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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 103328 October 19, 1992 HON. ROY A. PADILLA, JR., In his capacity as Governor of the Province of Camarines Norte, petitioner, vs. COMMISSION ON ELECTIONS, respondent. RESOLUTION

ROMERO, J.: Pursuant to Republic Act No. 7155, the Commission on Elections promulgated on November 13, 1991, Resolution No. 2312 which reads as follows: WHEREAS, Republic Act No. 7155 approved on September 6, 1991 creates the Municipality of Tulay-Na-Lupa in the Province of Camarines Norte to be composed of Barangays TulayNa-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa, all in the Municipality of Labo, same province. WHEREAS under Section 10, Article X of the 1987 Constitution 1 the creation of a municipality shall be subject to approval by a majority of votes cast in a plebiscite in the political units directly affected, and pursuant to Section 134 of the Local Government Code (Batas Pambansa Blg. 337) 2 said plebiscite shall be conducted by the Commission on Elections; WHEREAS, Section 6 of said Republic Act No. 7155 provides that the expenses in holding the plebiscite shall be take out of the Contingent Fund under the current fiscal year appropriations; NOW, THEREFORE, BE IT RESOLVED, as the Commission hereby resolves, to promulgated (sic) the following guidelines to govern the conduct of said plebiscite: 1. The plebiscite shall be held on December 15, 1991, in the areas or units affected, namely the barangays comprising he proposed Municipality of Tulay-Na-Lupa and the remaining areas of the mother Municipality of Labor, Camarines Norte (Tan vs. COMELEC, G.R. No. 73155, July 11, 1986). xxx xxx xxx In the plebiscite held on December 15, 1991 throughout the Municipality of Labo, only 2,890 votes favored its creation while 3,439 voters voted against the creation of the Municipality of Tulay-Na-Lupa. Consequently, the day after the political exercise, the Plebiscite Board of Canvassers declared the rejection and disapproval of the independent Municipality of Tulay-Na-Lupa by a majority of votes. 3 Thus, in this special civil action of certiorari, petitioner as Governor of Camarines Norte, seeks to set aside the plebiscite conducted on December 15, 1991 throughout the Municipality of Labo and prays that a new plebiscite be undertaken as provided by RA 7155. It is the contention of petitioner that the plebiscite was a complete failure and that the results obtained were invalid and illegal because the plebiscite, as mandated by COMELEC Resolution No. 2312 should have been conducted only in the political unit or units affected, i.e. the 12 barangays comprising the new Municipality of Tulay-Na-Lupa namely Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa. Petitioner stresses that the

plebiscite should not have included the remaining area of the mother unit of the Municipality of Labo, Camarines Norte. 4 In support of his stand, petitioner argues that with the approval and ratification of the 1987 Constitution, particularly Article X, Section 10, the ruling set forth in Tan v. COMELEC 5 relied upon by respondent COMELEC is now passe, thus reinstating the case of Paredes v. Executive Secretary 6 which held that where a local unit is to be segregated from a parent unit, only the voters of the unit to be segrated should be included in the plebiscite. 7 Accordingly, the issue in this case is whether or not respondent COMELEC committed grave abuse of discretion in promulgating Resolution No. 2312 and, consequently, whether or not the plebiscite conducted in the areas comprising the proposed Municipality of Tulay-Na-Lupa and the remaining areas of the mother Municipality of Labo is valid. We rule that respondent COMELEC did not commit grave abuse in promulgating Resolution No. 2312 and that the plebiscite, which rejected the creation of the proposed Municipality of Tulay-Na-Lupa, is valid. Petitioner's contention that our ruling in Tan vs. COMELEC has been superseded with the ratification of the 1987 Constitution, thus reinstating our earlier ruling in Paredes vs. COMELEC is untenable. Petitioner opines that since Tan vs.COMELEC was based on Section 3 of Article XI of the 1973 Constitution our ruling in said case is no longer applicable under Section 10 of Article X of the 1987 Constitution, 8 especially since the latter provision deleted the words "unit or." We do not agree. The deletion of the phrase "unit or" in Section 10, Article X of the 1987 Constitution from its precursor, Section 3 of Article XI of the 1973 Constitution not affected our ruling in Tan vs. Comelec as explained by then CONCOM Commissioner, now my distinguished colleague, Associate Justice Hilario Davide, during the debates in the 1986 Constitutional Commission, to wit: Mr. Maambong: While we have already approved the deletion of "unit or," I would like to inform the Committee that under the formulation in the present Local Government Code, the words used are actually "political unit or units." However, I do not know the implication of the use of these words. Maybe there will be no substantial difference, but I just want to inform the Committee about this. Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no objection on the part of the two Gentlemen from the floor? Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the plebiscite to be conducted, it must involve all the units affected . If it is the creation of a barangay plebiscite because it is affected. It would mean a loss of a territory. 9 (Emphasis supplied) It stands to reason that when the law states that the plebiscite shall be conducted "in the political units directly affected," it means that residents of the political entity who would be economically dislocated by the separation of a portion thereof have a right to vote in said plebiscite. Evidently, what is contemplated by the phase "political units directly affected," is the plurality of political units which would participate in the plebiscite. 10 Logically, those to be included in such political areas are the inhabitants of the 12 barangays of the proposed Municipality of Tulay-Na-Lupa as well as those living in the parent Municipality of Labo, Camarines Norte. Thus, we conclude that respondent COMELEC did not commit grave abuse of discretion in promulgating Resolution No. 2312. WHEREFORE, the instant petition is hereby DISMISSED. SO ORDERED. Narvasa, C.J., Gutierrez Jr., Cruz, Feliciano, Bidin, Grio-Aquino, Medialdea and Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur. Padilla, J., is on leave.

Footnotes 1 Article X Sec. 10 of the 1987 Constitution provides: "No province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." 2 Sec. 134 of Batas Pambansa 337 provides : "Manner of Creation A Municipality may be altered or modified and its boundaries defined, altered or modified only by an Act of the Batasang Pambansa, subject to the approval by a majority of the votes cast in a plebiscite to be held in the unit or units affected. Except as may otherwise be provided in said Acts the plebiscite shall be conducted by the Commission on Elections, within one hundred twenty days from the date of its effectivity." 3 Annex C, Rollo p. 15. 4 Rollo, pp. 3-4. 5 G.R. No. 73155, July 11, 1986, 142 SCRA 727. 6 G.R. No. 55628, March 2, 1984, 128 SCRA 6. 7 Rollo, p. 36. 8 "No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes cast in a plebiscite in the unit or units affected." (Emphasis supplied). 9 Volume 3, Record of the Constitutional Commission, p. 486. 10 Tan v. COMELEC, supra at Footnote No. 4. The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 73155 July 11, 1986 PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL,respondents. Gamboa & Hofilea Law Office for petitioners.

ALAMPAY, J.: Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents Commission on Elections from conducting the plebiscite which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law provides: SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the province to be known as the Province of Negros del Norte. SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion to the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more or less. SEC. 3. The seat of government of the new province shall be the City of Cadiz. SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province. SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses for which shall be charged to local funds.

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24) Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that See. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the creation of a provincial unit and these requisites are: SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands. The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6) Due to the constraints brought about by the supervening Christmas holidays during which the Court was in recess and unable to timely consider the petition, a supplemental pleading was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant case affecting the legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by this Court. The plebiscite was confined only to the inhabitants of the territory of Negros del N rte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners found need to change the prayer of their petition "to the end that the constitutional issues which they have raised in the action will be ventilated and given final resolution.'"At the same time, they asked that the effects of the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered its decision on the very fundamental and far-reaching questions that petitioners have brought out. Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing official proclamation of the results of the plebiscite held on January 3, 1986. Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than those living within the territory of the new province of Negros del Norte to be not in accordance with the Constitution, that a writ of mandamus be issued, directed to the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held on January 3, 1986 has no legal effect, being a patent legal nullity; And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo pp. 9-10). Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986. Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to require respondents to comment, not to file a motion to dismiss. Complying with said resolution, public respondents, represented by the Office of the Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.-Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law is not void on its face and that the petition does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution. Respondents state that the powers of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local Government Code have been complied with. Furthermore, they submit that this case has now become moot and academic with the proclamation of the new Province of Negros del Norte. Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not included in the area of the new Province of Negros del Norte, de not fall within the meaning and scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted: 1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who are not from the barangays to be separated, should be excluded in the plebiscite. 2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. ... 3. ... Adherence to such philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice-their choice. They should be left alone then to decide for themselves. To allow other voters to participate will not yield a true expression of their will. They may even frustrate it, That certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia. Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly complied with, Respondents discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code for a new province to be created has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less. As a final argument, respondents insist that instant petition has been rendered moot and academic considering that a plebiscite has been already conducted on January 3, 1986; that as a result thereof, the corresponding

certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del Norte province, the appointments of the officials of said province created were announced. On these considerations, respondents urge that this case should be dismissed for having been rendered moot and academic as the creation of the new province is now a "fait accompli." In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or stand unchallenged. Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor was required to disburse any public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the release of any public funds on account of such plebiscite should not longer deserve further consideration. Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following: SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern portion of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or less. (Emphasis supplied). However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its boundaries then stated to be as follows: SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the Province of Negros Occidental and constituted into a new province to be known as the Province of Negros del Norte. SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion of the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers more or less. Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows: xxx xxx xxx This is to certify that the following cities and municipalities of Negros Occidental have the land area as indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National Census and Statistics Office, Manila. Land Area (Sq. Km.) 1. Silay City ...................................................................214.8 2. E.B. Magalona............................................................113.3

3. Victorias.....................................................................133.9 4. Manapla......................................................................112.9 5. Cadiz City ..................................................................516.5 6. Sagay .........................................................................389.6 7. Escalante ....................................................................124.0 8. Toboso.......................................................................123.4 9. Calatrava.....................................................................504.5 10. San Carlos City...........................................................451.3 11. Don Salvador Benedicto.................................... (not available) This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him. (SGD.) JULIAN L. RAMIREZ Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90). Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of the new province, was derived from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note the uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90). No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the draft legislation, Parliamentary Bill No. 3644, reads: SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province. However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas affected." It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this Court to yield to the respondents' urging that, as there has been fait accompli then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli. In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the mandate of our fundamental law, done by whatever branch of our government. This Court gives notice that it will not look with favor upon those who may be hereafter inclined to ram through all sorts of legislative measures and then implement the same with indecent haste, even if such acts would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the ground that what is already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct and rectify the wrong brought to its attention. On the merits of the case. Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the more significant and pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and for convenience, We again quote: SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte. We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units. No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a requirement must first be observed, respected and complied with. No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the Idol therein. We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most enlightening and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by petitioners of the unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but are not the decisive matters which should be reckoned in the resolution of this case. What the Court considers the only significant submissions lending a little support to respondents' case is their reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new municipality from existing barangays, this Court upheld the legality of the plebiscite which was participated in exclusively by the people of the barangay that would constitute the new municipality. This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the prefatory statements therein stating that said case is "one of those cases where the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not resolve the question of how the pertinent provision of the Constitution should be correctly interpreted. The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected." It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote: 2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision. This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling which We now consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a referendum which did not include all the people of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case. Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that local autonomy would be better promoted However, even this consideration no longer retains persuasive value. The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects cf the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore,

the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein. It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent province. This assumption will be consistent with the requirements set forth in the Constitution. We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected. In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners. Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary. As contended by petitioners, Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not contemplate distinct situation isolated from the mutually exclusive to each other. A Province maybe created where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit or units abolished and definitely the boundary being substantially altered. It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true. It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners' case that deserve to be favored. It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here express, We now state that the ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to an existing political unit from which the new political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now existing shall participate and that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a patent nullity. The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist. Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending to its creation. As has been manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the parent province to the new province, in an amount claimed to be at least P10,000,000.00. The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant fact that this created province does not even satisfy the area requirement prescribed in Section 197 of the Local Government Code, as earlier discussed. It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents that in this regard the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect, and fallacious. The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664). The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based

on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909). It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned. Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied). It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved without need of ascertaining the real motives and wisdom in the making of the questioned law. No proper challenge on those grounds can also be made by petitioners in this proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as recent events have shown, on the electorate and the power of a vigilant people. Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued existence of their historic province. They were inspired undoubtedly by their faithful commitment to our Constitution which they wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary citizens such as the petitioners herein. WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void. SO ORDERED. Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur. Melencio-Herrera, J., concurs in the result.

Separate Opinions

TEEHANKEE, C.J., concurring: I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the whole province. The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the momentous issue and cast their vote intelligently. This was

learned by petitioners through an item in the printed media one day before they filed the present rush petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and required respondents' comment. The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the 'solid North' to exPresident Marcos. The rest is history. What happened in Negros del Norte during the elections-the unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41). The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule. The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally invalid appointment of its officials.

Separate Opinions TEEHANKEE, C.J., concurring: I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros Occidental would thereby lose 4,019.95

square kilometers in area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the whole province. The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the momentous issue and cast their vote intelligently. This was learned by petitioners through an item in the printed media one day before they filed the present rush petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and required respondents' comment. The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the 'solid North' to exPresident Marcos. The rest is history. What happened in Negros del Norte during the elections-the unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41). The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule. The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally invalid appointment of its officials.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-114783 December 8, 1994 ROBERT V. TOBIAS, RAMON M. GUZMAN, TERRY T. LIM, GREGORIO D. GABRIEL, and ROBERTO R. TOBIAS, JR. petitioners, vs. HON. CITY MAYOR BENJAMIN S. ABALOS, CITY TREASURER WILLIAM MARCELINO, and THE SANGGUNIANG PANLUNGSOD, all of the City of Mandaluyong, Metro Manila, respondents. Estrella, Bautista & Associates for petitioners.

BIDIN, J.: Invoking their rights as taxpayers and as residents of Mandaluyong, herein petitioners assail the constitutionality of Republic Act No. 7675, otherwise known as "An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known as the City of Mandaluyong." Prior to the enactment of the assailed statute, the municipalities of Mandaluyong and San Juan belonged to only one legislative district. Hon. Ronaldo Zamora, the incumbent congressional representative of this legislative district, sponsored the bill which eventually became R.A. No. 7675. President Ramos signed R.A. No. 7675 into law on February 9, 1994. Pursuant to the Local Government Code of 1991, a plebiscite was held on April 10, 1994. The people of Mandaluyong were asked whether they approved of the conversion of the Municipality of Mandaluyong into a highly urbanized city as provided under R.A. No. 7675. The turnout at the plebiscite was only 14.41% of the voting population. Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By virtue of these results, R.A. No. 7675 was deemed ratified and in effect.

Petitioners now come before this Court, contending that R.A. No. 7675, specifically Article VIII, Section 49 thereof, is unconstitutional for being violative of three specific provisions of the Constitution. Article VIII, Section 49 of R.A. No. 7675 provides: As a highly-urbanized city, the City of Mandaluyong shall have its own legislative district with the first representative to be elected in the next national elections after the passage of this Act. The remainder of the former legislative district of San Juan/Mandaluyong shall become the new legislative district of San Juan with its first representative to be elected at the same election. Petitioner's first objection to the aforequoted provision of R.A. No. 7675 is that it contravenes the "one subjectone bill" rule, as enunciated in Article VI, Section 26(1) of the Constitution, to wit: Sec. 26(1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Petitioners allege that the inclusion of the assailed Section 49 in the subject law resulted in the latter embracing two principal subjects, namely: (1) the conversion of Mandaluyong into a highly urbanized city; and (2) the division of the congressional district of San Juan/Mandaluyong into two separate districts. Petitioners contend that the second aforestated subject is not germane to the subject matter of R.A. No. 7675 since the said law treats of the conversion of Mandaluyong into a highly urbanized city, as expressed in the title of the law. Therefore, since Section 49 treats of a subject distinct from that stated in the title of the law, the "one subject-one bill" rule has not been complied with. Petitioners' second and third objections involve Article VI, Sections 5(1) and (4) of the Constitution, which provide, to wit: Sec. 5(1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party list system of registered national, regional and sectoral parties or organizations. Sec. 5(4). Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this section. Petitioners argue that the division of San Juan and Mandaluyong into separate congressional districts under Section 49 of the assailed law has resulted in an increase in the composition of the House of Representatives beyond that provided in Article VI, Sec. 5(1) of the Constitution. Furthermore, petitioners contend that said division was not made pursuant to any census showing that the subject municipalities have attained the minimum population requirements. And finally, petitioners assert that Section 49 has the effect of preempting the right of Congress to reapportion legislative districts pursuant to Sec. 5(4) as aforecited. The contentions are devoid of merit. Anent the first issue, we agree with the observation of the Solicitor General that the statutory conversion of Mandaluyong into a highly urbanized city with a population of not less than two hundred fifty thousand indubitably ordains compliance with the "one city-one representative" proviso in the Constitution: . . . Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" (Article VI, Section 5(3), Constitution). Hence, it is in compliance with the aforestated constitutional mandate that the creation of a separate congressional district for the City of Mandaluyong is decreed under Article VIII, Section 49 of R.A. No. 7675. Contrary to petitioners' assertion, the creation of a separate congressional district for Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly urbanized city but is a natural and

logical consequence of its conversion into a highly urbanized city. Verily, the title of R.A. No. 7675, "An Act Converting the Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong" necessarily includes and contemplates the subject treated under Section 49 regarding the creation of a separate congressional district for Mandaluyong. Moreover, a liberal construction of the "one title-one subject" rule has been invariably adopted by this court so as not to cripple or impede legislation. Thus, in Sumulong v. Comelec (73 Phil. 288 [1941]), we ruled that the constitutional requirement as now expressed in Article VI, Section 26(1) "should be given a practical rather than a technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions are germane to that general subject." The liberal construction of the "one title-one subject" rule had been further elucidated in Lidasan v. Comelec (21 SCRA 496 [1967]), to wit: Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill and the public, of the nature, scope and consequences of the proposed law and its operation" (emphasis supplied). Proceeding now to the other constitutional issues raised by petitioners to the effect that there is no mention in the assailed law of any census to show that Mandaluyong and San Juan had each attained the minimum requirement of 250,000 inhabitants to justify their separation into two legislative districts, the same does not suffice to strike down the validity of R.A. No. 7675. The said Act enjoys the presumption of having passed through the regular congressional processes, including due consideration by the members of Congress of the minimum requirements for the establishment of separate legislative districts. At any rate, it is not required that all laws emanating from the legislature must contain all relevant data considered by Congress in the enactment of said laws. As to the contention that the assailed law violates the present limit on the number of representatives as set forth in the Constitution, a reading of the applicable provision, Article VI, Section 5(1), as aforequoted, shows that the present limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, "unless otherwise provided by law." The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by R.A. No. 7675 is not unconstitutional. Thus, in the absence of proof that Mandaluyong and San Juan do not qualify to have separate legislative districts, the assailed Section 49 of R.A. No. 7675 must be allowed to stand. As to the contention that Section 49 of R.A. No. 7675 in effect preempts the right of Congress to reapportion legislative districts, the said argument borders on the absurd since petitioners overlook the glaring fact that it was Congress itself which drafted, deliberated upon and enacted the assailed law, including Section 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself. Aside from the constitutional objections to R.A. No. 7675, petitioners present further arguments against the validity thereof. Petitioners contend that the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong. Similarly, petitioners' additional argument that the subject law has resulted in "gerrymandering," which is the practice of creating legislative districts to favor a particular candidate or party, is not worthy of credence. As correctly observed by the Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed law, is the incumbent representative of the former San Juan/Mandaluyong district, having consistently

won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamora's constituency has in fact been diminished, which development could hardly be considered as favorable to him. WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Feliciano, J., is on leave.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners, vs. THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, respondents. Federico N. Alday for petitioners. Dakila F. Castro for respondents.

FERNANDO, C.J.: The crucial question posed by this certiorari proceeding is whether or not a municipal corporation, Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid of power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that their rights to due process and equal protection of the laws were violated as the licenses previously given to them was in effect withdrawn without judicial hearing. 2 The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2. Definitions of Terms (a) 'Night Club' shall include any place or establishment selling to the public food or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall include any place or establishment where dancing is permitted to the public and where professional hostesses or hospitality girls and professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls' shall include any woman employed by any of the establishments herein defined to entertain guests and customers at their table or to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of the establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by the persons she dances with. (e) 'Operator' shall include the owner, manager, administrator or any person who operates and is responsible for the operation of any night club, cabaret or dance hall. Section 3. Prohibition in the Issuance and Renewal of Licenses, Permits. Being the principal cause in the decadence of morality and because of their other adverse effects on this community as explained above, no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be issued to any professional hostess, hospitality girls and professional dancer for employment in any of the aforementioned establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said establishments shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which are now in operation including permits issued to professional hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these establishments within the jurisdiction of the municipality shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions of this Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the management and/or operation thereof shall be liable for the penalty provided herein. Section 6. Separability Clause. If, for any reason, any section or provision of this Ordinance is held unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section 7. Repealing Clause. All ordinance, resolutions, circulars, memoranda or parts thereof that are inconsistent with the provisions of this Ordinance are hereby repealed. Section 8. Effectivity. This Ordinance shall take effect immediately upon its approval; provided, however, that operators of night clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and professional dancers are given a period of thirty days from the approval hereof within which to wind up their businesses and comply with the provisions of this Ordinance." 4 On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of First Instance of Bulacan. 5 The grounds alleged follow:

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business, occupation or calling. 2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3. That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to license and regulate tourist-oriented businesses including night clubs, has been transferred to the Department of Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice Paras of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by law not only to regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not violative of petitioners' right to due process and the equal protection of the law, since property rights are subordinate to public interests. 3. That Presidential Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit night clubs." 7 There was the admission of the following facts as having been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3. That the night clubs are well-lighted and have no partitions, the tables being near each other; 4. That the petitioners owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral acts and to go out with customers; 5. That these hospitality girls are made to go through periodic medical check-ups and not one of them is suffering from any venereal disease and that those who fail to submit to a medical check-up or those who are found to be infected with venereal disease are not allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns of Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84 and dismissing the cases. Hence this petition for certiorari by way of appeal. In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual titillation and fearful of what the awesome future holds for it, had no alternative except to order thru its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good government, and cognizant of the categorical imperatives of the current legal and social revolution, hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84, Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the purpose of the grace period being to enable the petitioners herein to apply to the proper appellate tribunals for any contemplated redress." 9 This Court is, however, unable to agree with such a conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to justify the enactment of the assailed ordinance. It must be declared null and void. 1. Police power is granted to municipal corporations in general terms as follows: "General power of council to enact ordinances and make regulations. - 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." 10 It is practically a reproduction of the former Section 39 of Municipal Code. 11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for the Court in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right. Where the power to legislate upon a given subject, and the mode of its exercise and the details of such legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of the power, or it will be pronounced invalid."13 In another leading case, United States v. Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative Code provision was applied, it was stated by this Court: "The general welfare clause has two branches: One branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. With this class we are not here directly concerned. The second branch of the clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances 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.' It is a general rule that ordinances passed by virtue of the implied power found in the general

welfare clause must be reasonable, consonant with the general powersand purposes of the corporation, and not inconsistent with the laws or policy of the State." 15 If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would pass the test of validity. In the two leading cases above set forth, this Court had stressed reasonableness, consonant with the general powers and purposes of municipal corporations, as well as consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation." 16 It is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed. 2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city board or council of each chartered city shall have the power to regulate by ordinance the establishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within its territorial jurisdiction: ... " 19Then on May 21, 1954, the first section was amended to include not merely "the power to regulate, but likewise "Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the above portion of the Act were considered, a municipal council may go as far as to prohibit the operation of night clubs. If that were all, then the appealed decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It was not changed one whit. The exact wording was followed. The power granted remains that of regulation, not prohibition. There is thus support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution mandates: "Every bill shall embrace only one subject which shall be expressed in the title thereof. " 21 Since there is no dispute as the title limits the power to regulating, not prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power "to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of the Administrative Code, such competence extending to all "the great public needs, 23 to quote from Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the well-settled principle of constitutional construction that between two possible interpretations by one of which it will be free from constitutional infirmity and by the other tainted by such grave defect, the former is to be preferred. A construction that would save rather than one that would affix the seal of doom certainly commends itself. We have done so before We do so again. 24 3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-enacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative Code provision, is set forth in the first paragraph of Section 149 defining the powers and duties of the sangguniang bayan. It read as follows: "(a) 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; ..." 26There are in addition provisions that may have a bearing on the question now before this Court. Thus thesangguniang bayan shall "(rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses, except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses and other forms of entertainment; ..." 27 It is clear that municipal corporations cannot prohibit the operation of night clubs. They may be regulated, but not prevented from carrying on their business. It would be, therefore, an exercise in futility if the decision under review were sustained. All that petitioners would have to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because no such businesses could legally open, would be subject to judicial correction. That is to comply with the legislative will to allow the operation and continued existence of night clubs subject to appropriate regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of an affirmance, would amount to no more than a temporary termination of their business. During such time, their employees

would undergo a period of deprivation. Certainly, if such an undesirable outcome can be avoided, it should be. The law should not be susceptible to the reproach that it displays less than sympathetic concern for the plight of those who, under a mistaken appreciation of a municipal power, were thus left without employment. Such a deplorable consequence is to be avoided. If it were not thus, then the element of arbitrariness enters the picture. That is to pay less, very much less, than full deference to the due process clause with its mandate of fairness and reasonableness. 4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand sustaining police power legislation to promote public morals. The commitment to such an Ideal forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to measures that can be characterized as falling within that aspect of the police power. Reference is made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an end to practices which could encourage vice and immorality. This is an entirely different case. What was involved is a measure not embraced within the regulatory power but an exercise of an assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear that there is no need to satisfy such a requirement if a statute were void on its face. That it certainly is if the power to enact such ordinance is at the most dubious and under the present Local Government Code nonexistent. WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is hereby made permanent. No costs.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

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.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. L-53851 July 9, 1991 CHUA HUAT, ONG CHOAN, DOMINADOR FELINO, RUFINO CLEMENTE, TEODORA CLEMENTE, and LOURDES MEMPIN, petitioners, vs. THE HONORABLE COURT OF APPEALS, JUDGE ELVIRO PERALTA, SHERIFF OF MANILA, and THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, and MANUEL UY AND SONS, INC., respondents. G.R. No. L-63863 July 9, 1991 CHUA HUAT, LOURDES MEMPIN, RUFINO CLEMENTE, DOMINADOR FELINO, MARIA GAMBOA, and ONG CHOAN, petitioners, vs. HON. RAMON D. BAGATSING, City Mayor of Manila; ROMULO M. DEL ROSARIO, City Engineer and Building Official, City of Manila; and MANUEL UY AND SONS, INC., respondents. Fidel Manalo and Rizalino C. Vineza for petitioners. Sycip, Salazar, Hernandez & Gatmaitan and Oscar Z. Benares for respondents.

DAVIDE, JR., J.:p In the resolution of 9 January 1984, this Court resolved to consolidate these cases as they are related. The first case, G.R. No. 53851, is a petition for review on certiorari of the decision of the Court of Appeals of 29 February 1980 in C.A.-G.R. No. 09251 SP 1 and its resolutions of 30 April 1980 and 8 July 1980 denying, respectively, petitioners' first and second motions for the reconsideration of said decision. The second case, G.R. No. 63863, 2 is a petition for prohibition, with prayer for preliminary injunction and/or restraining order, directed against the notices of condemnation and the demolition orders issued by the respondent City Engineer, upon authority of the respondent City Mayor, concerning the buildings occupied by petitioners at 1271 to 1277 Pedro Gil St. and 1553 to 1557 Paz St., Paco, Manila. For sheer lack of merit, these cases must be dismissed. The antecedent facts and proceedings are not disputed. On 31 May 1972, a decision was rendered in Civil Case No. 74634 3 by the Court of First Instance, Branch XVII, then presided by Honorable Judge now Associate Justice of this Court Ameurfina MelencioHerrera, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered, a) sentencing defendant Dominador Felino, Lourdes Mempin, Chua Huat, Ong Choan, Francisco, Rufino and Teodora, all surnamed Clemente, to pay plaintiff UY the following monthly sums set out after their respective names beginning January 1, 1963, until the date they have vacated the property, with interest at 6% per annum from the date of this Decision as to the amounts due on May 31, 1972: DOMINADOR FELINO P 25.00/month

LOURDES MEMPIN P 30.00/ " CHUA HUAT P 100.00/ " portion subleased by Gamboa P 38.00/ " portion subleased by Kho Chong P 110.00/ " portion subleased by Chua Chia P 55.00/ " ONG CHOAN P 100.00/ " FRANCISCO, RUFINO and TEODORA CLEMENTE P 25.00/ " b) Ordering said defendants, including Maximo Yambao or anyone claiming under him, to vacate the hands respectively occupied by them and to surrender the same to plaintiff UY; to remove their improvements thereon or to abandon them within sixty (60) days from receipt of this judgment. After the lapse of said sixty days, plaintiff can submit the corresponding motion under Section 14, Rule 39; c) On Ong Choan's Third-Party Complaint, sentencing third-party defendant SY PUT to reimburse the former for whatever amount he shall pay to UY pursuant to this judgment, with interest at the legal rate on the total amount from the date of payment until fully paid. SY PUT shall either remove all the improvements he has constructed on the land, or abandon them in favor of plaintiff within sixty (60) days from receipt of this judgment. Costs against defendants proportionately. SO ORDERED. Not satisfied with the said decision, herein petitioners, as defendants therein, appealed therefrom to the Court of Appeals which docketed it as C.A.-G.R. No. 51337-R. In its decision of 19 January 1977, the Court of Appeals affirmed in toto the aforesaid decision. 4 Petitioners, except Ong Choan, filed a Petition for Review on certiorariwith this Court (G.R. No. L-47603) on 8 February 1978 to set aside the decision of the Court of Appeals. Petitioner Ong Choan separately filed a similar petition with this Court (G.R. No. L-48649), arguing that: "the case was actually an unlawful detainer case and therefore, the Court of First Instance had no jurisdiction over it, making the decision null and void." Both petitions for review on certiorari were denied by this Court. 5 On 15 November 1978, after the decision in Civil Case No. 74634 became final and executory, the plaintiffs (private respondents herein) filed a motion to execute the same, which was granted by the trial court (Branch XXVII) on 20 November 1978. 6 Re: G.R. No. 53851 On 21 November 1978, petitioner Chua Huat filed with the Court of First Instance of Manila a complaint for the annulment of the judgment in Civil Case No. 74634. This complaint was docketed as Civil Case No. 119751 and was assigned to Branch XXII. Petitioner Ong Choan and others also filed a separate complaint for annulment of judgment which was docketed as Civil Case No. 119884. Both complaints were based on the ground that the Court of First Instance of Manila had no jurisdiction over Civil Case No. 74634 because the said action was one for ejectment and not for recovery of possession (accion publiciana) which was, therefore, cognizable by the City Court of Manila; hence, the decision in said Civil Case No. 74634 is null and void. On 23 February 1979, despite the filing of the above cases for annulment of judgment, the Court of First Instance of Manila ordered the execution of the judgment in Civil Case No. 74634. Petitioners field a motion for

reconsideration of the said order and to suspend proceedings in Civil Case No. 74634 pending termination of the annulment case which was, however, denied by the trial court in its Order of 5 April 1979, which reads: All the points raised in defendants' motion for reconsideration and to suspend proceedings are already thoroughly covered in the order of February 23, 1979 which in effect holds that Branch XXII, a coordinate court, cannot interfere with this branch in its prerogative to carry out its decision, long final and affirmed by the higher courts, into effect, and said motion is hereby denied. It is only the superior court which can prohibit this branch from executing its decision. The Sheriff of Manila, unless restrained by either the Supreme Court or the Court of Appeals, shall immediately implement the writ of execution upon the expiration of thirty (30) days from receipt by the defendants of a copy of the order, if to give them time to bring the incident up on certiorari to said superior courts. 7 Petitioners then filed a Petition for Certiorari and Prohibition with the Court of Appeals, docketed as C.A.-G.R. No. 09251 SP, to set aside the order of execution of judgment, and to prohibit the respondents from executing the judgment until Civil Case No. 119751 pending in Branch XXII of the Court of First Instance of Manila is finally decided and terminated. In the Decision promulgated on 29 February 1980, the Court of Appeals denied the petition for lack of merit, stating inter alia: The instant petition must be denied for lack of merit. 1. The judgment in Civil Case No. 74634 is undisputedly final and executory. As such, the issuance of a writ of execution thereof becomes the ministerial duty of the respondent judge. . .. 2. Civil Case No. 119751 filed by petitioners herein to annul the judgment in Civil Case No. 74634 cannot stop the execution thereof because of finality of judgment or res judicata. A cursory reading of the questioned judgment, Civil Case No. 74634, discloses that the issue raised in the annulment of judgment case, C.C. No. 119751, has been decided in the prior case when the court then presided by now Supreme Court Justice Ameurfina MelencioHerrera who penned the said decision stated, as follows: A. This is an accion publiciana and not one for unlawful detainer, for which reason, it was rightfully brought before this Court. What is involved is not the recovery of physical possession only but the recovery of the right to possess. We find application in the following doctrines: A party may not, by changing the form of a lawsuit or adopting a different method of presenting the matter, escape the application of the principle that the same cause of action may not be litigated twice between the same parties. (Paz vs. Indanan, 76 Phil. 608; Pascual vs. Palermo, L-2185, April 29, 1950, 47 O.G. 6184; Francisco vs. Blas, L-5078, May 4, 1953; Barrera vs. Del Rosario, L-8928, April 28, 1956). Another aspect of the doctrine is that once an issue has been raised and finally decided by a court of competent jurisdiction, generally speaking it becomes res judicata or can be made the basis of a plea of estoppel by judgment as between the parties to that litigation, no matter in what manner it was raised and Official or not it was the principal issue or merely an incidental one. (Eugenio vs. Tiangco L-2804, Sept. 20, 1949; Robis vs. Caspe, L-6166, Sept. 28, 1964.). WHEREFORE, there being no finding of a capricious and whimsical exercise of judgment by the respondent court equivalent to lack of jurisdiction which may be the subject of a writ of certiorari, the instant petition is hereby DENIED, with costs against petitioners. 8

