after you received this letter from that lady, what did you do afterwards? I brought it with me, that letter, and then I went to Caruncho. So, [M]r. Witness, you are telling this Honorable Court that this letter intended to Mr. Lorenzo was served at Pasig Trading which was situated at No. 18 Alkalde Jose Street on February 23, 1993? Yes, Maam.

ATTY. TAN: That is all for the witness, Your Honor. COURT: Do you have any cross-examination? ATTY. JOLO: Just a few cross, Your Honor, please. With the kind permission of the Honorable Court. COURT:

Proceed. CROSS-EXAMINATION BY ATTY. JOLO: Q A Q A Q A Q A Q A Mr. Witness, do you know Mr. Lorenzo Ching [Cuanco] I do not know him. As a matter of fact, you have not seen him even once, isnt not (sic)? Yes, Sir. This Luz Bernarte, do you know her? I do not know her. As a matter of fact, you did not see Mrs. Bernarte even once? That is correct. And as a matter of fact, [M]r. Witness, you did not see Mrs. Luz Bernarte affixing her signature on the bottom portion of this demand letter, marked as Exh. C-2? Yes, Sir.[62]

Even if the letter was, indeed, received by the co-owners, the letter is not a valid and definite offer to purchase a specific portion of the property for a price certain. It is merely an invitation for only one of the co-owners, Lorenzo Ching Cuanco, to a conference to discuss the project and the price that may be mutually acceptable to both parties. There is no legal and factual basis to the CAs ruling that the annotation of a notice of lis pendens at the dorsal portion of petitioners TCT No. PT-92579 is a substantial compliance with the requisite offer. A notice of lis pendens is a notice to the whole world of the pendency of an action involving the title to or possession of real property and a warning that those who acquire an interest in the property do so at their own risk and that they gamble on the result of the litigation over it. Moreover, the lis pendens was annotated at the dorsal portion of the title only on November 26, 1993, long after the complaint had been filed in the RTC against the Ching Cuancos.
[63]

Neither is the declaration in one of the whereas clauses of the ordinance that the property owners were already notified by the municipality of the intent to purchase the same for public use as a municipal road, a substantial compliance with the requirement of a valid and definite offer under Section 19 of R.A. No. 7160. Presumably, the Sangguniang Bayan relied on the erroneous premise that the letter of Engr. Reyes reached the co-owners of the property. In the absence of competent evidence that, indeed, the respondent made a definite and valid offer to all the coowners of the property, aside from the letter of Engr. Reyes, the declaration in the ordinance is not a compliance with Section 19 of R.A. No. 7160. The respondent contends, however, that the Ching Cuancos, impliedly admitted the allegation in its complaint that an offer to purchase the property was made to them and that they refused to accept the offer by their failure to specifically deny such allegation in their answer. This contention is wrong. As gleaned from their answer to the complaint, the Ching Cuancos specifically denied such allegation for want of sufficient knowledge to form a belief as to its correctness. Under Section 10, Rule 8 of the Rules of Court, such form of denial, although not specific, is sufficient.
[64]

Public Necessity

We reject the contention of the petitioner that its property can no longer be expropriated by the respondent because it is intended for the construction of a place for religious worship and a school for its members. As aptly explained by this Court in Manosca v. Court of Appeals, thus:
[65]

It has been explained as early as Sea v. Manila Railroad Co., that: A historical research discloses the meaning of the term public use to be one of constant growth. As society advances, its demands upon the individual increases and each demand is a new use to which the resources of the individual may be devoted. for whatever is beneficially employed for the community is a public use. Chief Justice Enrique M. Fernando states: The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not so any more. As long as the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the constitution in at least two cases, to remove any doubt, determines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is the transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirements of public use. Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure Administration, has viewed the Constitution a dynamic instrument and one that is not to be construed narrowly or pedantically so as to enable it to meet adequately whatever problems the future has in store. Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly observed that what, in fact, has ultimately emerged is a concept of public use which is just as broad as public welfare. Petitioners ask: But (w)hat is the so-called unusual interest that the expropriation of (Felix Manalos) birthplace become so vital as to be a public use appropriate for the exercise of the power of eminent domain when only members of the Iglesia ni Cristo would benefit? This attempt to give some religious perspective to the case deserves little consideration, for what should be significant is the principal objective of, not the casual consequences that might follow from, the exercise of the power. The purpose in setting up the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. Indeed, that only a few would actually benefit from the expropriation of property, does not necessarily diminish the essence and character of public use. The petitioner asserts that the respondent must comply with the requirements for the establishment of an easement of right-of-way, more specifically, the road must be constructed at the point least prejudicial to the servient state, and that there must be no adequate outlet to a public highway. The petitioner asserts that the portion of the lot sought to be expropriated is located at the middle portion of the petitioners entire parcel of land, thereby splitting the lot into two halves, and making it impossible for the petitioner to put up its school building and worship center. The subject property is expropriated for the purpose of constructing a road. The respondent is not mandated to comply with the essential requisites for an easement

of right-of-way under the New Civil Code. Case law has it that in the absence of legislative restriction, the grantee of the power of eminent domain may determine the location and route of the land to be taken unless such determination is capricious and wantonly injurious. Expropriation is justified so long as it is for the public good and there is genuine necessity of public character. Government may not capriciously choose what private property should be taken.
[66] [67] [68] [69]

The respondent has demonstrated the necessity for constructing a road from E. R. Santos Street to Sto. Tomas Bukid. The witnesses, who were residents of Sto. Tomas Bukid, testified that although there were other ways through which one can enter the vicinity, no vehicle, however, especially fire trucks, could enter the area except through the newly constructed Damayan Street. This is more than sufficient to establish that there is a genuine necessity for the construction of a road in the area. After all, absolute necessity is not required, only reasonable and practical necessity will suffice.
[70]

Nonetheless, the respondent failed to show the necessity for constructing the road particularly in the petitioners property and not elsewhere. We note that the whereas clause of the ordinance states that the 51-square meter lot is the shortest and most suitable access road to connect Sto. Tomas Bukid to E. R. Santos Street. The respondents complaint also alleged that the said portion of the petitioners lot has been surveyed as the best possible ingress and egress. However, the respondent failed to adduce a preponderance of evidence to prove its claims.
[71]

On this point, the trial court made the following findings: The contention of the defendants that there is an existing alley that can serve the purpose of the expropriator is not accurate. An inspection of the vicinity reveals that the alley being referred to by the defendants actually passes thru Bagong Taon St. but only about one-half (1/2) of its entire length is passable by vehicle and the other half is merely a foot-path. It would be more inconvenient to widen the alley considering that its sides are occupied by permanent structures and its length from the municipal road to the area sought to be served by the expropriation is considerably longer than the proposed access road. The area to be served by the access road is composed of compact wooden houses and literally a slum area. As a result of the expropriation of the 51-square meter portion of the property of the intervenor, a 3-meter wide road open to the public is created. This portion of the property of the intervenor is the most convenient access to the interior of Sto. Tomas Bukid since it is not only a short cut to the interior of the Sto. Tomas Bukid but also an easy path for vehicles entering the area, not to mention the 3-meter wide road requirement of the Fire Code.
[72]

However, as correctly pointed out by the petitioner, there is no showing in the record that an ocular inspection was conducted during the trial. If, at all, the trial court conducted an ocular inspection of the subject property during the trial, the petitioner was not notified thereof. The petitioner was, therefore, deprived of its right to due process. It bears stressing that an ocular inspection is part of the trial as evidence is thereby received and the parties are entitled to be present at any stage of the trial. Consequently, where, as in this case, the petitioner was not notified of any ocular inspection of the property, any factual finding of the court based on the said inspection has no probative weight. The findings of the trial court based on the conduct of the ocular inspection must, therefore, be rejected.
[73]

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and Resolution of the Court of Appeals are REVERSED AND SET ASIDE. The RTC is ordered to dismiss the complaint of the respondent without prejudice to the refiling thereof. SO ORDERED.

LOURDES MASIKIP,

DE

LA

PAZ

G.R. No. 136349

Petitioner, Present: PUNO, J., Chairman, SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ.

- versus -

THE CITY OF PASIG, HON. MARIETTA A. LEGASPI, in her capacity as Presiding Judge of the Regional Trial Court of Pasig City, Branch 165 and THE COURT OF APPEALS, Respondents.

Promulgated:

January 23, 2006

x-----------------------------------------------------------------------------------------x

DECISION

SANDOVAL GUTIERREZ, J.:

Where the taking by the State of private property is done for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid. In this case, the Court defines what constitutes a genuine necessity for public use. This petition for review on certiorari assails the Decision[1] of the Court of Appeals dated October 31, 1997 in CA-G.R. SP No. 41860 affirming the Order[2] of the Regional Trial Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A. No. 873. Likewise assailed is the Resolution[3] of the same court dated November 20, 1998 denying petitioners Motion for Reconsideration. The facts of the case are: Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an area of 4,521 square meters located at Pag-Asa, Caniogan, Pasig City, Metro Manila. In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig, respondent, notified petitioner of its intention to expropriate a 1,500 square meter portion of her property to be used for the sports development and recreational activities of the residents of Barangay Caniogan. This was pursuant to Ordinance No. 42, Series of 1993 enacted by the then Sangguniang Bayan of Pasig.

Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the purpose was allegedly in line with the program of the Municipal Government to provide land opportunities to deserving poor sectors of our community. On May 2, 1994, petitioner sent a reply to respondent stating that the intended expropriation of her property is unconstitutional, invalid, and oppressive, as the area of her lot is neither sufficient nor suitable to provide land opportunities to deserving poor sectors of our community. In its letter of December 20, 1994, respondent reiterated that the purpose of the expropriation of petitioners property is to provide sports and recreational facilities to its poor residents. Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for expropriation, docketed as SCA No. 873. Respondent prayed that the trial court, after due notice and hearing, issue an order for the condemnation of the property; that commissioners be appointed for the purpose of determining the just compensation; and that judgment be rendered based on the report of the commissioners. On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following grounds: I PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN, CONSIDERING THAT: (A) THERE IS NO GENUINE NECESSITY FOR THE TAKING OF THE PROPERTY SOUGHT TO BE EXPROPRIATED. (B) PLAINTIFF HAS ARBITRARILY AND CAPRICIOUSLY CHOSEN THE PROPERTY SOUGHT TO BE EXPROPRIATED. (C) EVEN ASSUMING ARGUENDO THAT DEFENDANTS PROPERTY MAY BE EXPROPRIATED BY PLAINTIFF, THE FAIR MARKET VALUE OF THE PROPERTY TO BE EXPROPRIATED FAR EXCEEDS SEVENTY-EIGHT THOUSAND PESOS (P78,000.00)

II PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM AND SUBSTANCE, CONSIDERING THAT: (A) PLAINTIFF FAILS TO ALLEGE WITH CERTAINTY THE PURPOSE OF THE EXPROPRIATION.

(B) PLAINTIFF HAS FAILED TO COMPLY WITH THE PREREQUISITES LAID DOWN IN SECTION 34, RULE VI OF THE RULES AND REGULATIONS IMPLEMENTING THE LOCAL GOVERNMENT CODE; THUS, THE INSTANT EXPROPRIATION PROCEEDING IS PREMATURE. III THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE SECTION 261 (V) OF THE OMNIBUS ELECTION CODE. IV PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT PROPERTY BY MERELY DEPOSITING AN AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF THE VALUE OF THE PROPERTY BASED ON THE CURRENT TAX DECLARATION OF THE SUBJECT PROPERTY.[4]

On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss,[5] on the ground that there is a genuine necessity to expropriate the property for the sports and recreational activities of the residents of Pasig . As to the issue of just compensation, the trial court held that the same is to be determined in accordance with the Revised Rules of Court. Petitioner filed a motion for reconsideration but it was denied by the trial court in its Order of July 31, 1996. Forthwith, it appointed the City Assessor and City Treasurer of Pasig City as commissioners to ascertain the just compensation. This prompted petitioner to file with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 41860. On October 31, 1997, the Appellate Court dismissed the petition for lack of merit. Petitioners Motion for Reconsideration was denied in a Resolution dated November 20, 1998. Hence, this petition anchored on the following grounds: THE QUESTIONED DECISION DATED 31 OCTOBER 1997 (ATTACHMENT A) AND RESOLUTION DATED 20 NOVEMBER 1998 (ATTACHMENT B) ARE CONTRARY TO LAW, THE RULES OF COURT AND JURISPRUDENCE CONSIDERING THAT: I A. THERE IS NO EVIDENCE TO PROVE THAT THERE IS GENUINE NECESSITY FOR THE TAKING OF THE PETITIONERS PROPERTY. B. THERE IS NO EVIDENCE TO PROVE THAT THE PUBLIC USE REQUIREMENT FOR THE

EXERCISE OF THE POWER OF EMINENT DOMAIN HAS BEEN COMPLIED WITH. C. THERE IS NO EVIDENCE TO PROVE THAT RESPONDENT CITY OF PASIG HAS COMPLIED WITH ALL CONDITIONS PRECEDENT FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN. THE COURT A QUOS ORDER DATED 07 MAY 1996 AND 31 JULY 1996, WHICH WERE AFFIRMED BY THE COURT OF APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF PETITIONERS PROPERTY WITHOUT DUE PROCESS OF LAW:

II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING OF RULE ON ACTIONABLE DOCUMENTS TO THE DOCUMENTS ATTACHED TO RESPONDENT CITY OF PASIGS COMPLAINT DATED 07 APRIL 1995 TO JUSTIFY THE COURT A QUOS DENIAL OF PETITIONERS RESPONSIVE PLEADING TO THE COMPLAINT FOR EXPROPRIATION (THE MOTION TO DISMISS DATED 21 APRIL 1995). III THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE RULE ON HYPOTHETICAL ADMISSION OF FACTS ALLEGED IN A COMPLAINT CONSIDERING THAT THE MOTION TO DISMISS FILED BY PETITIONER IN THE EXPROPRIATION CASE BELOW WAS THE RESPONSIVE PLEADING REQUIRED TO BE FILED UNDER THE THEN RULE 67 OF THE RULES OF COURT AND NOT AN ORIDNARY MOTION TO DISMISS UNDER RULE 16 OF THE RULES OF COURT. The foregoing arguments may be synthesized into two main issues one substantive and one procedural. We will first address the procedural issue. Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It was denied by the trial court on May 7, 1996. At that time, the rule on expropriation was governed by Section 3, Rule 67 of the Revised Rules of Court which provides:
SEC. 3. Defenses and objections. Within the time specified in the summons, each defendant, in lieu of an answer, shall present in a single motion to dismiss or for

other appropriate relief, all his objections and defenses to the right of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and defenses not so presented are waived. A copy of the motion shall be served on the plaintiffs attorney of record and filed with the court with proof of service.

The motion to dismiss contemplated in the above Rule clearly constitutes the responsive pleading which takes the place of an answer to the complaint for expropriation. Such motion is the pleading that puts in issue the right of the plaintiff to expropriate the defendants property for the use specified in the complaint. All that the law requires is that a copy of the said motion be served on plaintiffs attorney of record. It is the court that at its convenience will set the case for trial after the filing of the said pleading.[6] The Court of Appeals therefore erred in holding that the motion to dismiss filed by petitioner hypothetically admitted the truth of the facts alleged in the complaint, specifically that there is a genuine necessity to expropriate petitioners property for public use. Pursuant to the above Rule, the motion is a responsive pleading joining the issues. What the trial court should have done was to set the case for the reception of evidence to determine whether there is indeed a genuine necessity for the taking of the property, instead of summarily making a finding that the taking is for public use and appointing commissioners to fix just compensation. This is especially so considering that the purpose of the expropriation was squarely challenged and put in issue by petitioner in her motion to dismiss. Significantly, the above Rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that any objection or defense to the taking of the property of a defendant must be set forth in an answer. The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on October 31, after the 1997 Rules of Civil Procedure took effect, is of no moment. It is only fair that the Rule at the time petitioner filed her motion to dismiss should govern. The new provision cannot be applied retroactively to her prejudice. We now proceed to address the substantive issue. In the early case of US v. Toribio,[7] this Court defined the power of eminent domain as the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. It has also been described as the power of the State or its instrumentalities to take private property for public use and is inseparable from sovereignty and inherent in government.[8] The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof to local government units, other public entities and public utility corporations,[9] subject only to Constitutional limitations. Local governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute.[10] Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power of eminent domain to local government units and lays down the parameters for its exercise, thus:

SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That, the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted: Provided, further, That, the local government unit may immediately take possession of the property upon the filing of expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking.[11] In this case, petitioner contends that respondent City of Pasig failed to establish a genuine necessity which justifies the condemnation of her property. While she does not dispute the intended public purpose, nonetheless, she insists that there must be a genuine necessity for the proposed use and purposes. According to petitioner, there is already an established sports development and recreational activity center at Rainforest Park in Pasig City, fully operational and being utilized by its residents, including those from Barangay Caniogan. Respondent does not dispute this. Evidently, there is no genuine necessity to justify the expropriation. The right to take private property for public purposes necessarily originates from the necessity and the taking must be limited to such necessity. In City of Manila v. Chinese Community of Manila,[12] we held that the very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law College,[13] we ruled that necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit. Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to expropriate petitioners property. Our scrutiny of the records shows that the Certification[14] issued by the Caniogan Barangay Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan.

The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has been written into organic law of every nation where the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of ones property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. Important as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the property of the individual requires not only that the purpose for the taking of private property be specified. The genuine necessity for the taking, which must be of a public character, must also be shown to exist. WHEREFORE, the petition for review is GRANTED. The challenged Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 41860 are REVERSED. The complaint for expropriation filed before the trial court by respondent City of Pasig, docketed as SCA No. 873, is ordered DISMISSED.

SO ORDERED.

G.R. No. 153974 August 7, 2006 MIGUEL BELUSO, NATIVIDAD BELUSO, PEDRO BELUSO, ANGELITA BELUSO, RAMON BELUSO, and AMADA DANIEL, substituted by her heirs represented by TERESITA ARROBANG, Petitioners, vs. THE MUNICIPALITY OF PANAY (CAPIZ), represented by its Mayor, VICENTE B. BERMEJO, Respondent. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a petition for review questioning the Decision 1 of the Court of Appeals (CA) dated March 20, 2002 in CA-G.R. SP No. 47052, as well the Resolution 2 dated June 11, 2002 denying petitioners Motion for Reconsideration thereof. The facts are as follows: Petitioners are owners of parcels of land with a total area of about 20,424 square meters, covered by Free Patent Nos. 7265, 7266, 7267, 7268, 7269, and 7270. 3 On November 8, 1995, the Sangguniang Bayan of the Municipality of Panay issued Resolution No. 95-29 authorizing the municipal government through the mayor to initiate expropriation proceedings. 4 A petition for expropriation was thereafter filed on April 14, 1997 by the Municipality of Panay (respondent) before the Regional Trial Court (RTC), Branch 18 of Roxas City, docketed as Civil Case No. V-6958. 5 Petitioners filed a Motion to Dismiss alleging that the taking is not for public use but only for the benefit of certain individuals; that it is politically motivated because petitioners voted against the incumbent mayor and vice-mayor; and that some of the supposed beneficiaries of the land sought to be expropriated have not actually signed a petition asking for the property but their signatures were forged or they were misled into signing the same. 6 On July 31, 1997, the trial court denied petitioners Motion to Dismiss and declared that the expropriation in this case is for "public use" and the respondent has the lawful right to take the property upon payment of just compensation. 7 Petitioners filed an Answer on August 12, 1997 reasserting the issues they raised in their Motion to Dismiss. 8 On October 1, 1997, the trial court issued an Order appointing three persons as Commissioners to ascertain the amount of just compensation for the property. 9 Petitioners filed a "Motion to Hold in Abeyance the Hearing of the Court Appointed Commissioners to Determine Just Compensation and for Clarification of the

Courts Order dated October 1, 1997" which was denied by the trial court on November 3, 1997. 10 Petitioners Motion for Reconsideration was also denied on December 9, 1997. 11 Petitioners then filed on March 2, 1998 a Petition for Certiorari before the CA claiming that they were denied due process when the trial court declared that the taking was for public purpose without receiving evidence on petitioners claim that the Mayor of Panay was motivated by politics in expropriating their property and in denying their Motion to Hold in Abeyance the Hearing of the Court Appointed Commissioners; and that the trial court also committed grave abuse of discretion when it disregarded the affidavits of persons denying that they signed a petition addressed to the municipal government of Panay. 12 On January 17, 2001, petitioners filed a Motion to Admit Attached Memorandum and the Memorandum itself where they argued that based on the Petition for Expropriation filed by respondent, such expropriation was based only on a resolution and not on an ordinance contrary to Sec. 19 of Republic Act (R.A.) No. 7160; there was also no valid and definite offer to buy the property as the price offered by respondent to the petitioners was very low. 13 On March 20, 2002, the CA rendered its Decision dismissing the Petition for Certiorari. It held that the petitioners were not denied due process as they were able to file an answer to the complaint and were able to adduce their defenses therein; and that the purpose of the taking in this case constitutes "public use". 14 Petitioners filed a Motion for Reconsideration which was denied on June 11, 2002. 15 Thus, the present petition claiming that: A. RESPONDENT IS WITHOUT, LACKS AND DOES NOT HAVE THE LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT PROPERTIES THROUGH EMINENT DOMAIN, IT BEING EXERCISED BY MEANS OF A MERE RESOLUTION, AND NOT THROUGH AN ORDINANCE AS REQUIRED BY LAW AND APPLICABLE JURISPRUDENCE; B. RESPONDENT IS LIKEWISE WITHOUT, LACKS AND DOES NOT HAVE THE LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT PROPERTIES THROUGH EMINENT DOMAIN, ITS PREVIOUS OFFER TO BUY THEM BEING NOT VALID; and C. IT WAS A SERIOUS ERROR ON THE PART OF THE HONORABLE COURT OF APPEALS NOT TO DISCUSS, MUCH LESS RULE ON, BOTH IN ITS QUESTIONED DECISION AND ITS RESOLUTION PROMULGATED ON 11 JUNE 2002 PETITIONERS ARGUMENTS THAT RESPONDENT IS WITHOUT, LACKS AND DOES NOT HAVE THE LAWFUL POWER TO ACQUIRE ANY OR ALL OF THE SUBJECT PROPERTIES THROUGH EMINENT DOMAIN, IT BEING EXERCISED BY MEANS OF A MERE RESOLUTION, AND NOT THROUGH AN ORDINANCE AS REQUIRED BY LAW AND APPLICABLE JURISPRUDENCE, AND ITS PREVIOUS OFFER TO BUY THEM BEING NOT VALID, DESPITE THE FACT THAT THESE OBJECTIONS WERE PROPERLY PLEADED IN PETITIONERS MEMORANDUM WHICH WAS DULY ADMITTED IN ITS RESOLUTION PROMULGATED ON 29 JANUARY 2001; and D. PETITIONERS WERE UTTERLY DENIED PROCEDURAL DUE PROCESS OF LAW BY THE COURT A QUO, WHEN IT SIMPLY DECLARED IN ITS ORDER DATED 31 JULY 1997 THAT THE TAKING BY RESPONDENT OF PETITIONERS PROPERTIES IS PURPORTEDLY FOR PUBLIC PURPOSE WITHOUT RECEIVING EVIDENCE ON THEIR ASSERTED CLAIM THAT RESPONDENTS MUNICIPAL MAYOR WAS POLITICALLY MOTIVATED IN SEEKING THE EXPROPRIATION OF THEIR PROPERTIES AND NOT FOR PUBLIC PURPOSE. 16 Petitioners argue that: contrary to Sec. 19 of R.A. No. 7160 of the Local Government Code, which provides that a local government may exercise the power of eminent domain only by "ordinance," respondents expropriation in this case is based merely on a "resolution"; while objection on this ground was neither raised by petitioners in their Motion to Dismiss nor in their Answer, such objection may still be considered by this Court since the fact upon which it is based is apparent from the petition for expropriation itself; a defense may be favorably considered even if not raised in an appropriate pleading so long as the facts upon which it is based are undisputed; courts have also adopted a more censorious attitude in resolving questions involving the proper exercise of local bodies of the delegated power of expropriation, as compared to instances when it is directly exercised by the national legislature; respondent failed to give, prior to the petition for expropriation, a previous valid and definite offer to petitioners as the amount offered in this case was only P10.00 per square meter, when the properties are residential in nature and command a much higher price; the CA failed to discuss and rule upon the arguments raised by petitioners in their Memorandum; attached to the Motion to Dismiss were affidavits and death certificates showing that there were people whose names were in the supposed petition asking respondent for land, but who did not actually sign the same, thus showing that the present expropriation was not for a public purpose but was merely politically motivated; considering the conflicting claims regarding the purpose for which the properties are being expropriated and inasmuch as said issue may not be rightfully ruled upon merely on the basis of petitioners Motion to Dismiss and Answer as well as respondents Petition for Expropriation, what should have been done was for the RTC to conduct hearing where each party is given ample opportunity to prove its claim. 17

Respondent for its part contends that its power to acquire private property for public use upon payment of just compensation was correctly upheld by the trial court; that the CA was correct in finding that the petitioners were not denied due process, even though no hearing was conducted in the trial court, as petitioners were still able to adduce their objections and defenses therein; and that petitioners arguments have been passed upon by both the trial court and the CA and were all denied for lack of substantial merit. 18 Respondent filed a Memorandum quoting at length the decision of the CA to support its position. 19 Petitioners meanwhile opted to have the case resolved based on the pleadings already filed. 20 We find the petition to be impressed with merit. Eminent domain, which is the power of a sovereign state to appropriate private property to particular uses to promote public welfare, is essentially lodged in the legislature. 21 While such power may be validly delegated to local government units (LGUs), other public entities and public utilities the exercise of such power by the delegated entities is not absolute. 22 In fact, the scope of delegated legislative power is narrower than that of the delegating authority and such entities may exercise the power to expropriate private property only when authorized by Congress and subject to its control and restraints imposed through the law conferring the power or in other legislations. 23 Indeed, LGUs by themselves have no inherent power of eminent domain. 24 Thus, strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior" since it must conform to the limits imposed by the delegation and thus partakes only of a share in eminent domain. 25 The national legislature is still the principal of the LGUs and the latter cannot go against the principals will or modify the same.26 The exercise of the power of eminent domain necessarily involves a derogation of a fundamental right. 27 It greatly affects a landowners right to private property which is a constitutionally protected right necessary for the preservation and enhancement of personal dignity and is intimately connected with the rights to life and liberty. 28Thus, whether such power is exercised directly by the State or by its authorized agents, the exercise of such power must undergo painstaking scrutiny. 29 Indeed, despite the existence of legislative grant in favor of local governments, it is still the duty of the courts to determine whether the power of eminent domain is being exercised in accordance with the delegating law. Sec. 19 of R.A. No. 7160, which delegates to LGUs the power of eminent domain expressly provides: SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. It is clear therefore that several requisites must concur before an LGU can exercise the power of eminent domain, to wit: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. 30 The Court in no uncertain terms have pronounced that a local government unit cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. 31 R.A. No. 7160 otherwise known as the Local Government Code expressly requires an ordinance for the purpose and a resolution that merely expresses the sentiment of the municipal council will not suffice. 32

A resolution will not suffice for an LGU to be able to expropriate private property; and the reason for this is settled: x x x A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local Government Code, Sec. 19 of R.A. [No.] 7160 categorically requires that the local chief executive act pursuant to an ordinance. x x x 33 As respondents expropriation in this case was based merely on a resolution, such expropriation is clearly defective. While the Court is aware of the constitutional policy promoting local autonomy, the court cannot grant judicial sanction to an LGUs exercise of its delegated power of eminent domain in contravention of the very law giving it such power. 34 The Court notes that petitioners failed to raise this point at the earliest opportunity. Still, we are not precluded from considering the same. This Court will not hesitate to consider matters even those raised for the first time on appeal in clearly meritorious situations, 35 such as in this case. Thus, the Court finds it unnecessary to resolve the other issues raised by petitioners. It is well to mention however that despite our ruling in this case respondent is not barred from instituting similar proceedings in the future, provided that it complies with all legal requirements. 36 WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G.R. SP No. 47052 isREVERSED and SET ASIDE. The Complaint in Civil Action No. V-6958 is DISMISSED without prejudice. No costs. SO ORDERED.

G.R. No. 92389 September 11, 1991 HON. JEJOMAR C. BINAY and the MUNICIPALITY OF MAKATI, petitioners, vs. HON. EUFEMIO DOMINGO and the COMMISSION ON AUDIT, respondents. Jejomar C. Binay for himself and for his co-petitioner. Manuel D. Tamase and Rafael C. Marquez for respondents.

PARAS, J.:p The only pivotal issue before Us is whether or not Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a valid exercise of police power under the general welfare clause. The pertinent facts are: On September 27, 1988, petitioner Municipality, through its Council, approved Resolution No. 60 which reads: A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL ASSISTANCE PROGRAM INITIATED BY THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO A BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE MUNICIPAL TREASURY. (Rollo, Annnex "A" p. 39) Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of Makati whose gross family income does not exceed two thousand pesos (P2,000.00) a month. The beneficiaries, upon fulfillment

of other requirements, would receive the amount of five hundred pesos (P500.00) cash relief from the Municipality of Makati. (Reno, Annex "13", p. 41) Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified a disbursement fired of four hundred thousand pesos (P400,000.00) for the implementation of the Burial Assistance Program. (Rollo, Annex "C", p. 43). Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected allowance in audit. Based on its preliminary findings, respondent COA disapproved Resolution No. 60 and disallowed in audit the disbursement of finds for the implementation thereof. (Rollo, Annex "D", P. 44) Two letters for reconsideration (Annexes "E" and "F", Rollo, pp. 45 and 48, respectively) filed by petitioners Mayor Jejomar Binay, were denied by respondent in its Decision No. 1159, in the following manner: Your request for reconsideration is predicated on the following grounds, to wit: 1. Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the intended disbursements fall within the twin principles of 'police power and parens patriae and 2. The Metropolitan Manila Commission (MMC), under a Certification, dated June 5, 1989, has already appropriated the amount of P400,000.00 to implement the Id resolution, and the only function of COA on the matter is to allow the financial assistance in question. The first contention is believed untenable. Suffice it to state that: a statute or ordinance must have a real substantial, or rational relation to the public safety, health, morals, or general welfare to be sustained as a legitimate exercise of the police power. The mere assertion by the legislature that a statute relates to the public health, safety, or welfare does not in itself bring the statute within the police power of a state for there must always be an obvious and real connection between the actual provisions of a police regulations and its avowed purpose, and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. 16 Am. Jur 2d, pp. 542-543; emphasis supplied). Here, we see no perceptible connection or relation between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general welfare, etc. of the inhabitants of Makati. Anent the second contention, let it be stressed that Resolution No. 60 is still subject to the limitation that the expenditure covered thereby should be for a public purpose, i.e., that the disbursement of the amount of P500.00 as burial assistance to a bereaved family of the Municipality of Makati, or a total of P400,000.00 appropriated under the Resolution, should be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of only a few individuals as in the present case. On this point government funds or property shall be spent or used solely for public purposes. (Cf. Section 4[2], P.D. 1445). (pp. 50-51, Rollo) Bent on pursuing the Burial Assistance Program the Municipality of Makati, through its Council, passed Resolution No. 243, re-affirming Resolution No. 60 (Rollo, Annex "H", p. 52). However, the Burial Assistance Program has been stayed by COA Decision No. 1159. Petitioner, through its Mayor, was constrained to file this special civil action of certiorari praying that COA Decision No. 1159 be set aside as null and void. The police power is a governmental function, an inherent attribute of sovereignty, which was born with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort and convenience of the people. Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the

people. (62 C.J.S., p. 277). The so-called inferred police powers of such corporations are as much delegated powers as are those conferred in express terms, the inference of their delegation growing out of the fact of the creation of the municipal corporation and the additional fact that the corporation can only fully accomplish the objects of its creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore, municipal corporations, as governmental agencies, must have such measures of the power as are necessary to enable them to perform their governmental functions. The power is a continuing one, founded on public necessity. (62 C.J.S. p. 273) Thus, not only does the State effectuate its purposes through the exercise of the police power but the municipality does also. (U.S. v. Salaveria, 39 Phil. 102). Municipal governments exercise this power under the general welfare clause: pursuant thereto they are clothed with authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." (Sections 91, 149, 177 and 208, BP 337). And under Section 7 of BP 337, "every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the local government unit, and preserve the comfort and convenience of the inhabitants therein." Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. It is elastic and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests. (16 C.J.S., P. 896) However, it is not confined within narrow circumstances of precedents resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang, et al. vs. IAC, supra). In the case at bar, COA is of the position that there is "no perceptible connection or relation between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general welfare. etc. of the inhabitants of Makati." (Rollo, Annex "G", p. 51). Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public safety, general welfare, etc. of the inhabitants of Makati." In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all comprehensiveness. Its scope, overexpanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128). Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power. COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the limitation that the expenditure covered thereby should be for a public purpose, ... should be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of only a few individuals as in the present case." (Rollo, Annex "G", p. 51). COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for human rights. (Section 11, Ibid." (Comment, p. 12) The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good.

There is no violation of the equal protection clause in classifying paupers as subject of legislation. Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer from the bondage of the soil, housing the urban poor, etc. Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete. The loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life, should have more in law." This decision, however must not be taken as a precedent, or as an official go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise. PREMISES CONSIDERED, and with the afore-mentioned caveat, this petition is hereby GRANTED and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE. SO ORDERED.

G.R. No. 40243 March 11, 1992 CELESTINO TATEL, petitioner, vs. MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his capacity as Mayor of Virac, Catanduanes; GAVINO V. GUERRERO, in his capacity as Vice-Mayor of Virac, Catanduanes; JOSE T. BUEBOS, in his capacity as Councilor of Virac, Catanduanes; ANGELES TABLIZO, in his capacity as Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in his capacity as Councilor of Virac, Catanduanes; MARIANO ALBERTO, in his capacity as Councilor of Virac, Catanduanes; JULIA A. GARCIA, in her capacity as Councilor of Virac, Catanduanes; and PEDRO A. GUERRERO, in his capacity as Councilor of Virac, Catanduanes,respondents.

NOCON, J.: This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of Catanduanes filed by appellant, Celestino Tatel, a businessman engaged in the import and export of abaca and other products against the Municipal Council of Virac, Catanduanes and its municipal officials enjoining them from enforcing Resolution No 29 1 of the Council, declaring the warehouse of petitioner in barrio Sta. Elena of the said municipality a public nuisance within the purview of Article 694 of the Civil Code of the Philippines and directing the petitioner to remove and transfer said warehouse to a more suitable place within two (2) months from receipt of the said resolution. It appears from the records that on the basis of complaints received from the residents of barrio Sta. Elena on March 18, 1966 against the disturbance caused by the operation of the abaca bailing machine inside the warehouse of petitioner which affected the peace and tranquility of the neighborhood due to the smoke, obnoxious odor and dust emitted by the machine, a committee was appointed by the municipal council of Virac to investigate the matter. The committee noted the crowded nature of the neighborhood with narrow roads and the surrounding residential houses, so much so that an accidental fire within the warehouse of the petitioner occasioned by the continuance of the activity inside the warehouse and the storing of inflammable materials created a danger to the lives and properties of the people within the neighborhood. Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966 declaring the warehouse owned and operated by petitioner a public nuisance within the purview of Article 694 of the New Civil Code. 2 His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner instituted the present petition for prohibition with preliminary injunction. Respondent municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance No. 13, series of 1952, prohibiting the construction of warehouses near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire.

On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due process and equal protection clause of the Constitution and null and void for not having been passed in accordance with law. The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of Article 694 of the Civil Code and whether Ordinance No. 13, S. 1952 of the Municipality of Virac is unconstitutional and void. In a decision dated September 18, 1969, the court a quo ruled as follows: 1. The warehouse in question was legally constructed under a valid permit issued by the municipality of Virac in accordance with existing regulations and may not be destroyed or removed from its present location; 2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police power by the Municipal Council of Virac is not (sic) unconstitutional and void as claimed by the petitioner; 3. The storage by the petitioner of abaca and copra in the warehouse is not only in violation of the provisions of the ordinance but poses a grave danger to the safety of the lives and properties of the residents of the neighborhood due to accidental fire and constitutes a public nuisance under the provisions of Article 694 of the New Civil code of the Philippines and may be abated; 4. Accordingly, the petitioner is hereby directed to remove from the said warehouse all abaca and copra and other inflammable articles stored therein which are prohibited under the provisions of Ordinance No. 13, within a period of two (2) months from the time this decision becomes final and that henceforth, the petitioner is enjoined from storing such prohibited articles in the warehouse. With costs against petitioner. Seeking appellate review, petitioner raised as errors of the court a quo: 1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac, Catanduanes, is a legitimate and valid exercise of police power of the Municipal Council, and therefore, constitutional; 2. In giving the ordinance a meaning other than and different from what it provided by declaring that petitioner violated the same by using the warehouse for storage of abaca and copra when what is prohibited and penalized by the ordinance is the construction of warehouses. 3. In refusing to take judicial notice of the fact that in the municipality, there are numerous establishments similarly situated as appellants' warehouses but which are not prosecuted. We find no merit in the Petition. Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with the police powers in order to effectively accomplish and carry out the declared objects of their creation. 3 Its authority emanates from the general welfare clause under the Administrative Code, which reads:
The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. 4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria. As to the petitioner's second assignment of error, the trial court did not give the ordinance in question a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of Virac on December 29, 1952, 6reads:

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT. Section 1 provides: It is strictly prohibited to construct warehouses in any form to any person, persons, entity, corporation or merchants, wherein to keep or store copra, hemp, gasoline, petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if not within the distance of 200 meters from a block of houses either in the poblacion or barrios to avoid great losses of properties inclusive lives by fire accident. Section 2 provides: 7 Owners of warehouses in any form, are hereby given advice to remove their said warehouses this ordinance by the Municipal Council, provided however, that if those warehouses now in existence should no longer be utilized as such warehouse for the abovedescribed products in Section 1 of this ordinance after a lapse of the time given for the removal of the said warehouses now in existence, same warehouses shall be exempted from the spirit of the provision of section 1 of this ordinance,provided further, that these warehouses now in existence, shall in the future be converted into non-inflammable products and materials warehouses. In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property in case of fire which is one of the primordial obligation of the government. This was also the observation of the trial court: A casual glance of the ordinance at once reveals a manifest disregard of the elemental rules of syntax. Experience, however, will show that this is not uncommon in law making bodies in small towns where local authorities and in particular the persons charged with the drafting and preparation of municipal resolutions and ordinances lack sufficient education and training and are not well grounded even on the basic and fundamental elements of the English language commonly used throughout the country in such matters. Nevertheless, if one scrutinizes the terms of the ordinance, it is clear that what is prohibited is the construction of warehouses by any person, entity or corporation wherein copra, hemp, gasoline and other inflammable products mentioned in Section 1 may be stored unless at a distance of not less than 200 meters from a block of houses either in the poblacion or barrios in order to avoid loss of property and life due to fire. Under Section 2, existing warehouses for the storage of the prohibited articles were given one year after the approval of the ordinance within which to remove them but were allowed to remain in operation if they had ceased to store such prohibited articles.
The ambiguity therefore is more apparent than real and springs from simple error in grammatical construction but otherwise, the meaning and intent is clear that what is prohibited is the construction or maintenance of warehouses for the storage of inflammable articles at a distance within 200 meters from a block of houses either in the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of life and property in case of accidental fire which is one of the primordial and basic obligation of any government. 8

Clearly, the lower court did NOT add meaning other than or differrent from what was provided in the ordinance in question. It merely stated the purpose of the ordinance and what it intends to prohibit to accomplish its purpose. As to the third assignment of error, that warehouses similarly situated as that of the petitioner were not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not proceeded against other warehouses in the municipality allegedly violating Ordinance No. 13 is no reason to claim that the ordinance is discriminatory. A distinction must be made between the law itself and the manner in which said law is implemented by the agencies in charge with its administration and enforcement. There is no valid reason for the petitioner to complain, in the absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance and that the complaints have been lodged against the bodegas concerned without the municipal authorities doing anything about it. The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the

warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government. As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same. The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls under the then Court of First Instance. WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner. SO ORDERED.

G.R. No. L-4060

August 29, 1952

DR. ESTEBAN MEDINA, DR. JOSE DE LA ROSA, MR. ENRIQUE SANTAMARIA, and BENGUET DEVELOPMENT CO., INC., plaintiffs-appellants, vs. CITY OF BAGUIO, defendant-appellee. Francisco A. Reyes for appellants. Acting City Atty. Santiago C. Gregorio for appellee. BAUTISTA ANGELO, J.: Plaintiffs brought this action in the Court of First Instance of Baguio seeking to nullify Ordinances Nos. 62, 99 and 100 of the City Council of Baguio on the ground that they were enacted without authority or power, and are oppressive, unjust and unreasonable, and to recover the taxes and fees they had paid as itemized in the complaint. Esteban Medina is the owner and operator of Pines Theater, a duly licensed movie houses in the City of Baguio. Jose Y. de la Rosa is the owner and operator of Plaza Theater, another duly licensed movie house in the city. Enrique Santamaria is the owner and operator under a contract of lease of Session Theater, also a duly licensed movie houses in said city, while Benguet Development Co., Inc., is an operator of a gasoline station engaged in selling gasoline, petroleum and imported oil products within the city. Under Ordinance No. 99, Esteban Medina paid under protest a municipal license for 1949 for two quarters in the amount of P1,200, and Jose Y. de la Rosa paid under protest a municipal license for the same year in the amount of P1,800 for three quarters. Under Ordinance No. 62, Esteban Medina paid an additional tax of P4,896.60 during the months of July, August, September and November, 1949. Enrique Santamaria also paid an additional tax of P1,855.05 during the months of July and August of the same year. The Benguet Development Co., Inc., on the other hand, paid under Ordinance No. 100 the amount of P3,554.44 as specific tax for gasoline and oil sold from September 20, 1948, to November 17, 1949. After trial, the court rendered decision declaring Ordinances Nos. 99 and 100 valid and legal but rendering Ordinance No. 62 null and void while denying the claim of the plaintiffs for reimbursement of the different amounts paid by them under protest to the City of Baguio, without special pronouncement as to costs. From this decision only the plaintiffs appealed assigning from errors as committed by the lower court. The first question to be determined refers to the validity of Ordinance No. 99 which fixes the license fees to be paid by persons, entities or corporations which may engage in business within the city of Baguio. This ordinance fixes a license fee of P120 a year for every gasoline station installed in the city, and a fee of P2,400 for theaters which come under class "A", P1,800 for those coming under class "B", and P1,200 for those coming under class "C". Plaintiffs paid the fees required by this Ordinance, but now dispute the power of the city to enact it, contending that it only has the power to impose a license fee but not to levy a tax upon theaters and gasoline stations which are operated within its limits. They contend that, while this ordinance expressly recites that its purpose is to fix ore impose a license fee on the business or trade therein specified, in fact its purpose is to levy a tax for purposes of revenue under the guise of a license fee. This, they contend, defendants cannot do. This contention has no merit. Appellants apparently have in mind section 2553, paragraph (c) of the revised Administrative Code, which empowers the city of Baguio merely to impose a license fee for purpose of regulating the business that may be established in the city. The power as thus conferred is indeed limited, as it does not include the power to levy a tax. But on July 15, 1948, Republic Act No. 329 was enacted amending the charter of said city and adding to its power to license the power to tax and to regulate. And it is precisely having in view this amendment that Ordinance No. 99 was approved in order to increase the revenues of the city. In our opinion, the amendment above adverted to empowers the city council not only to

impose a license fee but also to levy a tax for purposes of revenue, more on when in amending section 2553(b), the phrase "as provided by law" has been removed by section 2 of Republic Act No. 329. The city council of Baguio therefore, has now the power to tax, to license and to regulate provided that the subjects affected be one of those included in the charter, In this sense, the ordinance under consideration cannot be considered ultra vires whether its purpose to be levy a tax or impose a license fee. The terminology used as if no consequence. Coming now to Ordinance No. 100, we find that its validity is assailed not only because of lack of power to enact it but also because of lack of power to enact it but also because it impose a specific tax on some articles which, it is claimed, is not contemplated by law. We have already stated that under its charter, as amended, the city of Baguio has now the power not only to levy it also a specific tax on items or articles covered by the business of the taxpayer? After an examination of section 2553 of the revised Administrative Code, as amended by Republic Act No. 329, we are inclined to uphold the negative view. It is settled that a municipal corporation, unlike a sovereign state, is clothed with no inherent power of taxation. The charter or statue must plainly show an intent to confer that power or the municipality cannot assume it. And the power when granted is to be construed strictissimi juris. Any doubt or ambiguity arising out of the term used in granting that power must be resolved against the municipality. Inferences, implications, deductions all these have no place in the interpretation of the taxing power of a municipal corporation (Joseph Icard vs. City Council of Baguio and the City of Baguio, 83 Phil., 870). An examination of section 2553 (c), of the revised Administrative Code, as amended, will reveal that the power given to the city of Baguio to tax, to license and to regulate only refers to the business of the taxpayer and not to the articles used in said business. This is clearly inferred from a reading of said section and from the concluding sentence appearing therein, to wit, "and such other businesses, trade and occupations as may be established or practised in the city". One reason for this undoubtedly is the fact that under section 142 of the Internal Revenue Code (Commonwealth Act No. 466, as amended by Republic Act No. 39), most of the products mentioned in the charter, particularly gasoline and oil, are already specifically taxed, and under section 361 of said code, the city of Baguio gets a share of 20 per cent of the amount of specific tax collected. At any rate, the charter of the city of Baguio does not show plainly an intent to confer that power upon the city of Baguio and, following the rule already adverted to, this doubt or ambiguity must be resolved against the city. An indication of the legislative intent on this matter is Commonwealth Act No. 472 which confers general authority upon municipal councils to levy taxes, subjects to certain limitations, wherein it was specifically provided that the general authority so conferred shall not include "percentage taxes and taxes on specified articles". In other words, the power to levy a percentage tax or a specific tax has been expressly withheld. It is, therefore, our considered opinion that Ordinance No. 100 is ultra vires and has no force and effect. With respect to Ordinance No. 62, the lower court declared it null and void and from this part of the decision no appeal has been taken. That finding should be left undisturbed. As to whether appellants can collect the additional amounts they charged the public under the ordinance, the lower court said: "The amount collected from the theater goers as additional price of admission tickets is not the property of plaintiffs or any of them. It is paid by the public. If anybody has the right to claim it, it is those who paid it. Only owners of property has the right to claim said property. The cine owners acted as mere against agent of the city in collecting the additional price charged in the sale of admission tickets." Consequently, the court denied the claim of appellants for reimbursement. We find no error in this respect. Wherefore, the decision appealed from is hereby affirmed, with the only modification as to Ordinance No. 100, which is hereby declared null and void. Defendant is hereby ordered to return to the Benguet Development Co., Inc., the amount of P3,544.44 it has paid as specific tax. No pronouncement as to costs. Pablo, Bengzon, Padilla, Jugo and Labrador, JJ., concur.