The first and second motions for reconsideration filed by the petitioners were denied on 30 April 1980 and 8 July 1980, respectively, for the reason that the ground relied upon was already discussed, taken up and passed upon by the Court. 9 Hence, this petition which was filed on 7 August 1980. Petitioners claim that respondent Court of Appeals erred in holding that Civil Case No. 119751 cannot stop the execution of the judgment in Civil Case No. 74634 because of the finality of such judgment, or on the ground ofres judicata, and it was the court's ministerial duty to execute it; and in not finding that the pendency of Civil Case No. 119751 to annul the judgment in Civil Case No. 74634 on the ground of lack of jurisdiction justifies the stay of execution of said judgment. In the resolution of 3 September 1980, We required respondents to comment on the petition which private respondents complied with on 14 October 1980. 10 To this comment, petitioners filed a reply on 29 October 1980.11 On 19 November 1980, We gave due course to the petition and required the parties to submit simultaneously their memoranda which petitioners complied with on 12 January 1981 and the private respondents on 20 January 1981. It further appears that Civil Case No. 119751 aforestated was dismissed by the trial court in its Order of 24 September 1979. Herein petitioner Chua Huat appealed from said Order to the Intermediate Appellate Court which docketed the same as A.C.-GR CV No. 66303. 12 In its Decision of 12 March 1984, 13 the Intermediate Appellate Court affirmed in toto the questioned order holding: Plaintiff-appellant contends that the principle of res judicata does not apply in the case at bar because "although there may be identity of parties and of subject matter between Civil Case No. 74634" (which is for recovery of possession) "and Civil Case No. 119751" (which is for annulment of judgment) "there is no Identity of causes of action between these two cases." While there is, certainly on the face of the argument, merit in the contention that there is no identity of causes of action between Civil Case No. 74634 and this instant case, upon closer scrutiny, however, of the records of the said two cases, We find the same to be utterly devoid of merit. The records of the aforesaid two cases will bear it out that the issue of lack of jurisdiction (which is the cause of action in Civil Case No. 119751) has been squarely ruled upon, not only by the trial court in Civil Case No. 74634 but also by the Court of Appeals and by the Supreme Court. Plaintiff-appellant further contends that since the issue of jurisdiction in Civil Case No. 74634 was raised in their motion for reconsideration before the Court of Appeals in CA-G.R. No. 51337-R, the Appellate Court did not, in its resolution denying said motion, pass on the same and on appeal by petition for review to the Supreme Court in L-47603 and L-48649, where the same issue among others was raised, the High Court in its minutes' (sic) did not rule squarely on said issue, "the court a quo should have proceeded with the hearing of this case on the judgments and thereafter decide (sic) the same based on the evidence adduced by the parties". We find the same likewise untenable. Issues raised by the parties in their brief and passed upon subsilencio by the appellate court in a decision which has become final and executory are considered closed and can no longer be revived by the parties in a subsequent litigation without doing violence to the principle of res judicata. (Corda vs. Maglinti, G.R. No. L-17476, Nov. 30, 1961). What more, neither the Supreme Court nor the Appellate Court is duty bound to discuss the pros and cons of appellant's argument. Lastly, in Kabigting vs. Acting Director of Prisons (116 Phil. 589; 1962) the Supreme Court pointed out: "It need not be stated that the Supreme Court, being the court of last resort, is the final arbiter of all legal questions properly brought before it and that its decision in any given

case constitutes the law of that particular case. Once its judgment becomes final, it is binding on all inferior courts, and hence beyond their power and authority to alter or modify". The High Tribunal further pointed out that "Nor is it to be lost sight of that such principle does not apply only to the express terms of decision, but likewise to what is therein implicit, which must be implemented faithfully, no circumvention or evasion being allowed". (Sanchez vs. Court of Industrial Relations, L-26932, 27 SCRA 490). Petitioners made no attempt to inform the Court of the dismissal of Civil Case No. 119751 and of the above action of the Intermediate Appellate Court. Re: G.R. No. 63863 On 14 September 1982, Manuel Uy and Sons, Inc., respondent in G.R. No. 53851, requested Romulo M. del Rosario the City Engineer and Building Officials, of Manila, to condemn the dilapidated structures located at 1271 to 1277 Pedro Gil St. and 1553 to 1557 Paz St., Paco, Manila, all occupied by petitioners. 14 On 17 November 1982, said official issued notices of condemnation addressed to petitioners Chua Huat, Maria Gamboa, Lourdes Mempin, Dominador Felino, Ong Choan, Rufino Clements, and several other persons. The condemnation orders stated that the subject buildings were found to be in dangerous condition and therefore condemned, subject to the confirmation of the Mayor as required by Section 276 of the Compilation of Ordinances of the City of Manila. It further stated that the notice is not an order to demolish as the findings of the City Engineer is (sic) still subject to the approval of the Mayor. 15 The orders were based on the inspection reports made by Architect Oscar D. Andres and the Memorandum-Reports made by the Evaluation Committee of the Office of the City Engineer, which all showed that the subject buildings suffer from structural deterioration by more than 50% and as much as 80%. 16 On 19 January 1983, Civil Engineer Romulo C. Molas, a private practitioner, inspected the abovementioned structures upon the request of petitioners herein. In his evaluation report dated 21 January 1983, he stated that although the buildings are old, they are still structurally sound and have a remaining economic life of at least eight years. 17 On 22 February 1983, or three months after the notices of condemnation were issued, petitioners formally protested against said notices of condemnation on the ground that the buildings are still in good physical condition and are structurally sound based on the abovementioned certification of Civil Engineer Romulo C. Molas dated 21 January 1983. 18 On 26 April 1983, Maria Gamboa, one of the petitioners herein, was informed of the issuance by the City Engineer of the demolition order with respect to the building located at 1565 Paz St., Paco, Manila, and was told to vacate the premises within 15 days from notice. 19 On 2 May 1983, petitioners filed the instant Petition for Prohibition, with Preliminary Injunction and/or Restraining Order, against City Mayor Ramon Bagatsing, City Engineer and Building Officer Romulo del Rosario and Manuel Uy and Sons, Inc., praying that a restraining order or preliminary injunction be issued enjoining respondents from proceeding with the announced demolition of the subject buildings, this petition be given due course, and after hearing, respondents be prohibited from demolishing said buildings. 20 They allege in their petition that: RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING THE CONDEMNATION ORDERS. THERE IS NO APPEAL OR ANY OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY. On 9 May 1983, this Court directed respondents to comment on the petition and issued a Temporary Restraining Order against the respondents City Mayor and City Engineer restraining them from enforcing and/or carrying out the demolition order on the building occupied by Maria Gamboa at 1565 Paz Street. 21 On 6 July 1983, the respondent Mayor of Manila confirmed the rest of the condemnation orders issued by the respondent City Engineer. Pursuant thereto, the respondent City Engineer, on 12 September 1983, issued demolition orders addressed to Chua Huat, Ong Choan, Dominador Felino and Lourdes Mempin, whereby they

were ordered to vacate and commence the demolition and/or removal of the buildings occupied by them after fifteen days from receipt of the order. 22 On 18 May 1983, respondents City Mayor and City Engineer filed their Comment 23 praying that the petition be dismissed on the following grounds: (a) that it involves questions of facts which should be ventilated before the Regional Trial Court of Manila; (b) the subject buildings were condemned and ordered removed after it was established that they had suffered from defects or deterioration thereby posing perils to the lives and limbs not only of petitioners but also to the public in general; (c) the power to condemn buildings and structures in the City of Manila falls within the exclusive domain of the City Engineer pursuant to Sections 275 and 276 of its Compilation of Ordinances (also Revised Ordinances 1600); (d) the power to condemn and remove buildings and structures is an exercise of the police power granted the City of Manila to promote public safety; and (e) administrative decisions falling within the executive jurisdiction cannot be set aside by courts of justice except on proof of grave abuse of discretion, fraud or error of law. On 20 May 1983, private respondent Manuel Uy and Sons, Inc. filed its Comment 24 wherein it contends that the petition is premature, unreasonable and deserves no consideration as petitioners have not exhausted readily-available administrative remedies and that the validity of the questioned condemnation and demolition orders entails questions of facts not entertainable in this petition. It alleges that the condemnation orders were not immediately executory, as the finding of the City Engineer/Building Officials, is still subject to the approval of the Mayor per Section 276 of the Compilation of Ordinances of the City of Manila. Moreover, under Section 5.3, Rule VII of the Implementing Rules and Regulations of P.D. No. 1096, the owner of a building may appeal to the Secretary of Public Works and Communications, whose decision is final, the finding or declaration of the Building Officials, and ask that a re-inspection or re-investigation of the building or structure be made; for not availing of this remedy, petitioners failed to exhaust administrative remedies. Petitioners filed a Reply on 3 October 1983, 25 to Which respondents filed a rejoinder on 14 November 1983. 26 On 4 January 1984, this case was consolidated with G.R. No. 53851. On 30 July 1986, We gave due course to this petition and required the parties to submit their respective memoranda. 27 Private respondent filed its Memorandum on 3 October 1986, while petitioners filed theirs on 3 November 1986. 28 On 18 January 1987, petitioners filed a rejoinder 29 to the Memorandum of private respondents. We now resolve these petitions. A. The first, G.R. No. 53851, is frivolous and is dismally bereft of merit. The antecedent facts stated above unmistakably disclose a clear pattern to make a mockery of the judicial process, or to abuse it. The decision of the trial court in Civil Case No. 74634 of 31 May 1972, which was affirmed, first, by the Court of Appeals in its decision of 19 January 1977 (C.A.-G.R. No. 51337-R) and second, by this Court (G.R. No. L-47603 and G.R. No. L-48649), had long become firm and final. To maliciously stop its execution pursuant to the Order of 20 March 1978, petitioner Chua Huat filed with the trial court Civil Case No. 119751 to annul the decision, reviving therein issues which he had squarely raised in C.A.-G.R. No. 51337-R. Then, he filed a motion in Civil Case No. 74634 to set aside the order of execution and to suspend proceedings therein in view of the pendency of the annulment case. Unfazed by his failure to hold the trial court hostage to his scheme, he went to the Court of Appeals (C.A.-G.R. No. 09251 SP) to question the denial by the trial court of his aforesaid motion, and when he failed again, he came to this Court via this petition with issues which, as his counsel fully knew, had long been laid to rest. At the same time, when Civil Case No. 119751 was dismissed on 24 September 1979, petitioner went to the Court of Appeals (A.C.-G.R. CV No. 66303), also raising the same issues. He, however, deliberately chose not to inform this Court of the unfavorable decision of the Intermediate Appellate Court of 12 March 1984. The reason of course is all too obvious, and in the light of his remarkable effort to frustrate or subvert the ends of justice, petitioner cannot be expected to do so. We find, therefore, the challenged decision of the respondent Court of Appeals to be in full accord with law and jurisprudence But this should not be the end of this case. We must state here for the petitioners and their counsel and on all others similarly inclined to resort to the same or related scheme or stratagem that this Court cannot condone or tolerate any abuse of the judicial process. We must, once again, remind counsel and

litigants, as We did in Cantelang, et al. vs. Medina, et al., 30 that "this Court win ever be vigilant to nip in the bud any dilatory maneuver calculated to defeat or frustrate the ends of justice, fair play and the prompt implementation of final and executory judgments." And, more particularly for lawyers, in Banogon, et al. vs. Zerna, et al., 31 We said in no uncertain terms: As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when a case, such as this, should not be permitted to be flied to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts. In another portion of said decision, We said: This Court has repeatedly reminded litigants and lawyers alike: Litigation must end and terminate sometime and somewhere, and it is essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them. 32 There should be a greater awareness on the part of litigants that the time of the judiciary, much more so of this Court, is too valuable to be wasted or frittered away by efforts, far from commendable, to evade the operation of a decision final and executory, especially so, where, as shown in this case, the clear and manifest absence of any right calling for vindication, is quite obvious and indisputable. 33 This appeal, moreover, should fail, predicated as it is on an insubstantial (sic) objection bereft of any persuasive force. Defendants had to display ingenuity to conjure a technicality. From Alonso v. Villamor, a 1910 decision, we have left no doubt as to our disapproval of such a practice. The aim of a lawsuit is to render justice to the parties according to law. Procedural rules are precisely designed to accomplish such a worthy objective. Necessarily, therefore, any attempt to pervert the ends for which they are intended deserves condemnation. We have done so before. We do so again. 34 B. G.R. No. 63863 must equally fall. It is patently obvious that petitioners have no valid grievance for the remedy ofcertiorari under Rule 65 of the Rules of Court to be available to them. It is explicitly clear from Section 1 of Rule 65 of the Rules of Court that for certiorari to be available: (a) a tribunal, board or office exercising judicial function acted without or in excess of its or his jurisdiction, or with grave abuse of discretion, and (b) that there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. Petitioners failed to show the presence of both elements. The power to condemn buildings and structures in the City of Manila falls within the exclusive jurisdiction of the City Engineer, who is at the same time the Building Officials, (Sec. 206, P.D. 1096). Sections 275 and 276 of the Compilation of Ordinances of the City of Manila (also Revised Ordinances 1600), provide: Sec. 275. Deterioration and Defects. All buildings or parts of buildings which show defects in any essential parts shall be repaired and put in safe condition at once, or if the deterioration be greater than fifty per centum of the value of the building, as estimated by the city engineer, they shall be removed. Sec. 276. Condemnation Proceeding. Whenever in the judgment of the City Engineer any building or portion of building has been damaged by any cause to such an extent as to be dangerous for use, he may condemn the same and shall immediately notify the owner and the Mayor of his action. If the owner or his agent be not willing to abide by this order of condemnation, he may make formal objection within the period of seven days following such notification. The Mayor shall hear the owner or his agent and his experts and also the city

engineer, deciding the case on the evidence presented. If the Mayor confirms the action of the city engineer, the owner or his agent shall immediately proceed to remove the building within fifteen days from the date on which he was notified of such final action. Should the owner or his agent not comply with the decision of the Mayor the building shall be removed at his expense and the city will proceed to recover against him for the amount expended. Section 215 of P.D. 1096, otherwise known as the National Building Code, also states the authority of the Building Officials, with respect to dangerous buildings, to wit: When any building or structure is found or declared to be dangerous or ruinous, the Building Officials, shall order its repair, vacation or demolition depending upon the degree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines. From the abovementioned provisions, it is unquestionable that the Building Officials, has the authority to order the condemnation and demolition of buildings which are found to be in a dangerous or ruinous condition. It is also clear from the Compilation of Ordinances of the City of Manila that the Mayor has the power to confirm or deny the action taken by the Building Officials, with respect to the dangerous or ruinous buildings. Respondent City Engineer and Building Official, Romulo M. del Rosario, can, therefore, validly issue the questioned condemnation and demolition orders. This is also true with the respondent Mayor who can approve or deny the condemnation orders as provided in Section 276 of the Compilation of Ordinances of the City of Manila. The only issue then is Official or not said officials committed grave abuse of discretion in the exercise of their aforesaid powers. It is a settled doctrine that there is grave abuse of discretion amounting to lack of jurisdiction "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." 35 We find no grave abuse of discretion on the part of the respondent City Engineer because the orders were made only after thorough ocular inspections were conducted by the City's Building Inspectors. The results of the inspections were set forth in a memorandum dated 16 November 1982 where it was shown that all the buildings had architectural, structural, sanitary, plumbing and electrical defects of up to 80%. 36 The respondent Mayor's act of approving the condemnation orders was likewise done in accordance with law. The protest made by petitioners was submitted only on 22 February 1983, or three months after the notices of condemnation were issued, and clearly beyond the seven days prescribed under Section 276 of the Compilation of Ordinances of the City of Manila. Moreover, appeal was likewise available to petitioners. As correctly contended by private respondents, the Implementing Rules and Regulations promulgated by the then Ministry of Public Works to implement P.D. No. 1096, under the title Abatement/Demolition of Buildings, provide: 5. Procedure for Demolition of Buildings. The following steps shall be observed in the abatement/demolition of buildings under this Rule: 5.1. There must be a finding or declaration by the Building Officials, that the building or structure is a nuisance, ruinous or dangerous, ... 5.3. Within the fifteen-day period the owner may if he so desires, appeal to the Secretary the finding or declaration of the Building Official and ask that a re-inspection or re-investigation of the building or structure be made. . . . 5.6. The decision of the Secretary on the appeal shall be final . (emphasis supplied).

Certiorari will not he then because petitioners failed to exhaust all the administrative remedies. This Court has long upheld the doctrine of exhaustion of administrative remedies because it rests on the assumption that the administrative body, board or officer, if given the chance to correct its/his mistake or error, may amend its/his decision on a given matter. 37 Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. 38 There are, of course, exceptions to this rule, 39 but none is available to petitioners. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered DISMISSING these cases for lack of merit with treble costs against petitioners. SO ORDERED. Gutierrez, Jr. and Bidin, JJ., concur. Fernan, C.J., Feliciano, J., took no part.

Footnotes 1 Entitled Chua Huat, et al. vs. Hon. Elviro Peralta, et al. The Decision was penned by Associate Justice Milagros A. German and was concurred in by Associate Justices B.S. de la Fuente and Pedro D. Cenzon. Its Rollo shall hereafter be referred to as Rollo I. 2 Its Rollo shall hereafter be referred to as Rollo II. 3 Entitled The Roman Catholic Archbishop of Manila (ROMCATH) and Manuel Uy and Sons Inc. vs. Chua Huat, etc., Rufino Clements, and/or Teodora Clements, Dominador Felino, Lourdes Mempin, Angel Penalosa, Jose Tan, Carlos Tan and/or Rosario Dayrit, etc., Ong Choan, etc., and Maximo Yambao; Annex "A" of the Comment of private respondents in G. R. No. 53851; Rollo I, 110-111. 4 Rollo I, 13, 28, and 86-88. 5 Id., 14, 26, 88-89, and 166. 6 Id., 157. 7 Rollo I, 15. 8 Annex 'A" of Petition; Rollo 1, 26-30. 9 Annexes 'B" and "C" of Petition; Rollo I, 33-34. 10 Id., 83, 11 Id., 113. 12 p. 16, Memorandum in these two petitions filed on 3 October 1986; Rollo II, 113 13 Annex "C" of private respondent's Memorandum in G.R. No. 63863; Id., 182-183. 14 Rollo II, 11. 15 Rollo II, 12-15.

16 Id., 43-53. 17 Id., 19. 18 Rollo II, 16. 19 Id., 22. 20 Id., 9-10. 21 Rollo II, 24. 22 Id., 59-62. 23 Id., 26. 24 Rollo II, 32. 25 Id., 64. 26 Id., 81. 27 Rollo II, 93. 28 Id., 193. 29 Id., 238. 30 91 SCRA 403. 31 154 SCRA 593. 32 Lim Kim Tho vs. Go Sim Ko, et al., 82 SCRA 776; Aguinaldo vs. Aguinaldo, 36 SCRA 137. 33 Villaflor vs. Reyes, 22 SCRA. 34 Aguinaldo vs. Aguinaldo, supra., et seq., 141. 35 Carson vs. Judge Pantanosas, 180 SCRA 151; Arguelles vs. Romeo, Yang, 153 SCRA 690; Franklin Baker vs. Trajano, 157 SCRA 416; Litton Mills vs. Galleon Traders, 163 SCRA 489. 36 Rollo II, 44, 46, 48, 50, 52. 37 42 Am. Jur. 579. 38 CORTES, Irene, Philippine Administrative Law, Revised 2nd ed., 1984, p. 394. 39 Among others, see Pascual vs. Provincial Board, 106 Phil. 466; Alzate vs. Aldana, 107 Phil. 298; Demaisip vs. CA, 106 Phil. 237; Bartulata vs. Peralta, 59 SCRA 7; NDC vs. Collector of Customs, 9 SCRA 429; Mangubat vs. Osmena, 105 Phil. 1308; De Lara vs. Claribal, 14 SCRA 269.

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Republic of the Philippines SUPREME COURT Manila EN BANC 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. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Gutierrez, Jr. and Feliciano, JJ., are on leave.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION 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 above-described 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. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes 1 Annex "A", p. 24, Record on Appeal. 2 Ibid. 3 Velasco vs. Mayor Villegas, G.R. No. 24153, 120 SCRA 568, (1983). 4 Section 2238, Administrative Code of 1917. This is in consonance with the general welfare clause as provided in Section 16, Book I of the Local Government Code of 1991. 5 U.S. vs. Abenden, 24 Phil. 165, (1913). 6 Exhibit "1", p. 45, Record on Appeal. 7 p. 46, Ibid. 8 Annex "F", pp. 85-86, Record on Appeal.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 97477 May 8, 1992 RTC JUDGE CAMILO E. TAMIN, Presiding Judge, Regional Trial Court, Branch 23, Molave, Zamboanga del Sur and the MUNICIPALITY OF DUMINGAG, ZAMBOANGA DEL SUR; represented by MAYOR DOMICIANO E. REAL, petitioners, vs. COURT OF APPEALS, VICENTE MEDINA and FORTUNATA ROSELLON, respondents.

GUTIERREZ, JR., J.: The present petition seeks to annul and set aside the decision and resolution dated January 21, 1991 and February 20, 1991, respectively of the Court of Appeals which declared as null and void the October 10, 1991 order of the petitioner Judge in a civil case "for ejectment with preliminary injunction and damages" filed by petitioner municipality against the private respondents granting the petitioner municipality's motion for a writ of possession and the writ issued pursuant to it.

On September 24, 1990, petitioner municipality represented by its mayor Domiciano E. Real filed with the Regional Trial Court of Zamboanga del Sur, Branch 23, Molave, presided by the petitioner Judge, a complaint denominated as "Ejectment with Preliminary Injunction and Damages" against respondents Vicente Medina and Fortunata Rosellon. The complaint alleged that the plaintiff (petitioner municipality herein) is the owner of a parcel of residential land located at Poblacion, Dumingag, Zamboanga del Sur with an area of 5,894 square meters more or less; that the parcel of land was reserved for public plaza under Presidential Proclamation No. 365 dated March 15, 1968; that during the incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958, the municipality leased an Area of 1,350 square meters to the defendants (respondents herein) subject to the condition that they should vacate the place in case it is needed for public purposes; that the defendants religiously paid the rentals until 1967; that thereafter, the defendants refused to pay the rentals; that the incumbent mayor discovered that the defendants filed a "Cadastral Answer" over said lot; that the defendants refused to vacate the place despite efforts of the municipality; that the national government had alloted an appropriation for the construction of a municipal gymnasium within the public plaza but the said construction which was already started could not continue because of the presence of the buildings constructed by the defendants; that the appropriation for the construction of the gymnasium might be reverted back to the national government which would result to "irreparable damage, injury and prejudice" to the municipality and its people who are expected to derive benefit from the accomplishment of the project. The complaint prayed: 1. That a restraining order shall be issued immediately after the filing of this case; 2. That after due notice and hearing, a writ of preliminary mandatory injunction shall be issued against the herein defendants for them (sic) form further occupying the leased portion to them (sic), and/or that a Writ of Possession be immediately issued to preserve the rights of the herein plaintiff; 3. That judgment should be entered against the herein defendants to vacate the premises of the leased portion given to them. (CA Rollo, pp. 11-12) On the same day, September 24, 1990, the petitioner Judge issued an order setting the preliminary hearing for the issuance of a writ of preliminary mandatory injunction and/or writ of possession on October 10, 1990. Instead of filing an answer, the respondents filed a motion to dismiss alleging the lack of jurisdiction of the trial court, since the complaint is for illegal detainer which is within the original jurisdiction of the municipal court and the pendency of a cadastral case (Cadastral Case No. N-10, LRC Cad. Rec. No. N-108, Lot 9481 [Pls-61] TS218) between the parties over the ownership of the same parcel of land. On October 10, 1990, the petitioner Judge issued two (2) orders. The first order denied the motion to dismiss. The second order granted the petitioner municipality's motion for a writ of possession "with the ancillary writ of demolition to place in possession the plaintiff on the land subject of this case, to the end that the public construction thereon will not be jeopardized." (CA Rollo, p. 22) In denying the motion to dismiss, the petitioner Judge said: xxx xxx xxx 2. In the complaint, the plaintiff alleges that the defendant is claiming ownership over the land which was previously rented to defendant by the plaintiff municipality. This action is, therefore, clearly anaccion de reivindicacion, a real action within the jurisdiction of this court. 3. As the complaint is for recovery of ownership of the land not to enforce the contract, the Statute of Fraud does not apply. 4. The land subject of this case is covered by P.D. No. 365, withdrawing this land from sale of settlement and reserving the same for school site purposes under the administration of the Director of Public School and public plaza under the administration of the Municipality of

Dumingag, therefore the Cadastral court has no jurisdiction over the land involved in this case. (CA Rollo, p. 20) The petitioner Judge justified his granting the motion for a writ of possession with the ancillary writ of demolition by applying the rule an eminent domain (Rule 67 of the Revised Rules of Court, erroneously referred to as Rule 68) in analogy in that under this Rule the complainant is given the right to the writ of possession in order that public construction and projects will not be delayed. According to the petitioner Judge, the necessity of a writ of possession is greater in the instant case considering that the parcel of land is covered by a Presidential Proclamation and the on-going construction thereon is being endangered to be left unfinished on account of the buildings standing on the parcel of land because the appropriation for the construction might be reverted back to the national treasury. The private respondents filed an omnibus motion for reconsideration with motion to set aside order and to quash writ of possession and demolition but this was denied in an order dated October 19, 1990. On October 19, 1990, the petitioner municipality implemented the writ of possession and ancillary writ of demolition issued by the petitioner Judge resulting in the dispossession of the private respondents from the parcel of land and the demolition of structures and buildings thereon owned by the respondents. On October 23, 1990, the private respondents filed their answer to the complaint alleging therein that the subject parcel of land has been owned, occupied and possess by respondent Vicente Medina since 1947 when he bought the subject parcel from a Subanan native; that the other respondent Fortunata Rosellon leased from Medina a portion of the parcel of land; that the respondents were never lessees of the petitioner municipality; that Proclamation No-365 issued on March 15, 1968 recognized "private rights"; and, that a case is pending before the Cadastral court between respondent Medina and petitioner municipality as regards the ownership of the subject parcel of land. Before the petitioner Judge could further act on the case, the private respondents filed a petition for certiorari with the Court of Appeals questioning the October 10 and October 19, 1990 orders of the petitioner Judge. In a resolution dated November 14, 1990, the petition was given due course and a temporary restraining order was issued enjoining the petitioner Judge from proceeding with the hearing of the case and from enforcing the October 10, and 19, 1990 orders. On January 21, 1990, the appellate court rendered the questioned decision. A motion for reconsideration was denied in a resolution dated February 20, 1991. Hence, this petition. In a resolution dated November 26, 1991, we gave due course to the petition. The appellate court rightfully upheld the jurisdiction of the Regional Trial Court over the case based on the allegations in the complaint. The allegations and not the title control the cause of action of the complaint. (Andamo v. Intermediate Appellate Court, 191 SCRA 195 [1990]). The Court said: First, Does the Regional Trial Court have jurisdiction over the case brought by the Municipality of Dimangag? As already noted, the gist of the complaint below is that the land in question is part of the public domain which the President of the Philippines, under Proclamation No. 365, dated March 25, (should be 15) 1968, reserved for school site and public plaza in the Municipality of Dumingag and that the petitioners, to whom the former town mayor had leased a part of the land, refused to vacate and to pay rents. If this is the theory on which the complaint is based, then the action may really be considered one for recovery of possession. For though a lease is alleged, the lease would be void and the municipality could recover the possession of the land. This is the teaching of the leading case of Municipality of Cavite v. Rojas, 30 Phil. 602 [1915] in which it was held that the lease by a municipal corporation of a public plaza is null and void because land for public use is outside the commerce of man and, therefore, the lessee must restore possession of the land by vacating it. As in this case, in the Rojas case the action was for recovery of possession instituted in the Court of First Instance,

the counterpart of which at present is the Regional Trial Court. We, therefore, hold that the respondent judge has jurisdiction of the case brought against petitioners for recovery of possession of what is alleged to be land for public use of the respondent municipality. (CA Rollo, pp. 53-54) Prescinding from the finding that the complaint is for recovery of possession the appellate court concluded that the trial court did not have authority to issue a writ of possession and a writ of demolition citing the case of Mabale v.Apalisok (88 SCRA 234 [1979]), to wit: In that connection, it should be borne in mind that the law specifies when a writ of possession may be issued. That writ is available (1) in a land registration proceeding, which is a proceeding in rem (Sec. 17, Act No. 496; Estipona v. Navarro, 69 SCRA 285, 291); (2) in an extra-judicial foreclosure of a realty mortgage (Sec. 7, Act No. 3135); (3) in a judicial foreclosure of mortgage, a quasi in remproceeding, provided that the mortgagor is in possession of the mortgaged realty and no third person, not party to the foreclosure suit, had intervened (Rivera v. Court of First Instance of Nueva Ecija and Rupac, 61 Phil. 201; Ramos v. Maalac and Lopez, 89 Phil. 270, 275) and (4) in execution sales (last par. of sec. 35, Rule 39, Rules of Court). The appellate court also ruled that the trial court committed an error when it applied by analogy the rule on eminent domain (Rule 67, Revised Rules of Court) to justify the issuance of the writ of possession and writ of demolition. The appellate court pointed out that under this rule: xxx xxx xxx . . . (i) There is clear statutory authority for the taking of possession by the government and (ii) The authority is premised on the government depositing the value of the land to be taken. For unless the taking of the land is done under these conditions, the taking would constitute deprivation of property without due process of law which the Constitution prohibits. (See Manila Railroad Co. v. Paredes, 31 Phil. 118 [1915]) (CA Rollo, p. 55) The appellate court then stated: In the case at bar, there is neither statutory authority for the trial court's action nor bond given to compensate the petitioners for the deprivation of their possession and the destruction of their houses if it turns out that the land belongs to them. For this reason, we think the trial courts order is arbitrary and void. For the fact is that petitioners claim ownership of the land in question and until that question is resolved either in the case pending before the respondent judge or in the cadastral proceeding, it would be unjust to deprive petitioners of its possession. (CA Rollo, pp. 55-56) The petitioners now contend that the allegations in the complaint constitute a cause of action for abatement of public nuisance under Article 694 of the Civil Code. On the basis of this proposition, the petitioners assert that petitioner municipality is entitled to the writ of possession and writ of demolition. Article 694 of the Civil Code defines nuisance as follows: Art. 694. A nuisance is any act, omission, establishment, business, condition of property or anything else which: xxx xxx xxx (5) Hinders or impairs the use of property. while Article 695 provides: Art. 695 Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. . . .

Applying these criteria, we agree with the petitioners that the complaint alleges factual circumstances of a complaint for abatement of public nuisance. Thus, the complaint states: that petitioner municipality is the owner of a parcel of land covered by Presidential Proclamation No 365 which is reserved for a public plaza; that the private respondents by virtue of a contract of lease entered into by the former mayor occupied a portion of the parcel of land constructing buildings thereon; that the private respondents refused to vacate the premises despite demands; that the municipality is constructing a municipal gymnasium in the area financed by appropriationsprovided by the national government; and that the appropriations are in danger of being reverted to the national treasury because the construction had to be stopped in view of the refusal of the private respondents to vacate the area. The issue, however, is not the nature of the cause of action alleged in the complaint. The more important question is whether or not the petitioner municipality is entitled to a writ of possession and a writ of demolition even before the trial of the case starts. Article 699 of the Civil Code provides for the following remedies against a public nuisance: (1) A prosecution under the Penal Code or any local ordinance; or (2) A civil action; or (3) Abatement, without judicial proceedings. The petitioner municipality had three remedies from which to select its cause of action. It chose to file a civil action for the recovery of possession of the parcel of land occupied by the private respondents. Obviously, petitioner municipality was aware that under the then Local Government Code (B.P. Blg. 337) the Sangguniang Bayan has to first pass an ordinance before the municipality may summarily abate a public nuisance. (Sec. 149(z) (ee). On the premise that the parcel of land forms part of a public plaza, the petitioners now contend that the Judge was justified in issuing the writ of possession and writ of demolition. A public plaza is outside the commerce of man and constructions thereon can be abated summarily by the municipality. We ruled in the case of Villanueva v. Castaeda, Jr. (154 SCRA 142 [1987]): Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869-870) where the Supreme Court declared: There is absolutely no question that the town plaza cannot be used for the construction of market stalls, specially of residences, and that such structures constitute a nuisance subject to abatement according to law. Town plazas are properties of public dominion, to be devoted to public use and to be made available to the public in general. They are outside the commerce of man and cannot be disposed of or even leased by the municipality to private parties. Applying this well-settled doctrine, we rule that petitioners had no right in the first place to occupy the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts. They should have realized and accepted this earlier, considering that even before Civil Case No. 2040 was decided, the municipal council of San Fernando had already adopted Resolution No. 29, series of 1964, declaring this area as the parking place and public plaza of the municipality. It is the decision in Civil Case No. 2040 and the said resolution of the municipal council of San Fernando that respondent Macalino was seeking to enforce when he ordered the demolition of the stalls constructed in the disputed area. As officer-in-charge of the office of the mayor, he had the duty to clear the area and restore it to its intended use as a parking place and public plaza of the municipality of San Fernando, conformably to the aforementioned orders from the court and the council. It is, therefore, not correct to say that he had acted without authority or taken the law into his hands in issuing his order.

xxx xxx xxx The Court observes that even without such investigatiom and recommendation, the respondent mayor was justified in ordering the area cleared on the strength alone of its status as a public plaza as declared by the judicial and legislative authorities. . . . If, therefore, the allegations in the complaint are true and that the parcel of land being occupied by the private respondents is indeed a public plaza, then the writ of possession and writ of demolition would have been justified. In fact, under such circumstances, there would have been no need for a writ of possession in favor of the petitioner municipality since the private respondents' occupation over the subject parcel of land can not be recognized by any law. A writ of demolition would have been sufficient to eject the private respondents. However, not only did the municipality avoid the use of abatement without judicial proceedings, but the status of the subject parcel of land has yet to be decided. We have to consider the fact that Proclamation No. 365 dated March 15, 1968 recognizes private rights which may have been vested on other persons, to wit: BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO. 365 RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND PLAYGROUND PURPOSES CERTAIN PARCELS OF LAND OF THE PUBLIC DOMAIN SITUATED IN THE MUNICIPALITY OF DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLAND OF MINDANAO. Upon recommendation of the Secretary of Agriculture and Natural Resources and pursuant to the authority vested in me by law, I FERDINAND E. MARCOS, PRESIDENT OF THE PHILIPPINES, do hereby withdraw from sale or settlement and under the administration of the Director of Public Schools administration of the Municipal Government of Dumingag, subject to private rights, if any there be, certain parcels of land of the public domain situated in the Municipality of Dumingag, Province of Zamboanga del Sur, Island of Mindanao, . . . (CA Rollo, pp. 41-A 42) (Emphasis supplied). It is to be noted that even before the Proclamation, the parcel of land was the subject of cadastral proceedings before another branch of the Regional Trial Court of Zamboanga del Sur. At the time of the filing of the instant case, the cadastral proceedings intended to settle the ownership over the questioned portion of the parcel of land under Proclamation No. 365 were still pending. One of the claimants in the cadastral proceedings is private respondent Vicente Medina who traced his ownership over the subject parcel of land as far back as 1947 when he allegedly bought the same from a Subanan native. Under the cadastral system, the government through the Director of Lands initiates the proceedings by filing a petition in court after which all owners or claimants are compelled to act and present their answers otherwise they lose their right to their own property. The purpose is to serve the public interests by requiring that the titles to any lands "be settled and adjudicated." (Section 1 Cadastral Act [No. 22593] Government of the Philippine Islands v. Abural, 39 Phil. 996 [1919]. It is a proceeding in rem somewhat akin to a judicial inquiry and investigation leading to a judicial decree. (Director of Lands v. Roman Archbishop of Manila, 41 Phil. 120 [1920]) Considering therefore, the nature and purpose of the Cadastral proceedings, the outcome of said proceedings becomes a prejudicial question which must be addressed in the resolution of the instant case. We apply by analogy the ruling in the case of Quiambao v. Osorio (158 SCRA 674 [1988]), to wit: The instant controversy boils down to the sole question of whether or not the administrative case between the private parties involving the lot subject matter of the ejectment case constitutes a prejudicial question which would operate as a bar to said ejectment case. A prejudicial question is understood in law to be that which arises in a case the resolution of which is a logical antecedent of the issue involved in said case and the cognizance of which pertains to another tribunal. (Zapanta v. Montesa, 4 SCRA 510 [1962]; People v. Aragon, 50 O.G. No. 10, 4863) The doctrine of prejudicial question comes as in to play generally in a

situation where civil and criminal actions are pending and the issues involved in bath cases are similar or so closely-related that an issue must be pre-emptively resolved in the civil case before the criminal action can proceed. Thus, the existence it a prejudicial question in a civil case is alleged in the criminal case to cause the suspension of the latter pending final determination of the former. The essential elements of a prejudicial question as provided under Section 5, Rule 111 of the Revised Rules of Court area: [a] the civil action involves an issue similar or intimately related to the issue in the criminal action; and [b] the resolution of such issue determines whether or not the criminal action may proceed. The actions involved in the case at bar being respectively civil and administrative in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two [2] proceedings, stemming from the fact that the right of private respondents to eject petitioner from the disputed portion depends primarily on the resolution of the pending administrative case. For while it may be true that private respondents had prior possession of the lot in question, at the time of the institution of the ejectment case, such right of possession had been terminated, or at the very least, suspended by the cancellation by the Land Authority of the Agreement to Sell executed in their favor. Whether or not private respondents can continue to exercise their right of possession is but a necessary, logical consequence of the issue involved in the pending administrative case assailing the validity of the cancellation of the Agreement to Sell and the subsequent award of the disputed portion to petitioner. If the cancellation of the agreement, to Sell and the subsequent award to petitioner are voided, then private respondent's right of possession is lost and so would their right to eject petitioner from said portion. Faced with these distinct possibilities, the more prudent course for the trial court to have taken is to hold the ejectment proceedings in abeyance until after a determination of the administrative case. Indeed, logic and pragmatism, if not jurisprudence, dictate such move. To allow the parties to undergo trial notwithstanding the possibility of petitioner's right of possession being upheld in the pending administrative case is to needlessly require not only the parties but the court as well to expend time, effort in what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d tells us: The court in which an action is pending may, in the exercise of a sound discretion, upon proper application for a stay of that action, hold the action in abeyance to abide the outcome of another pending in another court, especially where the parties and the issues are the same, for there is power inherent in every court to control the disposition of causes an its dockets with economy of time and effort for itself, for counsel, and for litigants. Where the rights of parties in the record action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed. While this rule is properly applicable to instances involving two [2] court actions, the existence in the instant case of the same considerations of identity of parties and issues, economy of time and effort for the court, the counsels and the parties as well as the need to resolve the parties' right of possession before the ejectment case may be properly determined, justifies the rule's analogous application to the case at bar. Technically, a prejudicial question shall not rise in the instant case since the two actions involved are both civil in nature. However, we have to consider the fact that the cadastral proceedings will ultimately settle the real owner/s of the disputed parcel of land. In case respondent Vicente Medina is adjudged the real owner of the parcel of land, then the writ of possession and writ of demolition would necessarily be null and void. Not only that. The demolition of the constructions in the parcel of land would prove truly unjust to the private respondents. Parenthetically, the issuance of the writ of possession and writ of demolition by the petitioner Judge in the ejectment proceedings was premature. What the petitioner should have done was to stop the proceedings in the instant case and wait for the final outcome of the cadastral proceedings.

At any rate, affirmative relief based an the above discussions is no longer possible. The demolition of the buildings owned by the private respondents is now a fait accompli. In the case of Estate of Gregoria Francisco v. Court of Appeals (199 SCRA 595 [1991] we awarded just compensation the amount of which was for the trial court to determine in favor of the petitioner whose building was demolished by the municipality even before a proper tribunal could decide whether or not the building constituted a nuisance in law. Our ruling was premised on the ground that the owner of the building was in lawful possession of the lot and the building by virtue of the permit from the authorized government agency when the demolition was effected. We cannot, however, apply this ruling to the present case. The legality of the occupation by the private respondents of the subject parcel of land is still to be resolved in the cadastral proceedings. In the event that respondent Vicente Medina is declared owner of the subject parcel of land, necessarily, the private respondents would be entitled to just compensation for the precipitate demolition of their buildings. On the other hand, if private respondent Medina is declared to have no rights over the subject parcel of land then, the private respondents would not be entitle to any compensation for the demolition of their buildings. In such a case the private respondents are considered squatters and therefore, the demolition of their buildings would turnout to have been justified. Faced with these alternative possibilities, and in the interest of justice, we rule that the petitioner municipality must put up a bond to be determined by the trial court to answer for just compensation to which the private respondents may be entitled in case the demolition of their buildings is adjudged to be illegal. Moreover, the appellate court correctly ruled this Rule 67 of the Revised Rules of Court on eminent domain can not be made a subterfuge to justify the petitioner Judge's issuance of a writ of possession in favor of petitioner municipality. In the recent case of National Power Corporation v. Hon. Enrique T. Jocson, et al. (G.R. No. 94193-99, February 25, 1992) we said: In Municipality of Bian v. Hon. Jose Mar Garcia, et al. (180 SCRA 576 [1989]) this Court ruled that there are two (2) stages in every action of expropriation: The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the content of the facts involved in the suit. (Citing Sections 1, 2 and 3, Rule 67 of the Rules of Court.) It ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint." (Citing Section 4, Rule 67; Nieto v. Isip, 97 Phil. 31; Benguet Consolidated v. Republic, 143 SCRA 466.)An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. (CitingInvestments, Inc. v. Court of Appeals, et al., 147 SCRA 334) So, too, would an order of condemnation on be a final one, for thereafter as the rules expressly state, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard. The second phase of the eminent domain action is concerned with the determination to the Court of "the just compensation in for the property sought to be taken." This is done by the Court with the assistance of not more than three (3) commissioners (CitingSections 5 to 8, Rule 67 of the Rules of Court) The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. . . . However, upon the filing of the complaint or at any time thereafter, the petitioner has the right to take enter upon the possession of the property involved upon compliance with P.D. No. 42 which requires the petitioner, after due notice to the defendant, to deposit with the Philippine National Bank in its main office or any of its branches or agencies, "an amount equivalent to

the assessed value of the property for purposes of taxation." This assessed value is that indicated in the tax declaration. Hence, even if we concede that Rule 67 is applicable to the instant case and that petitioner municipality had the lawful right to eject the private respondents from the subject parcel of land the issuance of a writ of possession in favor of petitioner municipality would still not be legal if the petitioner municipality really owns the land. The Judge did not require petitioner municipality to deposit an amount equivalent to the just compensation due the private respondents as provided for under Presidential Decree 42. It is only after the deposit of the just compensation that petitioner municipality would be entitled to a writ of possession. Another point raised by the petitioners questions the alleged ruling of the appellate court "that the petitioners are personally liable for damages to the private respondents for the abatement of public nuisance." (Rollo, p. 50) The petitioners misread the appellate court's decision. The records show Chat the private respondents prayed for, in their petition for certiorari filed with the appellate court, among others: It is likewise, prayed that respondents be ordered to pay jointly and severally the value of the house illegally demolished in the amount of P1,000.00 00, attorney's fees in the amount of P50,000.00, moral damages in the amount of P100,000.00 and exemplary damages in the amount of P50,000.00, to pay the costs, . . . xxx xxx xxx (CA Rollo, p. 6) In response to this prayer, however, the appellate court stated: We do not, however, have jurisdiction over petitioners' claim for damages. This must be pursued in an appropriate action instituted in the Regional Trial Court. (Rollo, p. 26) Moreover, the dispositive portion of the decision does not mention any personal liability for damages against the petitioners. The apprehension of the petitioners lacks factual basis. WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the Court of Appeals are AFFIRMED. The trial court is ordered to require the petitioner municipality to put up a bond to be determined by the court after hearing to answer, for just compensation due the private respondents in case the demolition of their buildings is adjudged to be illegal. The "Motion to Declare in Contempt" filed by petitioner Judge is referred to the Regional Trial Court of Pagadian City, Branch 18 in Civil Case No. 3156 for appropriate action. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur. Bellosillo, J., is on leave.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 104786 January 27, 1994 ALFREDO PATALINGHUG, petitioner, vs. HON. COURT OF APPEALS, RICARDO CRIBILLO, MARTIN ARAPOL, CORAZON ALCASID, PRIMITIVA SEDO,respondents. Gonzales, Batiller, Bilog & Associates for petitioner. Garcilaso F. Vega for private respondents.

ROMERO, J.: In the case before us, we are called upon to decide whether or not petitioner's operation of a funeral home constitutes permissible use within a particular district or zone in Davao City. On November 17, 1982, the Sangguniang Panlungsod of Davao City enacted Ordinance No. 363, series of 1982 otherwise known as the "Expanded Zoning Ordinance of Davao City," Section 8 of which states: Sec. 8. USE REGULATIONS IN C-2 DISTRICTS (Shaded light red in the Expanded Zoning Map) AC-2 District shall be dominantly for commercial and compatible industrial uses as provided hereunder: xxx xxx xxx xxx xxx xxx 3.1 Funeral Parlors/Memorial Homes with adequate off street parking space (see parking standards of P.D. 1096) and provided that they shall be established not less than 50 meters from any residential structures, churches and other institutional buildings . (Emphasis provided)

Upon prior approval and certification of zoning compliance by Zoning Administrator issued on February 10, 1987 Building Permit No. 870254 in favor of petitioner for the construction of a funeral parlor in the name and style of Metropolitan Funeral Parlor at Cabaguio Avenue, Agdao, Davao City. Thereafter, petitioner commenced the construction of his funeral parlor. Acting on the complaint of several residents of Barangay Agdao, Davao City that the construction of petitioner's funeral parlor violated Ordinance No. 363, since it was allegedly situated within a 50-meter radius from the Iglesia ni Kristo Chapel and several residential structures, the Sangguniang Panlungsod conducted an investigation and found that "the nearest residential structure, owned by Wilfred G. Tepoot is only 8 inches to the south. . . . ." 1 Notwithstanding the findings of the Sangguniang Panlungsod, petitioner continued to construct his funeral parlor which was finished on November 3, 1987. Consequently, private respondents filed on September 6, 1988 a case for the declaration of nullity of a building permit with preliminary prohibitory and mandatory injunction and/or restraining order with the trial court. 2 After conducting its own ocular inspection on March 30, 1989, the lower court, in its order dated July 6, 1989, dismissed the complaint based on the following findings: 3 1. that the residential building owned by Cribillo and Iglesia ni Kristo chapel are 63.25 meters and 55.95 meters away, respectively from the funeral parlor. 2. Although the residential building owned by certain Mr. Tepoot is adjacent to the funeral parlor, and is only separated therefrom by a concrete fence, said residential building is being rented by a certain Mr. Asiaten who actually devotes it to his laundry business with machinery thereon. 3. Private respondent's suit is premature as they failed to exhaust the administrative remedies provided by Ordinance No. 363. Hence, private respondents appealed to the Court of Appeals. (CA G.R. No. 23243). In its decision dated November 29, 1991, the Court of Appeals reversed the lower court by annulling building permit No. 870254 issued in favor of petitioner. 4 It ruled that although the buildings owned by Cribillo and Iglesia ni Kristo were beyond the 50-meter residential radius prohibited by Ordinance 363, the construction of the funeral parlor was within the 50-meter radius measured from the Tepoot's building. The Appellate Court disagreed with the lower court's determination that Tepoot's building was commercial and ruled that although it was used by Mr. Tepoot's lessee for laundry business, it was a residential lot as reflected in the tax declaration, thus paving the way for the application of Ordinance No. 363. Hence, this appeal based on the following grounds: The Respondent Court of Appeals erred in concluding that the Tepoot building adjacent to petitioner's funeral parlor is residential simply because it was allegedly declared as such for taxation purposes, in complete disregard of Ordinance No. 363 (The Expanded Zoning Ordinance of Davao City) declaring the subject area as dominantly for commercial and compatible industrial uses. We reverse the Appellate Court and reinstate the ruling of the lower court that petitioner did not violate Section 8 of Davao City Ordinance No. 363. It must be emphasized that the question of whether Mr. Tepoot's building is residential or not is a factual determination which we should not disturb. As we have repeatedly enunciated, the resolution of factual issues is the function of the lower courts where findings on these matters are received with respect and are in fact binding on this court, except only where the case is shown as coming under the accepted exceptions. 5 Although the general rule is that factual findings of the Court of Appeals are conclusive on us, 6 this admits of exceptions as when the findings or conclusions of the Court of Appeals and the trial court are contrary to each other. 7 While the trial court ruled that Tepoot's building was commercial, the Appellate Court ruled otherwise.

Thus we see the necessity of reading and examining the pleadings and transcripts submitted before the trial court. In the case at bar, the testimony of City Councilor Vergara shows that Mr. Tepoot's building was used for a dual purpose both as a dwelling and as a place where a laundry business was conducted. 8 But while its commercial aspect has been established by the presence of machineries and laundry paraphernalia, its use as a residence, other than being declared for taxation purposes as such, was not fully substantiated. The reversal by the Court of Appeals of the trial court's decision was based on Tepoot's building being declared for taxation purposes as residential. It is our considered view, however, that a tax declaration is not conclusive of the nature of the property for zoning purposes. A property may have been declared by its owner as residential for real estate taxation purposes but it may well be within a commercial zone. A discrepancy may thus exist in the determination of the nature of property for real estate taxation purposes vis-a-vis the determination of a property for zoning purposes. Needless to say, even if we are to examine the evidentiary value of a tax declaration under the Real Property Tax Code, a tax declaration only enables the assessor to identify the same for assessment levels. In fact, a tax declaration does not bind a provincial/city assessor, for under Sec. 22 of the Real Estate Tax Code, 9 appraisal and assessment are based on the actual use irrespective of "any previous assessment or taxpayer's valuation thereon," which is based on a taxpayer's declaration. In fact, a piece of land declared by a taxpayer as residential may be assessed by the provincial or city assessor as commercial because its actual use is commercial. The trial court's determination that Mr. Tepoot's building is commercial and, therefore, Sec. 8 is inapplicable, is strengthened by the fact that the Sangguniang Panlungsod has declared the questioned area as commercial or C-2. Consequently, even if Tepoot's building was declared for taxation purposes as residential, once a local government has reclassified an area as commercial, that determination for zoning purposes must prevail. While the commercial character of the questioned vicinity has been declared thru the ordinance, private respondents have failed to present convincing arguments to substantiate their claim that Cabaguio Avenue, where the funeral parlor was constructed, was still a residential zone. Unquestionably, the operation of a funeral parlor constitutes a "commercial purpose," as gleaned from Ordinance No. 363. The declaration of the said area as a commercial zone thru a municipal ordinance is an exercise of police power to promote the good order and general welfare of the people in the locality. Corollary thereto, the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations.10 Thus, persons may be subjected to certain kinds of restraints and burdens in order to secure the general welfare of the state and to this fundamental aim of government, the rights of the individual may be subordinated. The ordinance which regulates the location of funeral homes has been adopted as part of comprehensive zoning plans for the orderly development of the area covered thereunder. WHEREFORE, the decision of the Court of Appeals dated November 29, 1991 is hereby REVERSED and the order dated July 6, 1989 of the Regional Trial Court of Davao City is REINSTATED. SO ORDERED. Feliciano, Bidin, Melo and Vitug, JJ., concur.

#Footnotes 1 Rollo, p. 43. 2 Annex "C", Rollo, p. 55. 3 Annex "P", Rollo, pp. 106-110. 4 Rollo, pp. 40-50.

5 FNCB Finance v. Estavillo, G.R. No. 93394, December 20, 1990, 192 SCRA 514. 6 Guita v. Court of Appeals, G.R. No. 60409, November 11, 1985, 139 SCRA 576. 7 Quality Tobacco Corp. v. Intermediate Appellate Court, G.R. No. 65005, July 5, 1990, 187 SCRA 210; Valenzuela v. Court of Appeals, G.R. No. 83122, October 19, 1990, 191 SCRA 1. 8 Hearing, October 27, 1988. 9 Presidential Decree No. 464, entitled, "Enacting a Real Property Tax Code." 10 Sangalang v. Intermediate Court, G.R. Nos. 71169, 76394, 74376 and 82281, December 22, 1988, 168 SCRA 634; Ortigas & Co. Ltd. Partnership v. Feati bank and Trust Co., No. L24670, December 14, 1989, 94 SCRA 533.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. No. 83987 December 27, 1994 GREATER BALANGA DEVELOPMENT CORPORATION, petitioner, vs. MUNICIPALITY OF BALANGA, BATAAN; SANGGUNIANG BAYAN OF BALANGA, BATAAN; HON. MELANIO S. BANZON, JR.; HON. DOMINGO D. DIZON; HON. AGRIPINO C. BANZON; HON. EDUARDO P. TUAZON; HON. GABRIEL J. NISAY; HON. LORENZO P. TAPAN; HON. FEDERICO S. BUSTAMANTE; HON. ROLANDO H. DAVID; HON. EDILBERTO Q. DE GUZMAN; HON. ALFREDO C. GUILA; and HON. GAVINO S. SANTIAGO,respondents. Ricardo C. Valmonte and Reynaldo L. Bagatsing for petitioner.

QUIASON, J.: This a a petition for certiorari, prohibition and mandamus under Rule 65 of the Revised Rules of Court to annul Executive Order No. 1, s-88 and Resolution No. 12, s-88 issued, respectively, by the Mayor and the Sangguniang Bayan of Balanga, Bataan. I This case involves a parcel of land, Lot 261-B-6-A-3 of the subdivision plan Psd 03-007623, situated in Barrio San Jose, Municipality of Balanga, Province of Bataan. The lot has an area of 8,467 square meters. It is registered under Transfer Certificate of Title No. 120152 issued on January 11, 1988 by the Register of Deeds of the Province of Bataan in the name of petitioner Greater Balanga Development Corporation. Petitioner is a domestic corporation owned and controlled by the Camacho family, which donated to the Municipality of Balanga the present site of the Balanga Public Market. The lot in dispute lies behind the Balanga Public Market. In 1987, petitioner conducted a relocation survey of the area. It discovered that certain portions of the property had been "unlawfully usurped and invaded" by the Municipality of Balanga, which had "allowed/tolerated/abetted" the construction of shanties and market stalls while charging market fees and market entrance fees from the occupants and users of the area. A portion of the lot had also been utilized as an unloading site ("bagsakan") of transient vegetable vendors, who were charged market and entrance fees by the municipality. On January 11, 1988, petitioner applied with the Office of the Mayor of Balanga for a business permit to engage in business in the said area. On the same day, Mayor Melanio S. Banzon, Jr. issued Mayor's Permit No. 2729, granting petitioner the privilege of a "real estate dealer/privately-owned public market operator" under the trade name of Balanga Public Market. The permit was to expire on December 31, 1988. Petitioner likewise registered "Balanga Central Market" as a trade name with the Bureau of Trade Regulations and Consumer Protection. On February 19, 1988, however, the Sangguniang Bayan of Balanga passed Resolution No. 12, s-88 annulling the Mayor's permit issued to petitioner and advising the Mayor to revoke the permit "to operate a public market." Pursuant to said Resolution, Mayor Banzon, on March 7, 1988, issued Executive Order No. 1, s-88 revoking the permit insofar as it authorized the operation of a public market. On July 13, 1988, petitioner filed the instant petition with a prayer for the issuance of a writ of preliminary mandatory and prohibitory injunction or restraining order aimed at the reinstatement of the Mayor's permit and the curtailment of the municipality's collection of market fees and market entrance fees. The Court did not issue the preliminary reliefs prayed for.

Respondent asserted that as the local chief executive, the Mayor may issue, deny or revoke municipal licenses and permits. They contended that Resolution No. 12, s-88 of the Sangguniang Bayan, the basis of Executive Order No. 1, s-88, was a legitimate exercise of local legislative authority and, as such, the revocation of petitioner's permit was not tainted with any grave abuse of discretion. Petitioner replied that since it had not violated any law or ordinance, there was no reason for respondents to revoke the Mayor's permit issued to it. On the contrary, petitioner asserted that the executive order and the resolution in question were quasi-judicial acts and not mere exercises of police power. It questioned respondents' failure to observe due process in revoking the permit and challenged the legality of the collection of the market and entrance fees by the municipality. In their Rejoinder, respondents pointed out that petitioner had violated an existing municipal ordinance when it failed to disclose the true status of the area involved in the permit and when it did not secure separate permits for its two businesses, i.e., one as "real estate dealer" and another as "privately-owned public market operator." Respondents referred to Section 3A-06(b) of the Balanga Revenue Code which, inter alia, enjoins an applicant for a Mayor's permit from making a false statement in his application and provides for the penalties for violation of any existing ordinance regulating business establishments. II Mayor's Permit No. 2729 was revoked by Executive Order No. 1, s-88, which reads as follows: By virtue of the authority vested upon me by law as Mayor of the Municipality of Balanga, and as per Resolution No. 12, s-88 of the Sangguniang Bayan of Balanga, the Mayor's Permit in the latter portion of its purpose, i.e., "to operate a public market," issued to the Greater Balanga Development Corporation, is hereby REVOKED, effective immediately. IN WITNESS WHEREOF, I hereunto have set my hand this 7th day of March 1988, at Balanga, Bataan. (SGD.) MELANI O S. BANZO N, JR. Municip al Mayor (Rollo, p. 36) The authority of the Mayor to revoke a permit he issued is premised on a violation by the grantee of any of the conditions for which the permit had been granted. Respondents claimed that petitioner had violated the provisions of Section 3A-06(b) of the Balanga Revenue Code when it failed to inform the Mayor that the lot in controversy was the subject of adverse claims for which a civil case was filed. Section 3A-06(b) of the Balanga Revenue Code reads: xxx xxx xxx (b) The application for a Mayor's permit shall state the name, residence and citizenship of (sic) the applicant's full description of the business, the particular place where (sic) the same shall be conducted, and such other pertinent information and date (sic) as any (sic) be required. If the applicant deliberately makes a false statement in the application form, the Municipal Mayor may revoke the permit and the applicant may be prosecuted and penalized in accordance with the pertinent provisions of penal laws. In case a person desires to conduct the same kind or line of business in another place within the Municipality, in addition to or aside from the establishment specified in his permit, he shall secure a separate permit for each business and pay the corresponding fee imposed in this

article. If a person desires to engage in more than one kind or line of business, he shall pay the fee imposed on each separate business, notwithstanding the fact that he may conduct or operate all distinct business (sic), trades or occupation in one place only. xxx xxx xxx (h) Revocation of Permit. The Municipal Mayor may revoke a permit, in effect close the establishment, upon a violation of existing ordinance regulating business establishments or any provisions of this article, in addition to the fine and imprisonment that they (sic) may be imposed by the court for violation of this article (Memorandum of the Solicitor General, pp. 1617; Rollo, p. 322). Respondents claim that petitioner (1) deliberately made a false statement in the application form when it failed to provide the information that their place of business is the subject of adverse claims; and (2) failed to apply for two separate permits for the two lines of business it proposed to engage in. The application for Mayor's permit in the case at bench requires the applicant to state what type of "business", profession, occupation and/or calling privileges" is being applied for. Petitioner left this entry bank in its application form (Rollo, p. 324). It is only in the Mayor's permit itself that petitioner's lines of business appear, which in this case are two separate types, one as real estate dealer and another as public market operator. The permit should not have been issued without the required information given in the application form itself. Revoking the permit, however, because of a false statement in the application form cannot be justified under the aforementioned provision. There must be proof of willful misrepresentation and deliberate intent to make a false statement. Good faith is always presumed, and as it happened, petitioner did not make any false statement in the pertinent entry. Neither was petitioner's applying for two businesses in one permit a ground for revocation. The second paragraph of Section 3A-06(b) does not expressly require two permits for their conduct of two or more businesses in one place, but only that separate fees be paid for each business. The powers of municipal corporations are to be construed in strictissimi juris and any doubt or ambiguity must be construed against the municipality (City of Ozamiz v. Lumapas, 65 SCRA 33 [1975]). Granting, however, that separate permits are actually required, the application form does not contain any entry as regards the number of businesses the applicant wishes to engage in. Respondents insinuated bad faith on the part of petitioner in failing to supply the pertinent information in the application form and for taking advantage of the fact that Mayor Banzon was then newly installed as Mayor of Balanga. The absence of the material information in the application form was nonetheless supplied in the face of the permit signed and issued by Mayor Banzon himself (Rollo, p. 17). Under the law, the Sangguniang Bayan has the power to provide for the establishment and maintenance of public markets in the municipality and "to regulate any business subject to municipal license tax or fees and prescribe the conditions under which a municipal license may be revoked" (B.P. Blg. 337, Sec. 149 [1] [f & r]). It was this authority which respondent Sangguniang Bayan invoked when it issued Resolution No. 12, s-88. The said Resolution stated that the land subject of this case was earmarked for the expansion of the Balanga Public Market; that this land was owned not by petitioner but by the plaintiffs in Civil Case No. 3803 entitled "Leoncia Dizon, et. al. v. Aurora B. Camacho"; that the Municipality of Balanga was not apprised of the existence of the civil case; that the decision awarding the lot to the plaintiffs and the issuance of the Mayor's permit to petitioner who was not the rightful owner had caused "anxiety, uncertainty and restiveness" among the stallholders and traders in the subject lot; and that the Sangguniang Bayan therefore resolved to annul the said Mayor's permit insofar as it concerns the operation of a public market. As may be gleaned from said Resolution, the main reason for the revocation of the Mayor's permit was the controversy engendered by the filing of Civil Case No. 3803 before the Regional Trial Court, Balanga, Bataan involving the ownership of certain portions of Lot 261-B, the land from which Lot 261-B-6-A-3 was derived. Lot 261-B was originally owned and registered in the name of Aurora T. Banzon Camacho, who subdivided the land into nine lots under LRC Psd-277050 and designated them as Lots 261-B-1 to 261-B-9. She denoted some of the lots to the Municipality of Balanga which now comprise the Balanga Public Market, and sold others to third persons.

On January 30, 1974, five buyers of certain portions of Lot 261-B filed Civil Case No. 3803 against Camacho for partition and delivery of titles. Camacho was declared in default and the plaintiffs forthwith presented their evidence. On December 20, 1974, the trial court rendered a decision ordering the defendant to segregate the definite portions sold to the plaintiffs and deliver to them the corresponding titles thereto. This decision was affirmed by the Court of Appeals on January 30, 1981 in CA-G.R. No. 59148-R (G.R. No. 62223, Rollo, pp. 5058). The defendant elevated the matter to this Court. In a Resolution dated March 21, 1983, we denied the petition for lack of merit (G.R. No. 62223, Rollo, p. 100). The question now is whether Lot 261-B-6-A-3 is a part of the land adjudged by the trial court in Civil Case No. 3803 to the plaintiffs, or any one of them. Lot 261-B-6-A-3 was originally registered in the name of Camacho under TCT No. T-104438. She denoted the land to her daughter, Aurora Fe (Rollo, p. 329). TCT No. 104438 was then cancelled and TCT No. T-104461 issued in the donee's name, who in turn, transferred the land to herein petitioner. TCT No. 104461 of Aurora Fe was cancelled and TCT No. 120152 was issued in petitioner's name on January 11, 1988. On the same day, the Mayor's permit to operate the lot as a public market was also granted. It is the position of respondents that the series of transfers of the subject lot reveals a scheme to avoid the application of the decision in Civil Case No. 3803. There is no question that Lot 261-B-6-A-3 is a portion of Lot 261-B-6, and the claims of the plaintiffs in the civil case were on Lots 261-B-6 and 261-B-7 (Rollo, p. 327). As to whether plaintiffs' claims embraced specifically Lot 261-B-6-A-3 could not be determined from the face of the decision in the civil case. There is no showing that Lot 261-B-6-A-3 was awarded by the court to one of the plaintiffs therein. There is no proof either that the judgment in said case had already been executed and the titles delivered to the plaintiffs. The question of ownership over Lot 261-B had already been settled with finality by the Supreme Court in 1983 in G.R. No. 62223. Entry of judgment was likewise, made in the same year. When the Mayor's permit was revoked on February 19, 1988, five years had already elapsed since the case was decided. Petitioner was able to survey the land and have the survey approved on March 21, 1984 (Rollo, pp. 15-16), and on January 11, 1988, petitioner obtained in its name TCT No. 120152 "without any memorandum of encumbrance or encumbrances pertaining to any decision rendered in any civil case" (Rollo, p. 199). Clearly, for all intents and purposes, petitioner appeared to be the true owner of Lot 261-B-6-A-3 when respondents revoked its permit to engaged in business on its own land. Assuming arguendo that Lot 261-B-6-A-3 was actually one of those awarded to the plaintiffs in Civil Case No. 3803 and the Transfer Certificate of Title of petitioner is spurious, this still does not justify the revocation of the Mayor's permit. A close scrutiny of the records reveals that the Sangguniang Bayan did not establish or maintain any public market on the subject lot. The resolution merely mentioned the plan to acquire the lot for expansion of the public market adjacent thereto. Until expropriation proceedings are instituted in court, the landowner cannot be deprived of its right over the land (Province of Rizal v. San Diego, 105 Phil. 33 [1959];Republic v. Baylosis, 96 Phil. 461 [1955]). Of course, the Sangguniang Bayan has the duty in the exercise of its police powers to regulate any business subject to municipal license fees and prescribe the conditions under which a municipal license already issued may be revoked (B.P. Blg. 337, Sec. 149 [1] [r]). But the "anxiety, uncertainty, restiveness" among the stallholders and traders cannot be a valid ground for revoking the permit of petitioner. After all, the stallholders and traders were doing business on property not belonging to the Municipal government. Indeed, the claim that the executive order and resolution were measures "designed to promote peace and order and protect the general welfare of the people of Balanga" is too amorphous and convenient an excuse to justify respondents' acts (Villacorta v. Bernardo, 143 SCRA 480 [1986]). Moreover, we find that the manner by which the Mayor revoked the permit transgressed petitioner's right to due process (Gordon v. Veridiano II, 167 SCRA 51 [1988]). The alleged violation of Section 3A-06(b) of the Balanga Revenue Code was not stated in the order of revocation, and neither was petitioner informed of this specific violation until the Rejoinder was filed in the instant case. In fact, with all the more reason should due process have been observed in view of the questioned Resolution of the Sangguniang Bayan.

The knowledge of the pendency of Civil Case No. 3803 could not ipso facto nullify any claim petitioner had on the lot. This necessitated first and foremost a determination of the exact parameters of the lot and a finding that petitioner is not the true owner thereof. The finding that Civil Case No. 3803 was already settled by the Supreme Court should have apprised respondents of the possibility that the decision therein may have already been executed. Indeed, the cases of Austin Hardware Co., Inc. v. Court of Appeals, 69 SCRA 564 (1976) and Enriquez v. Bidin, 47 SCRA 183 (1972) are in point. In these cases, the revocation of the Mayor's permit was upheld by this Court because the grounds for revocation were admitted and not disputed. If only for the violation of due process which is manifest from Executive Order No. 1, s-88 and Resolution No. 12, s-88, the Mayor's arbitrary action can be annulled. In view of the undisputed fact that the respondent Municipality is not the owner of Lot 261-B-6-A-3, then there is no legal basis for it to impose and collect market fees and market entrance fees. Only the owner has the right to do so. Be that as it may, the Mayor's permit issued on January 11, 1988 cannot now be reinstated despite the nullity of its revocation. The permit expired on December 31, 1988. WHEREFORE, (1) the petition for certiorari and prohibition is GRANTED and Executive Order No. 1, s-88 and Resolution No. 12, s-88 issued, respectively, by respondents Mayor and Sangguniang Bayan of Balanga, Bataan are NULLIFIED for having been issued in grave abuse of discretion; and (2) the petition for mandamus is DISMISSED. SO ORDERED. Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 110249 August 21, 1997 ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR., ANDRES LINIJAN, ROBERT LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO ARAGON, TEODORICO ANDRE, ROMULO DEL ROSARIO, CHOLITO ANDRE, ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR, LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE, ROBERTO REYES, DANILO PANGARUTAN, NOE GOLPAN, ESTANISLAO ROMERO, NICANOR DOMINGO, ROLDAN TABANG, ADRIANO TABANG, FREDDIE SACAMAY, MIGUEL TRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN ALMODAI, BILLY D. BARTOLAY, ALBINO D. LIQUE, MECHOR J. LAYSON, MELANIE AMANTE, CLARO E. YATOC, MERGELDO B. BALDEO, EDGAR M. ALMASETA, JOSELITO MANAEG, LIBERATO ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA, WILFREDO MENDOZA, NAPOLEON BABANGGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO GABO, JERRY ROMERO, DAVID PANGGARUTAN, DANIEL PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILO MODERABLE, BENEDICTO TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG, NICOMEDES S. ACOSTA, ERENEO A. SEGARINO, JR., WILFREDO A. RAUTO, DIOSDADO A. ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B. BATERZAL, ELISEO YBAEZ, DIOSDADO E. HANCHIC, EDDIE ESCALICAS, ELEAZAR B. BATERZAL, DOMINADOR HALICHIC, ROOSEVELT RISMOAN, ROBERT C. MERCADER, TIRSO ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR VILLAROEL, ERNESTO C. YBAEZ, ARMANDO T. SANTILLAN, RUDY S. SANTILLAN, JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L. ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO SANTILLAN, GILBUENA LADDY, FIDEL BENJAMIN, JOVELITO BELGANO, HONEY PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE SHIPPERS ASSOCIATION OF PALAWAN, petitioners, vs. HON. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIANG PANLALAWIGAN OF PALAWAN, namely, VICE-GOVERNOR JOEL T. REYES, JOSE D. ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON, ANDRES R. BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO, ERNESTO A. LLACUNA, RODOLFO C. FLORDELIZA, GILBERT S. BAACO, WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY MAYOR EDWARD HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and ALL JUDGES OF PALAWAN, REGIONAL, MUNICIPAL AND METROPOLITAN,respondents.