RESOLUTION November 28, 1952 BAUTISTA ANGELO, J.: This concerns the motion reconsideration filed by the City of Baguio in which it seeks to modify the decision rendered in this case on August 29, 1952.

It is reiterated that Ordinance No. 100 is valid under the provisions of section 2553(c), as amended by Republic Act No. 329, of the Revised Administrative Code, and that, granting arguendo that it is invalid, there is no point to order the City of Baguio to return the taxes paid under said ordinance to appellant Benguet Development Co., Inc., for the reason that said taxes were not paid by said company but by the car owners who bought the gasoline and oil subject of the tax. The first claim is not well taken. We already held that section 2553(c), as amended by Republic Act No. 329, merely empowers the City of Baguio to impose a tax on business and not on the articles used therein. This is clear in said section and in the other authorities we cited in the main opinion. The case of Eastern Theatrical Co., Inc., et al. vs. Victor Alfonso, et al.1 (46 Off. Gaz., [Supp. 11] p. 303), can not be cited as a precedent in this case because the tax therein imposed by the City of Manila is amusement tax. this is not a specific tax but a tax on business. A municipal corporation, unlike a sovereign state, is clothed with no inherent power of taxation. The intent to confer such power must be resolved against the corporation (Icard vs. City Council of Baguio and the City of Baguio,2 (46 Off. Gaz., [Supp. 11] p. 320). The second claim is disputed. It involves a question of fact. It does not appear in the record that the appellant corporation has collected the tax from the car owners as agent of the City of Baguio. Counsel for the city of Baguio sustains the affirmative and pleads that the ruling applied in the case of the theaterowners wherein it was declared that the tax should be returned to the persons from whom it was collected, should also guide the determination of this case. But counsel for the appellant corporation maintains the contrary and attempted to show that the tax was collected directly from said corporation and not from the car owners. The view of the Court on this point is to leave it pending and remand the case to the lower court in order that it may be clarified with the presentation of the necessary evidence considering the precedent already set on this matter. Wherefore, the Court holds in abeyance that portion of the decision relative to the return of the specific tax paid by the Benguet Development Co., Inc., pending determination of the question of fact pointed out above, and orders the remand of this case to the lower court for the presentation of necessary evidence. After the presentation of evidence, the lower court may render judgment in line with the decision of this Court relative to the theater-owners. The decision of this Court is maintained in all other respects.

G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents. x---------------------------------x G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners, vs. EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents. x---------------------------------x G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-

KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents. DECISION AZCUNA, J.: Petitioners come in three groups. The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880. The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries. The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested. All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced. B.P. No. 880, "The Public Assembly Act of 1985," provides: Batas Pambansa Blg. 880 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes Be it enacted by the Batasang Pambansa in session assembled: Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985." Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. Sec. 3. Definition of terms. For purposes of this Act: (a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes. Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be

appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit;
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(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf; (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly. Sec. 18. Effectivity. This Act shall take effect upon its approval. Approved, October 22, 1985. CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus: Malacaang Official Manila, Philippines NEWS Release No. 2 September 21, 2005 STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA On Unlawful Mass Actions In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations. The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community. Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government. We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society. The Presidents call for unity and reconciliation stands, based on the rule of law. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5 They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum

tolerance" shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent. Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble. Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong. Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity;Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction. Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong. Respondents argue that: 1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other offenses." 2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information.6 3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public assemblys time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys program content or the statements of the speakers therein, except under the constitutional precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec.7 4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental interest to support them. 5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10 7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880. Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies. The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows: 1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160: (a) Are these content-neutral or content-based regulations? (b) Are they void on grounds of overbreadth or vagueness? (c) Do they constitute prior restraint? (d) Are they undue delegations of powers to Mayors? (e) Do they violate international human rights treaties and the Universal Declaration of Human Rights? 2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR): (a) Is the policy void on its face or due to vagueness? (b) Is it void for lack of publication? (c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005? During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court: 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005. 2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law. The Court will now proceed to address the principal issues, taking into account the foregoing developments. Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows: There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line betweendisorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said: The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose.18 Reyes v. Bagatsing19 further expounded on the right and its limits, as follows: 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for

the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta. 4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that a statute requiring persons using the public streets for a parade or procession to

procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." xxx 6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." xxx 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing (G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569) 8. By way of a summary. The applicants for a permit to hold an assembly should inform the

B.P. No. 880 Sec. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private

licensing authority of the date, the public placewhere and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.

property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or

modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.21 A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus: Universal Declaration of Human Rights Article 20 1. Everyone has the right to freedom of peaceful assembly and association. xxx

Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. The International Covenant on Civil and Political Rights Article 19. 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:23 public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time: Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a golf course, he added. If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986. Considering that the existence of such freedom parks is an essential part of the laws system of regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus: 14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880. 15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. 16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25 At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following: Sec. 3. Definition of terms. For purposes of this Act: xxx (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. xxx Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at

least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines:
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(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. xxx Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: xxx 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected toheightened scrutiny."26 For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and toSTRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED. No costs. SO ORDERED.

G.R. No. L-26053

February 21, 1967

CITY OF MANILA, plaintiff-appellee, vs. GERARDO GARCIA CARMENCITA VILLANUEVA, MODESTA PARAYNO NARCISO PARAYNO, JUAN ASPERAS, MARIA TABIA SIMEON DILIMAN, AQUILINO BARRIOS LEONORA RUIZ, LAUREANO DIZO, BERNABE AYUDA LEOGARDA DE LOS SANTOS, ISABELO OBAOB ANDREA RIPARIP, JOSE BARRIENTOS, URBANO RAMOS,1 ELENA RAMOS, ESTEFANIA NEPACINA, MODESTA SANCHEZ, MARCIAL LAZARO, MARCIANA ALANO, HONORIO BERIO SEDORA ORAYLE, GLORIA VELASCO, WILARICO RICAMATA, BENEDICTO DIAZ, ANA DEQUIZ (MRS.) ALUNAN, LORENZO CARANDANG, JUAN PECAYO, FELICIDAD MIRANDA EMIGDIO EGIPTO, defendants-appellants. Mauricio Z. Alunan for defendants-appellants. City Fiscal's Office for plaintiff-appellee. SANCHEZ, J.:

Plaintiff City of Manila is owner of parcels of land, forming one compact area, bordering Kansas, Vermont and Singalong streets in Malate, Manila, and covered by Torrens Titles Nos. 49763, 37082 and 37558. Shortly after liberation from 1945 to 1947, defendants entered upon these premises without plaintiff's knowledge and consent. They built houses of second-class materials, again without plaintiff's knowledge and consent, and without the necessary building permits from the city. There they lived thru the years to the present. In November, 1947, the presence of defendants having previously been discovered, defendants Felicidad Miranda (Emigdio Egipto), Modesta C. Parayno, Benedicto Diaz, Laureano Dizo, Jose Barrientos, Elena Ramos, Estefania Nepacina, Modesta Sanchez, Honorio Berio, Gloria Velasco, Ana Dequis Alunan and Benedicto Ofiaza (predecessor of defendant Carandang) were given by Mayor Valeriano E. Fugoso written permits each labeled "lease contract" to occupy specific areas in the property upon conditions therein set forth. Defendants Isabelo Obaob and Gerardo Garcia (in the name of Marta A. Villanueva) received their permits from Mayor Manuel de la Fuente on January 29 and March 18, respectively, both of 1948. The rest of the 23 defendants exhibited none. For their occupancy, defendants were charged nominal rentals. Following are the rentals due as of February, 1962: Amt. due from date of delinquency to Feb. 1962 P1,628.97 379.08 9.36 570.24 99.36 22.40 323.34 208.38 744.18 Paid up to Feb. 1962. 186.26 504.34 444.88 688.32 255.44 188.16 56.98 739.68 Paid up to March 1962. 30.84 437.40 30.60 132.48 P7,580.69
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NAME 1. Gerardo Garcia 2. Modesta C. Parayno 3. Juan Asperas 4. Maria Tabia 5. Aquilino Barrios (Leonora Ruiz) 6. Laureano Dizo 7. Bernabe Ayuda 8. Isabelo Obaob 9. Jose Barrientos 10. Cecilia Manzano in lieu of Urbano Ramos (deceased) 11. Elena Ramos 12. Estefania Nepacina 13. Modesta Sanchez 14. Marcial Lazaro 15. Marciana Alano 16. Honorio Berio 17. Gloria Velasco 18. Wilarico Ricamata 19. Benedicto Diaz 20. Ana Dequis Alunan 21. Lorenzo Carandang 22. Juan N. Pecayo 23. Felicidad Miranda

Area Monthly in sq.m. Rental 66.00 87.75 39.00 35.20 54.00 35.00 39.60 75.52 39.53 46.65 34.80 41.80 33.48 22.40 25.80 24.00 32.40 45.83 40.20 64.26 45.03 25.52 48.02 P7.92 10.53 4.68 5.76 4.32 2.80 3.17 9.06 4.74 5.60 2.78 3.34 2.68 1.79 2.06 1.92 2.59 3.67 4.82 7.71 5.40 3.06 5.76

Epifanio de los Santos Elementary School is close, though not contiguous, to the property. Came the need for this school's expansion; it became pressing. On September 14, 1961, plaintiff's City Engineer, pursuant to the Mayor's directive to clear squatters' houses on city property, gave each of defendants thirty (30) days to vacate and remove his construction or improvement on the premises. This was followed by the City Treasurer's demand on each defendant, made in February and March, 1962, for the payment of the amount due by reason of the occupancy and to vacate in fifteen (15) days. Defendants refused. Hence, this suit to recover possession.2 The judgment below directed defendants to vacate the premises; to pay the amounts heretofore indicated opposite their respective names; and to pay their monthly rentals from March, 1962, until they vacate the said premises, and the costs. Defendants appealed. 1. We are called upon to rule on the forefront question of whether the trial court properly found that the city needs the premises for school purposes. The city's evidence on this point is Exhibit E, the certification of the Chairman, Committee on Appropriations of the Municipal Board. That document recites that the amount of P100,000.00 had been set aside in Ordinance 4566, the 1962-1963 Manila City Budget, for the construction of an additional building of the Epifanio de los Santos Elementary School. It is indeed correct to say that the court below, at the hearing, ruled out the admissibility of said document. But then, in the decision under review, the trial judge obviously revised his views. He there declared that there was need for defendants to vacate the premises for school expansion; he cited the very document, Exhibit E, aforesaid. It is beyond debate that a court of justice may alter its ruling while the case is within its power, to make it conformable to law and justice.3 Such was done here. Defendants' remedy was to bring to the attention of the court its contradictory stance. Not having done so, this Court will not reopen the case solely for this purpose.4 Anyway, elimination of the certification, Exhibit E, as evidence, would not profit defendants. For, in reversing his stand, the trial judge could well have taken because the was duty bound to take judicial notice5 of Ordinance 4566. The reason being that the city charter of Manila requires all courts sitting therein to take judicial notice of all ordinances passed by the municipal board of Manila.6 And, Ordinance 4566 itself confirms the certification aforesaid that an appropriation of P100,000.00 was set aside for the "construction of additional building" of the Epifanio de los Santos Elementary School. Furthermore, defendants' position is vulnerable to assault from a third direction. Defendants have absolutely no right to remain in the premises. The excuse that they have permits from the mayor is at best flimsy. The permits to occupy are recoverable on thirty days' notice. They have been asked to leave; they refused to heed. It is in this factual background that we say that the city's need for the premises is unimportant. The city's right to throw defendants out of the area cannot be gainsaid. The city's dominical right to possession is paramount. If error there was in the finding that the city needs the land, such error is harmless and will not justify reversal of the judgment below.7 2. But defendants insist that they have acquired the legal status of tenants. They are wrong. They entered the land, built houses of second-class materials thereon without the knowledge and consent of the city. Their homes were erected without city permits. These constructions are illegal. In a language familiar to all, defendants are squatters: Since the last global war, squatting on another's property in this country has become a widespread vice. It was and is a blight. Squatters' areas pose problems of health, sanitation. They are breeding places for crime. They constitute proof that respect for the law and the rights of others, even those of the government, are being flouted. Knowingly, squatters have embarked on the pernicious act of occupying property whenever and wherever convenient to their interests without as much as leave, and even against the will, of the owner. They are emboldened seemingly because of their belief that they could violate the law with impunity. The pugnaciousness of some of them has tied up the hands of legitimate owners. The latter are thus prevented from recovering possession by peaceful means. Government lands have not been spared by them. They know, of course, that intrusion into property, government or private, is wrong. But, then, the mills of justice grind slow, mainly because of lawyers who, by means, fair or foul, are quite often successful in procuring delay of the day of reckoning. Rampancy of forcible entry into government lands particularly, is abetted by the apathy of some public officials to enforce the government's rights. Obstinacy of these squatters is difficult to explain unless it is spawned by official tolerance, if not outright encouragement or protection. Said squatters have become insensible to the difference between right and wrong. To them, violation of law means nothing. With the result that squatting still exists, much to the detriment

of public interest. It is high time that, in this aspect, sanity and the rule of law be restored. It is in this environment that we look into the validity of the permits granted defendants herein. These permits, erroneously labeled "lease" contracts, were issued by the mayors in 1947 and 1948 when the effects of the war had simmered down and when these defendants could have very well adjusted themselves. Two decades have now elapsed since the unlawful entry. Defendants could have, if they wanted to, located permanent premises for their abode. And yet, usurpers that they are, they preferred to remain on city property. Defendants' entry as aforesaid was illegal. Their constructions are as illegal, without permits.8 The city charter enjoins the mayor to "safeguard all the lands" of the City of Manila.9 Surely enough, the permits granted did not "safeguard" the city's land in question. It is our considered view that the Mayor of the City of Manila cannot legalize forcible entry into public property by the simple expedient of giving permits, or, for that matter, executing leases. Squatting is unlawful and no amount of acquiescence on the part of the city officials will elevate it into a lawful act. In principle, a compound of illegal entry and official permit to stay is obnoxious to our concept of proper official norm of conduct. Because, such permit does not serve social justice; it fosters moral decadence. It does not promote public welfare; it abets disrespect for the law. It has its roots in vice; so it is an infected bargain. Official approval of squatting should not, therefore, be permitted to obtain in this country where there is an orderly form of government. We, accordingly, rule that the Manila mayors did not have authority to give permits, written or oral, to defendants, and that the permits herein granted are null and void. 3. Let us look into the houses and constructions planted by defendants on the premises. They clearly hinder and impair the use of that property for school purposes. The courts may well take judicial notice of the fact that housing school children in the elementary grades has been and still is a perennial problem in the city. The selfish interests of defendants must have to yield to the general good. The public purpose of constructing the school building annex is paramount.10 In the situation thus obtaining, the houses and constructions aforesaid constitute public nuisance per se. And this, for the reason that they hinder and impair the use of the property for a badly needed school building, to the prejudice of the education of the youth of the land.11 They shackle the hands of the government and thus obstruct performance of its constitutionally ordained obligation to establish and maintain a complete and adequate system of public education, and more, to "provide at least free public primary instruction".12 Reason dictates that no further delay should be countenanced. The public nuisance could well have been summarily abated by the city authorities themselves, even without the aid of the courts.13 4. Defendants challenge the jurisdiction of the Court of First Instance of Manila. They say that the case should have been started in the municipal court. They prop up their position by the averment that notice for them to vacate was only served in September, 1961, and suit was started in July, 1962. Their legal ground is Section 1, Rule 70 of the Rules of Court. We have reached the conclusion that their forcible entry dates back to the period from 1945 to 1947. That entry was not legalized by the permits. Their possession continued to remain illegal from incipiency. Suit was filed long after the one-year limitation set forth in Section 1 of Rule 70. And the Manila Court of First Instance has jurisdiction.14 Upon the premises, we vote to affirm the judgment under review. Costs against defendants-appellants. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur.

G.R. No. L-16351

June 30, 1964

CALAPAN LUMBER COMPANY, INC., plaintiff-appellee, vs. COMMUNITY SAWMILL COMPANY, ET AL., defendants-appellants. Ferdinand E. Marcos for plaintiff-appellee. Salvador H. Laurel and Exequiel S. Consulta for defendants-appellants. PADILLA, J.:

This is an action for injunction, prohibition against defendant public officers, compensatory, exemplary and nominal damages, attorney's fees and costs. All the defendants prayed in their respective answers for the dismissal of the second amended complaint, in addition to their counterclaim. After trial, the Court of First Instance of Oriental Mindoro rendered judgment, the dispositive part of which reads: WHEREFORE, this Court renders judgment: 1. Finding: (a) That the road and bridge in question, known as the Biga-Communal-Goob (from Km. 12.38 to 15.88) was constructed during the period from 1950 to 1952 by the plaintiff at its exclusive expense with the knowledge and consent of the Provincial Board of Oriental Mindoro; (b) That before actual construction of said road and bridge the personnel of the Office of the District Engineer surveyed the lay-out of the road to be constructed, also at the expense of the plaintiff; (c) That before the actual construction of the road in question the plaintiff secured and used road-right-of-way agreements (Exhs. Y, Y-1 to Y-7 and Z-AA), executed in favor of the plaintiff by the owners of the several portions of land traversed by said road; (d) That from the completion of the road up to the present the plaintiff has been contributing to the repair and maintenance of the said road such as stones, gravel, sand and lumber at its own expense; (e) That since the completion of the road in question (to) the same has been used by the public without any restriction with the written consent of the plaintiff as embodied in Resolutions Nos. 222 (Exh. A) and 119 (Exh. B), with the exception of logging and lumber concerns who might use the road with the permission of the plaintiff; (f) That Lao Kee (alias Lu Pong), Lee Cok Tan Hong, Tan Kian, Co Giac, Tan Hong Chian Hian, Tan Tak Tiao, Kick Chia and the Community Sawmill Company had used the road and bridge in question sometime before April 6, 1953, until the issuance of the writ of preliminary injunction of June 25, 1953, manifest bad faith; 2. Declaring: (a) That Resolution No. 186, series of 1953, marked Exh. C, is valid insofar as it repealed Resolution No. 222, series of 1953; marked Exh. "A", and Resolution No. 119, series of 1953, marked Exh. B; (b) That Resolution No. 186, series of 1953, marked Exh. C. insofar as it declared that the road and bridge in question, public is null and void the same being in violation of Sec. 2131 of the Revised Administrative Code; (c) That the road and bridge in question are of private ownership belonging to the plaintiff; (d) That the said defendant Lao Kee (alias Lu Pong), Lee Cok, Tan Hong, Tan Kian, Co Giac, Tan Hong, Chia Hian, Tan Tak Tiao, Kiok Chia and Community Sawmill did not have the right to use the road and bridge in question; 3. Ordering: (a) That the writ of preliminary injunction issued against the Community Sawmill Company be made permanent, perpetually restraining the said defendants Lao Kee (alias Lu Pong), Lee Cok, Tan Hong, Tan Kian, Co Giac, Tan Hong Chia Hian, Tan Tak Tiao, Kiok Chia and Community Sawmill Company, their agents, attorneys, or other persons or entities from acting on their behalf; (b) The same defendants named in the immediately preceding paragraph to pay jointly and severally to the plaintiff the sum of P10,000.00 as attorney's fees and to pay the costs;