DAVIDE, JR., J.: Petitioners caption their petition as one for "Certiorari, Injunction With Preliminary and Mandatory Injunction, with Prayer for Temporary Restraining Order" and pray that this Court: (1) declare as unconstitutional: (a) Ordinance No. 15-92, dated 15 December 1992, of the Sangguniang Panglungsod of Puerto Princesa; (b) Office Order No. 23, Series of 1993, dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero of Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2, Series of 1993, dated 19 February 1993, of the Sangguniang Panlalawigan of Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents Provincial and City Prosecutors of Palawan and Puerto Princesa City and Judges of the Regional Trial Courts,

Metropolitan Trial Courts 1 and Municipal Circuit Trial Courts in Palawan from assuming jurisdiction over and hearing cases concerning the violation of the Ordinances and of the Office Order. More appropriately, the petition is, and shall be treated as, a special civil action for certiorari and prohibition. The following is petitioners' summary of the factual antecedents giving rise to the petition: 1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: "AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF", the full text of which reads as follows: Sec. 1. Title of the Ordinance. This Ordinance is entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF. Sec. 2. Purpose, Scope and Coverage. To effectively free our City Sea Waters from Cyanide and other Obnoxious substance[s], and shall cover all persons and/or entities operating within and outside the City of Puerto Princesa who is are (sic) directly or indirectly in the business or shipment of live fish and lobster outside the City. Sec. 3. Definition of terms. For purpose of this Ordinance the following are hereby defined: A. SEA BASS A kind of fish under the family of Centropomidae, better known as APAHAP; B. CATFISH A kind of fish under the family of Plotosidae, better known as HITO-HITO; C. MUDFISH A kind of fish under the family of Orphicaphalisae better known as DALAG; D. ALL LIVE FISH All alive, breathing not necessarily moving of all specie[s] use[d] for food and for aquarium purposes. E. LIVE LOBSTER Several relatively, large marine crusteceans [sic] of the genus Homarus that are alive and breathing not necessarily moving. Sec. 4. It shall be unlawful [for] any person or any business enterprise or company to ship out from Puerto Princesa City to any point of destination either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES. Sec. 5. Penalty Clause. Any person/s and or business entity violating this Ordinance shall be penalized with a fine of not more than P5,000.00 or imprisonment of not more than twelve (12) months, cancellation of their permit to do business in the City of Puerto Princesa or all of the herein stated penalties, upon the discretion of the court. Sec. 6. If the owner and/or operator of the establishment found violating the provisions of this ordinance is a corporation or a partnership, the penalty prescribed

in Section 5 hereof shall be imposed upon its president and/or General Manager or Managing Partner and/or Manager, as the case maybe [sic]. Sec. 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this ordinance is deemed repealed. Sec. 8. This Ordinance shall take effect on January 1, 1993. SO ORDAINED. xxx xxx xxx 2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued Office Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows: In the interest of public service and for purposes of City Ordinance No. PD 426-14-74, otherwise known as "AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYOR'S PERMIT" and "City Ordinance No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby authorized and directed to check or conduct necessary inspections on cargoes containing live fish and lobster being shipped out from the Puerto Princesa Airport, Puerto Princesa Wharf or at any port within the jurisdiction of the City to any point of destinations [sic] either via aircraft or seacraft. The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor's Permit issued by this Office and the shipment is covered by invoice or clearance issued by the local office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing rules and regulations on the matter. Any cargo containing live fish and lobster without the required documents as stated herein must be held for proper disposition. In the pursuit of this Order, you are hereby authorized to coordinate with the PAL Manager, the PPA Manager, the local PNP Station and other offices concerned for the needed support and cooperation. Further, that the usual courtesy and diplomacy must be observed at all times in the conduct of the inspection. Please be guided accordingly. xxx xxx xxx 3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of Palawan enacted Resolution No. 33 entitled: "A RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO). CROMILEPTES ALTIVELIS(PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA GIGAS(TAKLOBO), PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS", the full text of which reads as follows: WHEREAS, scientific and factual researches [sic] and studies disclose that only five (5) percent of the corals of our province remain to be in excellent condition as [a] habitat of marine coral dwelling aquatic organisms;

WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province were principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of other obnoxious substances and other related activities; WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves into vitality within the span of five (5) years; WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose appropriate penalties [upon] acts which endanger the environment such as dynamite fishing and other forms of destructive fishing, among others. NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous decision of all the members present; Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993 of the Sangguniang Panlalawigan and to enact Ordinance No. 2 for the purpose, to wit: ORDINANCE NO. 2 Series of 1993 BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED: Sec. 1. TITLE This Ordinance shall be known as an "Ordinance Prohibiting the catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms, to wit: 1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno) 3. Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother Pearl, Oysters, Giant Clams and other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae (T[r]opical Aquarium Fishes) for a period of five (5) years in and coming from Palawan Waters. Sec. II. PRELIMINARY CONSIDERATIONS 1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for [a] more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities and resources. 2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower government units. "Any fair and reasonable doubts as to the existence of the power shall be interpreted in favor of the Local Government Unit concerned." 3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community. 4. Sec. 16 (R.A. 7160). General Welfare. Every 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. Sec. III. DECLARATION OF POLICY. It is hereby declared to be the policy of the Province of Palawan to protect and conserve the marine resources of Palawan not only for the greatest good of the majority of the present generation but with [the] proper perspective and consideration of [sic] their prosperity, and to attain this end, the Sangguniang Panlalawigan henceforth declares that is (sic) shall be unlawful for any person or any business entity to engage in catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms as enumerated in Section 1 hereof in and coming out of Palawan Waters for a period of five (5) years; Sec. IV. PENALTY CLAUSE. Any person and/or business entity violating this Ordinance shall be penalized with a fine of not more than Five Thousand Pesos (P5,000.00), Philippine Currency, and/or imprisonment of six (6) months to twelve (12) months and confiscation and forfeiture of paraphernalias [sic] and equipment in favor of the government at the discretion of the Court; Sec. V. SEPARABILITY CLAUSE. If for any reason, a Section or provision of this Ordinance shall be held as unconditional [sic] or invalid, it shall not affect the other provisions hereof. Sec. VI. REPEALING CLAUSE. Any existing Ordinance or a provision of any ordinance inconsistent herewith is deemed modified, amended or repealed. Sec. VII. EFFECTIVITY This Ordinance shall take effect ten (10) days after its publication. SO ORDAINED. xxx xxx xxx 4. The respondents implemented the said ordinances, Annexes "A" and "C" hereof thereby depriving all the fishermen of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers Association of Palawan and other marine merchants from performing their lawful occupation and trade; 5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged criminally under criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-Agutaya-Magsaysay, an original carbon copy of the criminal complaint dated April 12, 1993 is hereto attached as Annex "D"; while xerox copies are attached as Annex "D" to the copies of the petition; 6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the respondent PNP with the respondent City Prosecutor of Puerto Princess City, a xerox copy of the complaint is hereto attached as Annex "E"; Without seeking redress from the concerned local government units, prosecutor's office and courts, petitioners directly invoked our original jurisdiction by filing this petition on 4 June 1993. In sum, petitioners contend that: First, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution. Second, Office Order No. 23 contained no regulation nor condition under which the Mayor's permit could be granted or denied; in other words, the Mayor had the absolute authority to determine whether or not to issue the permit.

Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited the catching, gathering, possession, buying, selling and shipping of live marine coral dwelling organisms, without any distinction whether it was caught or gathered through lawful fishing method," the Ordinance took away the right of petitioners-fishermen to earn their livelihood in lawful ways; and insofar as petitioners-members of Airline Shippers Association are concerned, they were unduly prevented from pursuing their vocation and entering "into contracts which are proper, necessary, and essential to carry out their business endeavors to a successful conclusion." Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon against petitioners Tano and the others have to be dismissed. In the Resolution of 15 June 1993 we required respondents to comment on the petition, and furnished the Office of the Solicitor General with a copy thereof. In their comment filed on 13 August 1993, public respondents Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No. 2, Series of 1993, as a valid exercise of the Provincial Government's power under the general welfare clause (Section 16 of the Local Government Code of 1991 [hereafter, LGC]), and its specific power to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such powers, the Province of Palawan had "the right and responsibility . . . to insure that the remaining coral reefs, where fish dwells [sic], within its territory remain healthy for the future generation." The Ordinance, they further asserted, covered only live marine coral dwelling aquatic organismswhich were enumerated in the ordinance and excluded other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for only five (5) years to protect and preserve the pristine coral and allow those damaged to regenerate. Aforementioned respondents likewise maintained that there was no violation of the due process and equal protection clauses of the Constitution. As to the former, public hearings were conducted before the enactment of the Ordinance which, undoubtedly, had a lawful purpose and employed reasonable means; while as to the latter, a substantial distinction existed "between a fisherman who catches live fish with the intention of selling it live, and a fisherman who catches live fish with no intention at all of selling it live," i.e., "the former uses sodium cyanide while the latter does not." Further, the Ordinance applied equally to all those belonging to one class. On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a Temporary Restraining Order, claiming that despite the pendency of this case, Branch 50 of the Regional Trial Court of Palawan was bent on proceeding with Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano, Baldomero Tano, Andres Linijan and Angel de Mesa for violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11 November 1993 a temporary restraining order directing Judge Angel Miclat of said court to cease and desist from proceeding with the arraignment and pre-trial of Criminal Case No. 11223. On 12 July 1994, we excused the Office of the Solicitor General from filing a comment, considering that as claimed by said office in its Manifestation of 28 June 1994, respondents were already represented by counsel. The rest of the respondents did not file any comment on the petition. In the resolution of 15 September 1994, we resolved to consider the comment on the petition as the Answer, gave due course to the petition and required the parties to submit their respective memoranda. 2 On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and the Bureau of Fisheries and Aquatic Resources and required the Office of the Solicitor General to comment on their behalf. But in light of the latter's motion of 9 July 1997 for an extension of time to file the comment which would only result in further delay, we dispensed with said comment. After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of merit, and on 22 July 1997, assigned it to the ponente to write the opinion of the Court. I

There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were criminally charged with violating Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal Case No. 9305-C of the 1st Municipal Circuit Trial Court (MCTC) of Palawan; 3 and Robert Lim and Virginia Lim who were charged with violating City Ordinance No. 15-92 of Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of Palawan before the Office of the City Prosecutor of Puerto Princesa. 4 All of them, with the exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the accused in Criminal Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan, pending before Branch 50 of the Regional Trial Court of Palawan. 5 The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77), all of whom, except the Airline Shippers Association of Palawan an alleged private association of several marine merchants are natural persons who claim to be fishermen. The primary interest of the first set of petitioners is, of course, to prevent the prosecution, trial and determination of the criminal cases until the constitutionality or legality of the Ordinances they allegedly violated shall have been resolved. The second set of petitioners merely claim that being fishermen or marine merchants, they would be adversely affected by the ordinance's. As to the first set of petitioners, this special civil for certiorari must fail on the ground of prematurity amounting to a lack of cause of action. There is no showing that said petitioners, as the accused in the criminal cases, have filed motions to quash the informations therein and that the same were denied. The ground available for such motions is that the facts charged therein do not constitute an offense because the ordinances in question are unconstitutional. 6 It cannot then be said that the lower courts acted without or in excess of jurisdiction or with grave abuse of discretion to justify recourse to the extraordinary remedy of certiorari or prohibition. It must further be stressed that even if petitioners did file motions to quash, the denial thereof would not forthwith give rise to a cause of action under Rule 65 of the Rules of Court. The general rule is that where a motion to quash is denied, the remedy therefrom is not certiorari, but for the party aggrieved thereby to go to trial without prejudice to reiterating special defenses involved in said motion, and if, after trial on the merits an adverse decision is rendered, to appeal therefrom in the manner authorized by law. 7 And, even where in an exceptional circumstance such denial may be the subject of a special civil action for certiorari, a motion for reconsideration must have to be filed to allow the court concerned an opportunity to correct its errors, unless such motion may be dispensed with because of existing exceptional circumstances. 8 Finally, even if a motion for reconsideration has been filed and denied, the remedy under Rule 65 is still unavailable absent any showing of the grounds provided for in Section 1 thereof. 9 For obvious reasons, the petition at bar does not, and could not have, alleged any of such grounds. As to the second set of petitioners, the instant petition is obviously one for DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a "nullity . . . for being unconstitutional." 10 As such, their petition must likewise fail, as this Court is not possessed of original jurisdiction over petitions for declaratory relief even if only questions of law are involved, 11 it being settled that the Court merely exercises appellate jurisdiction over such petitions. 12 II Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinary writ ofcertiorari, there is here a clear disregard of the hierarchy of courts, and no special and important reason or exceptional and compelling circumstance has been adduced why direct recourse to us should be allowed. While we have concurrent jurisdiction with Regional Trial courts and with the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence gives petitioners no unrestricted freedom of choice of court forum, so we held in People v. Cuaresma. 13 This concurrence of jurisdiction is not . . . to be taken as according to parties seeking any of the writs an absolute unrestrained freedom of choice of the court to which application therefor will be directed. There is after all hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is

a policy necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. . . . The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by the highest tribunal of the land. . . . In Santiago v. Vasquez, 14 this Court forcefully expressed that the propensity of litigants and lawyers to disregard the hierarchy of courts must be put to a halt, not only because of the imposition upon the precious time of this Court, but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court, the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We reiterated "the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of [its] primary jurisdiction." III Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we opt to resolve this case on its merits considering that the lifetime of the challenged Ordinances is about to end. Ordinance No. 1592 of the City of Puerto Princesa is effective only up to 1 January 1998, while Ordinance No. 2 of the Province of Palawan, enacted on 19 February 1993, is effective for only five (5) years. Besides, these Ordinances were undoubtedly enacted in the exercise of powers under the new LGC relative to the protection and preservation of the environment and are thus novel and of paramount importance. No further delay then may be allowed in the resolution of the issues raised. It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality. 15 To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. 16 Where doubt exists, even if well-founded, there can be no finding of unconstitutionality. To doubt is to sustain. 17 After a scrutiny of the challenged Ordinances and the provisions of the Constitution petitioners claim to have been violated, we find petitioners' contentions baseless and so hold that the former do not suffer from any infirmity, both under the Constitution and applicable laws. Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of the Constitution as having been transgressed by the Ordinances. The pertinent portion of Section 2 of Article XII reads: Sec. 2. . . . The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. Sections 2 and 7 of Article XIII provide: Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. xxx xxx xxx

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In their petition, petitioner Airline Shippers Association of Palawan is self-described as "a private association composed of Marine Merchants;" petitioners Robert Lim and Virginia Lim, as "merchants;" while the rest of the petitioners claim to be "fishermen," without any qualification, however, as to their status. Since the Constitution does not specifically provide a definition of the terms "subsistence" or "marginal" fishermen, 18 they should be construed in their general and ordinary sense. A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish, 19 while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood. 20 Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or fisherman as "an individual engaged in subsistence farming or fishing which shall be limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family." It bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions. Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress on the duty of the State to protect the nation's marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. Our survey of the statute books reveals that the only provision of law which speaks of a preferential right of marginal fishermen is Section 149 of the LGC, which pertinently provides: Sec. 149. Fishery Rentals, Fees and Charges. . . . (b) The sangguniang bayan may: (1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, as determined by it: Provided, however, That duly registered organizations and cooperatives of marginal fishermen shall have the preferential right to such fishery privileges . . . . In a Joint Administrative Order No. 3 dated 25 April 1996, the Secretary of the Department of Agriculture and the Secretary of the Department of Interior and Local Government prescribed guidelines concerning the preferential treatment of small fisherfolk relative to the fishery right mentioned in Section 149. This case, however, does not involve such fishery right. Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but of their protection, development and conservation. As hereafter shown, the ordinances in question are meant precisely to protect and conserve our marine resources to the end that their enjoyment may be guaranteed not only for the present generation, but also for the generations to come. The so-called "preferential right" of subsistence or marginal fishermen to the use of marine resources is not at all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their "exploration, development and utilization . . . shall be under the full control and supervision of the State." Moreover, their mandated protection, development and conservation as necessarily recognized by the framers of the Constitution, imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. Thus, as to the curtailment of the preferential treatment of marginal fishermen, the following exchange between Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session of the Constitutional Commission:

MR. RODRIGO: Let us discuss the implementation of this because I would not raise the hopes of our people, and afterwards fail in the implementation. How will this be implemented? Will there be a licensing or giving of permits so that government officials will know that one is really a marginal fisherman? Or if policeman say that a person is not a marginal fisherman, he can show his permit, to prove that indeed he is one. MR. BENGZON: Certainly, there will be some mode of licensing insofar as this is concerned and this particular question could be tackled when we discuss the Article on Local Governments whether we will leave to the local governments or to Congress on how these things will be implemented. But certainly, I think our congressmen and our local officials will not be bereft of ideas on how to implement this mandate. xxx xxx xxx MR. RODRIGO: So, once one is licensed as a marginal fisherman, he can go anywhere in the Philippines and fish in any fishing grounds. MR. BENGZON: Subject to whatever rules and regulations and local laws that may be passed, may be existing or will be passed. 21 (emphasis supplied) What must likewise be borne in mind is the state policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. 22 On this score, in Oposa v. Factoran, 23 this Court declared: While the right to a balanced and healthful ecology is to be found under the Declaration of Principles the State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than selfpreservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairing the environment. . . . The LGC provisions invoked by private respondents merely seek to give flesh and blood to the right of the people to a balanced and healthful ecology. In fact, the General Welfare Clause, expressly mentions this right: Sec. 16. General Welfare. Every 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. (emphasis supplied). Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC "shall be liberally interpreted to give more powers to the local government units in accelerating economic development and upgrading the quality of life for the people of the community." The LGC vests municipalities with the power to grant fishery privileges in municipal waters and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. 24 Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the general welfare of the municipality and its inhabitants, which shall include, inter alia, ordinances that "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance." 25 Finally, the centerpiece of LGC is the system of decentralization 26 as expressly mandated by the Constitution. 27 Indispensable to decentralization is devolution and the LGC expressly provides that "[a]ny provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned." 28 Devolution refers to the act by which the National Government confers power and authority upon the various local government units to perform specific functions and responsibilities. 29 One of the devolved powers enumerated in the section of the LGC on devolution is the enforcement of fishery laws in municipal waters including the conservation of mangroves. 30 This necessarily includes the enactment of ordinances to effectively carry out such fishery laws within the municipal waters. The term "municipal waters," in turn, includes not only streams, lakes, and tidal waters within the municipality, not being the subject of private ownership and not comprised within the national parks, public forest, timber lands, forest reserves, or fishery reserves, but also marine waters included between two lines drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and fifteen kilometers from it. 31 Under P.D. No. 704, the marine waters included in municipal waters is limited to three nautical miles from the general coastline using the above perpendicular lines and a third parallel line. These "fishery laws" which local government units may enforce under Section 17(b)(2)(i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia, authorizes the establishment of a "closed season" in any Philippine water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which provides for the exploration, exploitation, utilization and conservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58, which makes it unlawful for any person, association or corporation to catch or cause to be caught, sell, offer to sell, purchase, or have in possession any of the fish specie calledgobiidae or "ipon" during closed season; and (5) R.A. No. 6451 which prohibits and punishes electrofishing, as well as various issuances of the BFAR. To those specifically devolved insofar as the control and regulation of fishing in municipal waters and the protection of its marine environment are concerned, must be added the following: 1. Issuance of permits to construct fish cages within municipal waters; 2. Issuance of permits to gather aquarium fishes within municipal waters;

3. Issuance of permits to gather kapis shells within municipal waters; 4. Issuance of permits to gather/culture shelled mollusks within municipal waters; 5. Issuance of licenses to establish seaweed farms within municipal waters; 6. Issuance of licenses to establish culture pearls within municipal waters; 7. Issuance of auxiliary invoice to transport fish and fishery products; and 8. Establishment of "closed season" in municipal waters. These functions are covered in the Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and the Department of Interior and Local Government. In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted therein to local government units under Section 16 (the General Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the questioned Ordinances cannot be doubted. Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 June 1992. This statute adopts a "comprehensive framework for the sustainable development of Palawan compatible with protecting and enhancing the natural resources and endangered environment of the province," which "shall serve to guide the local government of Palawan and the government agencies concerned in the formulation and implementation of plans, programs and projects affecting said province." 32 At this time then, it would be appropriate to determine the relation between the assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod of the City of Puerto Princesa and the Sangguniang Panlalawigan of the Province of Palawan to protect the environment. To begin, we ascertain the purpose of the Ordinances as set forth in the statement of purposes or declaration of policies quoted earlier. It is clear to the Court that both Ordinances have two principal objectives or purposes: (1) to establish a "closed season" for the species of fish or aquatic animals covered therein for a period of five years; and (2) to protect the coral in the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due to illegal fishing activities. The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the establishment of "closed seasons." The devolution of such power has been expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and the Department of Interior and Local Government. The realization of the second objective clearly falls within both the general welfare clause of the LGC and the express mandate thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts which endanger the environment. 33 The destruction of coral reefs results in serious, if not irreparable, ecological imbalance, for coral reefs are among nature's life-support systems. 34 They collect, retain and recycle nutrients for adjacent nearshore areas such as mangroves, seagrass beds, and reef flats; provide food for marine plants and animals; and serve as a protective shelter for aquatic organisms. 35 It is said that "[e]cologically, the reefs are to the oceans what forests are to continents: they are shelter and breeding grounds for fish and plant species that will disappear without them." 36 The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade which entails the catching of so-called exotic species of tropical fish, not only for aquarium use in the West, but also for "the market for live banquet fish [which] is virtually insatiable in ever more affluent Asia. 37These exotic species are coral-dwellers, and fishermen catch them by "diving in shallow water with corraline habitats and squirting sodium cyanide poison at passing fish directly or onto coral

crevices; once affected the fish are immobilized [merely stunned] and then scooped by hand." 38 The diver then surfaces and dumps his catch into a submerged net attached to the skiff. Twenty minutes later, the fish can swim normally. Back on shore, they are placed in holding pens, and within a few weeks, they expel the cyanide from their system and are ready to be hauled. They are then placed in saltwater tanks or packaged in plastic bags filled with seawater for shipment by air freight to major markets for live food fish. 39 While the fish are meant to survive, the opposite holds true for their former home as "[a]fter the fisherman squirts the cyanide, the first thing to perish is the reef algae, on which fish feed. Days later, the living coral starts to expire. Soon the reef loses its function as habitat for the fish, which eat both the algae and invertebrates that cling to the coral. The reef becomes an underwater graveyard, its skeletal remains brittle, bleached of all color and vulnerable to erosion from the pounding of the waves." 40 It has been found that cyanide fishing kills most hard and soft corals within three months of repeated application. 41 The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto Princesa and the prohibited acts provided in Ordinance No. 2, Series of 1993 of the Province of Palawan, on one hand, and the use of sodium cyanide, on the other, is painfully obvious. In sum, the public purpose and reasonableness of the Ordinances may not then be controverted. As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L. Lucero of the City of Puerto Princesa, we find nothing therein violative of any constitutional or statutory provision. The Order refers to the implementation of the challenged ordinance and is not the Mayor's Permit. The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on the part of the Sangguniang Panglungsod of Puerto Princesa to enact Ordinance No. 15, Series of 1992, on the theory that the subject thereof is within the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic Resources (BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and that, in any event, the Ordinance is unenforceable for lack of approval by the Secretary of the Department of Natural Resources (DNR), likewise in accordance with P.D. No. 704. The majority is unable to accommodate this view. The jurisdiction and responsibility of the BFAR under P.D. No. 704, over the management, conservation, development, protection, utilization and disposition of all fishery and aquatic resources of the country is not all-encompassing. First, Section 4 thereof excludes from such jurisdiction and responsibility municipal waters, which shall be under the municipal or city government concerned, except insofar as fishpens and seaweed culture in municipal centers are concerned. This section provides, however, that all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the Secretary of the Department of Natural Resources for appropriate action and shall have full force and effect only upon his approval. 42 Second, it must at once be pointed out that the BFAR is no longer under the Department of Natural Resources (now Department of Environment and Natural Resources). Executive Order No. 967 of 30 June 1984 transferred the BFAR from the control and supervision of the Minister (formerly Secretary) Of Natural Resources to the Ministry of Agriculture and Food (MAF) and converted it into a mere staff agency thereof, integrating its functions with the regional offices of the MAF. In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the BFAR was retained as an attached agency of the MAF. And under the Administrative Code of 1987, 43 the BFAR is placed under the Title concerning the Department of Agriculture. 44 Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should be sought would be that of the Secretary of the Department of Agriculture. However, the requirement of approval by the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting fishing and fisheries in municipal waters has been dispensed with in view of the following reasons: (1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Sections 16 and 29 of P.D. No. 704 45 insofar as they are inconsistent with the provisions of the LGC. (2) As discussed earlier, under the general welfare clause of the LGC, local government units have the power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. It likewise specifically vests municipalities with the power to grant fishery privileges in municipal waters,

and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. 46 Finally, it imposes upon the sangguniang bayan, the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance." 47 In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa and Sangguniang Panlalawigan of the Province of Palawan for exercising the requisite political will to enact urgently needed legislation to protect and enhance the marine environment, thereby sharing in the herculean task of arresting the tide of ecological destruction. We hope that other local government units shall now be roused from their lethargy and adopt a more vigilant stand in the battle against the decimation of our legacy to future generations. At this time, the repercussions of any further delay in their response may prove disastrous, if not, irreversible. WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary restraining order issued on 11 November 1993 is LIFTED. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Padilla, Romero, Melo, Vitug, Francisco Panganiban and Torres, Jr., JJ., concur. Regalado, J., is on leave.

Separate Opinions

MENDOZA, J., concurring: I fully concur in the opinion of the Court written by Justice Davide. I write separately to emphasize two points which I believe are important. The first is the need to uphold the presumption of validity of the ordinances in this case in view of the total absence of evidence to undermine their factual basis. The second is the need not to allow a shortcircuiting of the normal process of adjudication on the mere plea that unless we take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights will be left unprotected, when the matter can very well be looked into by trial courts and in fact should be brought there. The ordinances in question in this case are conservation measures which the local governments of Palawan have adopted in view of the widespread destruction caused by cyanide fishing of corals within their territorial waters. At the very least, these ordinances must be presumed valid in the absence of evidence to show that the necessary factual foundation for their enactment does not exist. Their invalidation at this point can result in the untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims. Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in 1993, prohibits, for a period of five years, the "catching, gathering, possessing, buying, selling and shipment" of five fish and lobsters. As originally enacted, the prohibition applied to eight species of fish and lobsters caught in the waters of Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Seorita), lobster (below 200 grams and spawning), 4. Tridacna

Gigas (Giant Clams or Taklobo and other species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae (Tropical Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban to three species only, namely: mameng (scaridae), panther or seorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of P5,000.00 and/or imprisonment of not less than 6 nor more than 12 months and confiscation of the paraphernalia and equipment used in the commission of the offense. 2 Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study submitted by the Department of Agriculture, 3 showing that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in the Province of Palawan remained in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged. The rampant use of cyanide has been encouraged by the lucrative trade in live fishes which are shipped not only to Manila but also abroad, principally to Hongkong, Taiwan and Malaysia. The fishes are sold to gourmet restaurants because of the great demand for exotic food, to aquariums and to pet shops. In its issue of July 19, 1993. Time Magazine 4 reported that the illicit trade in live animals is the third biggest contraband business in the world, after drugs and arms, and identified the Philippines as a major source of tropical fishes for the global traffic in live fishes. The use of cyanide enables fishermen to catch fish alive and in commercial quantity in a way not possible with the use of such traditional methods as hook and line, fish traps, baklad and the like, which allows only limited catch and often results in injuries to fishes and the loss of their scales, thereby reducing their survival for transportation abroad. 5 Cyanide does not kill fish but only stuns them. The stunned creatures are then scooped up and placed in containers ready for shipment across borders, national and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die and cease as fish habitats. 6 Concern over the use of cyanide in fishing and its ill effect on the marine environment also prompted the Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which makes it unlawful for any person or business enterprise or company "to ship out from Puerto Princesa City to any point of destinations either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES." 7 The ban is for five years, from January 1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more than P5,000.00 or imprisonment of not more than 12 months.8 To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live fish and lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit issued by the office of the city mayor. Any cargo of live fish and lobster without a permit from the mayor's office will be "held for proper disposition." 9 The ordinances in question are police power measures, enacted by the Province of Palawan and the City of Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact measures to "protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing. . . ." 10 There is no basis for the claim in the dissenting opinion that the subject of these ordinances lies within the competence of the national government. For the matter concerns a local problem, namely, the destruction of aquatic resources in the Province of Palawan. For this reason the Solicitor General asked for leave to withdraw from this case. On the other hand, the Department of Agriculture submitted its report on the extent of the devastation of coral reefs caused by illegal fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution of the problem to be worked out by the local authorities. It would therefore set back the policy of decentralization were this Court to sustain such a claim. Indeed, petitioners' challenge to the validity of the ordinances does not rest on the claim that the ordinances are beyond the power of local governments to enact but on the ground that they deprive petitioners of their means of livelihood and occupation and for that reason violate the Constitution of the Philippines. For support, petitioners invoke the following constitutional provisions: Art. XII, 2 . . . . .

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. Art. XIII, 1: The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. Id., 7: The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. I cannot see how these provisions can, in any way, lend support to petitioners' contention that the ordinances violate the Constitution. These provisions refer to the duty of the State to protect the nation's marine resources for the exclusive use and enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in the use of such communal marine resources, and to their right to be protected, even in offshore fishing grounds, against foreign intrusion. There is no question here of Filipino preference over aliens in the use of marine resources. What is in issue is the protection of marine resources in the Province of Palawan. It was precisely to implement Art. XII, 2 that the ordinances in question were enacted. For, without these marine resources, it would be idle to talk of the rights of subsistence fishermen to be preferred in the use of these resources. It has been held that "as underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." 11 No evidence has been presented by petitioners to overthrow the factual basis of the ordinances that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in Palawan was in excellent condition, that 75% had been heavily destroyed, and that because of the thriving market for live fish and lobster here and abroad there was rampant illicit trade in live fish. Nor has it been shown by petitioners that the local legislation here involved is arbitrary or unreasonable. It has been held: "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . . With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. . . ." 12 It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-92 prohibits cyanide fishing and therefore the prohibition against catching certain species of fish and their transportation is "excessive and irrational." It is further argued that the ban is unreasonable because it is not limited to cyanide fishing but includes even legitimate fishing. The ban on the use of cyanide and other noxious substances is already provided for in other legislation. P.D. No. 534, 2 punishes fishing by means of "explosives, obnoxious or poisonous substances or by the use of electricity." Consequently, the ordinances in question can be seen as a necessary corollary of the prohibition against illegal fishing contained in this Decree. By prohibiting the catching of certain fishes and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing because, as already stated, cyanide is preferred in catching fishes because it does not kill but only stuns them and thus preserves them for export to the world market. On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely prohibit[ing] the catching, gathering, buying and shipment of live fishes and marine coral resources by any and all means including those lawfully executed or done in the pursuit of legitimate occupation" misconceives

the principal purpose of the ordinance, which is not so much to prohibit the use of cyanide for fishing as to rebuild corals because of their destruction by cyanide fishing. This is clear from the "whereas" clauses of Resolution No. 33, accompanying Ordinance No. 2-93: WHEREAS, scientific and factual researches and studies disclose that only five (5) percent of the corals of our province remain to be in excellent condition as habitat of marine coral dwelling aquatic organisms; WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province were principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of other obnoxious substances and other related activities; WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves into vitality within the span of five (5) years; WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as the Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose appropriate penalties [for] acts which endanger the environment such as dynamite fishing and other forms of destructive fishing, among others; The principal aim of the ordinance is thus the preservation and rehabilitation of the corals. Only indirectly is it also concerned with prohibiting the use of cyanide. That this is the aim of the ordinance can also be inferred from the fact that the ban imposed by it on the catching and gathering of fishes is for a limited period (5 years) calculated to be the time needed for the growth and regeneration of the corals. Were the purpose of the ordinance the prohibition of the use of cyanide for fishing, the ban would not be for a limited period only but for all time. I am not much moved by the plea that the ordinances deprive small fishermen of their means of livelihood and occupation. The ban imposed by Ordinance No. 2-93, as amended, covers only three species, i.e., mameng (scaridae), panther or seorita (cromilepres altivelis) and ornamental aquarium fishes (balistiedae), which are prized in the black market. With respect to other species, it is open season for legitimate fishermen. On the other hand, the ban imposed by Ordinance No. 15-92 allows the transportation and shipment of sea bass, catfish, mudfish and milkfish fries. The ban imposed by the two ordinances is limited to five years. It is thus limited both as to scope and as to period of effectivity. There is, on the other hand, the imperative necessity for measures to prevent the extinction of certain species of fish. Indeed, the burden of showing that there is no reasonable relation between the end and the means adopted in this case is not on the local governments but on petitioners because of the presumption that a regulatory statute is valid in the absence of factual evidence to the contrary. As held in United States v. Salaveria. 13"The presumption is all in favor of validity. . . The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people. . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation." Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of Puerto Princesa, for being allegedly vague. This order prohibits the transportation of fish outside the city without permit from the mayor's office. Petitioners contend that the order does not state under what condition a permit may be granted and, consequently, leaves it to the absolute discretion of the mayor when to grant and when to deny a permit. The questioned paragraph of the order states: The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor's Permit issued by this Office and the shipment is covered by invoice or clearance issued by the local office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing rules and regulations on the matter. This contention is untenable. As the office order is intended to implement City Ordinance No. 15-92, resort must be made to the ordinance in order to determine the scope of such office order. As already

noted, the ordinance prohibits the shipment out of Puerto Princesa of live fish and lobsters, with the exception of catfish, mudfish and milkfish fries. Consequently, a permit may be denied if it is for the transportation of fishes which are covered by the ban, but not for those not covered by it. This is the common sense meaning of the office order in question. Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." 14 One final point. This case was brought to this Court on the bare bones of the ordinances, on the mere claim of petitioner Alfredo Tano and his 83 copetitioners that they are subsistence fishermen. The constitutional protection refers to small fishermen who depend on the sea for their existence. Ten of the petitioners, led by Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the species covered by Provincial Ordinance No. 2-93, while two, Roberto Lim and Virginia Lim, are charged with violation of the two ordinances in the City Prosecutor's Office. There is no telling from the records of this case whether petitioners are subsistence fishermen or simply impecunious individuals selling their catch to the big businessmen. The other petitioners are admittedly fish traders, members of an association of airline shippers, to whom the constitutional provisions obviously do not apply. The judicial invalidation of the ordinances in this case could undermine the on-going trial of some of petitioners. Instead of leaving the determination of the validity of the ordinances to the trial court, where some of petitioners are facing charges, this Court will be shortcircuiting the criminal process by prematurely passing upon the constitutional questions and indirectly on the criminal liability of some of the petitioners. This is a task which should await the development of evidence of record. Indeed because of the unsatisfactory abstractness of the record, this case should not have been brought here. The mere fact that some of petitioners are facing prosecution for violation of the ordinances is no reason for entertaining their suit. Our jurisdiction is limited to cases and controversies. Who are petitioners? What is the impact of the ordinance on their economic situation? Are the factual bases of the two ordinances supported by evidence? These questions must be raised in the criminal trial or in a suit brought in the trial court so that facts necessary to adjudicate the constitutional questions can be presented. Nothing can take the place of the flesh and blood of litigation to assess the actual operation of a statute and thus ground the judicial power more firmly. Petitioners justify the filing of the present action in this Court on the ground that constitutional questions must be raised at the earliest time. That is true, but it does not mean that the questions should be presented to the Supreme Court first hand. Moreover, the rule is not absolute. Constitutional questions like those invoked by petitioners can be raised anytime, even in a motion for reconsideration, if their resolution is necessary to the decision of an actual case or controversy, as our recent resolution 15 of the constitutionality of R.A. No. 7659, reimposing the death penalty, amply demonstrates. Romero, Melo, Puno and Francisco, JJ., concur.

BELLOSILLO, J., dissenting: It is settled rule that where the provisions of the law are clear and unambiguous there is no room for interpretation. The duty of the court is only to apply the law. The exception to such rule cannot be justified on the sole basis of good motives or noble objectives. For it is also basic that the end does not justify the means. The petition raises significant constitutional questions. While petitioners apparently instituted the action to enjoin their criminal prosecution, the issue boils down to whether the subject ordinances of Palawan and Puerto Princesa are valid and enforceable as to authorize the criminal prosecution of those charged with violation thereof. Notwithstanding the procedural limitations strictly applied in the majority opinion to render the petition dismissible on grounds of prematurity and lack of real interest in the controversy, the case clearly falls under the exceptions allowed by law. The petition, I submit, can be properly treated as a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction

committed by the lower court arising from the implementation of a void ordinance. Even if the purpose of the petition is for declaratory relief, if the petition has far-reaching implications and raises questions that should be resolved as they involve national interest, it may be treated as a special civil action under Rule 65. 1 The mere absence of a prior motion to quash the Information in the trial court should not prevent the accused, petitioners herein, from seeking to render null and void the criminal proceedings below. In criminal cases, when the constitutionality or validity of a law or ordinance is essentially involved, the same may be raised at any stage of the proceedings. It can also be considered by the appellate court at any time if it involves the jurisdiction of the lower Court. 2 Further, under Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused to assert any ground of a motion to quash before he pleads to the Complaint or Information either because he did not file a motion to quash or failed to allege the same in the motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy. Petitioners are proper parties to set aside the proceedings in the trial court. A proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of. Petitioners have been criminally charged and arrested for alleged violation of the ordinances in question. Consequently, unless the trial court is enjoined from continuing with the proceedings, petitioners are in danger of being convicted and punished under ordinances which they allege to be invalid and ineffective. In fact this Court initially recognized the real interest of petitioners in instituting the action when it issued a restraining order directing Judge Angel R. Miclat to cease and desist until further orders from proceeding with the arraignment and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of Resolution No. 2-93 of the Sangguniang Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang Panlungsod of Puerto Princesa City. The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and Ordinance No. 15-92 are constitutional, valid and enforceable. By considering the purpose and objective of the ordinances as laudable, the majority adopts the affirmative view in consonance with the general welfare clause and principle of devolution well-rooted in the Local Government Code of 1991. While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be commended for their efforts to uplift and protect the environment and natural resources within their areas, the general welfare clause is not the sole criterion to determine the validity or constitutionality of the ordinances. InMagtajas v. Pryce Properties Corporation, 3 we reiterated that the well-established tests of a valid ordinance are: (a) It must not contravene the Constitution or any statute; (b) It must not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may regulate trade; (e) It must be general and consistent with public policy; and, (f) It must not be unreasonable. As admitted by the majority, among our existing statutes on fishing and fishery or aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No. 704 is titled "Revising and Consolidating All Laws and Decrees Affecting Fishing and Fisheries." With the enactment of the Local Government Code of 1991, only Secs. 16 and 29 of P.D. No. 704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain valid and effective, Sec. 4 of which is enlightening Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). The Bureau shall have jurisdiction and responsibility in the management, conservation, development, protection, utilization and disposition of all fishery and aquatic resources of the country except municipal waters which shall be under the municipal or city government concerned: Provided, That fishpens and seaweed culture in municipal centers shall be under the jurisdiction of the Bureau: Provided, further, That all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the Secretary for appropriate action and shall have full force and effect only upon his approval . The Bureau shall also have authority to regulate and supervise the production, capture and gathering of fish and fishery/aquatic products. There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal waters are under the jurisdiction of the municipal or city government concerned. However, the same decree imposes a mandatory requirement directing municipal or city governments to submit ordinances enacted pertinent to fishing and fishery resources to the Secretary of Agriculture who now has control

and supervision over the Bureau of Fisheries and Aquatic Resources (BFAR). The ordinances will attain full force and effect only upon the approval of the Secretary of Agriculture. Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture through the BFAR for approval. Such failure of compliance with the law prevented it from becoming valid and effective. Consequently, Office Order No. 23 of the Mayor of Puerto Princesa City which seeks to implement and enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement. To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous. For, if it was the intention of the legislature to dispense with the requirement of prior approval by the Secretary of Agriculture of ordinances pertinent to fishery resources, it would. have expressly repealed Sec. 4 when, in fact, it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by implication is not presumed or favored considering that the legislature is presumed to be aware of existing laws; ordinarily, if it intends to revoke a statute it would manifest such intention in express terms. 4 Before such a repeal is deemed to exist it should be shown that the statutes or statutory provisions deal with the same subject matter and that the latter be inconsistent with the former. There must be a showing of repugnancy clear and convincing in character. The language used in the latter statute must be such as to render it irreconcilable with what has been formerly enacted. An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency between the Local Government Code and P.D. No. 704 as amended. While the Local Government Code vests power upon the local government to enact ordinances for the general welfare of its inhabitants, such power is subject to certain limitations imposed by the Code itself and by other statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and recognized a limitation on the power of the local government to enact ordinances relative to matters affecting fishery and aquatic resources. A reading of particular provisions of the Local Government Code itself will reveal that devolution on the powers of the local government pertaining to the protection of environment is limited and not all-encompassing, as will be discussed in the succeeding paragraphs. Further, while the Local Government Code is a general law on the powers, responsibilities and composition of different local government units, P.D. No. 704 is a special law dealing with the protection and conservation of fishing and aquatic resources including those in the municipal waters. Hence, the special law should prevail over the general law. There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the authority to establish closed seasons. Another existing law on fisheries which has not been repealed by the Local Government Code is P.D. No. 1219, which provides for the exploration, exploitation, utilization and conservation of coral resources. Section 4 thereof provides that the decree shall be implemented by the Secretary of Environment and Natural Resources who shall have jurisdiction and responsibility in the exploration, exploitation, utilization and conservation of coral resources. Section 6 authorizes the Secretary to issue special permit to any person or institution to gather in limited quantities any coral for scientific or educational purposes. Section 10 empowers the Secretary to promulgate rules and regulations for the implementation of this law. It is true that police power can be exercised through the general welfare clause. But, while police power is inherent in a state, it is not so in municipal corporations or local governments. In order that a local government may exercise police power, there must be a legislative grant which necessarily sets the limits for the exercise of the power. 5 In this case, Congress has enacted the Local Government Code which provides the standards as well as the limitations in the exercise of the police power by the local government unit. Section 2 of the Local Government Code provides for a system of decentralization whereby local government units are given more powers, authority, responsibilities and resources, and the process shall proceed from the national government to the local government units. However, under Sec 3, par. (i), of the Local Government Code, the operative principles of decentralization upon the environment and natural resources are not absolute when it is provided therein that "local government units shall share with the national government the responsibility in the management and maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies." The national policies mentioned here refer to existing policies which the DENR and other government agencies concerned with the environment may implement at any given moment. The national policies are embodied in existing laws, rules and regulations pertaining to environment and natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources. The above provision

was crafted to make sure that local government enactments do not supplant or negate national government policies on environment. 6 This is precisely the reason why the Local Government Code did not repeal Sec. 4 of P.D. NO. 704 requiring prior submission to and approval by the Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the approval of the Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and national policies. Likewise, the jurisdiction of the Secretary of Environment and Natural Resources over coral resources under P.D. No. 1219 remains. The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which reiterates the basic services and facilities to be rendered by the local governments. With respect to the protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically provides that the municipality shall conduct "extension and on-site research services and facilities related to agriculture and fishery activities which include dispersal of livestock and poultry, fingerlings and other seeding materials for aquaculture . . . . and enforcement of fishery laws in municipal waters including the conservation of mangroves . . . ." The power devolved upon the municipality under the Local Government Code is the enforcement of existing fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances upon subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to the law. 7 In view thereof, ordinances which may be enacted by the municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219. Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality, city and province respectively may approve ordinances protecting the environment by specifically penalizing only those acts which endanger the environment such as dynamite fishing and other forms of destructive fishing which are already prohibited under P.D. Nos. 704 and 1219, and other laws on illegal fishing. 8 The questioned ordinances may also be struck down for being not only a prohibitory legislation but also an unauthorized exercise of delegation of powers. An objective, however worthy or desirable it may be, such as the protection and conservation of our fisheries in this case, can be attained by a measure that does not encompass too wide a field. The purpose can be achieved by reasonable restrictions rather than by absolute prohibition. Local governments are not possessed with prohibitory powers but only regulatory powers under the general welfare clause. 9 They cannot therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through Ordinance No. 2-93 involving even lawful methods of fishing. These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources which authority is not among those powers vested by the Local Government Code to the local government units. For the authority to establish a closed season for fisheries is vested upon the Secretary of Agriculture by virtue of P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural resources pursuant to P.D. No. 1219 in relation to coral resources. The power of the local governments is confined and limited to ensuring that these national fishery laws are implemented and enforced within their territorial jurisdictions. Hence, any memorandum of agreement which might have been executed by the Department of Agriculture or Department of Environment and Natural Resources granting additional powers and functions to the local governments which are not vested upon the latter by the Local Government Code because such powers are covered by existing statutes, is an undue delegation of power and, consequently, null and void. The majority also cites R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, as proof of the power of the local governments of Palawan and Puerto Princesa City to issue the assailed ordinances. Although the objectives of R.A. No. 7611 and of the ordinances are one and the same, i.e., the protection, conservation and development of natural resources, the former does not grant additional powers to the local governments pertaining to the environment. In fact, the law adopts a comprehensive framework which shall serve to direct and guide local governments and national government agencies in the implementation of programs and projects affecting Palawan. With the enactment of this Act, the local governments are mandated to coordinate and align their developmental plans, projects and budgets in accord with the framework of the SEP. It can be said that this is another limitation on the exercise of police power by the local governments of Palawan and Puerto Princesa City because the governance, implementation and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable Development (PCSD) which is under the Office of the President.

Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set forth are not germane to the accomplishment of their goals. Ordinance No. 15-92 is aimed to free effectively the marine resources of Puerto Princesa from cyanide and other obnoxious substances. But the means to achieve this objective borders on the excessive and irrational, for the edict would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years without prohibiting cyanide fishing itself which is the professed goal of the ordinance. The purpose of Resolution No. 2-93, on the other hand, is to protect and preserve all marine coral-dwelling organisms from devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium cyanide fishing, and the use of other obnoxious substances. But in absolutely prohibiting the catching, gathering, buying and shipment of live fishes and marine coral resources by any means including those lawfully executed or done in the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and boundaries of its raison d'etre. This I cannot help viewing as plain arbitrariness masquerading as police power. For the consequent deprivation of the main source of livelihood of the people of Palawan can only be regarded as utter depravation of this awesome power of the State. For all the foregoing, I vote to grant the petition. Kapunan and Hermosisima, Jr., JJ., concur.

Separate Opinions MENDOZA, J., concurring: I fully concur in the opinion of the Court written by Justice Davide. I write separately to emphasize two points which I believe are important. The first is the need to uphold the presumption of validity of the ordinances in this case in view of the total absence of evidence to undermine their factual basis. The second is the need not to allow a shortcircuiting of the normal process of adjudication on the mere plea that unless we take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights will be left unprotected, when the matter can very well be looked into by trial courts and in fact should be brought there. The ordinances in question in this case are conservation measures which the local governments of Palawan have adopted in view of the widespread destruction caused by cyanide fishing of corals within their territorial waters. At the very least, these ordinances must be presumed valid in the absence of evidence to show that the necessary factual foundation for their enactment does not exist. Their invalidation at this point can result in the untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims. Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in 1993, prohibits, for a period of five years, the "catching, gathering, possessing, buying, selling and shipment" of five fish and lobsters. As originally enacted, the prohibition applied to eight species of fish and lobsters caught in the waters of Palawan, namely, "1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Seorita), lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and other species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae (Tropical Aquarium Fishes)." 1 Later, however, the ordinance was amended to limit the ban to three species only, namely: mameng (scaridae), panther or seorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of P5,000.00 and/or imprisonment of not less than 6 nor more than 12 months and confiscation of the paraphernalia and equipment used in the commission of the offense. 2 Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study submitted by the Department of Agriculture, 3 showing that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in the Province of Palawan remained in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged. The rampant use of cyanide has been encouraged by the lucrative trade in live fishes which are shipped not only to Manila but also abroad, principally to Hongkong, Taiwan and Malaysia. The fishes

are sold to gourmet restaurants because of the great demand for exotic food, to aquariums and to pet shops. In its issue of July 19, 1993. Time Magazine 4 reported that the illicit trade in live animals is the third biggest contraband business in the world, after drugs and arms, and identified the Philippines as a major source of tropical fishes for the global traffic in live fishes. The use of cyanide enables fishermen to catch fish alive and in commercial quantity in a way not possible with the use of such traditional methods as hook and line, fish traps, baklad and the like, which allows only limited catch and often results in injuries to fishes and the loss of their scales, thereby reducing their survival for transportation abroad. 5 Cyanide does not kill fish but only stuns them. The stunned creatures are then scooped up and placed in containers ready for shipment across borders, national and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die and cease as fish habitats. 6 Concern over the use of cyanide in fishing and its ill effect on the marine environment also prompted the Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which makes it unlawful for any person or business enterprise or company "to ship out from Puerto Princesa City to any point of destinations either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES." 7 The ban is for five years, from January 1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more than P5,000.00 or imprisonment of not more than 12 months.8 To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live fish and lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit issued by the office of the city mayor. Any cargo of live fish and lobster without a permit from the mayor's office will be "held for proper disposition." 9 The ordinances in question are police power measures, enacted by the Province of Palawan and the City of Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact measures to "protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing. . . ." 10 There is no basis for the claim in the dissenting opinion that the subject of these ordinances lies within the competence of the national government. For the matter concerns a local problem, namely, the destruction of aquatic resources in the Province of Palawan. For this reason the Solicitor General asked for leave to withdraw from this case. On the other hand, the Department of Agriculture submitted its report on the extent of the devastation of coral reefs caused by illegal fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution of the problem to be worked out by the local authorities. It would therefore set back the policy of decentralization were this Court to sustain such a claim. Indeed, petitioners' challenge to the validity of the ordinances does not rest on the claim that the ordinances are beyond the power of local governments to enact but on the ground that they deprive petitioners of their means of livelihood and occupation and for that reason violate the Constitution of the Philippines. For support, petitioners invoke the following constitutional provisions: Art. XII, 2 . . . . . The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. Art. XIII, 1: The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. Id., 7: The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology

and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. I cannot see how these provisions can, in any way, lend support to petitioners' contention that the ordinances violate the Constitution. These provisions refer to the duty of the State to protect the nation's marine resources for the exclusive use and enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in the use of such communal marine resources, and to their right to be protected, even in offshore fishing grounds, against foreign intrusion. There is no question here of Filipino preference over aliens in the use of marine resources. What is in issue is the protection of marine resources in the Province of Palawan. It was precisely to implement Art. XII, 2 that the ordinances in question were enacted. For, without these marine resources, it would be idle to talk of the rights of subsistence fishermen to be preferred in the use of these resources. It has been held that "as underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." 11 No evidence has been presented by petitioners to overthrow the factual basis of the ordinances that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in Palawan was in excellent condition, that 75% had been heavily destroyed, and that because of the thriving market for live fish and lobster here and abroad there was rampant illicit trade in live fish. Nor has it been shown by petitioners that the local legislation here involved is arbitrary or unreasonable. It has been held: "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . . With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. . . ." 12 It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-92 prohibits cyanide fishing and therefore the prohibition against catching certain species of fish and their transportation is "excessive and irrational." It is further argued that the ban is unreasonable because it is not limited to cyanide fishing but includes even legitimate fishing. The ban on the use of cyanide and other noxious substances is already provided for in other legislation. P.D. No. 534, 2 punishes fishing by means of "explosives, obnoxious or poisonous substances or by the use of electricity." Consequently, the ordinances in question can be seen as a necessary corollary of the prohibition against illegal fishing contained in this Decree. By prohibiting the catching of certain fishes and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing because, as already stated, cyanide is preferred in catching fishes because it does not kill but only stuns them and thus preserves them for export to the world market. On the other hand, the claim that the ordinance sweeps overbroadly by "absolutely prohibit[ing] the catching, gathering, buying and shipment of live fishes and marine coral resources by any and all means including those lawfully executed or done in the pursuit of legitimate occupation" misconceives the principal purpose of the ordinance, which is not so much to prohibit the use of cyanide for fishing as to rebuild corals because of their destruction by cyanide fishing. This is clear from the "whereas" clauses of Resolution No. 33, accompanying Ordinance No. 2-93: WHEREAS, scientific and factual researches and studies disclose that only five (5) percent of the corals of our province remain to be in excellent condition as habitat of marine coral dwelling aquatic organisms; WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province were principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of other obnoxious substances and other related activities; WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves into vitality within the span of five (5) years;

WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as the Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose appropriate penalties [for] acts which endanger the environment such as dynamite fishing and other forms of destructive fishing, among others; The principal aim of the ordinance is thus the preservation and rehabilitation of the corals. Only indirectly is it also concerned with prohibiting the use of cyanide. That this is the aim of the ordinance can also be inferred from the fact that the ban imposed by it on the catching and gathering of fishes is for a limited period (5 years) calculated to be the time needed for the growth and regeneration of the corals. Were the purpose of the ordinance the prohibition of the use of cyanide for fishing, the ban would not be for a limited period only but for all time. I am not much moved by the plea that the ordinances deprive small fishermen of their means of livelihood and occupation. The ban imposed by Ordinance No. 2-93, as amended, covers only three species, i.e., mameng (scaridae), panther or seorita (cromilepres altivelis) and ornamental aquarium fishes (balistiedae), which are prized in the black market. With respect to other species, it is open season for legitimate fishermen. On the other hand, the ban imposed by Ordinance No. 15-92 allows the transportation and shipment of sea bass, catfish, mudfish and milkfish fries. The ban imposed by the two ordinances is limited to five years. It is thus limited both as to scope and as to period of effectivity. There is, on the other hand, the imperative necessity for measures to prevent the extinction of certain species of fish. Indeed, the burden of showing that there is no reasonable relation between the end and the means adopted in this case is not on the local governments but on petitioners because of the presumption that a regulatory statute is valid in the absence of factual evidence to the contrary. As held in United States v. Salaveria. 13"The presumption is all in favor of validity. . . The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people. . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation." Finally, petitioners question Office Order No. 23, s. of 1993, of the city mayor of Puerto Princesa, for being allegedly vague. This order prohibits the transportation of fish outside the city without permit from the mayor's office. Petitioners contend that the order does not state under what condition a permit may be granted and, consequently, leaves it to the absolute discretion of the mayor when to grant and when to deny a permit. The questioned paragraph of the order states: The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor's Permit issued by this Office and the shipment is covered by invoice or clearance issued by the local office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing rules and regulations on the matter. This contention is untenable. As the office order is intended to implement City Ordinance No. 15-92, resort must be made to the ordinance in order to determine the scope of such office order. As already noted, the ordinance prohibits the shipment out of Puerto Princesa of live fish and lobsters, with the exception of catfish, mudfish and milkfish fries. Consequently, a permit may be denied if it is for the transportation of fishes which are covered by the ban, but not for those not covered by it. This is the common sense meaning of the office order in question. Criminal laws must be precisely drawn, but, as Justice Holmes once said, "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." 14 One final point. This case was brought to this Court on the bare bones of the ordinances, on the mere claim of petitioner Alfredo Tano and his 83 copetitioners that they are subsistence fishermen. The constitutional protection refers to small fishermen who depend on the sea for their existence. Ten of the petitioners, led by Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the species covered by Provincial Ordinance No. 2-93, while two, Roberto Lim and Virginia Lim, are charged with violation of the two ordinances in the City Prosecutor's Office. There is no telling from the records of this case whether petitioners are subsistence fishermen or simply impecunious individuals selling their catch to the big businessmen. The other petitioners are admittedly fish traders, members of an association of airline shippers, to whom the constitutional provisions obviously do not apply.

The judicial invalidation of the ordinances in this case could undermine the on-going trial of some of petitioners. Instead of leaving the determination of the validity of the ordinances to the trial court, where some of petitioners are facing charges, this Court will be shortcircuiting the criminal process by prematurely passing upon the constitutional questions and indirectly on the criminal liability of some of the petitioners. This is a task which should await the development of evidence of record. Indeed because of the unsatisfactory abstractness of the record, this case should not have been brought here. The mere fact that some of petitioners are facing prosecution for violation of the ordinances is no reason for entertaining their suit. Our jurisdiction is limited to cases and controversies. Who are petitioners? What is the impact of the ordinance on their economic situation? Are the factual bases of the two ordinances supported by evidence? These questions must be raised in the criminal trial or in a suit brought in the trial court so that facts necessary to adjudicate the constitutional questions can be presented. Nothing can take the place of the flesh and blood of litigation to assess the actual operation of a statute and thus ground the judicial power more firmly. Petitioners justify the filing of the present action in this Court on the ground that constitutional questions must be raised at the earliest time. That is true, but it does not mean that the questions should be presented to the Supreme Court first hand. Moreover, the rule is not absolute. Constitutional questions like those invoked by petitioners can be raised anytime, even in a motion for reconsideration, if their resolution is necessary to the decision of an actual case or controversy, as our recent resolution 15 of the constitutionality of R.A. No. 7659, reimposing the death penalty, amply demonstrates. Romero, Melo, Puno and Francisco, JJ., concur.

BELLOSILLO, J., dissenting: It is settled rule that where the provisions of the law are clear and unambiguous there is no room for interpretation. The duty of the court is only to apply the law. The exception to such rule cannot be justified on the sole basis of good motives or noble objectives. For it is also basic that the end does not justify the means. The petition raises significant constitutional questions. While petitioners apparently instituted the action to enjoin their criminal prosecution, the issue boils down to whether the subject ordinances of Palawan and Puerto Princesa are valid and enforceable as to authorize the criminal prosecution of those charged with violation thereof. Notwithstanding the procedural limitations strictly applied in the majority opinion to render the petition dismissible on grounds of prematurity and lack of real interest in the controversy, the case clearly falls under the exceptions allowed by law. The petition, I submit, can be properly treated as a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction committed by the lower court arising from the implementation of a void ordinance. Even if the purpose of the petition is for declaratory relief, if the petition has far-reaching implications and raises questions that should be resolved as they involve national interest, it may be treated as a special civil action under Rule 65. 1 The mere absence of a prior motion to quash the Information in the trial court should not prevent the accused, petitioners herein, from seeking to render null and void the criminal proceedings below. In criminal cases, when the constitutionality or validity of a law or ordinance is essentially involved, the same may be raised at any stage of the proceedings. It can also be considered by the appellate court at any time if it involves the jurisdiction of the lower Court. 2 Further, under Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused to assert any ground of a motion to quash before he pleads to the Complaint or Information either because he did not file a motion to quash or failed to allege the same in the motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy. Petitioners are proper parties to set aside the proceedings in the trial court. A proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.

Petitioners have been criminally charged and arrested for alleged violation of the ordinances in question. Consequently, unless the trial court is enjoined from continuing with the proceedings, petitioners are in danger of being convicted and punished under ordinances which they allege to be invalid and ineffective. In fact this Court initially recognized the real interest of petitioners in instituting the action when it issued a restraining order directing Judge Angel R. Miclat to cease and desist until further orders from proceeding with the arraignment and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of Resolution No. 2-93 of the Sangguniang Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang Panlungsod of Puerto Princesa City. The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and Ordinance No. 15-92 are constitutional, valid and enforceable. By considering the purpose and objective of the ordinances as laudable, the majority adopts the affirmative view in consonance with the general welfare clause and principle of devolution well-rooted in the Local Government Code of 1991. While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be commended for their efforts to uplift and protect the environment and natural resources within their areas, the general welfare clause is not the sole criterion to determine the validity or constitutionality of the ordinances. InMagtajas v. Pryce Properties Corporation, 3 we reiterated that the well-established tests of a valid ordinance are: (a) It must not contravene the Constitution or any statute; (b) It must not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may regulate trade; (e) It must be general and consistent with public policy; and, (f) It must not be unreasonable. As admitted by the majority, among our existing statutes on fishing and fishery or aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No. 704 is titled "Revising and Consolidating All Laws and Decrees Affecting Fishing and Fisheries." With the enactment of the Local Government Code of 1991, only Secs. 16 and 29 of P.D. No. 704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain valid and effective, Sec. 4 of which is enlightening Sec. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources). The Bureau shall have jurisdiction and responsibility in the management, conservation, development, protection, utilization and disposition of all fishery and aquatic resources of the country except municipal waters which shall be under the municipal or city government concerned: Provided, That fishpens and seaweed culture in municipal centers shall be under the jurisdiction of the Bureau: Provided, further, That all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the Secretary for appropriate action and shall have full force and effect only upon his approval . The Bureau shall also have authority to regulate and supervise the production, capture and gathering of fish and fishery/aquatic products. There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal waters are under the jurisdiction of the municipal or city government concerned. However, the same decree imposes a mandatory requirement directing municipal or city governments to submit ordinances enacted pertinent to fishing and fishery resources to the Secretary of Agriculture who now has control and supervision over the Bureau of Fisheries and Aquatic Resources (BFAR). The ordinances will attain full force and effect only upon the approval of the Secretary of Agriculture. Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture through the BFAR for approval. Such failure of compliance with the law prevented it from becoming valid and effective. Consequently, Office Order No. 23 of the Mayor of Puerto Princesa City which seeks to implement and enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement. To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous. For, if it was the intention of the legislature to dispense with the requirement of prior approval by the Secretary of Agriculture of ordinances pertinent to fishery resources, it would. have expressly repealed Sec. 4 when, in fact, it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by implication is not presumed or favored considering that the legislature is presumed to be aware of existing laws; ordinarily, if it intends to revoke a statute it would manifest such intention in express terms. 4 Before such a repeal is deemed to exist it should be shown that the statutes or statutory provisions deal with the same subject matter and that the latter be inconsistent with the former. There must be a showing of repugnancy clear and convincing in character. The

language used in the latter statute must be such as to render it irreconcilable with what has been formerly enacted. An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency between the Local Government Code and P.D. No. 704 as amended. While the Local Government Code vests power upon the local government to enact ordinances for the general welfare of its inhabitants, such power is subject to certain limitations imposed by the Code itself and by other statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and recognized a limitation on the power of the local government to enact ordinances relative to matters affecting fishery and aquatic resources. A reading of particular provisions of the Local Government Code itself will reveal that devolution on the powers of the local government pertaining to the protection of environment is limited and not all-encompassing, as will be discussed in the succeeding paragraphs. Further, while the Local Government Code is a general law on the powers, responsibilities and composition of different local government units, P.D. No. 704 is a special law dealing with the protection and conservation of fishing and aquatic resources including those in the municipal waters. Hence, the special law should prevail over the general law. There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the authority to establish closed seasons. Another existing law on fisheries which has not been repealed by the Local Government Code is P.D. No. 1219, which provides for the exploration, exploitation, utilization and conservation of coral resources. Section 4 thereof provides that the decree shall be implemented by the Secretary of Environment and Natural Resources who shall have jurisdiction and responsibility in the exploration, exploitation, utilization and conservation of coral resources. Section 6 authorizes the Secretary to issue special permit to any person or institution to gather in limited quantities any coral for scientific or educational purposes. Section 10 empowers the Secretary to promulgate rules and regulations for the implementation of this law. It is true that police power can be exercised through the general welfare clause. But, while police power is inherent in a state, it is not so in municipal corporations or local governments. In order that a local government may exercise police power, there must be a legislative grant which necessarily sets the limits for the exercise of the power. 5 In this case, Congress has enacted the Local Government Code which provides the standards as well as the limitations in the exercise of the police power by the local government unit. Section 2 of the Local Government Code provides for a system of decentralization whereby local government units are given more powers, authority, responsibilities and resources, and the process shall proceed from the national government to the local government units. However, under Sec 3, par. (i), of the Local Government Code, the operative principles of decentralization upon the environment and natural resources are not absolute when it is provided therein that "local government units shall share with the national government the responsibility in the management and maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies." The national policies mentioned here refer to existing policies which the DENR and other government agencies concerned with the environment may implement at any given moment. The national policies are embodied in existing laws, rules and regulations pertaining to environment and natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources. The above provision was crafted to make sure that local government enactments do not supplant or negate national government policies on environment. 6 This is precisely the reason why the Local Government Code did not repeal Sec. 4 of P.D. NO. 704 requiring prior submission to and approval by the Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the approval of the Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and national policies. Likewise, the jurisdiction of the Secretary of Environment and Natural Resources over coral resources under P.D. No. 1219 remains. The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which reiterates the basic services and facilities to be rendered by the local governments. With respect to the protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically provides that the municipality shall conduct "extension and on-site research services and facilities related to agriculture and fishery activities which include dispersal of livestock and poultry, fingerlings and other seeding materials for aquaculture . . . . and enforcement of fishery laws in municipal waters including the conservation of mangroves . . . ." The power devolved upon the municipality under the Local Government Code is the enforcement of existing fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances upon subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to the law. 7 In view thereof, ordinances which may be enacted by the

municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219. Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality, city and province respectively may approve ordinances protecting the environment by specifically penalizing only those acts which endanger the environment such as dynamite fishing and other forms of destructive fishing which are already prohibited under P.D. Nos. 704 and 1219, and other laws on illegal fishing. 8 The questioned ordinances may also be struck down for being not only a prohibitory legislation but also an unauthorized exercise of delegation of powers. An objective, however worthy or desirable it may be, such as the protection and conservation of our fisheries in this case, can be attained by a measure that does not encompass too wide a field. The purpose can be achieved by reasonable restrictions rather than by absolute prohibition. Local governments are not possessed with prohibitory powers but only regulatory powers under the general welfare clause. 9 They cannot therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through Ordinance No. 2-93 involving even lawful methods of fishing. These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources which authority is not among those powers vested by the Local Government Code to the local government units. For the authority to establish a closed season for fisheries is vested upon the Secretary of Agriculture by virtue of P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural resources pursuant to P.D. No. 1219 in relation to coral resources. The power of the local governments is confined and limited to ensuring that these national fishery laws are implemented and enforced within their territorial jurisdictions. Hence, any memorandum of agreement which might have been executed by the Department of Agriculture or Department of Environment and Natural Resources granting additional powers and functions to the local governments which are not vested upon the latter by the Local Government Code because such powers are covered by existing statutes, is an undue delegation of power and, consequently, null and void. The majority also cites R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, as proof of the power of the local governments of Palawan and Puerto Princesa City to issue the assailed ordinances. Although the objectives of R.A. No. 7611 and of the ordinances are one and the same, i.e., the protection, conservation and development of natural resources, the former does not grant additional powers to the local governments pertaining to the environment. In fact, the law adopts a comprehensive framework which shall serve to direct and guide local governments and national government agencies in the implementation of programs and projects affecting Palawan. With the enactment of this Act, the local governments are mandated to coordinate and align their developmental plans, projects and budgets in accord with the framework of the SEP. It can be said that this is another limitation on the exercise of police power by the local governments of Palawan and Puerto Princesa City because the governance, implementation and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable Development (PCSD) which is under the Office of the President. Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set forth are not germane to the accomplishment of their goals. Ordinance No. 15-92 is aimed to free effectively the marine resources of Puerto Princesa from cyanide and other obnoxious substances. But the means to achieve this objective borders on the excessive and irrational, for the edict would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years without prohibiting cyanide fishing itself which is the professed goal of the ordinance. The purpose of Resolution No. 2-93, on the other hand, is to protect and preserve all marine coral-dwelling organisms from devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium cyanide fishing, and the use of other obnoxious substances. But in absolutely prohibiting the catching, gathering, buying and shipment of live fishes and marine coral resources by any means including those lawfully executed or done in the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and boundaries of its raison d'etre. This I cannot help viewing as plain arbitrariness masquerading as police power. For the consequent deprivation of the main source of livelihood of the people of Palawan can only be regarded as utter depravation of this awesome power of the State. For all the foregoing, I vote to grant the petition. Kapunan and Hermosisima, Jr., JJ., concur.

Footnotes 1 None, however, exists in Puerto Princesa City. 2 Petitioners filed their Memorandum on 24 October 1994, respondents City Mayor Hagedorn and Members of the Sangguniang Panlungsod of the City of Puerto Princess filed their Memorandum on 25 January 1995, while respondents Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan filed their Memorandum on 31 January 1995. 3 Annex "D" of Petition, Rollo, 35. 4 Annex "E" of Petition; id, 36. 5 Annex "A" to "A-5" of Urgent Plea for the Immediate Issuance of Temporary Restraining Order,Rollo, 86 et seq. 6 VICENTE J. FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES, CRIMINAL PROCEDURE, 582 (2nd ed. 1969), citing U.S. v. Pompeya, 31 Phil. 245 [1915]. 7 Acharon v. Purisima, 13 SCRA 309, 311 [1965]; Cruz v. Court of Appeals, 194 SCRA 145, 152-153 [1991]; Yap v. Intermediate Appellate Court, 220 SCRA 245, 253 [1993]; People v. Bans, 239 SCRA 48, 54-55 [1994]. 8 Liberty Insurance Corporation v. Court of Appeals, 222 SCRA 37, 47 [1993]; Lasco v. United Nations Revolving Fund for Natural Resources Exploration, 241 SCRA 681, 684 [1995]. 9 See Mendoza v. Court of Appeals, 201 SCRA 343 [1991]; People v. Bans, supra note 7. 10 Rollo, 25. 11 Macasiano v. National Housing Authority, 224 SCRA 236, 243 [1993], citing Remotigue v. Osmea, 21 SCRA 837 [1967]; Rural Bank of Olongapo v. Commissioner of Land Registration, 102 SCRA 794 [1981]; and Allied Broadcasting Center v. Republic of the Philippines, 190 SCRA 782 [1990]. 12 Philnabank Employees Association v. Hon. Estanislao, 227 SCRA 804, 811 [1993]. 13 172 SCRA 415, 423-424 [1989], reiterated in Manalo v. Gloria, 236 SCRA 130, 138-139 [1994]. 14 217 SCRA 633, 652 [1993]. 15 La Union Electric Cooperative Inc. v. Yaranon, 179 SCRA 828, 836 [1989]; Francisco v. Permskul, 173 SCRA 324, 333 [1989]. 16 See Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]. 17 Paredes v. Executive Secretary, 128 SCRA 6, 11 [1984], citing Yu Gong Eng v. Trinidad, 47 Phil. 385 [1925]. See also Aris (Phil.) Inc. v. NLRC, 200 SCRA 246, 255-256 [1991]. 18 Although the intent of the framers was to have the terms refer to those "who lived a handto-mouth existence.," JOAQUIN G. BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS 964 (1995). 19 Webster's Third New International Dictionary 1381 [1993]. 20 Webster's, supra, 2279.