4. Absolving from the third amended complaint the defendants Marciano Roque, Pablo Lorenzo, Isaias Fernando, Francisco Infantado, Bernabe Jamilla and Cenon C. Laurena; 5. Dismissing all the counterclaims filed by the defendants for lack of sufficient merits. (Civil Case No. R-542) From the judgment thus rendered, the defendants Lao Kee (alias Lu Pong), Lee Cok Tan Hong, Tan Kian, Co Giac, Chia Hian, Tan Tak Tiao, Kiok Chia, all acting under the name and style of Community Sawmill Company, appealed to this Court. They claim that the trial court committed the following errors: 1. The lower court erred in holding that the road in question is a private road and that, therefore, plaintiff could legally deny its use to herein appellants. 2. The lower court erred in ordering herein appellants to pay plaintiff attorney's fees. 3. The lower court erred in holding that plaintiff can recover expenses of litigation under article 2208 of the Civil Code. 4. The lower court erred in not dismissing the complaint and finding for herein appellants on their counterclaim. At the trial, the parties submitted to the Court a stipulation of facts which reads: 1. That the parties agree to the existence and authenticity of the following resolutions which were passed by the Provincial Board of Oriental Mindoro, as follows: (a) Resolution No. 222, Series of 1950 (Annex "A" of the Third Amended Complaint), but not its regularity and validity, which must be proven; (b) Resolution No. 119, Series of 1953 (Annex "B" of the Third Amended Complaint); (c) Resolution No. 186, Series of 1955, revoking Resolutions Nos. 222, Series of 1950 and 119, Series of 1953, of the Provincial Board, granting the Calapan Lumber Company the exclusive right under certain conditions to use the Biga-Communal-Goob road for a period of twenty (20) years, and declaring said road as a toll road. 2. That the parties agree as to the existence and authenticity of the following official communications, indorsements and letters re the Biga-Communal-Goob road: (a) letter dated March 20, 1953 addressed to the Hon. Executive Secretary, signed by Rodolfo Naguit and Joe Ong, both representatives of the Community Sawmill Company: (b) 1st Indorsement of Assistant Executive Secretary Lucas Madamba, dated March 21, 1953 (Annex "C", Third Amended Complaint); (c) 2nd Indorsement of Governor Infantado dated March 23, 1953; (d) 3rd Indorsement of District Engineer C. C. Laurena dated March 26, 1953; (e) 4th Indorsement of Governor Infantado dated March 28, 1953; (f) Letter of Rodolfo G. Naguit, representative of the Community Sawmill Company, dated May 4, 1953 and addressed to the Assistant Executive Secretary, Office of the President; (g) Letter of Atty. Ferdinand E. Marcos, counsel for the plaintiff company addressed to Executive Secretary Marciano Roque, dated May 21, 1953 (Annex "F", Third Amended Complaint); (h) 7th Indorsement of Director of Public Works, Isaias Fernando, dated April 20, 1953 (Annex "D", Third Amended Complaint); (i) 8th Indorsement of Undersecretary Vicente Orosa, dated April 25, 1953; (j) 9th Indorsement of Executive Secretary Marciano Roque dated May 11, 1953 (Annex "E", Third Amended Complaint);

(k) 3rd Indorsement of Acting Executive Secretary Marciano Roque, dated July 8, 1953 and the 4th Indorsement of Undersecretary Vicente Orosa, dated July 16, 1953; (l) 1st Indorsement of Acting Executive Secretary Marciano Roque, dated July 17, 1953. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.
1wph1.t

xxx Resolution No. 222, adopted 4 December 1950, reads:

xxx

xxx

Whereas, there is at present an unfinished provincial road in the barrio of Viga, of the municipality of Calapan, known as the Viga-Communal-Goob Road, the construction of which could not be undertaken by the province due to insufficiency of funds; Whereas, the Calapan Lumber Co., Inc., through its President, Mr. D. M. Gotauco, in a letter addressed to the Governor of this province has made representations to undertake the construction of said road under certain conditions; and Whereas, the province is willing to accede to the request of the Calapan Lumber Co., Inc. and to give it the sole right for its use, provided that after a period of twenty (20) years, said company shall donate to the province the road it had constructed, provided further that during the said period of 20 years other concerns dealing in logs and/or lumber may use the same road upon permission granted to them by the said Calapan Lumber Co., Inc.; and provided finally that said road is open to all nonlogging concerns or individuals during the said period of 20 years. Now, therefore, be it RESOLVED, That the Provincial Board of Oriental Mindoro grants, as hereby is granting, the Calapan Lumber Co., Inc. to undertake the construction of the unfinished provincial road in the barrio of Viga, municipality of Calapan, known as the Viga-Communal-Goob Road, subject to the stipulations stated above; and RESOLVED FURTHER, That copies of this resolution be furnished the District Engineer and the Calapan Lumber Co., Inc., through its President, Mr. D. M. Gotauco, for their information. xxx Resolution No. 119, adopted 6 April 1953, reads: Whereas, under Resolution No. 222, series of 1950, the Provincial Board of Oriental Mindoro under the former administration, granted the Calapan Lumber Co., Inc. the right to undertake the construction of the unfinished Viga-Communal-Goob provincial road the sole right for its use, under the following conditions: (1) That after a period of twenty (20) years, said company shall donate to the province the road it had constructed; (2) That during the said period of 20 years other concerns dealing in logs and/or lumber may use the same road upon permission granted to them by the Calapan Lumber Co.; and (3) That said road is open to all non-logging concerns or individuals during the said period of 20 years. Whereas, according to the records of the Provincial Board the said resolution has not been amended or modified up to the present, and, therefore, the same is still in force and binding as per agreement stipulated therein; Whereas, this Board has received reliable information to the effect that another certain lumber company is attempting to use, or has actually used the same road, by allowing to pass thru it its heavy trucks and tractors without securing any permission from the Calapan Lumber Co., Inc., to the detriment and prejudice of the interests of the latter lumber company which shouldered the cost of its completion in accordance with the rights granted to it by the province; and Whereas, after a careful consideration of the matter this Board is of the opinion that the right of the Calapan Lumber Co., Inc. over the said road as stipulated in the condition set forth in the resolution must be upheld for obvious reasons; Now, therefore, be it xxx xxx

RESOLVED by the Provincial Board of Oriental Mindoro to authorize, as it hereby authorizes, the Calapan Lumber Company, Inc., to prohibit the use of the Viga-Communal-Goob provincial road, from point Km. 12.38 up to Km. 15.88 of said road, by any other concern or company dealing in logs and/or lumber, without the permission or consent of the said Calapan Lumber Co., Inc. in accordance with one of the stipulations or conditions agreed upon in Resolution No. 222, series of 1950, of the Provincial Board; and RESOLVED, FURTHER, That the District Engineer and the Calapan Lumber Co., Inc. be furnished with copies of this resolution, for their information. xxx Resolution No. 186, adopted 19 June 1953, reads: REVOKING RESOLUTIONS NOS. 222, SERIES OF 1950, AND 119, SERIES OF 1953, OF THE PROVINCIAL BOARD, GRANTING THE CALAPAN LUMBER COMPANY THE EXCLUSIVE RIGHT UNDER CERTAIN CONDITIONS TO USE THE VIGA-COMMUNAL-GOOB PROVINCIAL ROAD FOR A PERIOD OF TWENTY (20) YEARS. Whereas, under Resolution No. 222, series of 1950, the Provincial Board of Oriental Mindoro, under the former provincial administration, granted the Calapan Lumber Co., Inc. an authority to undertake the construction of the unfinished Viga-Goob provincial road from Point Km. 12.38 to Km. 15.88, and the exclusive right for its use, under certain conditions; Whereas, on April 6, 1953, this Board passed another resolution (119) maintaining the right of the Calapan Lumber Co., Inc. over the said road under the conditions stipulated in the above-cited resolution No. 222, and forthwith authorized the said company to prohibit the use of the portion of said road constructed at its expense by any other concern or company dealing in logs or lumber without its permission; Whereas, in a 9th Indorsement dated May 11, 1953, the pertinent parts of which are quoted hereunder, the Honorable, the Executive Secretary to whom the case regarding this matter was appealed for decision, and upon the recommendation of the Director of Public Works and with the concurrence of the Undersecretary of Public Works and Communications, ruled that provincial roads are considered as properties for public use and the Provincial Board may not therefore grant the exclusive use thereof to any private individual or entity which would discriminate against or exclude the general public from a reasonable use thereof, and therefore, the resolution in question should be revoked. In this connection, it should be stated that Provincial roads are properties for public use and the provincial board may not grant the exclusive use thereof to any private individual or entitle or enter into a contract or agreement which would tend to discriminate against or exclude the general public from a reasonable use thereof. Resolutions Nos. 222, series of 1950, and 119, series of 1953, of the Provincial Board, granting the Calapan Lumber Company an exclusive right to use the said road for a period of twenty (20) year and to prohibit lumber or logging concerns from using the road in question without the company's permission, should therefore be revoked. In consonance with the policy of the law, and as correctly the suggested by the Director of Public Works and the Undersecretary of Public Works and Communications the portion of the Viga-Communal Road from Km. 12.38 to 15.89, having a length of 3.5 kilometers, should be declared a toll road in order to raise funds for its maintenance and with which to reimburse the Calapan Lumber Company for the expenses the latter had incurred in the construction of this portion of the road. Whereas, in view of the said ruling, this Board has been requested to take immediate action on the matter to declare the above-said portion of the Viga-Communal-Goob provincial road as a toll road; and, Whereas, according to an estimate made by the office of the District Engineer the Calapan Lumber Company has spent for the construction of the portion of the road in question having a length of 3.5 kilometers, the amount of P25,000.00 more or less; Now, therefore, be it RESOLVED, That Resolutions Nos. 222, series of 1950, and 119, series of 1953, of the Provincial Board, which grant the Calapan Lumber Co., Inc., the exclusive right to use the Viga-CommunalGoob provincial road for a period of 20 years, under certain conditions, be, and hereby are, revoked; RESOLVED, FURTHER, That the portion of said Viga-Communal-Goob provincial road, from Point Km. 12.38 up to Km. 15.88 thereof, be and hereby is, declared PROVINCIAL TOLL ROAD, under the provisions of section 2131 of the Revised Administrative Code; xxx xxx

RESOLVED, FURTHERMORE, That the following toll rates to be paid by any motor vehicle for the use of the provincial road be, and hereby are, fixed, effective today, June 19, 1953, the proceeds from which shall be used for the maintenance of the said road and the balance thereof for the reimbursement to the said company for the expenses it had incurred in the construction for said portion of the road: For every truck, one way P1.00 For every weapon carrier, one way .60 For every jeepney .30 PROVIDED, however, that the portion of the road declared herein as provincial toll road shall continue to be so up to and until the amount spent by the Calapan Lumber Company for its construction shall have been covered by reimbursement to said company; and RESOLVED, FINALLY, That copies of this resolution be forwarded to His Excellency, the President of the Philippines, thru the Director of Public Works and the Honorable, the Secretary of Public Works and Communications, Manila. xxx xxx xxx

Resolution No. 169, adopted 21 April 1956, revoked Resolution No. 186 in so far as it declared Provincial Toll Road that part of the road invoked in this case. There seems to be no doubt that Resolutions Nos. 222 and 119, adopted by the Provincial Board of Oriental Mindoro quoted above, mere ultra vires, because sections 2067 (f) and (g) on powers of the provinces as political bodies corporate; 2102 (g) on powers of the provincial boards; 2106 (f) on powers of the provincial boards to be exercised with the approval of the Department Head; and 2113 (a) on road and bridge fund, of the Revised Administrative Code, do not authorize the Provincial Board of Oriental Mindoro to pass and adopt said resolutions. The contention that the Provincial Board of Oriental Mindoro under section 2106 (g) invoked by the appellee is authorized to pass those resolutions Nos. 222 and 199 quoted above, is untenable because said paragraph of the section authorizes the Provincial Board "to permit, upon favorable recommendation by the Secretary of Public Works and Communications, and subject to such conditions as may properly protect the public interests, the construction and maintenance, for private use of railways, conduits, and telephone lines across public thoroughfares, streets, roads, or other public property and in the province: Provided, That such construction and private use shall not prevent or obstruct the public use of such thoroughfares, streets, roads or other public property and that the permit granted shall at all times be subject to revocation by the Secretary of the Interior, if, in the judgment of that official, the public interest requires it." Consequently, Resolution No. 186 revoking the two previous resolutions was in order. The road known as the Viga-Communal-Goob connecting two finished or completed parts of the provincial road, from kilometer 12.38 to 15.88, as laid out by the personnel of the office of the District Engineer was planned or intended to be laid out and constructed by the Provincial Government of Oriental Mindoro to complete said road. The fact that the survey, lay-out and actual construction of the unfinished part of the road were done at the appellee's expense, does not convert said road after construction into a private road, for it does not appear that the parts of the land where the road was laid out and constructed belong to or are owned by the appellee. The evidence shows that the owners of such parts of land ceded their parts of the land owned by them without any consideration because of their desire to have the road completed or to connect the ends of two completed parts of the road. It may be conceded that the appellee built the road in question in good faith; and such being the case, it may be argued that the appellee is entitled to keep or have possession of the road until after it shall have been reimbursed of the expenses it had incurred in constructing and maintaining the road in good condition. The provisions of the Civil Code on the right of a builder in good faith on a private land1 cannot be invoked and applied to the road in question, because public interest is involved and the people living in that part of the province are entitled to use the road. It is true that that part of the Resolution No. 186 above quoted converting the road in question into toll road contravenes section 2131 of the Revised Administrative Code, because in the case of road the recommendation of the Secretary of Public Works and Communications and the authorization of the president of the Philippines had to be secured and such recommendation and authorization had not been obtained. Upon the foregoing considerations, this Court is of the opinion, and so holds, that the road involved in this case cannot be declared private property, and for that reason the Provincial Board of Oriental Mindoro may elect between paying the appellee the total cost of the construction of the road together with lawful interest from the date of actual disbursement by the appellee to the date of payment by the Province of Oriental Mindoro within a reasonable period not to exceed one year from the date this judgment shall become final; or upon securing the recommendation of the Secretary of Public Works and Communications and authorization of the President of the Philippines to designate such road an toll road, to raise the necessary fund to reimburse the appellee of the total cost of construction of the road, together with lawful interest from the date of actual disbursement by the appellee to the date of payment by the Province of Oriental Mindoro,

and the latter is ordered to refund the amount paid for tolls by, the appellee during the enforcement of Resolution No. 186 which, as above stated, was unauthorized. The judgment appealed from making final the preliminary writ of injunction and ordering the appellants to pay the appellee the sum of P10,000 as attorney's fees, are reversed and set aside. The rest of the judgment appealed from not inconsistent with this opinion is affirmed, without pronouncement as to costs. Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Parades, Regala and Makalintal, JJ., concur. Barrera and Dizon, JJ., took no part. Footnotes
1

Articles 448 and 546, Civil Code. June 30, 1969

G.R. No. L-24440

THE PROVINCE OF ZAMBOANGA DEL NORTE, plaintiff-appellee, vs. CITY OF ZAMBOANGA, SECRETARY OF FINANCE AND COMMISSIONER OF INTERNAL REVENUE,defendants-appellants. RESOLUTION REYES, J.B.L., J.: Professing respect for the principles enunciated by this Court in its decision of 28 March 1968, in Case G. R. No. L-24440, entitled Province of Zamboanga del Norte vs. City of Zamboanga, et al., 1 the appellant City seeks reconsideration of our decision in so far as the latter declares that Republic Act 3039 is unconstitutional and void in so far as the same seeks to deprive the Province of Zamboanga del Norte of its share in the 26 lots situated within the City of Zamboanga, and hereinafter enumerated, without just compensation, for the reason that said 26 lots are patrimonial property of the old Province of Zamboanga. Said 26 lots are declared in the main decision to be the following: TCT Number Lot Number Use 5577 .......................... 177 .......................... Mydro, Magay 13198 ......................... 127-D .......................... San Roque 5569 .......................... 169 .......................... Burleigh2 5558 .......................... 175 .......................... Vacant 5559 .......................... 188 .......................... " 5560 .......................... 183 .......................... " 5561 .......................... 186 .......................... " 5563 .......................... 191 .......................... " 5566 .......................... 176 .......................... " 5568 .......................... 179 .......................... " 5574 .......................... 196 .......................... " 5575 .......................... 181-A ....................... " 5576 .......................... 181-B ....................... " 5578 .......................... 182 .......................... " 5579 .......................... 197 .......................... " 5580 .......................... 195 .......................... " 5581 .......................... 159-B ......................... " 5582 .......................... 194 .......................... " 5584 .......................... 190 .......................... " 5588 .......................... 184 .......................... " 5589 .......................... 187 .......................... " 5590 .......................... 189 .......................... " 5591 .......................... 192 .......................... " 5592 .......................... 193 .......................... " 5593 .......................... 185 .......................... " 7379 .......................... 4147 .......................... "

The movant City contends that the 26 lots aforestated were not patrimonial property of the former Province of Zamboanga, for the reason that said 26 lots have always been used for public purposes, such as school sites, playgrounds and athletic fields for schools. To bolster its contention, the City of Zamboanga submitted photographs, plans and a sworn certification of its City Engineer to the effect that: (a) Twenty-one lots (Nos. 17, 177, 179, 181-A, 181-B, 182 to 197) are part and parcel of the Zamboanga Trade School; (b) Three lots (Nos. 169, 175 and 176) are part and parcel of the Zamboanga Normal College; (c) Lot No. 127-D is the Pasonanca Elementary School; (d) Lot No. 4147 is the Bolong Elementary School; (e) Lot No. 159-B is part and parcel of the Baliwasan Elementary School. Appellant City of Zamboanga, therefore, prays that the main decision be partly reconsidered and that all title to, and ownership of, the 26 lots be declared to have been validly vested in said City free of charge by Republic Act No. 3039. The motion for reconsideration is vigorously opposed by plaintiff-appellee Province of Zamboanga del Norte, which contends that the evidence sought to be filed by the appellant City is not newly discovered evidence and is, therefore, inadmissible at this stage of the proceedings. Alternatively, the appellee Province of Zamboanga contends that the 26 lots are vacant, or that the buildings existing thereon were constructed in bad faith; and that the said Province has additional evidence to show that most of these properties are not actually devoted to public use or governmental purposes.
1awphil.nt

Considering that both contending parties are actually subdivisions of one entity, the Republic of the Philippines, so that public interest is involved and demands that the issues presented be determined speedily without regard to technicalities, the Court resolved that, in the interest of justice and equity, its main decision and that of the court below be reconsidered and set aside, in so far as they affect the twenty-six lots heretofore enumerated, and the monetary indemnities awarded. Instead, the records are ordered remanded to the court of origin for a new trial, wherein the parties shall be given opportunity to adduce and submit any evidence in their possession to show whether or not the 26 lots aforesaid were or were not actually devoted to public use or governmental purposes prior to the enactment of Republic Act No. 3039. Thereafter, the Court of First Instance shall decide the issues anew, taking into account the evidence submitted by the parties and the principles of law laid down by this Supreme Court in its main decision of the present case, dated 28 March 1968. So ordered. No costs. Concepcion, C.J., Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur. Dizon, J., took no part. Footnotes
1

See 22 SCRA 1334.

"This could not be considered as forming part of the appurtenant grounds of the Burleigh school sites since the records here and in the Bureau of Lands show that this lot is set apart from the other Burleigh lots."

G.R. No. L-29993 October 23, 1978 LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS MACARANAS, MAXIMO MANANGAN, FIDEL MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all Members of the Municipal Council of Malasiqui in 1959, Malasiqui, Pangasinan, petitioners, vs. ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA, and THE HONORABLE COURT OF APPEALS,respondents.

G.R. No. L-30183 October 23, 1978 MUNICIPALITY OF MALASIQUI, petitioner, vs. ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA, and the Honorable COURT OF APPEALS,respondents. Julian M. Armas, Assistant Provincial Fiscal for petitioners. Isidro L. Padilla for respondents.