21 III Record of the Constitutional Commission, 50. 22 Section 16, Article II. 23 224 SCRA 792, 804-805 [1993]. 24 Section 149. 25 Section 447[a][1][vi]; Section 458[a][1][vi]; Section 468[a][1][vi]. 26 Section 2(a). 27 Section 3, Article X. 28 Section 5(a). 29 Section 17(e). 30 Section 17[b][2][i]. 31 Section 13[r], LGC. 32 Sec. 4. R.A. No. 7611. 33 Section 458[a][1][vi]; Section 468[a][1][vi]. 34 Section 3[3], R.A. No. 7611. 35 Jay Batongbacal, Note, The Coastal Environment and the Small-Scale Fisherfolk: Advocacy for Community-Based Coastal Zone Management, 66 PHIL. L. J. 149, 162 (December 1991). 36 Anthony Spaeth, Reef killers, TIME Magazine, 3 June 1996, 49, 50. 37 Anthony Spaeth, Reef Killers, TIME Magazine, 3 June 1996, 49, 50. 38 Batongbacal, 168. 39 Spaeth. 51. 40 Id. 41 Batongbacal, 168. 42 Said section reads: Sec. 4. Jurisdiction of the Bureau. The Bureau shall have jurisdiction and responsibility in the management, conservation, development, protection, utilization and disposition of all fishery and aquatic resources of the country except municipal waters which shall be under the municipal or city government concerned: Provided, That fishpens and seaweed culture in municipal centers shall be under the jurisdiction of the Bureau: Provided, further, That all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the Secretary for appropriate action and shall have full force and effect only upon his approval. The Bureau shall also have authority to regulate and supervise the production, capture and gathering of fish and fishery/aquatic products. The Bureau shall prepare and implement, upon approval of the Fishery Industry Development Council, a Fishery Industry Development Program.

43 Executive Order No. 292. 44 Section 20, Chapter 4, Title IV, Book IV. 45 These sections read as follows: Sec. 16. License, lease, and permit. No person shall exploit, occupy, produce, culture, capture or gather fish, or fry or fingerling of any species of fish or fishery/aquatic products, or engage in any fishery activity in Philippine or municipal waters without a license, lease or permit: Provided, That when due to destruction wrought upon fishponds, fishpens or fish nurseries, by typhoons, floods and other fortuitous events, or due to speculation, monopolistic and other pernicious practices which tend to create an artificial shortage of fry and/or fingerling, the supply of fish and fishery/aquatic products can reasonably be expected to fall below the usual demand therefor and the price thereof, to increase, the Secretary, upon recommendation of the Director, is hereby authorized to fix a fair and reasonable price for fry and fingerling of any species of fish, and in so doing and when necessary, fix different price levels for various areas or regions taking into account such variable factors as availability, accessibility to transportation facilities, packing and crating, and to regulate the movement, shipment and transporting of such fry and fingerling: Provided, Further, That the price so fixed shall guarantee the gatherers of fry a just and equitable return for their labor: Provided, Finally, That any administrative order issued by the Secretary to implement the foregoing shall take effect immediately, the provisions of Section 7 hereof to the contrary notwithstanding. xxx xxx xxx C. MUNICIPAL FISHERIES Sec. 29. Grant of fishery privileges. A municipal or city council, conformably with an ordinance duly approved by the Secretary pursuant to Section 4 hereof may: a. grant to the highest qualified bidder the exclusive privilege of constructing and operating fish corrals, oyster culture beds, or of gathering "bangus" fry, or the fry of other species, in municipal waters for a period not exceeding five (5) years: Provided, That in the zoning and classification of municipal waters for purposes of awarding, through public bidding, areas for the construction or operation of fish corrals, oyster culture beds, or the gathering of fry, the municipal or city council shall set aside not more than one-fifth (1/5) of the area, earmarked for the gathering of fry, as may be designated by the Bureau, as government "bangus" fry reservation: Provided, Further, That no fish corral shall be constructed within two hundred (200) meters of another fish corral in marine fisheries, or one hundred (100) meters in freshwater fisheries, unless they belong to the same licensee, but in no case shall the distance be less than sixty (60) meters, except in waters less than two (2) meters deep at low tide, or unless previously approved by the Secretary; b. authorize the issuance to qualified persons of license for the operation of fishing boats three (3) gross tons or less, or for the privilege of fishing in municipal waters with nets, traps or other fishing gear: Provided, That it shall be beyond the power of the municipal or city council to impose a license for the privilege of gathering marine mollusca or the shells thereof, for pearling boats and pearl divers, or for prospecting, collecting, or gathering sponges or other aquatic products, or for the culture of fishery/aquatic products: Provided, Further, That a licensee under this paragraph shall not operate within two hundred (200) meters of any fish corral licensed by the municipality except when the licensee is the owner or operator of the fish corral but in no case within sixty (60) meters of said corral. The municipality or city council shall furnish the Bureau, for statistical purposes, on forms which shall be furnished by the Bureau, such information and data on fishery matters as are reflected in such forms. 46 Section 149.

47 Section 447[a][1][vi]; Section 458[a][1][vi]; Section 468[a][1][vi]. MENDOZA, J., concurring: 1 I and III. 2 IV. 3 Quoted in Respondents Comment on the Petition. p. 7. 4 Toufexis. All God's Creatures Priced to Sell. Time, July 19, 1993, p. 32. 5 Supra note 3 at p. 8. 6 Supra note 4 at p. 34. 7 4. 8 5. 9 Office Order No. 33, s. 1993. 10 R.A. No. 7160, 458(a)(1 )(vi) and 468(a)(1)(vi). 11 Ermita-Malate Hotel and Motel Operators Ass'n v. City Mayor, 20 SCRA 849, 857 (1967), citingO'Gozman & Young v. Hartford Fire Ins. Co., 282 U.S. 255, 257, 75 L.Ed. 324, 328 (1931). 12 Nebbia v. New York, 291 U.S. 502 (1934). See also Lansang v. Garcia, 42 SCRA 448, 481 (1971): People v. Ferrer, 48 SCRA 382 (1972). 13 39 Phil. 102, 111 (1918). 14 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929), quoted by this Court in Ermita-Malate Hotel and Motel Operators Ass'n v. City Mayor, 20 SCRA at 867. 15 People v. Echegaray, G.R. No. 117472, Feb. 7, 1997 (death penalty statute valid). BELLOSILLO, J.: dissenting: 1 Alliance of Government Workers v. Minister of Labor, G.R. No. 60403, 3 August 1983, 124 SCRA 1. 2 San Miguel Brewery, Inc. v. Magno, No. L-2187, 29 September 1967, 21 SCRA 292. 3 G.R. No. 111097, 20 July 1994, 234 SCRA 255. 4 Almeda v. Florentino, No. L-23800, 21 December 1965, 15 SCRA 514. 5 Martin, Ruperto G., Public Corporations, Rev. Ed., p. 46, citing Elliot, Municipal Corporations, p. 33. 6 Pimentel, Aquilino, The Local Government Code of 1991, Key to National Development, 1993, p. 19. 7 See Note 5, p. 69, citing U.S. v. Chan Tienco, 25 Phil. 89 (1913).

8 See Note 6, p. 73. 9 Cruz v. Paras, Nos. L-42571-72, 25 July 1983, 123 SCRA 569.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 71169 December 22, 1988 JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners, FELIX C. GASTON and DOLORES R. GASTON, JOSE V. BRIONES and ALICIA R. BRIONES, and BEL-AIR VILLAGE ASSOCIATION, INC.,intervenors-petitioners, vs. INTERMEDIATE APPELLATE COURT, and AYALA CORPORATION, respondents. G.R. No. 74376 December 22, 1988 BEL-AIR VILLAGE ASSOCIATION, INC., petitioner, vs. THE INTERMEDIATE APPELLATE COURT, ROSARIO DE JESUS TENORIO, and CECILIA GONZALVEZ,respondents. G.R. No. 76394 December 22,1988 BEL-AIR VILLAGE ASSOCIATION, INC., petitioner, vs. THE COURT OF APPEALS, and EDUARDO and BUENA ROMUALDEZ respondents. G.R. No. 78182 December 22, 1988 BEL-AIR VILLAGE ASSOCIATION, INC., petitioner, vs. COURT OF APPEALS, DOLORES FILLEY, and J. ROMERO & ASSOCIATES, respondents. G.R. No. 82281 December 22, 1988 BEL-AIR VILLAGE ASSOCIATION, INC, petitioner, vs. COURT OF APPEALS, VIOLETA MONCAL, and MAJAL DEVELOPMENT CORPORATION, respondents. Sangco, Anastacio, Castaneda & Duran Law Office for petitioners & private intervenors- petitioners. Raul S. Sison Law Offices for intervenor-petitioner Bel-Air Village Association, Inc. Renato L. Dela Fuente for respondent Ayala Corporation. G.R. No. L-74376: Raul S. Sison Law Offices for petitioner. Sergio L. Guadiz for private respondents. G.R. No. L-76394: Raul S. Sison Law Offices for petitioner. Gruba, Tanlimco Lamso and Apuhin Law Offices for respondents. G.R. No. L-78182: Funk & Associates for petitioners. Tee Tomas & Associates for respondents. G.R. No. L-82281: Funk & Associates for petitioner. Castillo, Laman, Tan & Associates for private respondents.

SARMIENTO, J.: Before the Court are five consolidated petitions, 1 docketed as G.R. Nos. 71169, 74376, 76394, 78182, and 82281 hereof, in the nature of appeals (by certiorari under Rule 45 of the Rules of Court) from five decisions of the Court of Appeals, denying specific performance and damages. The proceedings were commenced at the first instance by Jose Sangalang, joined by his wife Lutgarda Sangalang, both residents of No. 110 Jupiter Street, Makati, Metro Manila (G.R. No. 71169) to enforce by specific performance restrictive easement upon property, specifically the Bel- Air Village subdivision in Makati, Metro Manila, pursuant to stipulations embodied in the deeds of sale covering the subdivision, and for damages. Later, the Sangalangs were joined by Felix Gaston, a resident of No. 64 Jupiter Street of the same municipality, and by Mr. and Mrs. Jose and Alicia Briones, both of No. 66 Jupiter Street. Pending further

proceedings, the Bel-Air Village Association, Inc. (BAVA), an incorporated homeowners' association, entered its appearance as plaintiff-in-intervention. BAVA itself had brought its own complaints, four in number, likewise for specific performance and damages to enforce the same 'deed restrictions.' (See G.R. Nos. 74376, 76394, 78182, and 82281.) ANTECEDENTS FACTS I. G.R. No. 71169 The facts are stated in the decision appealed from. We quote: xxxxxxxxx (1) Bel-Air Village is located north of Buendia Avenue extension (now Sen. Gil J. Puyat Ave.) across a stretch of commercial block from Reposo Street in the west up to Zodiac Street in the east, When Bel-Air Village was planned, this block between Reposo and Zodiac Streets adjoining Buendia Avenue in front of the village was designated as a commercial block. (Copuyoc TSN, p. 10, Feb. 12, 1982). (2) Bel-Air Village was owned and developed into a residential subdivision in the 1950s by Makati Development Corporation (hereinafter referred to as MDC), which in 1968 was merged with appellant Ayala Corporation. (3) Appellees-spouses Sangalang reside at No. 11O Jupiter Street between Makati Avenue and Reposo Street; appellees-spouses Gaston reside at No. 64 Jupiter Street between Makati Avenue and Zodiac Street; appellees-spouses Briones reside at No. 66 Jupiter Street also between Makati Avenue and Zodiac Street; while appellee Bel-Air Village Association, Inc. (hereinafter referred to as BAVA) is the homeowners' association in Bel-Air Village which takes care of the sanitation, security, traffic regulations and general welfare of the village. (4) The lots which were acquired by appellees Sangalang and spouse Gaston and spouse and Briones and spouse in 1960, 1957 and 1958, respectively, were all sold by MDC subject to certain conditions and easements contained in Deed Restrictions which formed a part of each deed of sale. The pertinent provisions in said Deed Restrictions, which are common to all lot owners in Bel-Air Village, are as follows: I-BEL-AIR ASSOCIATION The owner of this lot/s or his successors in interest is required to be and is automatically a member of the Bel-Air Association and must abide by such rules and regulations laid down by the Association in the interest of the sanitation, security and the general welfare of the community. The association will also provide for and collect assessments, which will constitute as a lien on the property junior only to liens of the government for taxes and to voluntary mortgages for sufficient consideration entered into in good faith. II-USE OF LOTS Subject to such amendments and additional restrictions, reservations, servitudes, etc., as the Bel- Air Association may from time to time adopt and prescribe, this lot is subject to the following restrictions: a. This lot/s shall not be subdivided. However, three or more lots may be consolidated and subdivided into a lesser number of lots provided that none of the resulting lots be smaller in area than the smallest lot before the consolidation and that the consolidation and subdivision plan be duly approved by the governing body of the Bel-Air Association. b. This lot/s shall only be used for residential purposes.

c. Only one single family house may be constructed on a single lot, although separate servants' quarters or garage may be built. d. Commercial or advertising signs shall not be placed, constructed, or erected on this lot. Name plates and professional signs of homeowners are permitted so long as they do not exceed 80 x 40 centimeters in size. e. No cattle, pigs, sheep, goats, ducks, geese, roosters or rabbits shall be maintained in the lot, except that pets may be maintained but must be controlled in accordance with the rulings of the Association. The term "pets' includes chickens not in commercial quantities. f. The property is subject to an easement of two (2) meters within the lot and adjacent to the rear and sides thereof not fronting a street for the purpose of drainage, sewage, water and other public facilities as may be necessary and desirable; and the owner, lessee or his representative shall permit access thereto by authorized representatives of the Bel-Air Association or public utility entities for the purposes for which the easement is created. g. This lot shall not be used for any immoral or illegal trade or activity. h. The owner and/or lessee of this lot/s shall at all times keep the grass cut and trimmed to reduce the fire hazard of the property. xxx xxx xxx VI-TERM OF RESTRICTIONS The foregoing restrictions shall remain in force for fifty years from January 15, 1957, unless sooner cancelled in its entirety by two thirds vote of members in good standing of the Bel-Air Association. However, the Association may, from time to time, add new ones, amend or abolish particular restrictions or parts thereof by majority rule. VII--ENFORCEMENT OF RESTRICTIONS The foregoing restrictions may be enjoined and/or enforced by court action by the Bel-Air Association, or by the Makati Development Corporation or its assigns, or by any registered owner of land within the boundaries of the Bel-Air Subdivision (Sub-division plan PSD-49226 and Lot 7-B, Psd-47848) or by any member in good standing of the Bel-Air association." (Exh. 1 -b; Exh. 22, Annex "B"). (Appellant's Brief, pp. 4- 6) (5) When MDC sold the above-mentioned lots to appellees' predecessors-in-interest, the whole stretch of the commercial block between Buendia Avenue and Jupiter Street, from Reposo Street in the west to Zodiac Street in the east, was still undeveloped. Access, therefore, to Bel-Air Village was opened to all kinds of people and even animals. So in 1966, although it was not part of the original plan, MDC constructed a fence or wall on the commercial block along Jupiter Street. In 1970, the fence or wall was partly destroyed by typhoon "Yoling." The destroyed portions were subsequently rebuilt by the appellant. (Copuyoc TSN, pp. 31-34, Feb. 12, 1982). When Jupiter Street was widened in 1972 by 3.5 meters, the fence or wall had to be destroyed. Upon request of BAVA, the wall was rebuilt inside the boundary of the commercial block. (Copuyoc TSN, pp. 4447, Feb. 12,1982). (6) When the appellant finally decided to subdivide and sell the lots in the commercial block between Buendia and Jupiter, BAVA wrote the appellant on May 9, 1972, requesting for confirmation on the use of the commercial lots. The appellant replied on May 16, 1972, informing BAVA of the restrictions intended to be imposed in the sale and use of the lots. Among these restrictions are: that the building shall have a set back of 19 meters; and that with respect to vehicular traffic along Buendia Avenue, entrance only will be allowed, and along Jupiter Street and side streets, both entrance and exit will be allowed. (7) On June 30, 1972, appellant informed BAVA that in a few months it shall subdivide and sell the commercial lots bordering the north side of Buendia Avenue Extension from Reposo

Street up to Zodiac Street. Appellant also informed BAVA that it had taken all precautions and will impose upon the commercial lot owners deed restrictions which will harmonize and blend with the development and welfare of Bel-Air Village. Appellant further applied for special membership in BAVA of the commercial lot owners. A copy of the deed restrictions for the commercial lots was also enclosed. The proposed deed restrictions shall include the 19 meter set back of buildings from Jupiter Street, the requirement for parking space within the lot of one (1) parking slot for every seventy five (75) meters of office space in the building and the limitation of vehicular traffic along Buendia to entrance only, but allowing both vehicular entrance and vehicular exit through Jupiter Street and any side street. In its letter of July 10, 1972, BAVA acknowledged the above letter of appellant and informed the latter that the application for special membership of the commercial lot owners in BAVA would be submitted to BAVA's board of governors for decision. (8) On September 25, 1972, appellant notified BAVA that, after a careful study, it was finally decided that the height limitation of buildings on the commercial lots shall be increased from 12.5 meters to 15 meters. Appellant further informed BAVA that Jupiter Street shall be widened by 3.5 meters to improve traffic flow in said street. BAVA did not reply to said letter, but on January 22, 1973, BAVA wrote a letter to the appellant informing the latter that the Association had assessed the appellant, as special member of the association, the amount of P40,795.00 (based on 81,590 square meters at P.50 per square meter) representing the membership dues to the commercial lot owners for the year 1973, and requested the appellant to remit the amount which its board of governors had already included in its current budget. In reply, appellant on January 31, 1973 informed BAVA that due to the widening of Jupiter Street, the area of the lots which were accepted by the Association as members was reduced to 76,726 square meters. Thus, the corresponding dues at P.50 per square meter should be reduced to P38,363.00. This amount, therefore, was remitted by the appellant to BAVA. Since then, the latter has been collecting membership dues from the owners of the commercial lots as special members of the Association. As a matter of fact, the dues were increased several times. In 1980, the commercial lot owners were already being charged dues at the rate of P3.00 per square meter. (Domingo, TSN, p. 36, March 19, 1980). At this rate, the total membership dues of the commercial lot owners amount to P230,178. 00 annually based on the total area of 76,726 square meters of the commercial lots. (9) Meantime, on April 4, 1975, the municipal council of Makati enacted its ordinance No. 81, providing for the zonification of Makati (Exh. 18). Under this Ordinance, Bel-Air Village was classified as a Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street (Exh. 18-A). Thus, Chapter III, Article 1, Section 3.03, par. F. of the Ordinance provides: F. Bel-Air Village area, as bounded on the N by Polaris and Mercedes streets and on the NE by Estrella Street; on the SE by Epifanio de los Santos Avenue and on the SW by the center line of Jupiter Street. Then bounded on the N by the abandoned MRR Pasig Line; on the E by Makati Avenue; on the S by the center line of Jupiter Street and on the W by the center line of Reposo Street." (Exh. 18-A) Similarly, the Buendia Avenue Extension area was classified as Administrative Office Zone with its boundary in the North-North East Extending also up to the center line of Jupiter Street (Exh. 18b). Thus, Chapter III, Article I, Section 3.05, par. C. of the Ordinance provides: C. The Buendia Avenue Extension areas, as bounded on the N-NE by the center line of Jupiter Street, on the SE by Epifanio de los Santos Avenue; on the SW by Buendia Avenue and on the NW by the center line of Reposo Street, then on the NE by Malugay Street; on the SE by Buendia Avenue and on the W by Ayala Avenue Extension." (Exh. 18-B) The Residential Zone and the Administrative Office Zone, therefore, have a common boundary along the center line of Jupiter Street.

The above zoning under Ordinance No. 81 of Makati was later followed under the Comprehensive Zoning Ordinance for the National Capital Region adopted by the Metro Manila Commission as Ordinance 81 -01 on March 14, 1981 (Exh. 19). However, under this ordinance, Bel-Air Village is simply bounded in the South-Southeast by Jupiter Street-not anymore up to the center line of Jupiter Street (Exh. B). Likewise, the blockdeep strip along the northwest side of Buendia Avenue Extension from Reposo to EDSA was classified as a High Intensity Commercial Zone (Exh. 19-c). Thus, the Zoning District Boundaries -Makati, in Annex B of the Ordinance provides: R-I-Low Intensity Residential xxxxxxxxx 4. Bel-Air 1, 3, 4 Bounded on the North -- J.P. Rizal and Amapola St. South - Rockwell Northwest - P. Burgos Southeast - Jupiter Southwest - Epifanio de los Santos Ave. (EDSA) 5. Bel-Air 2 Bounded on the Northwest - J.P. Rizal Southwest - Makati Avenue South --- Jupiter Southeast -- Pasig Line East - South Avenue" (Exh. 19-b) xxxxxxxxx C-3-High Intensity Commercial Zone 2. A block deep strip along the northwest side of Buendia Ave. Ext. from Reposo to EDSA." (Exh, 19-c) Under the above zoning classifications, Jupiter Street, therefore, is a common boundary of Bel-Air Village and the commercial zone. (10) Meanwhile, in 1972, BAVA had installed gates at strategic locations across Jupiter Street which were manned and operated by its own security guards who were employed to maintain, supervise and enforce traffic regulations in the roads and streets of the village. (Villavicencio, TSN, pp, 22-25, Oct. 30, 1980; BAVA Petition, par. 11, Exh. 17). Then, on January 17, 1977, the Office of the Mayor of Makati wrote BAVA directing that, in the interest of public welfare and for the purpose of easing traffic congestion, the following streets in Bel-Air Village should be opened for public use: Amapola Street - from Estrella Street to Mercedes Street

Amapola Street -junction of Palma Street gate going to J. Villena Street Mercedes Street -- from EDSA to Imelda Avenue and Amapola junction Zodiac Street - from Mercedes Street to Buendia Avenue Jupiter Street -- from Zodiac Street to Reposo Street connecting Metropolitan Avenue to Pasong Tamo and V. Cruz Extension intersection Neptune Street - from Makati Avenue to Reposo Street Orbit Street - from F. ZobelCandelaria intersection to Jupiter Street Paseo de Roxas - from Mercedes Street to Buendia Avenue (Exh. 17, Annex A, BAVA Petition) On February 10, 1977, BAVA wrote the Mayor of Makati, expressing the concern of the residents about the opening of the streets to the general public, and requesting specifically the indefinite postponement of the plan to open Jupiter Street to public vehicles. (Exh. 17, Annex B, BAVA Petition). However, BAVA voluntarily opened to the public Amapola, Mercedes, Zodiac, Neptune and Paseo de Roxas streets. (Exh. 17-A, Answer of Makati par. 3-7). Later, on June 17,1977, the Barangay Captain of Bel-Air Village was advised by the Office of the Mayor that, in accordance with the agreement entered into during the meeting on January 28, 1 977, the Municipal Engineer and the Station Commander of the Makati Police were ordered to open for public use Jupiter Street from Makati Avenue to Reposo Street. Accordingly, he was requested to advise the village residents of the necessity of the opening of the street in the interest of public welfare. (Exh. 17, Annex E, BAVA Petition). Then, on June 10, 1977, the Municipal Engineer of Makati in a letter addressed to BAVA advised the latter to open for vehicular and pedestrian traffic the entire portion of Jupiter Street from Makati Avenue to Reposo Street (Exh. 17, BAVA Petition, par. 14). Finally, on August 12, 1977, the municipal officials of Makati concerned allegedly opened, destroyed and removed the gates constructed/located at the corner of Reposo Street and Jupiter Street as well as the gates/fences located/constructed at Jupiter Street and Makati Avenue forcibly, and then opened the entire length of Jupiter Street to public traffic. (Exh. 17, BAVA Petition, pars. 16 and 17). (11) Before the gates were-removed, there was no parking problem or traffic problem in Jupiter Street, because Jupiter Street was not allowed to be used by the general public (Villavicencio, TSN, pp. 24-25, Oct. 30, 1980). However, with the opening of Zodiac Street from Estrella Street to Jupiter Street and also the opening to the public of the entire length of Jupiter Street, there was a tremendous increase in the volume of traffic passing along Jupiter Street coming from EDSA to Estrella Street, then to Zodiac Street to Jupiter Street, and along the entire length of Jupiter Street to its other end at Reposo Street. (Villavicencio, TSN, pp. 30-32, Oct. 30, 1980). In the meantime, the purchasers of the commercial lots between Jupiter Street and Buendia Avenue extension had started constructing their respective buildings in 1974-1975. They demolished the portions of the fence or wall standing within the boundary of their lots. Many of the owners constructed their own fences or walls in lieu of the wall and they employed their own security guards. (TSN, p. 83, Feb. 20,1981; TSN, pp. 53-54; 72-74, March 20,1981; TSN, pp. 54-55, July 23, 1981). (12) Then, on January 27, 1978, appellant donated the entire Jupiter Street from Metropolitan Avenue to Zodiac Street to BAVA (Exh. 7)- However, even before 1978, the Makati Police and the security force of BAVA were already the ones regulating the traffic along Jupiter Street after the gates were opened in 1977. Sancianco TSN, pp. 26-30, Oct. 2,1981).

In October, 1979, the fence at the corner of Orbit and Neptune Streets was opened and removed (BAVA Petition, par. 22, Exh. 17). The opening of the whole stretch of Orbit Street from J.P. Rizal Avenue up to Imelda Avenue and later to Jupiter Street was agreed to at the conference attended by the President of BAVA in the office of the Station Commander of Makati, subject to certain conditions, to wit: That, maintenance of Orbit St. up to Jupiter St. shall be shouldered by the Municipality of Makati. That, street lights will be installed and maintenance of the same along Orbit St. from J.P. Rizal Ave. up to Jupiter St. shall be undertaken by the Municipality. That for the security of the residents of San Miguel Village and Bel-Air Village, as a result of the opening of Orbit Street, police outposts shall be constructed by the Municipality of Makati to be headed by personnel of Station No. 4, in close coordination with the Security Guards of San Miguel Village and Bel-Air Village." (CF. Exh. 3 to Counter-Affidavit, of Station Commander, Ruperto Acle p. 253, records)" (Order, Civil Case No. 34948, Exh. 17-c). (13) Thus, with the opening of the entire length of Jupiter Street to public traffic, the different residential lots located in the northern side of Jupiter Street ceased to be used for purely residential purposes. They became, for all purposes, commercial in character. (14) Subsequently, on October 29, 1979, the plaintiffs-appellees Jose D. Sangalang and Lutgarda D. Sangalang brought the present action for damages against the defendantappellant Ayala Corporation predicated on both breach of contract and on tort or quasi-delict A supplemental complaint was later filed by said appellees seeking to augment the reliefs prayed for in the original complaint because of alleged supervening events which occurred during the trial of the case. Claiming to be similarly situated as the plaintiffs-appellees, the spouses Felix C. Gaston and Dolores R. Gaston, Jose V. Briones and Alicia R. Briones, and the homeowners' association (BAVA) intervened in the case. (15) After trial on the merits, the then Court of First Instance of Rizal, Pasig, Metro Manila, rendered a decision in favor of the appellees the dispositive portion of which is as follows: WHEREFORE, judgment is hereby accordingly rendered as follows: ON PLAINTIFFS' COMPLAINT: Defendant is ordered to pay to the plaintiffs-spouses Sangalang the following damages: 1. The sum of P500,000.00 as actual and consequential damages; 2. The sum of P2,000,000.00 as moral damages; 3. The sum of P500,000.00 as exemplary damages; 4. The sum of P100,000.00 as attorney's fees; and 5. The costs of suit. ON INTERVENORS FELIX and DOLORES GASTON'S COMPLAINT: Defendant is ordered to pay to the spouses Felix and Dolores Gaston, the following damages: 1 . The sum of P400,000.00 as consequential damages; 2 The sum of P500,000.00 as moral damages; 3 The sum of P500,000.00 as exemplary damages:

4 The sum of P50,000.00 as attorney's fees; and 5 The costs of suit. ON INTERVENORS JOSE and ALICIA BRIONES' COMPLAINT: Defendant is ordered to pay to the spouses Jose and Alicia Briones, the following damages: 1 . The sum of P400,000.00 as consequential damages; 2 The sum of P500,000.00 as moral damages; 3 The sum of P500,000.00 as exemplary damages; 4 The sum of P50,000.00 as attorney's fees; and 5 The costs of suit. ON INTERVENOR BAVA'S COMPLAINT: Defendant is ordered to pay intervenor BAVA, the following damages: 1. The sum of P400,000.00 as consequential damages; 2. The sum of P500,000.00 as exemplary damages; 3. The sum of P50,000.00 as attorney's fees; and 4. The costs of suit. The above damages awarded to the plaintiffs and intervenors shall bear legal interest from the filing of the complaint. Defendant is further ordered to restore/reconstruct the perimeter wall at its original position in 1966 from Reposo Street in the west to Zodiac Street in the east, at its own expense, within SIX (6) MONTHS from finality of judgment. SO ORDERED. (Record on Appeal, pp. 400-401) 2 xxxxxxxxx On appeal, the Court of Appeals 3 rendered a reversal, and disposed as follows: ACCORDINGLY, finding the decision appealed from as not supported by the facts and the law on the matter, the same is hereby SET ASIDE and another one entered dismissing the case for lack of a cause of action. Without pronouncement as to costs. SO ORDERED. 4 II. G.R. No. 74376 This petition was similarly brought by BAVA to enforce the aforesaid restrictions stipulated in the deeds of sale executed by the Ayala Corporation. The petitioner originally brought the complaint in the Regional Trial Court of Makati, 5 principally for specific performance, plaintiff [now, petitioner] alleging that the defendant [now, private respondent] Tenorio allowed defendant [Tenorio's co-private respondent] Gonzalves to occupy and convert the

house at 50 Jupiter Street, Bel-Air Village, Makati, Metro Manila, into a restaurant, without its knowledge and consent, and in violation of the deed restrictions which provide that the lot and building thereon must be used only for residential purposes upon which the prayed for main relief was for 'the defendants to permanently refrain from using the premises as commercial and to comply with the terms of the Deed Restrictions." 6 The trial court dismissed the complaint on a procedural ground, i.e., pendency of an Identical action, Civil Case No. 32346, entitled "Bel-Air Village Association, Inc. v. Jesus Tenorio." The Court of Appeals 7 affirmed, and held, in addition, that Jupiter Street "is classified as High density commercial (C-3) zone as per Comprehensive Zoning Ordinance No. 81-01 for National Capital Region," 8 following its own ruling in AC-G.R. No. 66649, entitled "BelAir Village Association, Inc. vs. Hy-Land Realty & Development Corporation, et al." III. G.R. No. 76394 xxxxxxxxx Defendants-spouses Eduardo V. Romualdez, Jr. and Buena Tioseco are the owners of a house and lot located at 108 Jupiter St., Makati, Metro Manila as evidenced by Transfer Certificate of Title No. 332394 of the Registry of Deeds of Rizal. The fact is undisputed that at the time the defendants acquired the subject house and lot, several restrictions were already annotated on the reverse side of their title; however, for purposes of this appeal we shall quote hereunder only the pertinent ones, to wit: (b,) This lot/shall be used only for residential purposes. xxxxxxxxx IV. Term of Restriction The foregoing restriction(s) shall remain in force for fifty years from January 15, 1957, unless sooner cancelled in its entirety by two-thirds vote of the members in good standing of the BelAir Association. However, the Association may from time to time, add new ones, amend or abolish particular restrictions or parts thereof by majority rule. During the early part of 1979, plaintiff noted that certain renovations and constructions were being made by the defendants on the subject premises, for which reason the defendants were advised to inform the plaintiff of the kind of construction that was going on. Because the defendants failed to comply with the request of the plaintiff, the latter's chief security officer visited the subject premises on March 23, 1979 and found out that the defendants were putting up a bake and coffee shop, which fact was confirmed by defendant Mrs. Romualdez herself. Thereafter, the plaintiff reminded defendants that they were violating the deed restriction. Despite said reminder, the defendants proceeded with the construction of the bake shop. Consequently, plaintiff sent defendants a letter dated April 30, 1979 warning them that if they will not desist from using the premises in question for commercial purposes, they will be sued for violations of the deed restrictions. Despite the warning, the defendants proceeded with the construction of their bake shop. xxxxxxxxx The trial court 10 adjudged in favor of BAVA. On appeal, the Court of Appeals holding in AC-G.R. No. 66649 earlier referred to.
11 9

reversed, on the strength of its

BAVA then elevated the matter to the Court by a petition for review on certiorari. The Court 12 initially denied the petition "for lack of merit, it appearing that the conclusions of the respondent Court of Appeals that private respondents' bake and coffee shop lies within a commercial zone and that said private respondents are released from their obligations to maintain the lot known as 108 Jupiter Street for residential purposes by virtue of Ordinance No. 81 of the Municipality of Makati and Comprehensive Zoning Ordinance No. 81-01 of the Metropolitan Manila Commission, are in accord with law and jurisprudence," 13 for which BAVA sought a reconsideration. Pending resolution, the case was referred to the Second Division of this Court, 14 and thereafter, to the Court En Banc en consulta. 15 Per our Resolution, dated April 29, 1988, we consolidated this case with G.R. Nos. 74376 and 82281. 16

IV. G.R. No. 78182. xxxxxxxxx The case stemmed from the leasing by defendant Dolores Filley of her building and lot situated at No. 205 Reposo Street, Bel-Air Village Makati, Metro Manila to her co-defendant, the advertising firm J. Romero and Associates, in alleged violation of deed restrictions which stipulated that Filley's lot could only be used for residential purposes. Plaintiff sought judgment from the lower court ordering the defendants to "permanently refrain" from using the premises in question "as commercial" and to comply with the terms of the deed restrictions. After the proper proceedings, the court granted the plaintiff the sought for relief with the additional imposition of exemplary damages of P50,000.00 and attorney's fees of P10,000.00. The trial court gave emphasis to the restrictive clauses contained in Filley's deed of sale from the plaintiff, which made the conversion of the building into a commercial one a violation. Defendants now seek review and reversal on three (3) assignments of errors, namely: I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE REGULATIONS PROMULGATED BY THE MUNICIPAL AUTHORITIES IN MAKATI AND THE MINISTRY OF HUMAN SETTLEMENT'S CHANGING THE CHARACTER OF THE AREAS IN QUESTION HAD RENDERED THE RESTRICTIVE EASEMENT ON THE TITLE OF THE APPELLANTS VACATED. II. THE COURT ERRED IN NOT RULING THAT BECAUSE THE APPELLEE(S) HAD ALLOWED THE USE OF THE PROPERTY WITHIN THE VILLAGE FOR NONRESIDENTIAL PURPOSES, IT IS NOW ESTOPPED FROM ENFORCING THE RESTRICTIVE PROHIBITIONS SUBJECT MATTER OF THIS CASE. III. THE COURT ERRED IN NOT FINDING THAT THERE EXISTED A BILATERAL CONTRACT BETWEEN THE PARTIES AND THAT SINCE APPELLEE HAD NOT PERFORMED ITS OBLIGATIONS UNDER THIS ARRANGEMENT THE APPELLANT IN TURN WAS UNDER NO OBLIGATION TO ANNOTATE THE RESTRICTIVE PROHIBITIONS ON THE BACK OF THE TITLE. Appellants anchor their appeal on the proposition that the Bel-Air Village area, contrary to plaintiff- appellee's pretension of being a strictly residential zone, is in fact commercial and characterize the restrictions contained in appellant Filley's deed of sale from the appellee as completely outmoded, which have lost all relevance to the present-day realities in Makati, now the premier business hub of the nation, where there is a proliferation of numerous commercial enterprises established through the years, in fact even within the heart of so-called "residential" villages. Thus, it may be said that appellants base their position on the inexorable march of progress which has rendered at naught the continued efficacy of the restrictions. Appellant on the other hand, relies on a rigid interpretation of the contractual stipulations agreed upon with appellant Filley, in effect arguing that the restrictions are valid ad infinitum. The lower court quite properly found that other commercial establishments exist in the same area (in fact, on the same street) but ignored it just the same and saidThe fact that defendants were able to prove the existence of several commercial establishments inside the village does not exempt them from liability for violating some of the restrictions evidently choosing to accord primacy to contractual stipulation. 17 xxxxxxxxx

The Court of Appeals 18 overturned the lower court, 19 likewise based on AC-G.R. No. 66649. The respondent Court observed also that J. Romero & Associates had been given authority to open a commercial office by the Human Settlements Regulatory Commission. V. G.R. No. 82281 The facts of this case have been based on stipulation. We quote: COMES NOW, the Parties, assisted by their respective counsel and to this Honorable Court, respectfully enter into the following stipulations of facts, to wit: 1. The parties admit the personal circumstances of each other as well as their capacities to sue and be sued. 2. The parties admit that plaintiff BAVA for short) is the legally constituted homeowners' association in Bel-Air Subdivision, Makati, Metro Manila. 3. The parties admit that defendant Violets Moncal is the registered owner of a parcel of land with a residential house constructed thereon situated at No. 104 Jupiter Street, Bel-Air Village, Makati, Metro Manila; that as such lot owner, she is a member of the plaintiff association. 4. The parties admit that defendant Majal Development Corporation (Majal for short) is the lessee of defendant Moncal's house and lot located at No. 104 Jupiter Street. 5. The parties admit that a deed restrictions is annotated on the title of defendant Moncal, which provides, among others, that the lot in question must be used only for residential purposes;' that at time Moncal purchased her aforesaid lot in 1959 said deed restrictions was already annotated in the said title. 6. The parties admit that when Moncal leased her subject property to Majal, she did not secure the consent of BAVA to lease the said house and lot to the present lessee. 7. The parties admit that along Jupiter Street and on the same side where Moncal's property is located, there are restaurants, clinics placement or employment agencies and other commercial or business establishments. These establishments, however, were sued by BAVA in the proper court. 8. The parties admit that at the time Moncal purchased the subject property from the Makati Development Corporation, there was a perimeter wall, running along Jupiter Street, which wall was constructed by the subdivision owner; that at that time the gates of the entrances to Jupiter Street were closed to public traffic. In short, the entire length of Jupiter which was inside the perimeter wall was not then open to public traffic 9. The parties admit that subsequent thereto, Ayala tore down the perimeter wall to give way to the commercial building fronting Buendia Avenue (now Gil J. Puyat Avenue). 10. The parties admit that on August 12, 1977, the Mayor of Makati forcibly opened and removed the street gates constructed on Jupiter Street and Reposo Street, thereby opening said streets to the public. 11. The parties admit plaintiffs letters of October 10, 23 and 31, 1984; as well as defendants' letters-reply dated October 17 and 29, 1984. 20 xxxxxxxxx The trial court 21 dismissed the petitioner's complaint, a dismissal affirmed on appeal, 22 According to the appellate court, the opening of Jupiter Street to human and vehicular traffic, and the commercialization of the Municipality of Makati in general, were circumstances that had made compliance by Moncal with the aforesaid "deed restrictions" "extremely difficult and unreasonable," 23 a development that had excused compliance altogether under Article 1267 of the Civil Code.

VI. The cases before the Court; the Court's decision. In brief, G.R. Nos. 74376, 76394, 78182, and 82281 are efforts to enforce the "deed restrictions" in question against specific residents (private respondents in the petitions) of Jupiter Street and with respect to G.R. No. 78182, Reposo Street. The private respondents are alleged to have converted their residences into commercial establishments (a restaurant in G.R. No. 74376, a bakery and coffee shop in G.R. No. 76394, an advertising firm in G.R. No. 78182; and a construction company, apparently, in G.R. No. 82281) in violation of the said restrictions.24 Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold the vendor itself, Ayala Corporation (formerly Makati Development Corporation), liable for tearing down the perimeter wall along Jupiter Street that had therefore closed its commercial section from the residences of Bel-Air Village and ushering in, as a consequence, the full "commercialization" of Jupiter Street, in violation of the very restrictions it had authored. As We indicated, the Court of Appeals dismissed all five appeals on the basis primarily of its ruling in AC-G.R. No. 66649, "Bel-Air Village, Inc. v. Hy-Land Realty Development Corporation, et al.," in which the appellate court explicitly rejected claims under the same 'deed restrictions" as a result of Ordinance No. 81 enacted by the Government of the Municipality of Makati, as well as Comprehensive Zoning Ordinance No. 8101 promulgated by the Metropolitan Manila Commission, which two ordinances allegedly allowed the use of Jupiter Street both for residential and commercial purposes. It was likewise held that these twin measures were valid as a legitimate exercise of police power. The Court of Appeals' reliance on Ordinance Nos. 81. and 8101 is now assailed in these petitions, particularly the Sangalang, et al. petition. Aside from this fundamental issue, the petitioners likewise raise procedural questions. G.R. No. 71169, the mother case, begins with one. 1. G.R. No. 71169 In this petition, the following questions are specifically put to the Court: May the Honorable Intermediate Appellate Court reverse the decision of the trial court on issues which were neither raised by AYALA in its Answers either to the Complaint or Supplemental Complaint nor specifically assigned as one of the alleged errors on appeal? 25 May the Honorable Intermediate Appellate Court arbitrarily ignore the decisive findings of fact of the trial court, even if uncontradicted and/or documented, and premised mainly on its own unsupported conclusions totally reverse the trial court's decision? 26 May the Honorable Intermediate Appellate Court disregard the trial court's documented findings that respondent Ayala for its own self-interest and commercial purposes contrived in bad faith to do away with the Jupiter Street perimeter wall it put up three times which wall was really intended to separate the residential from the commercial areas and thereby insure the privacy and security of Bel Air Village pursuant to respondent Ayala's express continuing representation and/or covenant to do so? 27 a. The first question represents an attack on the appellate court's reliance on Ordinances Nos. 81 and 81-01, a matter not supposedly taken up at the trial or assigned as an error on appeal. As a rule, the Court of Appeals (then the Intermediate Appellate Court) may determine only such questions as have been properly raised to it, yet, this is not an inflexible rule of procedure. In Hernandez v. Andal, 28 it was stated that "an unassigned error closely related to an error properly assigned, or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as error."29 In Baquiran v. Court of Appeals, 30 we referred to the " modern trend of procedure . . . according] the courts broad discretionary power" 31 and in which we allowed consideration of matters "having some bearing on the issue submitted which the parties failed to raise or the lower court ignore[d]. 32 And in Vda. de Javellana v.

Court of Appeals, 33 we permitted the consideration of a 'patent error' of the trial court by the Court of Appeals under Section 7, of Rule 51, of the Rules of Court, 34 although such an error had not been raised in the brief. But what we note is the fact that the Ayala Corporation did raise the zoning measures as affirmative defenses, first in its answers 35 and second, in its brief, 36 and submitted at the trial as exhibits. 37 There is accordingly no cause for complaint on the part of the petitioners for Ayala's violation of the Rules. But while there was reason for the consideration, on appeal, of the said zoning ordinances in question, this Court nevertheless finds as inaccurate the Court of Appeals' holding that such measures, had "in effect, [made] Jupiter Street ... a street which could be used not only for residential purposes," 38 and that "[It lost its character as a street for the exclusive benefit of those residing in Bel-Air Village completely." 39 Among other things, there is a recognition under both Ordinances Nos. 81 and 8 1-01 that Jupiter Street lies as the boundary between Bel-Air Village and Ayala Corporation's commercial section. And since 1957, it had been considered as a boundary not as a part of either the residential or commercial zones of Ayala Corporation's real estate development projects. Thus, the Bel-Air Village Association's articles of incorporation state that BelAir Village is 'bounded on the NE., from Amapola St., to de los Santos Ave., by Estrella St., on the SE from Extrella St., to Pedestrian Lane by E. De los Santos Ave., on the SW., from Pedestrian Lane to Reposo St., by Jupiter Street . . . . 40 Hence, it cannot be said to have been "for the exclusive benefit" of Bel-Air Village residents. We come to the perimeter wall then standing on the commercial side of Jupiter Street the destruction of which opened the street to the public. The petitioners contend that the opening of the thoroughfare had opened, in turn, the floodgates to the commercialization of Bel-Air Village. The wall, so they allege, was designed precisely to protect the peace and privacy of Bel-Air Village residents from the din and uproar of mercantile pursuits, and that the Ayala Corporation had committed itself to maintain it. It was the opinion of the Court of Appeals, as we said, that Ayala's liability therefor, if one existed, had been overtaken by the passage of Ordinances Nos. 81 and 82-01, opening Jupiter Street to commerce. It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact acknowledged by the authorities of Makati and the National Government and, as a scrutiny of the records themselves reveals, by the petitioners themselves, as the articles of incorporation of Bel-Air Village Association itself would confirm. As a consequence, Jupiter Street was intended for the use by both -the commercial and residential blocks. It was not originally constructed, therefore, for the exclusive use of either block, least of all the residents of Bel-Air Village, but, we repeat, in favor of both, as distinguished from the general public. When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it was not for the purpose of physically separating the two blocks. According to Ayala Corporation, it was put up to enable the Bel-Air Village Association "better control of the security in the area, 41 and as the Ayala Corporation's "show of goodwill " 42 a view we find acceptable in the premises. For it cannot be denied that at that time, the commercial area was vacant, "open for [sic] animals and people to have access to Bel-Air Village." 43 There was hence a necessity for a wall. In any case, we find the petitioners' theory, that maintaining the wall was a matter of a contractual obligation on the part of Ayala, to be pure conjecture. The records do not establish the existence of such a purported commitment. For one, the subdivision plans submitted did not mention anything about it. For another, there is nothing in the "deed restrictions" that would point to any covenant regarding the construction of a wall. There is no representation or promise whatsoever therein to that effect. With the construction of the commercial buildings in 1974, the reason for which the wall was built- to secure Bel-Air Village from interlopers had naturally ceased to exist. The buildings themselves had provided formidable curtains of security for the residents. It should be noted that the commercial lot buyers themselves were forced to demolish parts of the wall to gain access to Jupiter Street, which they had after all equal right to use. In fine, we cannot hold the Ayala Corporation liable for damages for a commitment it did not make, much less for alleged resort to machinations in evading it. The records, on the contrary, will show that the Bel-Air Village Association had been informed, at the very outset, about the impending use of Jupiter Street by commercial lot buyers. We quote: xxxxxxxxx

1. Exh. I of appellee, the memorandum of Mr. Carmelo Caluag, President of BAVA, dated May 10, 1972, informing the BAVA Board of Governors and Barrio Council members about the future use of Jupiter Street by the lot owners fronting Buendia Avenue. The use of Jupiter Street by the owners of the commercial lots would necessarily require the demolition of the wall along the commercial block adjoining Jupiter Street. 2. Exh. J of appellee, the minutes of the joint meeting of BAVA Board of Governors and the Bel-Air Barrio Council where the matter that "Buendia lot owners will have equal rights to use Jupiter Street," and that Ayala's "plans about the sale of lots and use of Jupiter Street" were precisely taken up. This confirms that from the start BAVA was informed that the commercial lot owners will use Jupiter Street and that necessarily the wall along Jupiter Street would be demolished. 3. Exh. 10, the letter of Mr. Demetrio Copuyoc to the President of BAVA, dated May 16, 1972, expressly stating that vehicular entrance and exit to the commercial lots would be allowed along Jupiter and side streets. 4. Exhs. 27, 27-A, 27-B, the letter of Atty. Salvador J. Lorayes dated June 30, 1972, with enclosed copy of proposed restriction for the commercial lots to BAVA. He proposed restriction again expressly stated that "Vehicular entrances and exits are allowed thru Jupiter and any side streets." 5. Exh. L of appellee, the minutes of the meeting of the members of BAVA, dated August 26, 1972, where it is stated "Recently, Ayala Corporation informed the Board that the lots fronting Buendia Avenue will soon be offered for sale, and that future lot owners will be given equal rights to use Jupiter Street as well as members of the Association." 6. Exh. 25, the letter of Atty. Lorayes dated September 25, 1972, informing BAVA of the widening of Jupiter Street by 3.5 meters to improve traffic flow in said street to benefit both the residents of Bel-Air and the future owners of the commercial lots. 44 The petitioners cannot successfully rely on the alleged promise by Demetrio Copuyoc, Ayala's manager, to build a "[f]ence along Jupiter with gate for entrance and/or exit 45 as evidence of Ayala's alleged continuing obligation to maintain a wall between the residential and commercial sections. It should be observed that the fence referred to included a "gate for entrance and or exit" which would have defeated the purpose of a wall, in the sense the petitioners would put in one, that is to say, an impenetrable barrier. But as Ayala would point out subsequently, the proposed fence was not constructed because it had become unnecessary when the commercial lot owners commenced constructions thereon. Be that as it may, the Court cannot visualize any purported obligation by Ayala Corporation to keep the wall on the strength of this supposed promise alone. If truly Ayala promised anything assuming that Capuyoc was authorized to bind the corporation with a promise it would have been with respect to the fence. It would not have established the pre-existing obligation alleged with respect to the wall. Obligations arise, among other things, from contract. 46 If Ayala, then, were bound by an obligation, it would have been pursuant to a contract. A contract, however, is characterized by a "meeting of minds between two persons .47 As a consensual relation, it must be shown to exist as a fact, clearly and convincingly. But it cannot be inferred from a mishmash of circumstances alone disclosing some kind of an "understanding," when especially, those disparate circumstances are not themselves incompatible with contentions that no accord had existed or had been reached. 48 The petitioners cannot simply assume that the wall was there for the purpose with which they now give it, by the bare coincidence that it had divided the residential block from the commercial section of Bel-Air. The burden of proof rests with them to show that it had indeed been built precisely for that objective, a proof that must satisfy the requirements of our rules of evidence. It cannot be made to stand on the strength of plain inferences. b. This likewise answers the petitioners' second query, whether or not the Court of Appeals had "arbitrarily ignore(d) the decisive findings of the trial court." 49 i.e., findings pointing to alleged acts performed by the Ayala

Corporation proving its commitment to maintain the wall abovesaid. Specifically, the petitioners refer to, among other things: (1) Ayala's alleged announcement to Bel- Air Village Association members that "[the perimeter wall along Jupiter Street will not be demolished," 50 (2) Ayala's alleged commitment "during the pendency of the case in the trial court" to restore the wall; (3) alleged assurances by Copuyoc that the wall will not be removed; (4) alleged contrivances by the corporation to make the association admit as members the commercial lot buyers which provided them equal access to Jupiter Street; and (5) Ayala's donation to the association of Jupiter Street for "private use" of Bel-Air residents. 51 682 (1903), where it was held that "whether the plaintiffs services were solicited or whether they were offered to the defendant for his assistance, inasmuch as these services were accepted and made use of by the latter, we must consider that there was a tacit and mutual consent as to the rendition of services." (At 686.) In that case, the defendant had enormously benefitted from the services that entitled the plaintiff to compensation on the theory that no one may unjustly enrich himself at the expense of another (Solutio indebiti) The facts of this case differ. As we stated, the Ayala Corporation's alleged conduct prior to or during the proceedings below are not necessarily at war with claims that no commitment had been in fact made. With respect to Ayala's alleged announcement before the association, the Court does not agree that Ayala had categorically assumed as an obligation to maintain the wall "perpetually," i.e., until the year 2007 (the expiration date under the "deed restrictions.") There is nothing in its statement that would bare any commitment. In connection with the conference between the parties "during the pendency" of the trial, it is to be noted that the Ayala Corporation denies having warranted the restoration of the said wall therein. What, on the other hand, appears in the records is the fact that Ayala did make that promise, but provided that the Mayor allowed it. It turned out, however, that the Mayor balked at the Idea. 52 But assuming that Ayala did promise to rebuild the wall (in that conference), it does not seem to us that it did consequently promise to maintain it in perpetuity. It is unfair to say, as the trial court did, that the Ayala had "contrived to make future commercial lot owners special members of BAVA and thereby acquire equal right with the regular members thereof to use Jupiter Street 53 since, as we stated, the commercial lot buyers have the right, in any event, to make use of Jupiter Street, whether or not they are members of the association. It is not their memberships that give them the right to use it. They share that right with Bel-Air residents from the outset. The objective of making the commercial lot owners special members of the Bel-Air Village Association was not to accord them equal access to Jupiter Street and inferentially, to give them the right to knock down the perimeter wall. It was, rather, to regulate the use of the street owing precisely to the "planned" nature of Ayala's development project, and real estate development in general, and this could best be done by placing the commercial lot owners under the association's jurisdiction. Moreover, Ayala's overtures with the association concerning the membership of commercial lot buyers therein have been shown to be neither perfidious nor unethical nor devious (paraphrasing the lower court). We quote anew: xxxxxxxxx (7) On June 30, 1972, appellant informed BAVA that in a few months it shall subdivide and sell the commercial lots bordering the north side of Buendia Avenue Extension from Reposo Street up to Zodiac Street. Appellant also informed BAVA that it had taken all precautions and will impose upon the commercial lot owners deed restrictions which will harmonize and blend with the development and welfare of Bel-Air Village. Appellant further applied for special membership in BAVA of the commercial lot owners. A copy of the deed restrictions for the commercial lots was also enclosed. The proposed deed restrictions shall include the 19 meter set back of buildings from Jupiter Street, the requirement for parking space within the lot of one (1) parking slot for every seventy five (75) meters of office space in the building and the limitation of vehicular traffic along Buendia to entrance only, but allowing both vehicular entrance and vehicular exit through Jupiter Street and any side street. In its letter of July 10, 1972, BAVA acknowledged the above letter of appellant and informed the latter that the application for special membership of the commercial lot owners in BAVA would be submitted to BAVA's board of governors for decision.

(8) On September 25,1972, appellant notified BAVA that, after a careful study, it was finally decided that the height limitation of buildings on the commercial lots shall be increased from 12.5 meters to 15 meters. Appellant further informed BAVA that Jupiter Street shall be widened by 3.5 meters to improve traffic flow in said street. BAVA did not reply to said letter, but on January 22, 1973, BAVA wrote a letter to the appellant informing the latter that the Association had assessed the appellant, as special member of the association, the amount of P40,795.00 (based on 81,590 square meters at P.50 per square meter) representing the membership dues of the commercial lot owners for the year 1973, and requested the appellant to remit the amount which its board of governors had already included in its current budget. In reply, appellant on January 31, 1973 informed BAVA that due to the widening of Jupiter Street, the area of the lots which were accepted by the Association as members was reduced to 76,726 square meters. Thus, the corresponding due at P.50 per square meter should be reduced to P38,363.00. This amount, therefore, was remitted by the appellant to BAVA. Since then, the latter has been collecting membership dues from the owners of the commercial lots as special members of the Association. As a matter of fact, the dues were increased several times. In 1980, the commercial lot owners were already being charged dues at the rate of P3.00 per square meter. (Domingo, TSN, p. 36, March 19, 1980). At this rate, the total membership dues of the commercial lot owners amount to P230,178.00 annually based on the total area of 76,726 square meters of the commercial lots. 54 xxxxxxxxx The alleged undertaking, finally, by Ayala in the deed of donation (over Jupiter Street) to leave Jupiter Street for the private use of Bel-Air residents is belied by the very provisions of the deed. We quote: xxxxxxxxx IV. That the offer made by the DONOR had been accepted by the DONEE subject to the condition that the property will be used as a street for the use of the members of the DONEE, their families, personnel, guests, domestic help and, under certain reasonable conditions and restrictions, by the general public, and in the event that said lots or parts thereof cease to be used as such, ownership thereof shall automatically revert to the DONOR. The DONEE shall always have Reposo Street, Makati Avenue, and Paseo de Roxas open for the use of the general public. It is also understood that the DONOR shall continue the maintenance of the street at its expense for a period of three years from date hereof." (Deed of Donation, p. 6, Exh. 7) 55 xxxxxxxxx The donation, on the contrary, gave the general public equal right to it. The Court cannot then say, accepting the veracity of the petitioners' facts" enumerated above, that the Ayala Corporation may be held liable for specific performance of a demandable obligation, let alone damages. The Court adds that Ayala can hardly be held responsible for the alleged deterioration of "living and environmental conditions" 56 of the Bel-Air area, as a consequence of "Ayala's authorized demolition of the Jupiter perimeter wall in 1974-1975. " 57 We agree with Ayala that until 1976, "there was peace and quiet" at Jupiter Street, as the petitioners' (Sangalang, Gaston, and Briones) complaints admit. Hence, the degeneration of peace and order in Bel-Air cannot be ascribed to the destruction of the wall in 1974 and 1975. What Ayala submits as the real cause was the opening of Jupiter Street to vehicular traffic in 1977., 58 But this was upon orders of the Mayor, and for which the homeowners' association had precisely filed suit (Civil Case No. 34998) 59 to contest the act of the Mayor. c. This likewise disposes of the third question presented. The petitioners' reliance on Ayala's alleged conduct (proving its alleged commitment), so we have ruled, is not well-taken. Ayala's alleged acts do not, by themselves, reflect a commitment to maintain the wall in dispute. It cannot be therefore said that the Court of Appeals "arbitrarily ignore(d]" 60 the lower court's findings. Precisely, it is the duty of the appellate court to review the findings of the trial judge, be they of fact or law. 61 It is not bound by the conclusions of the judge, for

which reason it makes its own findings and arrives at its own conclusions. Unless a grave abuse of discretion may be imputed to it, it may accept or reject the lower tribunal's determinations and rely solely on the records. Accordingly, the Court affirms the Court of Appeals' holding that the Ayala Corporation, in its dealings with the petitioners, the Bel-Air Village Association in particular, had "acted with justice, gave the appellees [petitioners] their due and observed honesty and good faith." 62 "Therefore, under both Articles 19 and 21 of the Civil Code, the appellant [Ayala] cannot be held liable for damages." 63 2. G.R. Nos. 74376, 76394, 78182, & 82281 Our decision also resolves, quite anticlimactically, these companion cases. But we do so for various other reasons. In the Sangalang case, we absolve the Ayala Corporation primarily owing to our finding that it is not liable for the opening of Jupiter Street to the general public. Insofar as these petitions are concerned, we likewise exculpate the private respondents, not only because of the fact that Jupiter Street is not covered by the restrictive easements based on the "deed restrictions" but chiefly because the National Government itself, through the Metro Manila Commission (MMC), had reclassified Jupiter Street into high density commercial (C3) zone, 64 pursuant to its Ordinance No. 81-01. Hence, the petitioners have no cause of action on the strength alone of the said "deed restrictions. In view thereof, we find no need in resolving the questions raised as to procedure, since this disposition is sufficient to resolve these cases. It is not that we are saying that restrictive easements, especially the easements herein in question, are invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction guarantees sanctity of contract and is said to be the "law between the contracting parties, 65 but while it is so, it cannot contravene 'law, morals, good customs, public order, or public policy. 66 Above all, it cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co., 67 we are told: xxxxxxxxx 2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee it should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people.' Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengson in Philippine Long Distance Company vs. City of Davao, et al. police power 'is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life.' We were even more emphatic in Vda. de Genuino vs. The Court of agrarian Relations, et al., when We declared: "We do not see why public welfare when clashing with the individual right to property should not be made to prevail through the state's exercise of its police power." Resolution No. 27, 1960 declaring the western part of High way 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and

pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution. 68 xxxxxxxxx Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power. The petitioners have not shown why we should hold otherwise other than for the supposed "non-impairment" guaranty of the Constitution, which, as we have declared, is secondary to the more compelling interests of general welfare. The Ordinance has not been shown to be capricious or arbitrary or unreasonable to warrant the reversal of the judgments so appealed. In that connection, we find no reversible error to have been committed by the Court of Appeals. WHEREFORE, premises considered, these petitions are DENIED No pronouncement as to costs. IT IS SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 78673 March 18, 1991 BRUNO S. CABRERA, petitioner, vs. HON. COURT OF APPEALS AND THE PROVINCE OF CATANDUANES, VICENTE M. ALBERTO, ENCARNACION TORRES, SANTIAGO VALDERAMA, JEREMIAS TRINIDAD, ALFREDO DAYAWON, ZACARIAS TATAD, FELIXBERTO CAMACHO, RUBEN GONZALES, FELIX RUBIO, RENE ALCANTARA, ARISTEO ARCILLA, PAMFILO DAYAWON, REMEDIOS BAGADIONG, FREDESWINDO ALCALA, ELENA S. LATORRE, BALDOMERO TOLENTINO, EULOGIA ALEJANDRO, ANGELES S. VARGAS, ISIDRO REYES, ANSELMO PEA, and CATALINA VELA, respondents. Dominador B. Medroso, Jr. for petitioner.

CRUZ, J.:p On September 19, 1969, the Provincial Board of Catanduanes adopted Resolution No. 158, providing as follows: RESOLVED, as it is hereby resolved, to close the old road leading to the new Capitol Building of this province to traffic effective October 31, 1969, and to give to the owners of the properties traversed by the new road equal area as per survey by the Highway District Engineer's office from the old road adjacent to the respective remaining portion of their properties. RESOLVED FURTHER, that the Honorable Provincial Governor be, as he is hereby authorized to sign for and in behalf of the province of Catanduanes, the pertinent Deed of Exchange and or other documents pertaining thereto; Pursuant thereto, Deeds of Exchange were executed under which the Province of Catanduanes conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the Capitol Building. In 1978, part of the northern end of the old road fronting the petitioner's house was planted to vegetables in 1977 by Eulogia Alejandro. Anselmo Pea, who had bought Angeles Vargas's share, also in the same part of the road, converted it into a piggery farm. Learning about Resolution 158, the petitioner filed on December 29, 1978, a complaint with the Court of First Instance of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public road owned by the Province of Catanduanes in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so too was the closure of the northern portion of the said road. In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while holding that the land in question was not a declared public road but a mere "passageway" or "short-cut," nevertheless sustained the authority of the provincial board to enact Resolution No. 158 under existing law. 1 Appeal was taken to the respondent court, 2which found that the road was a public road and not a trail but just the same also upheld Resolution 158. It declared:

Pursuant to Republic Act No. 5185, municipal authorities can close, subject to the approval or direction of the Provincial Board, thoroughfares under Section 2246 of the Revised Administrative Code. Although in this case the road was not closed by the municipality of Catanduanes but by the provincial board of Catanduanes, the closure, nevertheless, is valid since it was ordered by the approving authority itself. However, while it could do so, the provincial government of Catanduanes could close the road only if the persons prejudiced thereby were indemnified, Section 2246 of the Revised Administrative Code being very explicit on this. Before us now, the petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board. The petitioner alleges that the closure of the road has especially injured him and his family as they can no longer use it in going to the national road leading to the old capitol building but must instead pass through a small passageway. For such inconvenience, he is entitled to damages in accordance with law. The petition has no merit. The Court cannot understand how the petitioner can seriously argue that there is no order of closure when it is there in the resolution, in black and white. Resolution 158 clearly says that it is "hereby resolved to close the old road." The closure is as plain as day except that the petitioner, with the blindness of those who will not see, refuses to acknowledge it. The Court has little patience with such puerile arguments. They border dangerously on a trifling with the administration of justice and can only prejudice the pleader's cause. The authority of the provincial board to close that road and use or convey it for other purposes is derived from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative Code: R.A. No. 5185, Section 11 (II) (a): II. The following actions by municipal officials or municipal councils, as provided for in the pertinent sections of the Revised Administrative Code shall take effect without the need of approval or direction from any official of the national government: Provided, That such actions shall be subject to approval or direction by the Provincial Board: (a) Authority to close thoroughfare under Section 2246; xxx xxx xxx Sec. 2246. Authority to close thoroughfare. With the prior authorization of the Department Head, a municipal council may close any municipal road, street, alley, park, or square; but no such way or place aforesaid or any part thereof, shall be closed without indemnifying any person prejudiced thereby. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed. In the case of Cebu Oxygen and Acetylene Co., Inc. v. Bercilles , 3 the Court held the closure of a city street as within the powers of the city council under the Revised Charter of Cebu City, which provided: Sec. 31. Legislative Powers. Any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers: xxx xxx xxx

(34) . . .; to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed; It sustained the subsequent sale of the land as being in accordance not only with the charter but also with Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." In the case of Favis vs. City of Baguio, 4 the power of the City Council of Baguio City to close city streets and withdraw them from public use was also assailed. This Court said: 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. While it is true that the above cases dealt with city councils and not the provincial board, there is no reason for not applying the doctrine announced therein to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province of Catanduanes for the construction of provincial roads. On this matter, Governor Vicente Alberto of Catanduanes testified as follows: . . . when the Province was given funds to construct a road that will be more convenient to the public, more solid and wider and to have a better town planning whereby the Capitol would be reached directly from the pier for purposes of improving services to the public, it was recommended by the District Highway Engineer that a new road would be constructed connecting the Capitol with the veterans fountain, and believing this recommendation was for the good of the community, it was carried out. The original passageway was already unnecessary and since there was a problem of compensation the land owners where the new road was going to pass, so they decided to close this passageway and instead of paying the owners of the property where the new road was to be constructed, they exchanged some portions of this passageway with properties where the proposed road would pass. 5 The lower court found the petitioner's allegation of injury and prejudice to be without basis because he had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the Court of Appeals ruled that the he "was prejudiced by the closure of the road which formerly fronted his house. He and his family were undoubtedly inconvenienced by the loss of access to their place of residence for which we believe they should be compensated." On this issue, the governing principle was laid down in Favis thus: . . . The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. This rule was based on the following observations made in Richmond v. City of Hinton 6 which were quoted with approval by this Court:

The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door. The law will not permit him to be cut off from the public thoroughfares, but he must content himself with such route for outlet as the regularly constituted public authority may deem most compatible with the public welfare. When he acquires city property, he does so in tacit recognition of these principles. If, subsequent to his acquisition, the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is damnum absque injuria. Following the above doctrine, we hold that the petitioner is not entitled to damages because the injury he has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. As the trial judge acutely observed, whatever inconvenience the petitioner has suffered "pales in significance compared to the greater convenience the new road, which is wide and concrete, straight to the veterans fountain and down to the pier, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town of Virac but also to the whole province of Catanduanes." For the enjoyment of those benefits, every individual in the province, including the petitioner, must be prepared to give his share. The dispositive portion of the challenged decision awarded the petitioner the sum of P5,000.00 as nominal and/or temperate damages, and the sum of P2,000.00 as and for attorney's fees. For the reasons stated above, these awards should all be deleted. The petitioner must content himself with the altruistic feeling that for the prejudice he has suffered, the price he can expect is the improvement of the comfort and convenience of the inhabitants of Catanduanes, of whom he is one. That is not a paltry recompense. WHEREFORE, the decision of the Court of Appeals dated February 17, 1987, is AFFIRMED as above modified, with costs against the petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 93654 May 6, 1992 FRANCISCO U. DACANAY, petitioner, vs. MAYOR MACARIO ASISTIO, JR., CITY ENGR. LUCIANO SARNE, JR. of Kalookan City, Metro Manila, MILA PASTRANA AND/OR RODOLFO TEOFE, STALLHOLDERS AND REPRESENTING COSTALLHOLDERS,respondents. David D. Advincula, Jr. for petitioner. Juan P. Banaga for private respondents.