MUOZ PALMA, J.: These Petitions for review present the issue of whether or not the celebration of a town fiesta authorized by a municipal council under Sec. 2282 of the Municipal Law as embodied in the Revised Administrative Code is a governmental or a corporate or proprietary function of the municipality. A resolution of that issue will lead to another, viz the civil liability for damages of the Municipality of Malasiqui, and the members of the Municipal Council of Malasiqui, province of Pangasinan, for a death which occurred during the celebration of the town fiesta on January 22, 1959, and which was attributed to the negligence of the municipality and its council members. The following facts are not in dispute: On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159 whereby "it resolved to manage the 1959 Malasiqui town fiesta celebration on January 21, 22, and 23, 1959." Resolution No. 182 was also passed creating the "1959 Malasiqui 'Town Fiesta Executive Committee" which in turn organized a sub-committee on entertainment and stage, with Jose Macaraeg as Chairman. the council appropriated the amount of P100.00 for the construction of 2 stages, one for the "zarzuela" and another for the cancionan Jose Macaraeg supervised the construction of the stage and as constructed the stage for the "zarzuela" was "5- meters by 8 meters in size, had a wooden floor high at the rear and was supported by 24 bamboo posts 4 in a row in front, 4 in the rear and 5 on each side with bamboo braces." 1 The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui employees of the Manila Railroad Company in Caloocan, Rizal. The troupe arrived in the evening of January 22 for the performance and one of the members of the group was Vicente Fontanilla. The program started at about 10:15 o'clock that evening with some speeches, and many persons went up the stage. The "zarzuela" then began but before the dramatic part of the play was reached, the stage collapsed and Vicente Fontanilla who was at the rear of the stage was pinned underneath. Fontanilia was taken to tile San Carlos General Hospital where he died in the afternoon of the following day. The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on September 11, 1959 to recover damages. Named party-defendants were the Municipality of Malasiqui, the Municipal Council of Malasiqui and all the individual members of the Municipal Council in 1959. Answering the complaint defendant municipality invoked inter alia the principal defense that as a legally and duly organized public corporation it performs sovereign functions and the holding of a town fiesta was an exercise of its governmental functions from which no liability can arise to answer for the negligence of any of its agents. The defendant councilors inturn maintained that they merely acted as agents of the municipality in carrying out the municipal ordinance providing for the management of the town fiesta celebration and as such they are likewise not liable for damages as the undertaking was not one for profit; furthermore, they had exercised due care and diligence in implementing the municipal ordinance. 2 After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not the defendants exercised due diligence 'm the construction of the stage. From his findings he arrived at the conclusion that the Executive Committee appointed by the municipal council had exercised due diligence and care like a good father of the family in selecting a competent man to construct a stage strong enough for the occasion and that if it collapsed that was due to forces beyond the control of the committee on entertainment, consequently, the defendants were not liable for damages for the death of Vicente Fontanilla. The complaint was accordingly dismissed in a decision dated July 10, 1962. 3

The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31, 1968, the Court of Appeals through its Fourth Division composed at the time of Justices Salvador V. Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the trial court's decision and ordered all the defendants-appellees to pay jointly and severally the heirs of Vicente Fontanilla the sums of P12,000.00 by way of moral and actual damages: P1200.00 its attorney's fees; and the costs. 4 The case is now before Us on various assignments of errors all of which center on the proposition stated at the sentence of this Opinion and which We repeat: Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or public function or is it or a private or proprietary character? 1. Under Philippine laws municipalities are political bodies corporate and as such ag endowed with the faculties of municipal corporations to be exercised by and through their respective municipal governments in conformity with law, and in their proper corporate name, they may inter alia sue and be sued, and contract and be contracted with.5 The powers of a municipality are twofold in character public, governmental or political on the one hand, and corporate, private, or proprietary on the other. Governmental powers are those exercised by the corporation in administering the powers of the state and promoting the public welfare and they include the legislative, judicial public, and political Municipal powers on the other hand are exercised for the special benefit and advantage of the community and include those which are ministerial private and corporate. 6 As to when a certain activity is governmental and when proprietary or private, that is generally a difficult matter to determine. The evolution of the municipal law in American Jurisprudence, for instance, has shown that; none of the tests which have evolved and are stated in textbooks have set down a conclusive principle or rule, so that each case will have to be determined on the basis of attending circumstances. In McQuillin on Municipal Corporations, the rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large insofar as it is its agent in government, and private (so-called) insofar as it is to promote local necessities and conveniences for its own community. 7 Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court of Indiana in 1916, thus: Municipal corporations exist in a dual capacity, and their functions are two fold. In one they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental Their officers and agents in such capacity, though elected or appointed by the are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private. proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and not for the state or sovereign power. (112 N. E 994995) In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through Justice Grant T. Trent, relying mainly on American Jurisprudence classified certain activities of the municipality as governmental, e.g.: regulations against fire, disease, preservation of public peace, maintenance of municipal prisons, establishment of schools, post-offices, etc. while the following are corporate or proprietary in character, viz: municipal waterwork, slaughter houses, markets, stables, bathing establishments, wharves, ferries, and fisheries. 8 Maintenance of parks, golf courses, cemeteries and airports among others, are also recognized as municipal or city activities of a proprietary character. 9 2. This distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. If the injury is caused in the course of the performance of a governmental function or duty no recovery, as a rule, can be. had from the municipality unless there is an existing statute on the matter, 10 nor from its officers, so long as they performed their duties honestly and in good faith or that they did not act wantonly and maliciously. 11 InPalafox, et al., v. Province of Ilocos Norte, et al., 1958, a truck driver employed by the provincial government of Ilocos Norte ran over Proceto Palafox in the course of his work at the construction of a road. The Supreme Court in affirming the trial court's dismissal of the complaint for damages held that the province could not be made liable because its employee was in the performance of a governmental function the construction and maintenance of roads and however tragic and deplorable it may be, the death of Palafox imposed on the province no duty to pay monetary consideration. 12 With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons ex contract 13 or ex delicto. 14

Municipal corporations are subject to be sued upon contracts and in tort. ... xxx xxx xxx The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of its agent or servant in the course or fine of his employment, by which another, who is free from contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within the operation of this rule of law, and are liable, accordingly, to civil actions for damages when the requisite elements of liability co-exist. ... (Dillon on Municipal Corporations, 5th ed. Sec. 1610,1647, cited in Mendoza v. de Leon, supra. 514) 3. Coming to the cam before Us, and applying the general tests given above, We hold that the ho of the town fiesta in 1959 by the municipality of Malsiqui Pangasinan was an exercise of a private or proprietary function of the municipality. Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides: Section 2282. Celebration of fiesta. fiesta may be held in each municipality not oftener than once a year upon a date fixed by the municipal council A fiesta s not be held upon any other date than that lawfully fixed therefor, except when, for weighty reasons, such as typhoons, foundations, earthquakes, epidemics, or other public ties, the fiesta cannot be hold in the date fixed in which case it may be held at a later date in the same year, by resolution of the council. This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed was not to secure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the nonetheless it is private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it is governmental in essence, otherwise. the function becomes private or proprietary in character. Easily, no overnmental or public policy of the state is involved in the celebration of a town fiesta. 15 4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable for damages for the death of Vicente Fontanilia if that was at- tributable to the negligence of the municipality's officers, employees, or agents. Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. . . Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not only for one's own acts or omission, but also for those of persons for whom one is responsible. . . On this point, the Court of Appeals found and held that there was negligence. The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now petitioners), that a member of the "extravaganza troupe removed two principal braces located on the front portion of the stage and u them to hang the screen or "telon", and that when many people went up the stage the latter collapsed. This testimony was not believed however by respondent appellate court, and rightly so. According to said defendants, those two braces were "mother" or "principal" braces located semi-diagonally from the front ends of the stage to the front posts of the ticket booth located at the rear of the stage and were fastened with a bamboo twine. 16 That being the case, it becomes incredible that any person in his right mind would remove those principal braces and leave the front portion of the stage practically unsuported Moreover, if that did happen, there was indeed negligence as there was lack of suspension over the use of the stage to prevent such an occurrence. At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo braces denied having done go. The Court of Appeals said "Amor by himself alone could not have removed the two braces which must be about ten meters long and fastened them on top of the stags for the curtain. The stage was only five and a half meters wide. Surely, it, would be impractical and unwieldy to use a ten meter bamboo pole, much more two poles for the stage curtain. 17

The appellate court also found that the stage was not strong enough considering that only P100.00 was appropriate for the construction of two stages and while the floor of the "zarzuela" stage was of wooden planks, the Post and braces used were of bamboo material We likewise observe that although the stage was described by the Petitioners as being supported by "24" posts, nevertheless there were only 4 in front, 4 at the rear, and 5 on each side. Where were the rest? The Court of Appeals thus concluded The court a quo itself attributed the collapse of the stage to the great number of onlookers who mounted the stage. The municipality and/or its agents had the necessary means within its command to prevent such an occurrence. Having filed to take the necessary steps to maintain the safety of the stage for the use of the participants in the stage presentation prepared in connection with the celebration of the town fiesta, particularly, in preventing non participants or spectators from mounting and accumulating on the stage which was not constructed to meet the additional weight- the defendant-appellees were negligent and are liable for the death of Vicente Fontanilla . (pp. 30-31, rollo, L-29993) The findings of the respondent appellate court that the facts as presented to it establish negligence as a matter of law and that the Municipality failed to exercise the due diligence of a good father of the family, will not disturbed by Us in the absence of a clear showing of an abuse of discretion or a gross misapprehension of facts." 18 Liability rests on negligence which is "the want of such care as a person of ordinary prudence would exercise under the circumstances of the case." 19 Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during the town fiesta was a "donation" offered by an association of Malasiqui employees of the Manila Railroad Co. in Caloocan, and that when the Municipality of Malasiqui accepted the donation of services and constructed precisely a "zarzuela stage" for the purpose, the participants in the stage show had the right to expect that the Municipality through its "Committee on entertainment and stage" would build or put up a stage or platform strong enough to sustain the weight or burden of the performance and take the necessary measures to insure the personal safety of the participants. 20 We agree. Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which was an action against the city for injuries sustained from a fall when plaintiff was descending the steps of the city auditorium. The city was conducting a "Know your City Week" and one of the features was the showing of a motion picture in the city auditorium to which the general public was invited and plaintiff Sanders was one of those who attended. In sustaining the award for Damages in favor of plaintiff, the District Court of Appeal, Second district, California, heldinter alia that the "Know your City Week" was a "proprietary activity" and not a "governmental one" of the city, that defendant owed to plaintiff, an invitee the duty of exercising ordinary care for her safety, and plaintiff was entitled to assume that she would not be exposed to a danger (which in this case consisted of lack of sufficient illumination of the premises) that would come to her through a violation of defendant duty. 21 We can say that the deceased Vicente Fontanilla was similarly situated as Sander The Municipality of Malasiqui resolved to celebrate the town fiesta in January of 1959; it created a committee in charge of the entertainment and stage; an association of Malasiqui residents responded to the call for the festivities and volunteered to present a stage show; Vicente Fontanilla was one of the participants who like Sanders had the right to expect that he would be exposed to danger on that occasion. Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was Jose Macaraeg who constructed the stage. The municipality acting through its municipal council appointed Macaraeg as chairman of the sub-committee on entertainment and in charge of the construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the Municipality. Under the doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the negligence of its agent acting within his assigned tasks. 22 ... when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is, whether they are the servants or agents of the corporation. If the corporation appoints or elects them, can control them in the discharge of their duties, can continue or remove the can hold them responsible for the manner in which they discharge their trust, and if those duties relate to the exercise of corporate powers, and are for the benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the maxim of respondent superior applies." ... (Dillon on Municipal Corporations, 5th Ed., Vol IV, p. 2879) 5. The remaining question to be resolved centers on the liability of the municipal councilors who enacted the ordinance and created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarity liable with the municipality for damages under Article 27 of the Civil Code which provides that d any person suffering ing material or moral loss because a public servant or employee refuses or neglects, without just cause to perform his official duty may file an action for damages and other relief at the latter. 23 In their Petition for review the municipal councilors allege that the Court of Appeals erred in ruling that the holding of a town fiesta is not a governmental function and that there was negligence on their part for not maintaining and supervising the safe use of the stage, in applying Article 27 of the Civil Code against them and in not holding Jose Macaraeg liable for the collapse of the stage and the consequent death of Vicente Fontanilla. 24 We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code against the for this particular article covers a case of nonfeasance or non-performance by a public officer of his official duty; it does not apply to a case of negligence or misfeasance in carrying out an official duty. If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned, it is because of a plain error committed by respondent court which however is not invoked in petitioners' brief. In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred Ruiz Castro, held that the Supreme Court is vested with ample authority to review matters not assigned as errors in an appeal if it finds that their consideration and resolution are indispensable or necessary in arriving at a just decision in a given case, and that tills is author under Sec. 7, Rule 51 of the Rules of Court. 25 We believe that this pronouncement can well be applied in the instant case. The Court of Appeals in its decision now under review held that the celebration of a town fiesta by the Municipality of Malasiqui was not a governmental function. We upheld that ruling. The legal consequence thereof is that the Municipality stands on the same footing as an ordinary private corporation with the municipal council acting as its board of directors. It is an elementary principle that a corporation has a personality, separate and distinct from its officers, directors, or persons composing it 26 and the latter are not as a rule co-responsible in an action for damages for tort or negligence culpa aquilla committed by the corporation's employees or agents unless there is a showing of bad faith or gross or wanton negligence on their part. 27 xxx xxx xxx The ordinary doctrine is that a director, merely by reason of his office, is not personally Stable for the torts of his corporation; he Must be shown to have personally voted for or otherwise participated in them ... Fletcher Encyclopedia Corporations, Vol 3A Chapt 11, p. 207) Officers of a corporation 'are not held liable for the negligence of the corporation merely because of their official relation to it, but because of some wrongful or negligent act by such officer amounting to a breach of duty which resulted in an injury ... To make an officer of a corporation liable for the negligence of the corporation there must have been upon his part such a breach of duty as contributed to, or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act. ... (pp. 207-208, Ibid.) xxx xxx xxx Directors who merely employ one to give a fireworks Ambition on the corporate are not personally liable for the negligent acts of the exhibitor. (p. 211, Ibid.) On these people We absolve Use municipal councilors from any liability for the death of Vicente Fontanilla. The records do not show that said petitioners directly participated in the defective construction of the "zarzuela" stage or that they personally permitted spectators to go up the platform. 6. One last point We have to resolve is on the award of attorney's fees by respondent court. Petitionermunicipality assails the award. Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may be granted when the court deems it just and equitable. In this case of Vicente Fontanilla, although respondent appellate court failed to state the grounds for awarding attorney's fees, the records show however that attempts were made by plaintiffs, now private respondents, to secure an extrajudicial compensation from the municipality: that the latter gave prorases and assurances of assistance but failed to comply; and it was only eight month after the incident that the bereaved family of Vicente Fontanilla was compelled to seek relief from the courts to ventilate what was believed to be a just cause. 28

We hold, therefore, that there is no error committed in the grant of attorney's fees which after all is a matter of judicial discretion. The amount of P1,200.00 is fair and reasonable. PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the Municipality of Malasiqui is concerned (L-30183), and We absolve the municipal councilors from liability and SET ASIDE the judgment against them (L-9993). Without pronouncement as to costs. SO ORDERED,

G.R. No. L-23052

January 29, 1968

CITY OF MANILA, petitioner, vs. GENARO N. TEOTICO and COURT OF APPEALS, respondents. City Fiscal Manuel T. Reyes for petitioner. Sevilla, Daza and Associates for respondents. CONCEPCION, C.J.: Appeal by certiorari from a decision of the Court of Appeals. On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P. Burgos Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down town. After waiting for about five minutes, he managed to hail a jeepney that came along to a stop. As he stepped down from the curb to board the jeepney, and took a few steps, he fell inside an uncovered and unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the rim of the manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood flowed therefrom, impairing his vision, several persons came to his assistance and pulled him out of the manhole. One of them brought Teotico to the Philippine General Hospital, where his injuries were treated, after which he was taken home. In addition to the lacerated wound in his left upper eyelid, Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an abrasion on the right infrapatella region. These injuries and the allergic eruption caused by anti-tetanus injections administered to him in the hospital, required further medical treatment by a private practitioner who charged therefor P1,400.00. As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a complaint which was, subsequently, amended for damages against the City of Manila, its mayor, city engineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial court, and quoted with approval by the Court of Appeals, At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the University of the East. He held responsible positions in various business firms like the Philippine Merchandising Co., the A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere Packing Corporation. He was also associated with several civic organizations such as the Wack Wack Golf Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of the incident, plaintiff was prevented from engaging in his customary occupation for twenty days. Plaintiff has lost a daily income of about P50.00 during his incapacity to work. Because of the incident, he was subjected to humiliation and ridicule by his business associates and friends. During the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of P2,000.00. On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered on the same day (Exhibit 4); that again the iron cover of the same catch basin was reported missing on January 30, 1958, but the said cover was replaced the next day (Exhibit 5); that the Office of the City Engineer never received any report to the effect that the catchbasin in question was not covered between January 25 and 29, 1968; that it has always been a policy of the said office, which is charged with the duty of installation, repair and care of storm drains in the City of Manila, that whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by immediately replacing the missing cover or covering the catchbasin with steel matting that because of the lucrative scrap iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office of the City Engineer

has filed complaints in court resulting from theft of said iron covers; that in order to prevent such thefts, the city government has changed the position and layout of catchbasins in the City by constructing them under the sidewalks with concrete cement covers and openings on the side of the gutter; and that these changes had been undertaken by the city from time to time whenever funds were available. After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining the theory of the defendants and dismissing the amended complaint, without costs. On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of Manila. The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act No. 409 (Charter of the City of Manila) reading: The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions. or by Article 2189 of the Civil Code of the Philippines which provides: Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or supervision. Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines. The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for: "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by any person by reason" specifically "of the defective condition of roads, streets, bridges, public buildings, and other-public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon. It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident involving him took place in a national highway; and 2) because the City of Manila has not been negligent in connection therewith. As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the defective condition of a street which is "under the supervision and control" of the City. In its answer to the amended complaint, the City, in turn, alleged that "the streets aforementioned were and have been constantly kept in good condition and regularly inspected and the storm drains and manholes thereof covered by the defendant City and the officers concerned" who "have been ever vigilant and zealous in the performance of their respective functions and duties as imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and is under its control and supervision. Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of fact, which had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof. At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a national

highway, this circumstance would not necessarily detract from its "control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides: Sec. 18. Legislative powers. The Municipal Board shall have the following legislative powers: xxx xxx xxx

(x) Subject to the provisions of existing law to provide for the laying out, construction andimprovement, and to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires therein; to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the streetsand other public places; to provide for the abatement of nuisances in the same and punish the authors or owners thereof; to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other amusements which mayannoy persons using the streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their property, or any part thereof, to provide suitable protection against injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and under their tracks, so that the natural drainage of the streets and adjacent property shall not be obstructed. This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway funds and the giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets within their respective boundaries, and Executive Order No. 113 merely implements the provisions of said Republic Act No. 917, concerning the disposition and appropriation of the highway funds. Moreover, it provides that "the construction, maintenance and improvement of national primary, national secondary and national aid provincial and city roads shall be accomplished by the Highway District Engineers and Highway CityEngineers under the supervision of the Commissioner of Public Highways and shall be financed from such appropriations as may be authorized by the Republic of the Philippines in annual or special appropriation Acts." Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not subject to our review. WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila. It is so ordered.
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Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Footnotes Medical fees P1,400.00; Lost income P350.00; Moral damages P3,000.00; and Attorney's fees P2,000.00.
1

G.R. No. 72841 January 29, 1987 PROVINCE OF CEBU, petitioner, vs. HONORABLE INTERMEDIATE APPELLATE COURT and ATTY. PABLO P. GARCIA, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the respondent Intermediate Appellate Court in A.C. G.R. CV No. 66502 entitled "Governor Rene Espina, et. at v. Mayor Sergio Osmea, Jr., et. al, Atty. Pablo P. Garcia v. Province of Cebu" 1 affirming with modification the order of the Court of First Instance of Cebu, Branch VII, granting respondent Pablo P. Garcia's claim for compensation for services rendered as counsel in behalf of the respondent Province of Cebu. The facts of the case are not in dispute. On February 4, 1964, while then incumbent Governor Rene Espina was on official business in Manila, the Vice-Governor, Priscillano Almendras and three (3) members of the Provincial Board enacted Resolution No. 188, donating to the City of Cebu 210 province. owned lots all located in the City of Cebu, with an aggregate area of over 380 hectares, and authorizing the Vice-Governor to sign the deed of donation on behalf of the province. The deed of donation was immediately executed in behalf of the Province of Cebu by Vice-Governor Almendras and accepted in behalf of the City of Cebu by Mayor Sergio Osmea, Jr. The document of donation was prepared and notarized by a private lawyer. The donation was later approved by the Office of the President through Executive Secretary Juan Cancio. According to the questioned deed of donation the lots donated were to be sold by the City of Cebu to raise funds that would be used to finance its public improvement projects. The City of Cebu was given a period of one (1) year from August 15, 1964 within which to dispose of the donated lots. Upon his return from Manila, Governor Espina denounced as Legal and immoral the action of his colleagues in donating practically all the patrimonial property of the province of Cebu, considering that the latter's income was less than one. fourth (1/4) of that of the City of Cebu. To prevent the sale or disposition of the lots, the officers and members of the Cebu Mayor's League (in behalf of their respective municipalities) along with some taxpayers, including Atty. Garcia, filed a case seeking to have the donation declared illegal, null and void. It was alleged in the complaint that the plaintiffs were filing it for and in behalf of the Province of Cebu in the nature of a derivative suit. Named defendants in the suit were the City of Cebu, City Mayor Sergio Osmea, Jr. and the Cebu provincial officials responsible for the donation of the province-owned lots. The case was docketed as Civil Case No. R-8669 of the Court of First Instance of Cebu and assigned to Branch VI thereof. Defendants City of Cebu and City Mayor Osmea, Jr. filed a motion to dismiss the case on the ground that plaintiffs did not have the legal capacity to sue. Subsequently, in an order, dated May, 1965, the court dismissed Case No. R-8669 on the ground that plaintiffs were not the real parties in interest in the case. Plaintiffs filed a motion for reconsideration of the order of dismissal. This motion was denied by the Court. Meanwhile, Cebu City Mayor Sergio Osmea, Jr. announced that he would borrow funds from the Philippine National Bank (PNB) and would use the donated lots as collaterals. In July, 1965, the City of Cebu advertised the sale of an the lots remaining unsold. Thereupon, Governor Espina, apprehensive that the lots would be irretrievably lost by the Province of Cebu, decided to go to court. He engaged the services of respondent Garcia in filing and prosecuting the case in his behalf and in behalf of the Province of Cebu. Garcia filed the complaint for the annulment of the deed of donation with an application for the issuance of a writ of preliminary injunction, which application was granted on the same day, August 6, 1965. The complaint was later amended to implead Cebu City Mayor Carlos P. Cuizon as additional defendant in view of Fiscal Numeriano Capangpangan's manifestation stating that on September 9, 1965, Sergio Osmea, Jr. filed his certificate of Candidacy for senator, his position/office having been assumed by City Mayor Carlos P. Cuizon. Sometime in 1972, the Provincial Board passed a resolution authorizing the Provincial Attorney, Alfredo G. Baguia, to enter his appearance for the Province of Cebu and for the incumbent Governor, Vice-Governor and members of the Provincial Board in this case. On January 30, 1973, Alfredo G. Baguia, Provincial Attorney of the Province of Cebu, entered his appearance as additional counsel for the Province of Cebu and as counsel for Governor Osmundo Rama, Vice-Governor Salutario Fernandez and Board Members Leonardo Enad, Guillermo Legazpi, and Rizalina Migallos. On January 31, 1973, Atty. Baguia filed a complaint in intervention stating that intervenors Province of Cebu and Provincial Board of Cebu were joining or uniting with original plaintiff, former Governor of Cebu, Rene Espina. They adopted his causes of action, claims, and position stated in the original complaint filed before the court on August 6, 1965.

On June 25, 1974, a compromise agreement was reached between the province of Cebu and the city of Cebu. On July 15, 1974, the court approved the compromise agreement and a decision was rendered on its basis. On December 4, 1974, the court issued an order directing the issuance of a writ of execution to implement the decision dated July 15, 1974, to wit: 1. Ordering the City of Cebu to return and deliver to the Province of Cebu all the lots enumerated in the second paragraph hereof; 2. Ordering the Province of Cebu to pay the amount of One Million Five Hundred Thousand Pesos (P1,500,000.00) to the City of Cebu for and in consideration of the return by the latter to the former of the aforesaid lots; 3. Declaring the retention by the City of Cebu of the eleven (11) lots mentioned in paragraph No. 1 of the compromise agreement, namely, Lot Nos. 1141, 1261, 1268, 1269, 1272, 1273, 917, 646-A, 646A-4-0 and 10107-C; 4. Ordering the City of Cebu or the City Treasurer to turn over to the Province of Cebu the amount of P187948.93 mentioned in Annex "A" of the defendants manifestation dated October 21, 1974; 5. Declaring the City of Cebu and an its present and past officers completely free from liabilities to third persons in connection with the aforementioned lots, which liabilities if any, shall be assumed by the Province of Cebu; 6. Ordering the Register of Deeds of the City of Cebu to cancel the certification of titles in the name of the City of Cebu covering the lots enumerated in the second paragraph of this order and to issue new ones in lieu thereof in the name of the Province of Cebu. For services rendered in Civil Case no. 238-BC, CFI of Cebu, respondent Pablo P. Garcia filed through counsel a Notice of Attorney's Lien, dated April 14, 1975, praying that his statement of claim of attorney's lien in said case be entered upon the records thereof, pursuant to Section 37, Rule 138 of the Rules of Court. To said notice, petitioner Province of Cebu filed through counsel, its opposition dated April 23, 1975, stating that the payment of attorney's fees and reimbursement of incidental expenses are not allowed by law and settled jurisprudence to be paid by the Province. A rejoinder to this opposition was filed by private respondent Garcia. After hearing, the Court of First Instance of Cebu, then presided over by Judge Alfredo Marigomen, rendered judgment dated May 30, 1979, in favor of private respondent and against petitioner Province of Cebu, declaring that the former is entitled to recover attorney's fees on the basis of quantum meruit and fixing the amount thereof at P30,000.00. Both parties appealed from the decision to the Court of Appeals. In the case of private respondent, however, he appealed only from that portion of the decision which fixed his attorney's fees at P30,000.00 instead of at 30% of the value of the properties involved in the litigation as stated in his original claim On October 18, 1985, the Intermediate Appellate Court rendered a decision affirming the findings and conclusions of the trial court that the private respondent is entitled to recover attorney's fees but fixing the amount of such fees at 5% of the market value of the properties involved in the litigation as of the date of the filing of the claim in 1975. The dispositive portion of the decision reads: WHEREFORE, except for the aforementioned modification that the compensation for the services rendered by the Claimant Atty. Pablo P. Garcia is fixed at five percent (5%) of the total fair market value of the lots in question, the order appealed from is hereby affirmed in all other respects. Both parties went to the Supreme Court with private respondent questioning the fixing of his attorney's fees at 5% instead of 30% of the value of the properties in litigations as prayed for in his claims. However, the private respondent later withdrew his petition in G.R. No. 72818 with the following explanation: That after a long and serious reflection and reassessment of his position and intended course of action and, after seeking the views of his friends, petitioner has come to the definite conclusion that prosecuting his appeal would only result in further delay in the final disposition of his claim (it has been pending for the last 10 years 4 in the CFI and 6 in the

Court of Appeals, later Intermediate Appellate Court) and that it would be more prudent and practicable to accept in full the decision of the Intermediate Appellate Court. Hence, only the petition of the Province of Cebu is pending before this Court. The matter of representation of a municipality by a private attorney has been settled in Ramos v. Court of Appeals(108 SCRA 728). Collaboration of a private law firm with the fiscal and the municipal attorney is not allowed. Section 1683 of the Revised Administrative Code provides: .Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. The provincial fiscal shall represent the province and any municipality, or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality, or municipal district in question is a party adverse to the provincial government or to some other municipality, or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council The above provision, complemented by Section 3 of the Local Autonomy Law, is clear in providing that only the provincial fiscal and the municipal attorney can represent a province or municipality in its lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it (De Guia v. The Auditor General 44 SCRA 169; Municipality of Bocaue, et. al. v. Manotok, 93 Phil. 173; Enriquez, Sr., v. Honorable Gimenez, 107 Phil. 932) as when he represents the province against a municipality. The lawmaker, in requiring that the local government should be represented in its court cases by a government lawyer, like its municipal attorney and the provincial fiscal intended that the local government should not be burdened with the expenses of hiring a private lawyer. The lawmaker also assumed that the interests of the municipal corporation would be best protected if a government lawyer handles its litigations. It is to be expected that the municipal attorney and the fiscal would be faithful and dedicated to the corporation's interests, and that, as civil service employees, they could be held accountable for any misconduct or dereliction of duty (See Ramos v. Court of Appeals, supra). However, every rule is not without an exception, Ibi quid generaliter conceditur; inest haec exceptio, si non aliquid sit contra jus fasque (Where anything is granted generally, this exception is implied; that nothing shall be contrary to law and right). Indeed, equity, as well as the exceptional situation facing us in the case at bar, require a departure from the established rule. The petitioner anchors its opposition to private respondent's claim for compensation on the grounds that the employment of claimant as counsel for the Province of Cebu by then Governor Rene Espina was unauthorized and violative of Section 1681 to 1683 in relation to Section 1679 of the Revised Administrative Code and that the claim for attorney's fees is beyond the purview of Section 37, Rule 138 of the Rules of Court. It is argued that Governor Espina was not authorized by the Provincial Board, through a board resolution, to employ Atty. Pablo P. Garcia as counsel of the Province of Cebu. Admittedly, this is so. However, the circumstances obtaining in the case at bar are such that the rule cannot be applied. The Provincial Board would never have given such authorization. The decision of the respondent court elucidates the matter thus: ... The provisions of Sections 1681 to 1683 of the Revised Administrative Code contemplate a normal situation where the adverse party of the province is a third person as in the case of Enriquez v. Auditor General, 107 Phil 932. In the present case, the controversy involved an intramural fight between the Provincial Governor on one hand and the members of the Provincial Board on the other hand. Obviously it is unthinkable for the Provincial Board to adopt a resolution authorizing the Governor to employ Atty. Garcia to act as counsel for the Province of Cebu for the purpose of filing and prosecuting a case against the members to the same Provincial Board According to the claimant Atty. Garcia, how can Governor Espina be expected to secure authority from the Provincial Board to employ claimant as counsel for the Province of Cebu when the very officials from whom authority is to be sought are the same officials to be sued, It is simply impossible that the Vice-Governor and the members of the Provincial Board would pass a resolution authorizing Governor Espina to hire a lawyer to file a suit against themselves.

xxx xxx xxx Under Section 2102 of the Revised Administrative Code it is the Provincial Board upon whom is vested the authority "to direct, in its discretion, the bringing or defense of civil suits on behalf of the Provincial Governor ___." Considering that the members of the Provincial Board are the very ones involved in this case, they cannot be expected to directed the Provincial Fiscal the filing of the suit on behalf of the provincial government against themselves. Moreover, as argued by the claimant, even if the Provincial Fiscal should side with the Governor in the bringing of this suit, the Provincial Board whose members are made defendants in this case, can simply frustrate his efforts by directing him to dismiss the case or by refusing to appropriate funds for the expenses of the litigation. ... Consequently, there could have been no occasion for the exercise by the Provincial Fiscal of his powers and duties since the members of the Provincial Board would not have directed him to file a suit against them. A situation obtains, therefore, where the Provincial Governor, in behalf of the Province of Cebu, seeks redress against the very members of the body, that is, the Provincial Board, which, under the law, is to provide it with legal assistance. A strict application of the provisions of the Revise Administrative Code on the matter would deprive the plaintiffs in the court below of redress for a valid grievance. The provincial board authorization required by law to secure the services of special counsel becomes an impossibility. The decision of the respondent court is grounded in equity a correction applied to law, where on account of the general comprehensiveness of the law, particular exceptions not being provided against, something is wanting to render it perfect. It is also argued that the employment of claimant was violative of sections 1681 to 1683 of the Revised Administrative Code because the Provincial Fiscal who was the only competent official to file this case was not disqualified to act for the Province of Cebu. Respondent counsel's representation of the Province of Cebu became necessary because of the Provincial Board's failure or refusal to direct the bringing of the action to recover the properties it had donated to the City of Cebu. The Board more effectively disqualified the Provincial Fiscal from representing the Province of Cebu when it directed the Fiscal to appear for its members in Civil Case No. R-8669 filed by Atty. Garcia, and others, to defend its actuation in passing and approving Provincial Board Resolution No. 186. The answer of the Provincial Fiscal on behalf of the Vice-Governor and the Provincial Board members filed in Civil Case No. R-8669; (Exhibit "K") upholds the validity and legality of the donation. How then could the Provincial Fiscal represent the Province of Cebu in the suit to recover the properties in question? How could Governor Espina be represented by the Provincial Fiscal or seek authorization from the Provincial Board to employ special counsel? Nemo tenetur ad impossibile (The law obliges no one to perform an impossibility). Neither could a prosecutor be designated by the Department of Justice. Malacaang had already approved the questioned donation
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Anent the question of liability for respondent counsel's services, the general rule that an attorney cannot recover his fees from one who did not employ him or authorize his employment, is subject to its own exception. Until the contrary is clearly shown an attorney is presumed to be acting under authority of the litigant whom he purports to represent (Azotes v. Blanco, 78 Phil. 739) His authority to appear for and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to file the complaint and appear for his client. (Republic v. Philippine Resources Development Corporation, 102 Phil. 960) Even where an attorney is employed by an unauthorized person to represent a client, the latter will be bound where it has knowledge of the fact that it is being represented by an attorney in a particular litigation and takes no prompt measure to repudiate the assumed authority. Such acquiescence in the employment of an attorney as occurred in this case is tantamount to ratification (Tan Lua v. O' Brien, 55 Phil. 53). The act of the successor provincial board and provincial officials in allowing respondent Atty. Pablo P. Garcia to continue as counsel and in joining him in the suit led the counsel to believe his services were still necessary. We apply a rule in the law of municipal corporations: "that a municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract. The doctrine of implied municipal liability has been said to apply to all cases where money or other property of a party is received under such circumstances that the general law, independent of express contract implies an obligation upon the municipality to do justice with respect to the same." (38 Am Jur. Sec. 515, p. 193): The obligation of a municipal corporation upon the doctrine of an implied contract does not connote an enforceable obligation. Some specific principle or situation of which equity takes cognizance must be the foundation of the claim. The principle of liability rests upon the theory that the obligation implied by law to pay does not originate in the unlawful contract,

but arises from considerations outside it. The measure of recovery is the benefit received by the municipal corporation. The amount of the loan, the value of the property or services, or the compensation specified in the contract, is not the measure. If the price named in the invalid contract is shown to be entirely fair and reasonable not only in view of the labor done, but also in reference to the benefits conferred, it may be taken as the true measure of recovery. The petitioner can not set up the plea that the contract was ultra vires and still retain benefits thereunder. Having regarded the contract as valid for purposes of reaping some benefits, the petitioner is estopped to question its validity for the purposes of denying answerability. The trial court discussed the services of respondent Garcia as follows: ... Thus because of his effort in the filing of this case and in securing the issuance of the injunction preventing the City of Cebu and Sergio Osmea, Jr., from selling or disposing the lots to third parties, on the part of the members of the Provincial Board from extending the date of the automatic reversion beyond August 15, 1965, on the part of the Register of Deeds from effecting the transfer of title of any of the donated lots to any vendee or transferee, the disposition of these lots by the City of Cebu to third parties was frustrated and thus: saved these lots for their eventual recovery by the province of Cebu. Actually it was Governor Espina who filed the case against Cebu City and Mayor Osmea. Garcia just happened to be the lawyer, Still Atty. Garcia is entitled to compensation. To deny private respondent compensation for his professional services would amount to a deprivation of property without due process of law (Cristobal v. Employees' Compensation Commission, 103 SCRA 329). The petitioner alleges that although they do not deny Atty. Garcia's services for Governor Espina (who ceased to be such Governor of Cebu on September 13, 1969) and the original plaintiffs in the case, "it cannot be said with candor and fairness that were it not for his services the lots would have already been lost to the province forever, because the donation itself he was trying to enjoin and annul in said case was subject to a reversion clause under which lots remaining undisposed of by the City as of August 15, 1965 automatically reverted to the province and only about 17 lots were disposed of by August 15, 1965." We quote respondent counsel's comment with approval: xxx xxx xxx While it is true that the donation was subject to a reversion clause, the same clause gave the Provincial Board the discretion to extend the period of reversion beyond August 15, 1965 (see paragraph 3 of donation). With the known predisposition of the majority of the members of the Provincial Board, there would have been no impediment to the extension of the reversion date to beyond August 15, 1965. Once the date of reversion is extended, the disposition of an the donated lots would be only a matter of course. We have carefully reviewed the records of this case and conclude that 30% or even 5% of properties already worth (P120,000,000.00) in 1979 as compensation for the private respondent's services is simply out of the question. The case handled by Atty. Garcia was decided on the basis of a compromise agreement where he no longer participated. The decision was rendered after pre-trial and without any hearing on the merits. The factual findings and applicable law in this petition are accurately discussed in the exhaustive and wellwritten Order of then Trial Judge, now Court of Appeals Justice Alfredo Marigomen We agree with his determination of reasonable fees for the private lawyer on the basis of quantum meruit. The trial court fixed the compensation at P30,000.00 and ordered reimbursement of actual expenses in the amount of P289.43. WHEREFORE, the questioned October 18, 1985 decision of the Intermediate Appellate Court is set aside. The Order of the Trial Court dated May 30, 1979 is REINSTATED. SO ORDERED.

G.R. No. L-24557

July 31, 1968

CITY OF MANILA, petitioner-appellee, vs. TARLAC DEVELOPMENT CORPORATION, oppositor-appellant.

----------------------------G.R. No. L-24469 July 31, 1968

CITY OF MANILA, petitioner-appellee, vs. MANILA LODGE NO. 761, BENEVOLENT AND PROTECTIVE ORDER OF ELKS, INC., oppositorappellant. ----------------------------G.R. No. L-24481 July 31, 1968 .

CITY OF MANILA, petitioner-appellee, vs. ARMY AND NAVY CLUB OF MANILA, oppositor-appellant. Assistant City Fiscal Leonardo L. Arguelles for petitioners-appellees. William H. Quasha and Associates for oppositors-appellants Manila Lodge No. 761 and others. Ponce Enrile, Siguion Reyna, Montecillo and Belo for oppositor-appellant Tarlac Development Corporation. Picazo and Agcaoili for oppositor-appellant Army and Navy Club of Manila. Ambrosio Padilla as amicus curiae. REYES, J.B.L., J.: The above-numbered cases are separate appeals from the order, dated 19 November 1964, of Branch IV of the Court of First Instance of Manila directing the Register of Deeds for the City of Manila to reannotate entry No. 4608/T-1635 on Transfer Certificate of Title No. 73444 issued in the name of appellant Tarlac Development Corporation (hereinafter referred to as "Tarlac", for short) and entry No. 18115/T-9332 on Transfer Certificate of Title No. 51988 issued in the name of the appellant Army and Navy Club of Manila, Inc. The third a appellant is Manila Lodge No. 761, Benevolent and Protective Order of Elks of the United States, Inc. (hereinafter referred to as "BPOE", for short), which, as vendor, has privity of contract with Tarlac. The two (2) parcels of land described and embraced" in the aforesaid certificates of title were reclaimed from the Bay of Manila and given to the City of Manila by authority of Act 1360, enacted on 26 June 1905, by the Philippine Commission. Subsequently, these parcels were brought under the operation of the Land Registration Act, in the name of the City, per its Original Certificate of Title No. 1909. On 13 July 1911, the City of Manila conveyed one of these parcels to BPOE, subject to the following conditions: . La venta de la parcela de terreno del Presente Certificado se hizo bajo estas condiciones: que dicha parcela de terreno con las mejoras levantadas en la misma estaran exentas de contribucion por un periodo de diez aios desde el 20 de febrero de 1909; que la Ciudad de Manila completara el rompeolas adyacente a dicha parcels incluyendo una covertura apropriada, tambien adyacente a la misma y la conservara siempre en buen estado de reparacion sin gastos por parte de la entidad compradora que dicha Ciudad de Manila no permitira que se establezca un desembarcadero publico en el rompeolas que hay en frente y cerca de dicha propiedad; y que la Ciudad de Manila tendra derecho, a su opcion, de recomprar la expresada propiedad para fines publicos solamente en cualquier tiempo despues de cincuenta anos desde el 13 de Julio de 1911, previo pago a la entidad compradora sus sucesores, del precio de la venta de la misma propiedad, mas el valor que entonces tengan las mejoras. The foregoing conditions were annotated as entry No. 4608/T-1635 in the transferee's Transfer Certificates of Title Nos. 2195 and 67488. On 20 September 1918, the City of Manila also conveyed the second parcel to the Army and Navy Club of Manila, subject to the following conditions: La venta, cesion o traspaso de la finca a que se contrae el presente Certificado, hecha por la Ciudad de Manila a favor de la entidad "Army and Navy Club", esta sujeta a las siguientes condiciones y estipulaciones; 1. Que la expresada finca con las mejoras existentes en la misma estaria exenta do contribucion por el periodo de 10 anos desde la fecha en que el ingeniero de la Ciudad certifique que dicha propiedad estaria dispuesta para fines de edificacion. 2. Que la Ciudad de Manila no permitira que se construya un desembarcadero en el muro de contension frente y contiguo a dicha finca o parcela de terreno. 3. Que esta propiedad o parcela de terreno se usara para fines de club solamente y solo por clubs de indole social o recreativa y por las

personas y para los fines que aprueba el Secretario de Guerra o por el funcionario de los EE. UU que entonces tenga el control administrativo de las Islas Filipinos que corresponda al del Secretario de Guerra. 4. Que la Ciudad de Manila tendra la opcion de recomprar dicha parcela de terreno para fines publicos solamente en cualquier tiempo despues de 50 anos desde el 20 de Septiembre de 1918, previo pago el "Army and Navy Club" del precio de compra de P31,168.49 mas el valor que entonces tengan las mejoras." . The foregoing conditions were annotated as entry No. 18115/T-9332 in the club's Transfer; Certificate of Tale No. 9332. The charter of the Army and Navy Club expired on 25 June 1958 and its members formed the American Club, Inc., which was later renamed as the Army and Navy Club of Manila, Inc. Transfer Certificate of Title No. 9332 was thus cancelled and replaced by Transfer Certificate of Title No. 51988 in the name of the new corporation and entry No. 18115/T-9332 was carried over to the new certificate of title. On 14 April 1961, then Mayor Arsenio Lacson of Manila advised the BPOE that the City of Manila will exercise its right to repurchase the land covered by Transfer Certificate of Title No. 2195. In June of the same year he requested the city fiscal to institute the proper court action to compel the BPOE to reconvey the land. The city fiscal, however, believed that the City did not have any cause of action, because, in his opinion, the right of the City to reacquire the property could not extend beyond 10 years from and after the original conveyance, as provided by Article 1508 of the Civil Code. On 15 January 1963, BPOE filed a petition for the cancellation of the right of the City to repurchase the property as annotated in Transfer Certificate of Title No. 67488 (this new number was occasioned by transfer of title from Elks Club). The Army and Navy Club also filed a similar petition on 13 April 1963. Both the petitioners invoked the opinion of the city fiscal that Manila can no longer exercise the option. Despite notice to it, the City of Manila did not appear or oppose the petitions for cancellation. The lower court granted the petitions and the Register of Deeds made the corresponding entries of cancellation. On 9 November 1963, BPOE, supposedly a non-profit entity, sold the parcel of land that it held to Tarlac Development Corporation for P4,700,000.00, under certain conditions. On 10 June 1964, the City of Manila, filed two petitions for the reannotation of the entries that were ordered cancelled and, sifter hearing, the court issued the order of 19 November 1964 granting the petitions. This order is now contested in these appeals. I On Entry No. 4608/T-1635 (T.C.T. Nos. 2195 and 67488 and T.C.T. No. 73444): .
1wph1.t

The cardinal point of attack against the order of the court below, dated 19 November 1964, requiring reannotation of the entries ordered deleted by the previous order of 15 February 1963 on the above numbered certificates, is the alleged finality and conclusiveness of the latter order. Both the BPOE and the Tarlac Development Corporation contend that the 1963 order of deletion constitutes res judicata. There are at least two reasons why this claim can not be sustained: . (a) The record before us clearly establishes that the order of deletion of the entries in question was the result of the concordant positions of the city officers and the appellant entity, BPOE (petitioner in 1963), concerning the supposed lapse of the stipulation providing for the optional reacquisition by the City of Manila of the land conveyed to the appellants, and its improvements, after fifty years from the original conveyance (in 1911) at the price stated. Both the City and the appellant in 1963 entertained the view that this stipulation was void in so far as it exceeded the ten-year period fixed for repurchase in sales a retro by Article 1508 of the Spanish Civil Code of 1889, then in force (now Article 1606 of the new Civil Code). This conformity of views, expressly pleaded in the petition to cancel (Record on Appeal, pages 14-18), led the City not to file any opposition to the appellant's petition for an order to delete the entry of the City's option, as annotated in their certificates of title. The court's 1963 order granting such deletion was, in fact and in law, a judgment by consent. This is apparent from the last portion of the order. (Rec. on Appeal, p. 21). ... and further considering that it is the official opinion of the City Fiscal that the City has no cause of action against petitioner for the repurchase of said property as embodied in Opinion No. 14, Series of 1962 (Annex "B"), so that the City of Manila deemed it unnecessary to file any opposition in spite of having been furnished with a copy of the above entitled petition, said petition is hereby granted. But the rule is clear, and it is supported by abundant authority, that a consent decree, in which the officials of a municipality assumed obligations not authorized by law, is null and void (Kelley vs. Milan, 32 L. Ed. 77; Slayton vs. Crittenden County, 284 Fed. 293; State ex rel. St. Paul vs. Great Northern Ry Co., 158 N.W. 335; St. Paul vs. Chicago, etc. Ry Co., 166 N.W. 335; State ex rel. Bradway vs. De Mattos, 152 Pac. 721; Coolsaet vs. Veblen, 226 N.W. 726).

Thus, the fact that, by consent of the municipal officers, an agreement or stipulation made by them has been put in the form of a judgment, in an effort to give it the force and effect of a judgment, does not cure a lack of power in the officers to make it, and if such power is lacking, the judgment as well as the stipulation is void (St. Paul v. Chicago, St. P. M. & O. R. Co. (1918) 139 Minn. 322, 166 N. W. 335). And it has been held that as a contract by which a city agrees with a railroad company that the city is to maintain and keep in repair a bridge over the tracks of the railroad is void as an attempt to take from the city a part of its police power to compel a railway company to construct and maintain a bridge for the purpose of carrying a street over its tracks when necessary for the public safety, of which the city cannot divest itself by contract or otherwise, such an invalid contract is not validated by a judgment consented to by the municipality, expressly stipulating that such a contract is valid and binding (State ex rel. St. Paul v. Great Northern R. Co. (1916) 134 Minn. 249, 158 N. W. 972; St. Paul v. Chicago St. P. M. & O. R. Co. (1918) 139 Minn. 322, 166 N. W. 335). (8) Authority is not wanting to the effect that judgments entered against municipalities on consent of the municipal authorities are not res judicata as to the authority or power to consent, and that such want of power or authority to consent may always be shown to avoid the judgment whenever, as here, the record shows that it was entered on consent. Consent judgments, are in effect, merely contracts of parties, acknowledged in open court, and ordered to be recorded. As such, they bind the parties themselves thereto as fully as other judgments; but, when parties act in a representative capacity, such judgments do not bind the cestui que trustent, unless the trustees had authority to act; and when (as in the present case) the parties to the action, the town authorities, had, as appears above, no authority to issue the bonds, their honest belief, however great, that they had such power, would not authorize them to acquire such power, and bind the town by consenting to a judgment. It is not a question of a fraudulent judgment, but a void judgment for want of authority to consent to a decree to bind principals (the tax payers), for whom they had no authority to create an indebtedness by consenting to a judgment any more than they would have had by issuing bonds. If authorized to create the indebtedness, either the bonds or the consent judgment would be equally an estoppel, but, as they had no such authority, neither bonds nor judgment is binding on the tax payers." Union Bank of Richmond v. Oxford, 119 N.C. 214, 226, 25 S.E. 966, 969, 34 L. R. A. 487, 490. See also, Kane v. Independent School Dist., 82 Iowa, 5, 47 N W. 1076; Smith v. Broderick, 107 Cal. 644, 40 Pac. 1033, 48 Am. St. Rep. 167; Oxford v. Union Bank of Richmond, 96 Fed. 293, 37 C. C. A. 493. The same rule has been applied by the Supreme Court of the United States in favor of a stockholder of a private corporation who was sued under a Kansas statute by a creditor in order to collect a judgment rendered against a corporation. The stockholder was permitted to go behind the judgment and show a want of power in the corporation to make the contract on which the judgment rested. Ward v. Joslin, 186 U.S. 142, 22 Sup. Ct. 907, 46 L. Ed. 1093." (State vs. De Mattos, 152 Pac. Rep. pages 725-726). Did the officials of the City of Manila have power and authority to agree to the deletion of the entry in appellant's certificates of title, and eliminate therefrom the right reserved to the City to repurchase the land in question "for public purposes only" at any time after 50 years from 13 July 1911, upon payment to the buyer or its successors ofthe original price of the sale of the land plus the value of the improvements? . This question requires a closer look at the nature of the right thus reserved to the City. Contrary to the views expressed by the appellant, the continued existence of the City's authority to reacquire the property "for public purposes only" (sic) any time after 13 July 1961 is not debatable: for such authority is nothing more than the City's right to exercise the power of eminent domain which the City of Manila can not be deprived of. It does not arise from contract, nor can it be barred by prescription. In fact, it would exist without any reservation or stipulation at all. The more important part in the deleted stipulation is the right of the City of Manila not to pay for the land more than the price at which it was originally sold to the BPOE in 1911, disregarding market values at the time of condemnation. The elimination of this part of the contractual reservation in favor of the City commits the latter to pay the actual market value of the land at the time of expropriation. Considering the uninterrupted rise in real estate values, it can be readily seen that by consenting to the deletion of the annotation the City of Manila was made, in effect, to donate to the BPOE, or its successor-in-interest, Tarlac Development Corporation, the difference between the original price at which the land was sold to the BPOE in 1911 and the market price of the land at the time the City decided to reaquire it for public purposes. It requires no argument to show that the City executive officers had no power to bind the City to a stipulation so unfavorable to its interests, and so prejudicial to its taxpayers. The court found, and so do we, that the city officials, in consenting to the judgment were actuated by no bad motive. But the court also found, and so do we, that they so far exceeded their powers as to

taint the settlement and judgments with constructive fraud, and this, though less reprehensible, can be no less fatal to the validity of the judgment than actual fraud. (State ex rel. Bradway vs. De Mattos, 88 Wash. 35, 152 Pac. 721) . That neither in the petition nor in the order to delete the annotation in question is any mention or reference made to the disastrous consequences for the City of the action asked for, as above adverted to, nor to the fact that the City's right to reacquire the lot sold to the BPOE for public purposes was no other than the sovereign power of eminent domain, a power inalienable and imprescriptible, is eloquent proof that the Court, in granting the petition to delete, relied primarily, if not exclusively, on the assent thereto of the City authorities, and that the decree granting the petition to delete was nothing but a judgment by consent. Under the circumstances above discussed, we have no other alternative but to declare the order of deletion null and void. Hence, it can not be considered conclusive on any subsequent proceedings. (b) A further reason for this Court to deny the effect of res judicata to the 1963 order to delete from the certificates of title of the BPOE the annotation of the City's right to repurchase the property under the conditions specified in the original deed of conveyance lies in the fact that proceedings under Section 112 of the Land Registration Act presuppose unanimity among the parties;1 hence, the said 1963 order of the Land Registration Court lacks the quality of being an adjudication on the merits of a controversy, that is an essential requisite of res judicata (Rule 39, section 49), since there was no controversy resolved by the Court. And this was never truer than in the case at bar, where the decree of cancellation of the entry was, in fact, the result of an agreement between the parties, being a judgment by consent, as previously shown. (c) In Saminiada vs. Mata, 92 Phil. 426 431-432, this Court, following American authorities, ruled that an agreement or settlement between the parties, even if sanctioned by the decree of a court, does not give to such decree the character of res judicata. And this is particularly true in the present case, where the agreement concerned a question of law, to wit, the validity or invalidity in 1963 of the right reserved to the City of Manila. Upon the other hand, it is argued on behalf of the appellant BPOE, and its transferee Tarlac Development Corporation, that the 1964 order to reannotate the former entries in their certificates of title could not be decreed in proceedings under Section 112 of Act 496 (the Land Registration Law) for lack of jurisdiction, because the proposed reannotation had been controverted by them and the jurisprudence of this Court is to the effect that lack of unanimity between the parties bars any action by the Court of Land Registration under the section aforesaid. This contention might have carried weight if the parties had not discussed and extensively argued on the merits of the petition to reannotate. Instead of confining themselves to the jurisdictional question, appellants went on to discuss the nature of the title of the City of Manila to the land composing the Luneta Extension; whether or not said lots were property of public use (or of public service), or whether it was patrimonial property of the City; and whether the 1911 contract with the City vested upon appellant BPOE a title in fee simple or merely a temporary right of usufruct over the land in question. In Aglipay vs. Reyes, L-12776, 23 March 1960, and Franco, et al. vs. Monte de Piedad, L-17610, 22 April 1963, this Supreme Court ruled that where the parties have acquiesced in submitting the issues for determination on the merits in registration proceedings under Section 112 aforesaid, and they are given full opportunity to present their respective sides of the controversy, then the Land Registration Court, being itself a court of first instance may validly hear and determine issues otherwise litigable only in ordinary civil actions. At any rate, since the 1963 order to cancel the entry originally annotated on the back of the certificates of title of appellant BPOE reserving the right of the City of Manila to reacquire the property after 50 years from the original conveyance to said appellant was, and is, null and void, as previously shown, such nullity should necessarily result in the reannotation of the deleted entries on said certificates of title of the BPOE, as well as on the other transfer certificates derived therefrom, including that of the Tarlac Development Corporation, as transferee of the BPOE, subject to the right of said Development Corporation to sue for cancellation of the annotation on its own certificates (T.C.T. No. 73444 of Manila) as hereinafter reserved. II On Entry No. 18115/T-9332 (T.C.T. Nos. 9332 and 51988) : What has been stated concerning the invalidity of the 1963 order of the Land Registration Court decreeing the cancellation of the annotation of the rights of the City of Manila on Certificates of Title Nos. 2195 and 67488 of the BPOE applies with equal force, and for the same reason, to the order of the same court cancelling the annotations on Certificates of Title Nos. 9332 and 51988 of the Army and Navy Club of Manila, appellant in G.R. No. L-24481. The same issues were raised, and the resulting legal situation is identical. Hence, the subsequent order of reannotation must also be sustained in this case. III. Rights of the Tarlac Development Corporation: . Whether the Tarlac Development Corporation is entitled to hold the property (covered by T.C.T. No. 73444) free from the reserved rights of reacquisition of the City of Manila, on account of its claim of being a purchaser in good faith, involves essentially a question of fact. The appellee, City of Manila, has assailed the good faith of this transferee, pointing out that the Luneta Extension is a park, and, therefore, not patrimonial

property of the City, and that the description of the property in the certificates of Tarlac and its predecessor, BPOE, clearly describes it as a part of the Luneta Extension, thereby placing its acquirers upon inquiry. Whether such is the fact, and whether the particular lot was turned over to the City of Manila as property for public use; under what authority the City entered into the contract of 12 July 1911 if the lands were not patrimonial property of said City and other related questions are not fully elucidated in the proceedings now before us, and would be best litigated in another controversial proceeding, where Tarlac may, likewise, raise the question of its rights against its vendor, the BPOE, should it ultimately be declared that the City of Manila is still entitled to compel Tarlac to resell the property to it under the terms and conditions reserved in the original 1911 deed of sale by the City. For this purpose, the right is reserved to Tarlac Development Corporation to initiate a distinct action where its rights may be fully clarified and determined; but the reannotation order should be made effective on Tarlac's Certificate of Title No. 73444, as a preventive measure to protect the eventual rights of the City of Manila against the claims of future transferees. FOR THE FOREGOING CONSIDERATIONS, the appealed orders of the Land Registration Court decreeing the reannotation of Entry No. 4608/T-1635 on Transfer Certificates of Title Nos. 67488 and 73444, and Entry No. 18115/T-9332 on Transfer Certificate of Title No. 51988, all of the office of the Register of Deeds of Manila, are hereby affirmed, subject only to the right reserved to the appellant, Tarlac Development Corporation, to bring another action for the clarification of its rights, as stated in the body of this opinion. Costs against the appellants.

G.R. No. 112497 August 4, 1994 HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner, vs. MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF MANILA, respondents. The City Legal Officer for petitioner. Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.). Joseph Lopez for Sangguniang Panglunsod of Manila. L.A. Maglaya for Petron Corporation.

CRUZ, J.: The principal issue in this case is the constitutionality of Section 187 of the Local Government Code reading as follows: Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction. Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for noncompliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. 1 In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretary's resolution and sustained the ordinance, holding inter alia that the procedural requirements had been observed. More importantly, it declared Section 187 of the Local Government Code as unconstitutional because of its vesture in the Secretary of Justice of the power of control over local governments in violation

of the policy of local autonomy mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only the power of supervision over local governments. 2 The present petition would have us reverse that decision. The Secretary argues that the annulled Section 187 is constitutional and that the procedural requirements for the enactment of tax ordinances as specified in the Local Government Code had indeed not been observed. Parenthetically, this petition was originally dismissed by the Court for non-compliance with Circular 1-88, the Solicitor General having failed to submit a certified true copy of the challenged decision. 3 However, on motion for reconsideration with the required certified true copy of the decision attached, the petition was reinstated in view of the importance of the issues raised therein. We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation, 4even as the accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of separation of powers. As the questioned act is usually the handiwork of the legislative or the executive departments, or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion. 5 It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and the legislative departments and determined by them to be in accordance with the fundamental law before it was finally approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down. In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government Code unconstitutional insofar as it empowered the Secretary of Justice to review tax ordinances and, inferentially, to annul them. He cited the familiar distinction between control and supervision, the first being "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter," while the second is "the power of a superior officer to see to it that lower officers perform their functions in accordance with law." 6 His conclusion was that the challenged section gave to the Secretary the power of control and not of supervision only as vested by the Constitution in the President of the Philippines. This was, in his view, a violation not only of Article X, specifically Section 4 thereof, 7and of Section 5 on the taxing powers of local governments, 8 and the policy of local autonomy in general. We do not share that view. The lower court was rather hasty in invalidating the provision. Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision. An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on

this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision. The case of Taule v. Santos 9 cited in the decision has no application here because the jurisdiction claimed by the Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay was held to belong to the Commission on Elections by constitutional provision. The conflict was over jurisdiction, not supervision or control. Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as follows: A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the Secretary of Finance shall have authority to suspend the effectivity of any ordinance within one hundred and twenty days after receipt by him of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a whole, for a period of thirty days within which period the local legislative body may either modify the tax ordinance to meet the objections thereto, or file an appeal with a court of competent jurisdiction; otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time as the grounds for the suspension thereof shall have ceased to exist. That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure. The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter. In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the Implementing Rules of the Local Government Code nor were copies of the proposed ordinance published in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in accordance with Sec. 511(a) of the Local Government Code. Finally, the Manila Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people for their information and guidance, conformably to Sec. 59(b) of the Code. Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court. To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation to it of the said exhibits. We have carefully examined every one of these exhibits and agree with the trial court that the procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3. The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and not to tax ordinances.

We make no ruling on the substantive provisions of the Manila Revenue Code as their validity has not been raised in issue in the present petition. WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court insofar as it declared Section 187 of the Local Government Code unconstitutional but AFFIRMING its finding that the procedural requirements in the enactment of the Manila Revenue Code have been observed. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

#Footnotes

1 Annex "E," rollo, pp. 37-55. 2 Annex "A," rollo, pp. 27-36. 3 Rollo, p. 256. 4 Sec. 19(1). 5 Art. VIII, Sec. 4(2), Constitution. 6 Mondano v. Silvosa, 97 Phil. 143; Hebron v. Reyes, 104 Phil. 175; Tecson v. Salas, 34 SCRA 282. 7 Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. 8 Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. 9 200 SCRA 512.

G.R. No. 93252 August 5, 1991 RODOLFO T. GANZON, petitioner, vs. THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents. G.R. No. 93746 August 5,1991 MARY ANN RIVERA ARTIEDA, petitioner, vs. HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government, NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the Department of Local Government and SALVADOR CABALUNA JR., respondents. G.R. No. 95245 August 5,1991 RODOLFO T. GANZON, petitioner, vs. THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the Secretary of the Department of Local Government, respondents. Nicolas P. Sonalan for petitioner in 93252.

Romeo A. Gerochi for petitioner in 93746. Eugenio Original for petitioner in 95245.

SARMIENTO, J.:p The petitioners take common issue on the power of the President (acting through the Secretary of Local Government), to suspend and/or remove local officials. The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively. The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him by various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of the respondent Court of Appeals. 2 We quote: xxx xxx xxx In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health, Office of Iloilo City charged that due to political reasons, having supported the rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the exigency of the service and the interest of the public, pulled her out from rightful office where her qualifications are best suited and assigned her to a work that should be the function of a noncareer service employee. To make matters worse, a utility worker in the office of the Public Services, whose duties are alien to the complainant's duties and functions, has been detailed to take her place. The petitioner's act are pure harassments aimed at luring her away from her permanent position or force her to resign. In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to perform task not befitting her position as Assistant City Health Officer of Iloilo City; that her office was padlocked without any explanation or justification; that her salary was withheld without cause since April 1, 1988; that when she filed her vacation leave, she was given the run-around treatment in the approval of her leave in connivance with Dr. Rodolfo Villegas and that she was the object of a well-engineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo Villegas (Annex B). On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out from the case where Councilor Larry Ong, whose key to his office was unceremoniously and without previous notice, taken by petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other complainants sympathized with him and decided to do the same. However, the petitioner, together with its fully-armed security men, forcefully drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's actuations the following day in the radio station and decided to hold office at the Freedom Grandstand at Iloilo City and there were so many people who gathered to witness the incident. However, before the group could reach the area, the petitioner, together with his security men, led the firemen using a firetruck in dozing water to the people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of arrest was issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other detainees thereby causing injuries He was released only the following day. 3

The Mayor thereafter answered 4 and the cases were shortly set for hearing. The opinion of the Court of Appeals also set forth the succeeding events: xxx xxx xxx

The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo City. Notices, through telegrams, were sent to the parties (Annex L) and the parties received them, including the petitioner. The petitioner asked for a postponement before the scheduled date of hearing and was represented by counsel, Atty. Samuel Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all the way from Manila for the two-day hearings but was actually held only on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel. The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again, the petitioner attempted to delay the proceedings and moved for a postponement under the excuse that he had just hired his counsel. Nonetheless, the hearing officers denied the motion to postpone, in view of the fact that the parties were notified by telegrams of the scheduled hearings (Annex M). In the said hearings, petitioner's counsel cross-examined the complainants and their witnesses. Finding probable grounds and reasons, the respondent issued a preventive suspension order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days. Then the next investigation was set on September 21, 1988 and the petitioner again asked for a postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were present, together with their respective counsel. The petitioner sought for a postponement which was denied. In these hearings which were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299. The investigation was continued regarding the Malabor case and the complainants testified including their witnesses. On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the October 24, 1988 hearing to November 7 to 11, 1988 which was granted. However, the motion for change of venue as denied due to lack of funds. At the hearing on November 7, 1988, the parties and counsel were present. Petitioner reiterated his motion to change venue and moved for postponement anew. The counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the hearing was indefinitely postponed. However, the parties failed to come to terms and after the parties were notified of the hearing, the investigation was set to December 13 to 15, 1988. The petitioner sought for another postponement on the ground that his witnesses were sick or cannot attend the investigation due to lack of transportation. The motion was denied and the petitioner was given up to December 14, 1988 to present his evidence. On December 14,1988, petitioner's counsel insisted on his motion for postponement and the hearing officers gave petitioner up to December 15, 1988 to present his evidence. On December 15, 1988, the petitioner failed to present evidence and the cases were considered submitted for resolution.
In the meantime, a prima facie evidence was found to exist in the arbitrary detention case filed by Pancho Erbite so the respondent ordered the petitioner's second preventive suspension dated October 11, 1988 for another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of preliminary injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension was not enforced. 5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of Appeals. Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.) On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda, who had been similary charged by the respondent Secretary, to this Court.

On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two decisions. In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of January 15, 1991, we gave due course thereto. Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in hearing the ten cases against him, had denied him due process of law and that the respondent Secretary had been "biased, prejudicial and hostile" towards him 7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong Pilipino party 8 and the running political rivalry they maintained in the last congressional and local elections; 9 and his alleged refusal to operate a lottery in Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension since it had come ninety days prior to an election (the barangay elections of November 14, 1988), 11 notwithstanding which, the latter proceeded with the hearing and meted out two more suspension orders of the aforementioned cases. 12 He likewise contends that he sought to bring the cases to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the Secretary rejected his request.13 He states that he asked for postponement on "valid and justifiable" 14 grounds, among them, that he was suffering from a heart ailment which required confinement; that his "vital" 15 witness was also hospitalized 16 but that the latter unduly denied his request. 17 Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local Government is devoid, in any event, of any authority to suspend and remove local officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746). As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims that he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically motivated are pure speculation and although the latter does not appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have under less political circumstances, considering furthermore that "political feud" has often been a good excuse in contesting complaints. The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted to seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although the Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as judicial admissions as he would have us accept them 18 for the same reasons above-stated and furthermore, because his say so's were never corroborated by independent testimonies. As a responsible public official, Secretary Santos, in pursuing an official function, is presumed to be performing his duties regularly and in the absence of contrary evidence, no ill motive can be ascribed to him. As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds the question to be moot and academic since we have in fact restrained the Secretary from further hearing the complaints against the petitioners. 19 As to his request, finally, for postponements, the Court is afraid that he has not given any compelling reason why we should overturn the Court of Appeals, which found no convincing reason to overrule Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the part of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the Secretary has been guilty of a grave abuse of discretion. The Court can not say, under these circumstances, that Secretary Santos' actuations deprived Mayor Ganzon of due process of law. We come to the core question: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend and/or remove local officials. It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase 21 as may be provided by law to strip the President of the power of control over local governments. It is a view, so they contend, that finds support in the debates of the Constitutional Commission. The provision in question reads as follows:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. 22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:

Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all Local governments as may be provided by law, and take care that the laws be faithfully executed. 23

The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer. It is to be noted that in meting out the suspensions under question, the Secretary of Local Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local Government Code, we quote:
Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the Minister of local Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within seven days from receipt of said complaint, and commence the hearing and investigation of the case within ten days after receipt of such answer of the respondent. No investigation shall be held within ninety days immediately prior to an election, and no preventive suspension shall be imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the preventive suspension shall be lifted. 24

Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official. (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However ' if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension. 25

The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional language? It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not intend to divest the legislature of its right or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal governments of the United States of America (or Brazil or Germany), although Jefferson is said to have compared municipal corporations euphemistically to "small republics." 26 Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central government. It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, 27 a local tax law, 28 income distribution legislation, 29 and a national representation law, 30 and measures 31 designed to realize autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places the local government under the general supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President. Thus:
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and

duties of local officials, and all other matters relating to the organization and operation of the local units. 32

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The Constitution did nothing more, however, and insofar as existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local officials administratively, the Constitution contains no prohibition. The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. It is a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority as this Court has held, 34 thus: xxx xxx xxx
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to discuss the scope and extent of the power of supervision by the President over local government officials in contrast to the power of control given to him over executive officials of our government wherein it was emphasized that the two terms, control and supervision, are two different things which differ one from the other in meaning and extent. Thus in that case the Court has made the following digression: "In administration law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." But from this pronouncement it cannot be reasonably inferred that the power of supervision of the President over local government officials does not include the power of investigation when in his opinion the good of the public service so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35

xxx xxx xxx "Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter."36 "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. 37 As we held, 38 however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v. Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor General. 42 In Lacson, this Court said that the President enjoyed no control powers but only supervision "as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board." 44 However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of disciplinary authority because she did not exercise control powers, but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:
The contention that the President has inherent power to remove or suspend municipal officers is without doubt not well taken. Removal and suspension of public officers are always controlled by the particular law applicable and its proper construction subject to constitutional limitations. 45

In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-which does not et with respect to municipal officers ... 46

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge by one affecting the official integrity of the officer in question." Section 86 of the Revised Administration Code adds nothing to the power of

supervision to be exercised by the Department Head over the administration of ... municipalities ... . If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79(c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by Section 110(l), Article VII of the Constitution. 47

xxx xxx xxx In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on appeal from the provincial board pursuant to the Administrative Code. 48 Thus, in those case that this Court denied the President the power (to suspend/remove) it was not because we did not think that the President can not exercise it on account of his limited power, but because the law lodged the power elsewhere. But in those cases ii which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him. 49 The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President, 50Commissioner Blas Ople would not. 51 The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect. 52 As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure instituted through a system of decentralization." 53 The Constitution as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and inter-dependence between the central administration and local government units, or otherwise, to user in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance selfgovernment. As we observed in one case, 54 decentralization means devolution of national administration but not power to the local levels. Thus: Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous, In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "selfimmolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter. What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in the event that all ten cases yield prima faciefindings. The Court is not of course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another question to make him serve 600 days of suspension, which is effectively, to suspend him out of office. As we held: 56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. it is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective

officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, Ms culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 57

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and so also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held, 59 is simply "to prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible witnesses" 60 or to keep him off "the records and other evidence. 61 It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the Local Government Code, it can not exceed sixty days, 62 which is to say that it need not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved their purpose in a shorter span. Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption of innocence unless and until found guilty. Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no more than sixty days. As we held, 63 a longer suspension is unjust and unreasonable, and we might add, nothing less than tyranny. As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to make, to all intents and purposes, his suspension permanent. It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven. Worse, any absolution will be for naught because needless to say, the length of his suspension would have, by the time he is reinstated, wiped out his tenure considerably. The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive suspensions when apparently, the respondent Secretary has had sufficient time to gather the necessary evidence to build a case against the Mayor without suspending him a day longer. What is intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could have pursued a consolidated effort. We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to say, with a grave abuse of discretion. The Court is aware that only the third suspension is under questions, and that any talk of future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the corner (which amounts to a violation of the Local Government Code which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act. As we said, we can not tolerate such a state of affairs. We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven remaining charges are concerned, we are urging the Department of Local Government, upon the finality of this Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are precluding the Secretary from meting out further suspensions based on those remaining complaints, notwithstanding findings of prima facie evidence. In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which local officials remain accountable to the central government in the manner the law may provide; 2. The new Constitution does not prescribe federalism; 3. The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative control over local governments; it did not exempt the latter from legislative regulations provided regulation is consistent with the fundamental premise of autonomy; 4. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth therein, impose disciplinary action against local officials; 5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President does not have); 6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended for the offenses he was charged originally; provided: a) that delays in the investigation of those charges "due to his fault, neglect or request, (the time of the delay) shall not be counted in computing the time of suspension. [Supra, sec. 63(3)] b) that if during, or after the expiration of, his preventive suspension, the petitioner commits another or other crimes and abuses for which proper charges are filed against him by the aggrieved party or parties, his previous suspension shall not be a bar to his being preventively suspended again, if warranted under subpar. (2), Section 63 of the Local Government Code. WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any of the remaining administrative charges pending against him for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending against Mayor Ganzon. The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs. SO ORDERED.

G.R. No. 102782 December 11, 1991 THE SOLICITOR GENERAL, RODOLFO A. MALAPIRA, STEPHEN A. MONSANTO, DAN R. CALDERON, and GRANDY N. TRIESTE, petitioners vs. THE METROPOLITAN MANILA AUTHORITY and the MUNICIPALITY OF MANDALUYONG, respondents.

CRUZ, J.:p In Metropolitan Traffic Command, West Traffic District vs. Hon. Arsenio M. Gonong, G.R. No. 91023, promulgated on July 13, 1990, 1 the Court held that the confiscation of the license plates of motor vehicles for traffic violations was not among the sanctions that could be imposed by the Metro Manila Commission under PD 1605 and was permitted only under the conditions laid dowm by LOI 43 in the case of stalled vehicles obstructing the public streets. It was there also observed that even the confiscation of driver's licenses for traffic violations was not directly prescribed by the decree nor was it allowed by the decree to be imposed by the Commission. No motion for reconsideration of that decision was submitted. The judgment became final and executory on August 6, 1990, and it was duly entered in the Book of Entries of Judgments on July 13, 1990. Subsequently, the following developments transpired:

In a letter dated October 17, 1990, Rodolfo A. Malapira complained to the Court that when he was stopped for an alleged traffic violation, his driver's license was confiscated by Traffic Enforcer Angel de los Reyes in Quezon City. On December 18,1990, the Caloocan-Manila Drivers and Operators Association sent a letter to the Court asking who should enforce the decision in the above-mentioned case, whether they could seek damages for confiscation of their driver's licenses, and where they should file their complaints. Another letter was received by the Court on February 14, 1991, from Stephen L. Monsanto, complaining against the confiscation of his driver's license by Traffic Enforcer A.D. Martinez for an alleged traffic violation in Mandaluyong. This was followed by a letter-complaint filed on March 7, 1991, from Dan R. Calderon, a lawyer, also for confiscation of his driver's license by Pat. R.J. Tano-an of the Makati Police Force. Still another complaint was received by the Court dated April 29, 1991, this time from Grandy N. Trieste, another lawyer, who also protested the removal of his front license plate by E. Ramos of the Metropolitan Manila Authority-Traffic Operations Center and the confiscation of his driver's license by Pat. A.V. Emmanuel of the Metropolitan Police Command-Western Police District. Required to submit a Comment on the complaint against him, Allan D. Martinez invoked Ordinance No. 7, Series of 1988, of Mandaluyong, authorizing the confiscation of driver's licenses and the removal of license plates of motor vehicles for traffic violations. For his part, A.V. Emmanuel said he confiscated Trieste's driver's license pursuant to a memorandum dated February 27, 1991, from the District Commander of the Western Traffic District of the Philippine National Police, authorizing such sanction under certain conditions. Director General Cesar P. Nazareno of the Philippine National Police assured the Court in his own Comment that his office had never authorized the removal of the license plates of illegally parked vehicles and that he had in fact directed full compliance with the above-mentioned decision in a memorandum, copy of which he attached, entitled Removal of Motor Vehicle License Plates and dated February 28, 1991. Pat. R.J. Tano-an, on the other hand, argued that the Gonong decision prohibited only the removal of license plates and not the confiscation of driver's licenses. On May 24, 1990, the Metropolitan Manila Authority issued Ordinance No. 11, Series of 1991, authorizing itself "to detach the license plate/tow and impound attended/ unattended/ abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila." On July 2, 1991, the Court issued the following resolution: The attention ofthe Court has been called to the enactment by the Metropolitan Manila Authority of Ordinance No. 11, Series of 1991, providing inter alia that: Section 2. Authority to Detach Plate/Tow and Impound. The Metropolitan Manila Authority, thru the Traffic Operatiom Center, is authorized to detach the license plate/tow and impound attended/unattended/abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila. The provision appears to be in conflict with the decision of the Court in the case at bar (as reported in 187 SCRA 432), where it was held that the license plates of motor vehicles may not be detached except only under the conditions prescribed in LOI 43. Additionally, the Court has received several complaints against the confiscation by police authorities of driver's licenses for alleged traffic violations, which sanction is, according to the said decision, not among those that may be imposed under PD 1605. To clarify these matters for the proper guidance of law-enforcement officers and motorists, the Court resolved to require the Metropolitan Manila Authority and the Solicitor General to submit, within ten (10) days from notice hereof, separate COMMENTS on such sanctions in light of the said decision. In its Comment, the Metropolitan Manila Authority defended the said ordinance on the ground that it was adopted pursuant to the powers conferred upon it by EO 392. It particularly cited Section 2 thereof vesting in the Council (its governing body) the responsibility among others of: 1. Formulation of policies on the delivery of basic services requiring coordination or consolidation for the Authority; and

2. Promulgation of resolutions and other issuances of metropolitan wide application, approval of a code of basic services requiring coordination, andexercise of its rule-making powers. (Emphasis supplied) The Authority argued that there was no conflict between the decision and the ordinance because the latter was meant to supplement and not supplant the latter. It stressed that the decision itself said that the confiscation of license plates was invalid in the absence of a valid law or ordinance, which was why Ordinance No. 11 was enacted. The Authority also pointed out that the ordinance could not be attacked collaterally but only in a direct action challenging its validity. For his part, the Solicitor General expressed the view that the ordinance was null and void because it represented an invalid exercise of a delegated legislative power. The flaw in the measure was that it violated existing law, specifically PD 1605, which does not permit, and so impliedly prohibits, the removal of license plates and the confiscation of driver's licenses for traffic violations in Metropolitan Manila. He made no mention, however, of the alleged impropriety of examining the said ordinance in the absence of a formal challenge to its validity. On October 24, 1991, the Office of the Solicitor General submitted a motion for the early resolution of the questioned sanctions, to remove once and for all the uncertainty of their vahdity. A similar motion was filed by the Metropolitan Manila Authority, which reiterated its contention that the incidents in question should be dismissed because there was no actual case or controversy before the Court. The Metropolitan Manila Authority is correct in invoking the doctrine that the validity of a law or act can be challenged only in a direct action and not collaterally. That is indeed the settled principle. However, that rule is not inflexible and may be relaxed by the Court under exceptional circumstances, such as those in the present controversy. The Solicitor General notes that the practices complained of have created a great deal of confusion among motorists about the state of the law on the questioned sanctions. More importantly, he maintains that these sanctions are illegal, being violative of law and the Gonong decision, and should therefore be stopped. We also note the disturbing report that one policeman who confiscated a driver's license dismissed the Gonong decision as "wrong" and said the police would not stop their "habit" unless they received orders "from the top." Regrettably, not one of the complainants has filed a formal challenge to the ordinances, including Monsanto and Trieste, who are lawyers and could have been more assertive of their rights. Given these considerations, the Court feels it must address the problem squarely presented to it and decide it as categorically rather than dismiss the complaints on the basis of the technical objection raised and thus, through its inaction, allow them to fester. The step we now take is not without legal authority or judicial precedent. Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning "pleading, practice and procedure in all courts." 2 In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. The Court has taken this step in a number of such cases, notably Araneta vs. Dinglasan, 3 where Justice Tuason justified the deviation on the ground that "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure." We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment ofjustice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. (Aznar III vs. Bernad, G.R. No. 81190, May 9, 1988, 161 SCRA 276.) Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. (Piczon vs. Court of Appeals, 190 SCRA 31). Three of the cases were consolidated for argument and the other two were argued separately on other dates. Inasmuch as all of them present the same fundamental question which, in our view, is decisive, they will be disposed of jointly. For the same reason we will pass up the objection to the personality or sufficiency of interest of the petitioners in case G.R. No. L-3054 and case G.R. No. L-3056 and the question whether prohibition lies in cases G.R. Nos. L-2044 and L2756. No practical benefit can be gained from a discussion of these procedural matters, since the decision in the cases wherein the petitioners'cause of

action or the propriety of the procedure followed is not in dispute, will be controlling authority on the others. Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821 cited in Araneta vs. Dinglasan, 84 Phil. 368.) Accordingly, the Court will consider the motion to resolve filed by the Solicitor General a petition for prohibition against the enforcement of Ordinance No. 11, Series of 1991, of the Metropohtan Manila Authority, and Ordinance No. 7, Series of 1988, of the Municipality of Mandaluyong. Stephen A. Monsanto, Rodolfo A. Malapira, Dan R. Calderon, and Grandy N. Trieste are considered co-petitioners and the Metropolitan Manila Authority and the Municipality of Mandaluyong are hereby impleaded as respondents. This petition is docketed as G.R. No. 102782. The comments already submitted are duly noted and shall be taken into account by the Court in the resolution of the substantive issues raised. It is stressed that this action is not intended to disparage procedural rules, which the Court has recognized often enough as necessary to the orderly administration of justice. If we are relaxing them in this particular case, it is because of the failure of the proper parties to file the appropriate proceeding against the acts complained of, and the necessity of resolving, in the interest of the public, the important substantive issues raised. Now to the merits. The Metro Manila Authority sustains Ordinance No. 11, Series of 1991, under the specific authority conferred upon it by EO 392, while Ordinance No. 7, Series of 1988, is justified on the basis of the General Welfare Clause embodied in the Local Government Code. 4 It is not disputed that both measures were enacted to promote the comfort and convenience of the public and to alleviate the worsening traffic problems in Metropolitan Manila due in large part to violations of traffic rules. The Court holds that there is a valid delegation of legislative power to promulgate such measures, it appearing that the requisites of such delegation are present. These requisites are. 1) the completeness of the statute making the delegation; and 2) the presence of a sufficient standard. 5 Under the first requirement, the statute must leave the legislature complete in all its terms and provisions such that all the delegate will have to do when the statute reaches it is to implement it. What only can be delegated is not the discretion to determine what the law shall be but the discretion to determine how the law shall be enforced. This has been done in the case at bar. As a second requirement, the enforcement may be effected only in accordance with a sufficient standard, the function of which is to map out the boundaries of the delegate's authority and thus "prevent the delegation from running riot." This requirement has also been met. It is settled that the "convenience and welfare" of the public, particularly the motorists and passengers in the case at bar, is an acceptable sufficient standard to delimit the delegate's authority. 6 But the problem before us is not the validity of the delegation of legislative power. The question we must resolve is the validity of the exercise of such delegated power. The measures in question are enactments of local governments acting only as agents of the national legislature. Necessarily, the acts of these agents must reflect and conform to the will of their principal. To test the validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations. According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit but may regulate trade; 5) must not be unreasonable; and 6) must be general and consistent with public policy. 7 A careful study of the Gonong decision will show that the measures under consideration do not pass the first criterion because they do not conform to existing law. The pertinent law is PD 1605. PD 1605 does not allow either the removal of license plates or the confiscation of driver's licenses for traffic violations committed in Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila Commission (and now the Metropolitan Manila Authority) to impose such sanctions: Section 1. The Metropolitan Manila Commission shall have the power to impose fines and otherwise discipline drivers and operators of motor vehicles for violations of traffic laws, ordinances, rules and regulations in Metropolitan Manila in such amounts and under such penalties as are herein prescribed. For this purpose, the powers of the Land Transportation Commission and the Board of Transportation under existing laws over such violations and punishment thereof are hereby transferred to the Metropolitan Manila Commission. When the proper penalty to be imposed issuspension or revocation of driver's license or certificate of public convenience, the Metropolitan Manila Commission or its representatives shall

suspend or revoke such license or certificate. The suspended or revoked driver's license or the report of suspension or revocation of the certificate of public convenience shall be sent to the Land Transportation Commission or the Board of Transportation, as the case may be, for their records update. xxx xxx xxx Section 3.` Violations of traffic laws, ordinances, rules and regulations, committed within a twelve-month period, reckoned from the date of birth of the licensee, shall subject the violator to graduated fines as follows: P10.00 for the first offense, P20.00 for the and offense, P50.00 for the third offense, a one-year suspension of driver's license for the fourth offense, and a revocation of the driver'slicense for the fifth offense: Provided, That the Metropolitan Manila Commission may impose higher penalties as it may deem proper for violations of its ordinances prohibiting or regulating the use of certain public roads, streets and thoroughfares in Metropolitan Manila. xxx xxx xxx Section 5. In case of traffic violations, the driver's license shall not be confiscated but the erring driver shall be immediately issued a traffic citation ticket prescribed by the Metropolitan Manila Commission which shall state the violation committed, the amount of fine imposed for the violation and an advice that he can make payment to the city or municipal treasurer where the violation was committed or to the Philippine National Bank or Philippine Veterans Bank or their branches within seven days from the date of issuance of the citation ticket. If the offender fails to pay the fine imposed within the period herein prescribed, the Metropolitan Manila Commission or the law-enforcement agency concerned shall endorse the case to the proper fiscal for appropriate proceedings preparatory to the filing of the case with the competent traffic court, city or municipal court. If at the time a driver renews his driver's license and records show that he has an unpaid fine, his driver's license shall not be renewed until he has paid the fine and corresponding surcharges. xxx xxx xxx Section 8. Insofar as the Metropolitan Manila area is concerned, all laws, decrees, orders, ordinances, rules and regulations, or parts thereof inconsistent herewith are hereby repealed or modified accordingly. (Emphasis supplied). In fact, the above provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission was allowed to "impose fines and otherwise discipline" traffic violators only "in such amounts and under such penalties as are herein prescribed," that is, by the decree itself. Nowhere is the removal of license plates directly imposed by the decree or at least allowed by it to be imposed by the Commission. Notably, Section 5 thereof expressly provides that "in case of traffic violations, the driver's license shall not be confiscated." These restrictions are applicable to the Metropolitan Manila Authority and all other local political subdivisions comprising Metropolitan Manila, including the Municipality of Mandaluyong. The requirement that the municipal enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). 8 They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government unit cannot contravene but must obey at all times the will of their principal. In the case before us, the enactments in question, which are merely local in origin, cannot prevail against the decree, which has the force and effect of a statute. The self-serving language of Section 2 of the challenged ordinance is worth noting. Curiously, it is the measure itself, which was enacted by the Metropolitan Manila Authority, that authorizes the Metropolitan Manila Authority to impose the questioned sanction. In Villacorta vs, Bemardo, 9 the Court nullified an ordinance enacted by the Municipal Board of Dagupan City for being violative of the Land Registration Act. The decision held in part: In declaring the said ordinance null and void, the court a quo declared: From the above-recited requirements, there is no showing that would justify the enactment of the questioned ordinance. Section 1 of said ordinance

clearly conflicts with Section 44 of Act 496, because the latter law does not require subdivision plans to be submitted to the City Engineer before the same is submitted for approval to and verification by the General Land Registration Office or by the Director of Lands as provided for in Section 58 of said Act. Section 2 of the same ordinance also contravenes the provisions of Section 44 of Act 496, the latter being silent on a service fee of P0.03 per square meter of every lot subject of such subdivision application; Section 3 of the ordinance in question also conflicts with Section 44 of Act 496, because the latter law does not mention of a certification to be made by the City Engineer before the Register of Deeds allows registration of the subdivision plan; and the last section of said ordinance impose a penalty for its violation, which Section 44 of Act 496 does not impose. In other words, Ordinance 22 of the City of Dagupan imposes upon a subdivision owner additional conditions. xxx xxx xxx The Court takes note of the laudable purpose of the ordinance in bringing to a halt the surreptitious registration of lands belonging to the government. But as already intimated above, the powers of the board in enacting such a laudable ordinance cannot be held valid when it shall impede the exercise of rights granted in a general law and/or make a general law subordinated to a local ordinance. We affirm. To sustain the ordinance would be to open the floodgates to other ordinances amending and so violating national laws in the guise of implementing them. Thus, ordinances could be passed imposing additional requirements for the issuance of marriage licenses, to prevent bigamy; the registration of vehicles, to minimize carnapping; the execution of contracts, to forestall fraud; the validation of parts, to deter imposture; the exercise of freedom of speech, to reduce disorder; and so on. The list is endless, but the means, even if the end be valid, would be ultra vires. The measures in question do not merely add to the requirement of PD 1605 but, worse, impose sanctions the decree does not allow and in fact actually prohibits. In so doing, the ordinances disregard and violate and in effect partially repeal the law. We here emphasize the ruling in the Gonong case that PD 1605 applies only to the Metropolitan Manila area. It is an exception to the general authority conferred by R.A. No. 413 on the Commissioner of Land Transportation to punish violations of traffic rules elsewhere in the country with the sanction therein prescribed, including those here questioned. The Court agrees that the challenged ordinances were enacted with the best of motives and shares the concern of the rest of the public for the effective reduction of traffic problems in Metropolitan Manila through the imposition and enforcement of more deterrent penalties upon traffic violators. At the same time, it must also reiterate the public misgivings over the abuses that may attend the enforcement of such sanction in eluding the illicit practices described in detail in the Gonong decision. At any rate, the fact is that there is no statutory authority for and indeed there is a statutory prohibition against the imposition of such penalties in the Metropolitan Manila area. Hence, regardless of their merits, they cannot be impose by the challenged enactments by virtue only of the delegated legislative powers. It is for Congress to determine, in the exercise of its own discretion, whether or not to impose such sanctions, either directly through a statute or by simply delegating authority to this effect to the local governments in Metropolitan Manila. Without such action, PD 1605 remains effective and continues prohibit the confiscation of license plates of motor vehicles (except under the conditions prescribed in LOI 43) and of driver licenses as well for traffic violations in Metropolitan Manila. WHEREFORE, judgment is hereby rendered: (1) declaring Ordinance No.11, Seriesof l991,of theMetropolitan Manila Authority and Ordinance No. 7, Series of 1988 of the Municipality of Mandaluyong, NULL and VOID; and (2) enjoining all law enforcement authorities in Metropolitan Manila from removing the license plates of motor vehicles (except when authorized under LOI 43) and confiscating driver licenses for traffic violations within the said area. SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur. Nocon, J., took no part.

Footnotes 1 En Banc 187 SCRA 432. 2 Constitution, Article VHI, Section 5(5). 3 84 Phil. 368. 4 R.A. 7160, Title One, Chapter 2, Section 16. 5 Pelaez v. Auditor General, 15 SCRA 569. 6 Calalang v. Williams, 70 Phil. 726. 7 U.S. v. Abendan, 24 Phil. 165. 8 Article X, Section 5. 9 143 SCR.A 480.