GRIO-AQUINO, J.: May public streets or thoroughfares be leased or licensed to market stallholders by virtue of a city ordinance or resolution of the Metro Manila Commission? This issue is posed by the petitioner, an aggrieved Caloocan City resident who filed a special civil action of mandamus against the incumbent city mayor and city engineer, to compel these city officials to remove the market stalls from certain city streets which the aforementioned city officials have designated as flea markets, and the private respondents (stallholders) to vacate the streets. On January 5, 1979, MMC Ordinance No. 79-02 was enacted by the Metropolitan Manila Commission, designating certain city and municipal streets, roads and open spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened up seven (7) flea markets in that city. One of those streets was the "Heroes del '96" where the petitioner lives. Upon application of vendors Rodolfo Teope, Mila Pastrana, Carmen Barbosa, Merle Castillo, Bienvenido Menes, Nancy Bugarin, Jose Manuel, Crisaldo Paguirigan, Alejandro Castron, Ruben Araneta, Juanita and Rafael Malibaran, and others, the respondents city mayor and city engineer, issued them licenses to conduct vending activities on said street. In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition of the market stalls on Heroes del '96, V. Gozon and Gonzales streets. To stop Mayor Martinez' efforts to clear the city streets, Rodolfo Teope, Mila Pastrana and other stallowners filed an action for prohibition against the City of Caloocan, the OIC City Mayor and the City Engineer and/or their deputies (Civil Case No. C-12921) in the Regional Trial Court of Caloocan City, Branch 122, praying the court to issue a writ of preliminary injunction ordering these city officials to discontinue the demolition of their stalls during the pendency of the action. The court issued the writ prayed for. However, on December 20, 1987, it dismissed the petition and lifted the writ of preliminary injunction which it had earlier issued. The trial court observed that: A perusal of Ordinance 2, series of 1979 of the Metropolitan Manila Commission will show on the title itself that it is an ordinance Authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions, subject to the approval of the Metropolitan Manila Commission, and for other purposes which is further amplified in Section 2 of the said ordinance, quoted hereunder: Sec. 2. The streets, roads and open spaces to be used as sites for flea markets (tiangge) or vending areas; the design, measurement or specification of the structures, equipment and

apparatuses to be used or put up; the allowable distances; the days and time allowed for the conduct of the businesses and/or activities herein authorized; the rates or fees or charges to be imposed, levied and collected; the kinds of merchandise, goods and commodities sold and services rendered; and other matters and activities related to the establishment, maintenance and management and operation of flea markets and vending areas, shall be determined and prescribed by the mayors of the cities and municipalities in the Metropolitan Manila where the same are located, subject to the approval of the Metropolitan Manila Commission and consistent with the guidelines hereby prescribed. Further, it is so provided in the guidelines under the said Ordinance No. 2 of the MMC that Sec. 6. In the establishment, operation, maintenance and management of flea markets and vending areas, the following guidelines, among others, shall be observed: xxx xxx xxx (m) That the permittee shall remove the equipment, facilities and other appurtenances used by him in the conduct of his business after the close or termination of business hours. (Emphasis ours; pp. 15-16, Rollo.) The trial court found that Heroes del '96, Gozon and Gonzales streets are of public dominion, hence, outside the commerce of man: The Heroes del '96 street, V. Gozon street and Gonzales street, being of public dominion must, therefore, be outside of the commerce of man. Considering the nature of the subject premises, the following jurisprudence co/principles are applicable on the matter: 1) They cannot be alienated or leased or otherwise be the subject matter of contracts. (Municipality of Cavite vs. Rojas, 30 Phil. 602); 2) They cannot be acquired by prescription against the state (Insular Government vs. Aldecoa, 19 Phil. 505). Even municipalities can not acquire them for use as communal lands against the state (City of Manila vs. Insular Government, 10 Phil. 327); 3) They are not subject to attachment and execution (Tan Toco vs. Municipal Council of Iloilo, 49 Phil. 52); 4) They cannot be burdened by any voluntary easement (2-II Colin & Capitant 520) (Tolentino, Civil Code of the Phils., Vol. II, 1983 Ed. pp. 2930). In the aforecited case of Municipality of Cavite vs. Rojas, it was held that properties for public use may not be leased to private individuals . Such a lease is null and void for the reason that a municipal council cannot withdraw part of the plaza from public use. If possession has already been given, the lessee must restore possession by vacating it and the municipality must thereupon restore to him any sums it may have collected as rent. In the case of City of Manila vs. Gerardo Garcia, 19 SCRA 413, the Supreme Court held: The property being a public one, the Manila Mayors did not have the authority to give permits, written or oral, to the squatters, and that the permits granted are therefore considered null and void. This doctrine was reiterated in the case of Baguio Citizens Action Inc. vs. The City Council, 121 SCRA 368, where it was held that:

An ordinance legalizing the occupancy by squatters of public land is null and void. The authority of respondent Municipality of Makati to demolish the shanties of the petitioner's members is mandated by P.D. 772, and Sec. 1 of Letter of Instruction No. 19 orders certain public officials, one of whom is the Municipal Mayor to remove all illegal constructions including buildings on and along esteros and river banks, those along railroad tracks and those built without permits on public or private property (Zansibarian Residents Association vs. Mun. of Makati, 135 SCRA 235). The City Engineer is also among those required to comply with said Letter of Instruction. The occupation and use of private individuals of sidewalks and other public places devoted for public use constitute both public and private nuisances and nuisance per se, and this applies to even case involving the use or lease of public places under permits and licenses issued by competent authority, upon the theory that such holders could not take advantage of their unlawful permits and license and claim that the land in question is a part of a public street or a public place devoted to public use, hence, beyond the commerce of man. (Padilla, Civil Code Annotated, Vol. II, p. 59, 6th Ed., citing Umali vs. Aquino, IC. A. Rep. 339.) From the aforequoted jurisprudence/principles, the Court opines that defendants have the right to demolish the subject stalls of the plaintiffs, more so when Section 185, par. 4 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code provides that the City Engineer shall: (4) . . . (c) Prevent the encroachment of private buildings and fences on the streets and public places; xxx xxx xxx (j) Inspect and supervise the construction, repair, removal and safety of private buildings; xxx xxx xxx (k) With the previous approval of the City Mayor in each case, order the removal of materials employed in the construction or repair of any building or structures made in violation of law or ordinance, and cause buildings and structures dangerous to the public to made secure or torn down; xxx xxx xxx Further, the Charter of the City of Caloocan, Republic Act No. 5502, Art. VII, Sec. 27, par. g, 1 and m, grants the City Engineer similar powers. (Emphasis supplied; pp. 17-20, Rollo.) However, shortly after the decision came out, the city administration in Caloocan City changed hands. City Mayor Macario Asistio, Jr., as successor of Mayor Martinez, did not pursue the latter's policy of clearing and cleaning up the city streets. Invoking the trial court's decision in Civil Case No. C-12921, Francisco U. Dacanay, a concerned citizen, taxpayer and registered voter of Barangay 74, Zone 7, District II of Caloocan City, who resides on Heroes del '96 Street, one of the affected streets, wrote a letter dated March 7, 1988 to Mayor Asistio, Jr., calling his attention to the illegally-constructed stalls on Heroes del '96 Street and asked for their demolition.

Dacanay followed up that letter with another one dated April 7, 1988 addressed to the mayor and the city engineer, Luciano Sarne, Jr. (who replaced Engineer Arturo Samonte), inviting their attention to the Regional Trial Court's decision in Civil Case No. 12921. There was still no response. Dacanay sought President Corazon C. Aquino's intervention by writing her a letter on the matter. His letter was referred to the city mayor for appropriate action. The acting Caloocan City secretary, Asuncion Manalo, in a letter dated August 1, 1988, informed the Presidential Staff Director that the city officials were still studying the issue of whether or not to proceed with the demolition of the market stalls. Dacanay filed a complaint against Mayor Asistio and Engineer Sarne (OMB-0-89-0146) in the Office of the OMBUDSMAN. In their letter-comment dated April 3, 1989, said city officials explained that in view of the huge number of stallholders involved, not to mention their dependents, it would be harsh and inhuman to eject them from the area in question, for their relocation would not be an easy task. In reply, Dacanay maintained that respondents have been derelict in the performance of their duties and through manifest partiality constituting a violation of Section 3(e) of R.A. 3019, have caused undue injury to the Government and given unwarranted benefits to the stallholders. After conducting a preliminary investigation, the OMBUDSMAN rendered a final evaluation and report on August 28, 1989, finding that the respondents' inaction is purely motivated by their perceived moral and social responsibility toward their constituents, but "the fact remains that there is an omission of an act which ought to be performed, in clear violation of Sections 3(e) and (f) of Republic Act 3019." (pp. 83-84, Rollo.) The OMBUDSMAN recommended the filing of the corresponding information in court. As the stallholders continued to occupy Heroes del '96 Street, through the tolerance of the public respondents, and in clear violation of the decision it Civil Case No. C-12921, Dacanay filed the present petition for mandamuson June 19, 1990, praying that the public respondents be ordered to enforce the final decision in Civil Case No. C-12921 which upheld the city mayor's authority to order the demolition of market stalls on V. Gozon, Gonzales and Heroes del '96 Streets and to enforce P.D. No. 772 and other pertinent laws. On August 16, 1990, the public respondents, through the City Legal Officer, filed their Comment' on the petition. The Office of the Solicitor General asked to be excused from filing a separate Comment in behalf of the public respondents. The City Legal Officer alleged that the vending area was transferred to Heroes del '96 Street to decongest Malonzo Street, which is comparatively a busier thoroughfare; that the transfer was made by virtue of Barangay Resolution No. 30 s'78 dated January 15, 1978; that while the resolution was awaiting approval by the Metropolitan Manila Commission, the latter passed Ordinance No. 79-2, authorizing the use of certain streets and open spaces as sites for flea markets and/or vending areas; that pursuant thereto, Acting MMC Mayor Virgilio P. Robles issued Executive Order No. 135 dated January 10, 1979, ordering the establishment and operation of flea markets in specified areas and created the Caloocan City Flea Market Authority as a regulatory body; and that among the sites chosen and approved by the Metro Manila Commission, Heroes del '96 Street has considered "most viable and progressive, lessening unemployment in the city and servicing the residents with affordable basic necessities." The petition for mandamus is meritorious. There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease or other contract (Villanueva et al. vs. Castaeda and Macalino, 15 SCRA 142, citing the Municipality of Cavite vs. Rojas, 30 SCRA 602; Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot vs. De la Fuente, 48 O.G. 4860). As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect. The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that

reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians. As early as 1989, the public respondents bad started to look for feasible alternative sites for flea markets. They have had more than ample time to relocate the street vendors. WHEREFORE, it having been established that the petitioner and the general public have a legal right to the relief demanded and that the public respondents have the corresponding duty, arising from public office, to clear the city streets and restore them to their specific public purpose (Enriquez vs. Bidin, 47 SCRA 183; City of Manila vs. Garcia et al., 19 SCRA, 413 citing Unson vs. Lacson, 100 Phil. 695), the respondents City Mayor and City Engineer of Caloocan City or their successors in office are hereby ordered to immediately enforce and implement the decision in Civil Case No. C-1292 declaring that Heroes del '96, V. Gozon, and Gonzales Streets are public streets for public use, and they are ordered to remove or demolish, or cause to be removed or demolished, the market stalls occupying said city streets with utmost dispatch within thirty (30)days from notice of this decision. This decision is immediately executory. SO ORDERED. Narvasa, C.J., Melecio-Herrera, Gutierrez, Jr. Cruz, Paras, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur. Bellosillo, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 97764 August 10, 1992 LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, petitioner, vs. HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OF PARAAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE,respondents. Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service. Manuel de Guia for Municipality of Paraaque.

MEDIALDEA, J.: This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court of Makati, Branch 62, which granted the writ of preliminary injunction applied for by respondents Municipality of Paraaque and Palanyag Kilusang Bayan for Service (Palanyag for brevity) against petitioner herein. The antecedent facts are as follows: On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions. On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent municipality subject to the following conditions: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose the establishment of the flea market/vending areas thereon; 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; 3. That the time during which the vending area is to be used shall be clearly designated; 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas. On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter shall operate, maintain and manage the flea market in the aforementioned

streets with the obligation to remit dues to the treasury of the municipal government of Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets. On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag. On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall be dismantled. Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus with damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of preliminary injunction. On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16, 1990 pending the hearing on the motion for writ of preliminary injunction. On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag. Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to lack or excess of jurisdiction on the part of the trial judge in issuing the assailed order. The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Paraaque authorizing the lease and use of public streets or thoroughfares as sites for flea markets is valid. The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public properties; that as such, they cannot be subject to private appropriation or private contract by any person, even by the respondent Municipality of Paraaque. Petitioner submits that a property already dedicated to public use cannot be used for another public purpose and that absent a clear showing that the Municipality of Paraaque has been granted by the legislature specific authority to convert a property already in public use to another public use, respondent municipality is, therefore, bereft of any authority to close municipal roads for the establishment of a flea market. Petitioner also submits that assuming that the respondent municipality is authorized to close streets, it failed to comply with the conditions set forth by the Metropolitan Manila Authority for the approval of the ordinance providing for the establishment of flea markets on public streets. Lastly, petitioner contends that by allowing the municipal streets to be used by market vendors the municipal council of respondent municipality violated its duty under the Local Government Code to promote the general welfare of the residents of the municipality. In upholding the legality of the disputed ordinance, the trial court ruled: . . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government units, the Municipality of Paraaque as such, is empowered under that law to close its roads, streets or alley subject to limitations stated therein (i.e., that it is in accordance with existing laws and the provisions of this code). xxx xxx xxx The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an encroachment of power legally vested to the municipality, precisely because when the municipality enacted the ordinance in question the authority of the respondent as Police Superintendent ceases to be operative on the ground that the streets covered by the ordinance ceases to be a public thoroughfare. (pp. 33-34, Rollo) We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on the public streets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 337, otherwise known as Local

Government Code, in connection with established principles embodied in the Civil Code an property and settled jurisprudence on the matter. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article 424 of Civil Code states: Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities. All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws. Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and are therefore considered public properties of respondent municipality. Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress. One such example of this authority given by Congress to the local governments is the power to close roads as provided in Section 10, Chapter II of the Local Government Code, which states: Sec. 10. Closure of roads. A local government unit may likewise, through its head acting pursuant to a resolution of its sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or place or any part of thereof shall be close without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed. (Emphasis ours). However, the aforestated legal provision which gives authority to local government units to close roads and other similar public places should be read and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting such authority of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic principle that properties of public dominion devoted to public use and made available to the public in general are outside the commerce of man and cannot be disposed of or leased by the local government unit to private persons. Aside from the requirement of due process which should be complied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other public property from public use when circumstances show that such property is no longer intended or necessary for public use or public service. When it is already withdrawn from public use, the property then becomes patrimonial property of the local government unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality can "use or convey them for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as Local Government Code. In one case, the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not being included in the City Development Plan. Thereafter, the City Council passes another resolution authorizing the sale of the said abandoned road through public bidding. We held therein that the City of Cebu is empowered to close a city street and to vacate or withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily used for vehicular traffic are still considered public property devoted to public use. In such case, the local government has no power to use it for another purpose or to dispose of or lease it to private persons. This limitation on the authority of the local government over public properties has been discussed and settled by this Court en banc in "Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No. 93654, May 6, 1992." This Court ruled: There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets, as found by the trial court in Civil Case No. C12921. A public street is property for public use hence outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease

or others contract (Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860). As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect. The Executive Order issued by acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians. Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent municipality of the conditions imposed by the former for the approval of the ordinance, to wit: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not oppose the establishment of the flea market/vending areas thereon; 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; 3. That the time during which the vending area is to be used shall be clearly designated; 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. (p. 38, Rollo) Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of the ordinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of the residents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will show that this first condition has been met. Likewise, the designation by respondents of a time schedule during which the flea market shall operate is absent. Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the other observations of the Solicitor General when he said: . . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using the roads for a more direct access to the fire area, have to maneuver and look for other streets which are not occupied by stalls and vendors thereby losing valuable time which could, otherwise, have been spent in saving properties and lives. Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their patients to the hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine the tragedy of losing a life just because of a few seconds delay brought about by the inaccessibility of the streets leading to the hospital. The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is disrupted and school children have to get off at a distance still far from their schools and walk, rain or shine.

Indeed one can only imagine the garbage and litter left by vendors on the streets at the end of the day. Needless to say, these cause further pollution, sickness and deterioration of health of the residents therein. (pp. 21-22, Rollo) Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to focus its attention solely on the argument that the use of public spaces for the establishment of a flea market is well within the powers granted by law to a local government which should not be interfered with by the courts. Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws such as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective, the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare. As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls in public roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city streets and restore them to their specific public purpose. The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws applicable during its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already been repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other source of prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such rights were vested. ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which granted the writ of preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 97619 November 26, 1992 SPOUSES SOCRATES PILAPIL and ROSARIO PILAPIL, petitioners, vs. THE COURT OF APPEALS, REGIONAL TRIAL COURT OF CEBU, BRANCH 17, and SPOUSES GORGONIO COLOMIDA and GLORIA COLOMIDA, respondents.

DAVIDE, JR., J: From the denial of 13 February 1991 of their motion for the reconsideration of the 26 October 1990 decision of the Court of Appeals, in CA-G.R. CV No. 17235, 1 which affirmed the 8 February 1988 decision of Branch 17 of the Regional Trial Court (RTC) of Cebu, petitioners filed this petition for review under Rule 45 of the Rules of Court. The kernel issue in this case is whether or not there exists in sitio Bahak, barangay Poblacion, Municipality of Liloan, Province of Cebu a camino vecinal; 2 and if so, whether the same traverses the property belonging to the petitioners. The pleadings disclose the antecedents of this controversy. The petitioners-spouses (hereinafter, Pilapils) own a 6,598 square meter 3 parcel of land situated in Bahak, Poblacion, Liloan, Cebu and covered by Tax Declaration No. 15067. 4 The said parcel corresponds to Lot No. 320 and Lot 323 5 and that portion covered by Plan Psu-07-005007, 6 duly approved by the Regional Director of Region VII of the Bureau of Lands. The land formerly belonged to Marcelo Pilapil, the grandfather of petitioner Socrates Pilapil. Private respondents (hereinafter, Colomidas), who are residents of Mandaue City, purchased on 4 June 1981 from Esteria vda. de Ceniza and the heirs of Leoncio Ceniza a parcel of land, also located at Bahak, Poblacion, Liloan, Cebu, covered by Tax Declaration No. 19764 and described as follows: . . . Boundaries: N-Gregorio Longakit; S-Gregorio Longakit; E-Manglar; W-Gregorio Longkit; Area: 10,910 sq. meters; Kind of land: Pasture cocal and wood; Improvements: 20 cocos prod.; Assessed Value: P1,360.00; Present Possessors: The herein petitioners. 7 This parcel of land, per Plan Psu-07-002763, 8 was found to contain only 6,448 square meters. It is now covered by Free Patent No. (VII-1)-15448, issued on 23 March 1982, and Original Certificate of Title No. P20588 9 of the Register of Deeds of the Province of Cebu issued in the name of the Colomidas and is located around 70 meters from the National Road. The Colomidas claim that they had acquired from Sesenando Longkit a road right of way which leads towards the National Road; this road right of way, however, ends at that portion of the property of the Pilapils where a camino vecinal exists all the way to the said National Road. 10 In the early part of July of 1981, the Colomidas "tried to improve the road of "camino vecinal", for the convenience of the public," but the Pilapils harassed and threatened them with "bodily harm from making said improvement." The Pilapils also threatened to fence off the camino vecinal. 11 Thus, on 16 July 1981, the Colomidas filed against the Pilapils a petition 12 for injunction and damages with a prayer for a writ of preliminary mandatory and/or prohibitory injunction with the Regional Trial Court of Cebu. Docketed as Civil Case No. R-20732, the petition was raffled off to Branch 17 thereof. The Colomidas specifically allege in paragraph IV of the petition that:

. . . Granting arguendo, even in the very remote possibility that the "camino vecinal" cannot be proved, the petitioners are entitled to the use of the same under Articles 649 to 651 of the Civil Code, it being their only access to public (sic) highway. 13 and pray that upon the filing of the petition, a restraining order be issued directing the Pilapils or anyone acting in their behalf to cease and desist from preventing or harassing them (Colomidas) from using the camino vecinaland/or fencing off the same, and after hearing, a writ of preliminary injunction be issued commanding the Pilapils to cease and desist from proceeding with the acts complained of. They also asked that the injunction be made permanent and that the Pilapils be ordered to pay, jointly and severally, the sum of P100,000.00 as moral damages, P50,000.00 as exemplary damages, 10,000.00 as attorney's fees and other litigation expenses as may be duly proved. Consistent with the aforequoted allegation of paragraph IV of the petition, the Colomidas additionally pray that: 6. In the remote possibility that the "camino vecinal" cannot be proved, to consider the same as a right of way for the petitioners and to fix compensation for the sum (sic) at TEN PESOS (P10.00) per square meter. 14 On the other hand, on 29 July 1981, the Pilapils filed against the Colomidas an action for damages in the Municipal Circuit Trial Court (MCTC) of Liloan-Compostela, Cebu which was docketed as Civil Case No. 93R. 15 On 18 August 1981, the Pilapils filed their Answer 16 in Civil Case No. R-20732. They specifically deny therein the existence of a "camino vecinal" on their property and allege, inter alia, that the enclosing of their property and allege, inter alia, that the enclosing of their property by a fence was done in the valid exercise of their right of ownership and that if the Colomidas were prejudiced thereby, they only have themselves to blame for buying said property without verifying its condition and existing easements. As affirmative and special defenses, the Pilapils aver that the petition does not state facts sufficient to constitute a valid cause of action; the Colomidas were the ones who employed threats and intimidation; and, to add insult to injury, the latter caused a heavy bulldozer to enter their (Pilapils) property and cause great damage to the plants and crops in the process. The Pilapils also set up a counterclaim for attorney's fees, reimbursement for the damages caused to their land and moral and exemplary damages as may be determined by the court. During trial on the merits in Civil Case No. R-20732, the Colomidas presented the following witnesses: Gorgonio Colomida, Jr. himself, Sesenado Longakit and Florentino Pepito. They also offered in evidence documentary exhibits. the more relevant and material of which are (1) Resolution No. 106 of the Municipal Council of Liloan passed on 18 August 1973 and entitled "Authorizing the Residents of Bahak, Poblacion, Liloan to Repair and Improve a Camino Vecinal in their Sitio" 17 and (2) a sketch 18 prepared by witness Sesenando Longakit purportedly showing that the camino vecinal traverses the property of the Pilapils. Both Longakit and Pepito testified on the said camino vecinal, insisting that it traverses the property of the Pilapils. Upon the other hand, the Pilapils presented the following as their witnesses: Roman Sungahid, Engineer Epifanio Jordan (the Municipal Planning and Development Coordinator of the Municipality of Liloan) and petitioner Socrates Pilapil. Engineer Jordan testified on Liloan's Urban Land Use Plan 19 or zoning map which he prepared upon the instruction of then Municipal Mayor Cesar Butai and which was approved by the Sangguniang Bayan of Liloan. Per the said plan, the camino vecinal in sitio Bahak does not traverse, but runs along the side 20 of the Pilapil property. 21 On 8 February 1988, the trial court rendered its decision 22 in favor of the Colomidas the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of petitioners, and, accordingly, respondents are permanently enjoined from preventing or harassing petitioners from using the "camino vecinal" across respondents' land at Bahak, Poblacion, Liloan, or from fencing the same or in any manner preventing its use by other people; and respondents are ordered to pay petitioners jointly and severally the sum of P4,500.00 as actual damages, the sum of P5,000.00 as attorney's fees, and the sum of P2,000.00 as litigation expenses. Costs against respondents. SO ORDERED. 23

This disposition is based on the following findings of fact and conclusions: Resolution No. 106 of the Municipal Council of Liloan, passed on August 18, 1973 and entitled "Authorizing the Residents of Bahak, Poblacion, Liloan to Repair and Improve a Camino Vecina (sic) in Their Sitio" (Exh. "A") shows that there is a "camino vecinal" at Bahak. It is true, as claimed by respondents, that Resolution No. 106 does not state that the "camino vecinal" referred to therein traverses respondents' land; however, the following facts of record support petitioners' theory that the said "camino vecinal" runs across respondents' land: 1 Resolution No. 106 (Exh. "A") states that upon inspection of the "camino vecinal" by one of the councilors, it was established that the said "camino vecinal" needed "some improvements to make it usable," but the Municipal Council did not have the necessary funds for the purpose, and that "the residents of Bahak, headed by Mr. Sesenando Longakit, have signified to (sic) repair the camino vecinal on voluntary (sic) basis," hence (sic) it was resolved "to authorize the residents of Bahak to repair aforesaid road" provided the labor would be on a purely voluntary basis, the municipal government would not be liable for any expense, and there would be no discrimination in the use of the road. The "Mr. Sesenando Longkit" alluded to in Resolution No. 106 as heading the residents of Bahak who had asked for authority to repair the "camino vecinal" at Bahak took the witness stand. His testimony has established that he has been residing at Bahak since birth on July 16, 1933, that he is the occupant of a lot (Exh. "B-5") not far from petitioners' lot, and that he and other residents in that area have been using the "camino vecinal" as their access to the National Road. It appears from the sketch (Exh. "B") drawn by Mr. Longakit that the "camino vecinal" traverses the land of respondents (Exhs. "B-6 & "B-7"). Obviously, the "camino vecinal" subject matter of Resolution No. 106 is the "camino vecinal" running across respondents' land, somewhere at the back of which is the land occupied by Mr. Longakit, who for the reason that he and other residents were using that "camino vecinal" offered to the municipal government their services to improve it. 2. As testified to by Mr. Longakit, who has been living at Sitio Bahak since 1933, and whose testimony the Court finds credible, both sides of the "camino vecinal" formerly belonged to the grandfather of respondent Socrates Pilapil, it was that "camino vecinal" in connection with which he secured Resolution No. 106, and that before it was partly fenced by respondents, and when he was a child, everybody could use that "camino vecinal" and carabao carts could pass through it, and, later, 4-wheeled motor vehicles could pass through it. 3. Mr. Florentino Pepito, 79 years of age when he took the witness stand in 1982, and who was a councilor in Liloan from 1955 to 1967, and was chairman of the Committee on Roads & Bridges, testified that the former owner of the lots now owned by respondents at Bahak was Marcelo Pilapil, grandfather of respondent Socrates Pilapil and close (sic) friend of his (witness Pepito) that the subject "camino vecinal"' is located between those lots, and fact he has a parcel of land in that area covered by Tax Declaration No. 36168 (Exh. "E:"), which shows that on the North it is bounded by a "camino vecinal" (Exh. "E-1"), which passes between the two lots of respondents, proceeds to his (witness Pepito's) land, crosses the National Road up to Sitio Looc between Km. 19 and Km. 20, up to Martires Street, facing Camotes; and that when he was a child, he and his father used to pass through that "camino vecinal" in a carabao cart. The Court finds no reason to disbelieve Mr. Pepito's testimony. 24 It discredited the version of the Pilapils in this wise: 4. Respondent Socrates Pilapil insisted on direct examination that there is no "camino vecinal" traversing his lots. However, on cross-examination he declared that his two lots at Bahak, numbered 320 and 323, were formerly covered by two separate tax declarations, but later he had (sic) fused into one, namely Tax Declaration No. 15067 (Exh. "4"), which begins with the year 1985 (long after the present case was filed). Respondent Socrates Pilapil admitted that before the fusion of the two tax declarations covering Lots 320 and 323 owned by him, those tax declarations showed that there was a "camino vecinal" at the South boundary of Lot 320 and at the North Boundary of Lot 323, but after the fusion of the two tax declarations into one, the "camino vecinal" no longer appears in the new tax declaration (Exh. "4").

In the face of the foregoing established facts, it would appear that the common testimony of respondent Socrates Pilapil and Ramon Sungahid to the effect that there is no "camino vecinal" across respondents' lots is nothing more than an unsupported conclusion. Mr. Sungahid adamantly insisted that there was no such "camino vecinal" despite the fact that he was confronted on cross-examination with tax declarations stating that there was a "camino vecinal" across respondents' lot. Ironically, when respondent Socrates Pilapil later took the witness stand, as already stated, he himself admitted that the tax declarations previously covering his two lots showed that there was a "camino vecinal" between the lots. Respondents' other witness, Engr. Epifanio Jordan, Municipal Planning & Development Coordinator of Liloan, prepared a zoning map (Exh. "1") of Poblacion, Liloan. The map contains a portion (Exh. "1-F") which shows "camino vecinal" passing through the land of respondents at Bahak, but he declared that the "camino vecinal" on the map is merely a proposal by his office to the Sangguniang Bayan of Liloan. The Court notes that in the map (Exh. "I") (sic) some streets and projects are labelled "proposed," but the "camino vecinal" (Exh. "I-F") (sic) which Engr. Jordan admits to be passing through respondents' land is not so labelled. Besides, it is not clear whether or not he was authorized him. On direct examination he declared that the Sangguniang Bayan instructed him to prepare the map; but on crossexamination he stated, when asked whether the Sangguniang Bayan authorized him to prepare the map, that it was the Mayor who directed him to do so. 25 The Pilapils appealed from the above decision to the public respondent Court of Appeals which docketed the case as CA-G.R. CV No. 17235. In support of their plea for the reversal of the decision, the Pilapils sought to convince the public respondent that the trial court erred in: I . . . HOLDING THAT A CAMINO VECINAL EXISTED ACROSS THE LOT OF THE DEFENDANTS . . . II . . . NOT APPRECIATING THE EVIDENCE PRESENTED BY THE DEFENDANTS . . . III . . . CONDEMNING THE DEFENDANT . . . TO PAY PLAINTIFFS . . . JOINTLY AND SEVERALLY THE SUM OF P4,500.00 AS ACTUAL DAMAGES, THE SUM OF P5,000.00 AS ATTORNEY'S FEES, THE SUM OF P2,000.00 AS LITIGATION EXPENSES AND TO PAY THE COSTS. IV . . . NOT AWARDING TO DEFENDANTS . . . DAMAGES TO COMPENSATE FOR THE DAMAGED CONCRETE SLABS, COCONUTS, BANANAS AND OTHER FRUIT TREES THAT WAS (sic) CAUSED BY THE BULLDOZER HIRED BY THE PLAINTIFFS . . . ATTORNEY'S FEES, LITIGATION EXPENSES AND COSTS. 26 In its decision affirming in toto the 8 February 1988 ruling of the trial court, the public respondent opined that the arguments adduced in support of the assigned errors boil down to the question of credibility of the witnesses and the weight assigned by the lower court to their testimonies and the documentary exhibits. It then concluded that (a) there exists no exception to the deeply rooted rule that findings of fact of trial courts are entitled to great weight and respect and will not be disturbed on appeal; (b) while the 18 August 1973 Resolution of the Municipal Council of Liloan (Exhibit "A") does not state that the camino vecinal traverses the property of the Pilapils, the testimony of Sesenando Longakit, the person named therein who has knowledge of the surrounding facts and circumstances, and who was present during the deliberations, passage and signing thereof, confirmed the existence of the camino vecinal on the property of the Pilapils; (c) as to the claimed damages to the fruit trees and other plants belonging to the Pilapils, the same had been separately litigated on, at the latter's instance, before the Municipal Circuit Trial Court and had already been resolved against the Pilapils; besides, there is insufficient proof to indicate that damage was done to such plants or that the Pilapils planted trees and other plants on the camino vecinal; and (d) there is no merit in the claim that witnesses Longakit and Pepito, being private individuals, are incompetent to testify on the existence and location of the camino vecinal; both possess all the qualifications and none of the disqualification's for witnesses under Section 20, Rule 130 of the Rules of Court. As regards Exhibit "1" which the Pilapils relied upon in support of their theory that the camino vecinal does not traverse their property, the public respondent made the following disquisition: Respondents-appellants' Exhibit "1" is a zoning map for the Poblacion of the Municipality of Liloan (TSN, Epifanio Jordan, February 12 1986, p. 6), prepared and testified to by Engineer Epifanio Jordan, Municipal Planning and Development Coordinator of Liloan. By this Exhibit,

respondents-appellants attempted to show that no "camino vecinal" existed across their land, and that although there is a "camino vecinal" illustrated therein, it is a proposed one and does not traverse, but only passes through the side of their land (TSN, Epifanio Jordan, November 5, 1985, p. 10; Exhibit "1-F"). After a thorough perusal of Exhibit "1" and a careful review of the transcript of stenographic notes taken on November 5, 1985 and February 12, 1986, We find that the "camino vecinal" illustrated in Exhibit "1" and claimed by witness Engineer Epifanio Jordan as a proposed "camino vecinal" (TSN, Epifanio Jordan, November 5, 1985, p. 10), is indeed not so labelled as the other proposed streets or passageways are. And more importantly, witness Engineer Epifanio Jordan did in fact admit and establish the existence of the "camino vecinal" traversing respondents-appellants land. Respondents-appellants' witness, Engineer Epifanio Jordan produced before the lower court an old map of the Poblacion which was drawn and traced by a certain Atty. Sotero Auman, and from which said witnesses (sic) based his Exhibit "1". In Exhibit "1" witness Engineer Epifanio Jordan identified respondents-appellants' land as that encompassed in the circle, Exhibit "1-C" also Exhibit "G-1". On cross-examination, when confronted and asked to compare his zoning map (Exhibit "1") with the old map, it was shown that said Exhibit "1-A" also Exhibit "G-1", encompasses the figures "320" and "323" Lot numbers appearing in the old map, and (sic) consequently, was (sic) identified by said witness and marked as Exhibits "G-1b" and "G-1-c" respectively, in Exhibit "1"; and that furthermore, the "camino vecinal," Exhibit "G-1-a", passess (sic) between Lot Nos. 320 and 323 which lots (sic) belong to respondentsappellants (TSN, Epifanio Jordan, February 12, 1986, pp. 1-13). It is noted that on direct examination, witness Engineer Epifanio Jordan testified that the Sangguniang Bayan of Liloan, Cebu, instructed him to prepare the zoning map (Exhibit "1") (TSN, Epifanio Jordan, November 5, 1985, p. 9) but on cross-examination, stated (sic) that he did so upon oral orders of the mayor (TSN, Epifanio Jordan, February 12, 1986, pp. 6-7). Also on cross-examination, said witness testified that the zoning map (Exhibit "1") prepared by him was based on an old map drawn and traced by Atty. Sotero Auman, a casual worker in the Municipality of Liloan (Ibid., pp. 8 and 14) yet on redirect examination testified (sic) that he did not know who authorized said Atty. Sotero Auman to draw the map which served as his basis for Exhibit "1", or if it was approved by the Sangguniang Bayan of Liloan (Ibid., pp. 14-15). 27 Their motion for the reconsideration of the above decision having been denied by the public respondent Court of Appeals in its Resolution of 13 February 1991, 28 the Pilapils filed by mail on 8 April 1991 the instant petition. They interpose the following ground for the allowance thereof: 4. The respondent Court, in affirming the Decision of the respondent RTC and in denying petitioners' motion for reconsideration, acted in a manner so patently and grossly contrary to law and jurisprudence, resulting in a miscarriage of justice to the prejudice and detriment of petitioners, by: 4.1. disregarding the official act of the Sangguniang Bayan of the Municipality of Lilo-an, Cebu; 4.2. quoting merely a portion of the testimony of a witness and not the totality of his testimony; 4.3. considering documentary exhibits not formally offered in evidence; 4.4. affirming the award of damages to the private respondent, and 4.5. affirming the denial of the award of damages to the petitioners. 29 In a Manifestation 30 posted on 17 May 1991, the Colomidas pray for the dismissal of the petition on the basis of the rule on conclusiveness of findings of fact of the Court of Appeals; they further aver that the petition is but another attempt on the part of the Pilapils to unjustly delay the final resolution of the case.

Petitioners moved to expunge 31 the Manifestation on the ground that it was filed without prior leave of the Court and that it is not one of the pleadings allowed by the Rules of Court or required by this Court. We denied this motion, considered the Manifestation as the Colomidas' Comment to the petition and required the Pilapils to file a reply thereto, 32 which they subsequently complied with 33 We then gave due course to the petition and required the parties to submit their respective Memoranda.
34

The core issue in this case, as already stated, is whether or not the Municipality of Liloan has a camino vecinal in sitio Bahak of barangay Poblacion, and if it does, whether such road traverses the property of the Pilapils of only passes along its side. While both parties agree that a camino vecinal actually exists, the Colomidas assert that the same traverses the property of the Pilapils. The latter, on the other hand, vigorously maintain that it does not. By any standard, the issue is quite simple and could have been easily resolved without much procedural fanfare if the trial court either took full advantage of the rule on pre-trial, 35 or conducted an ocular inspection of the premises. Such inspection would have been a wise course of action 36 to take in view of the divergent versions of the parties as to the location of the camino vecinal. Even the Colomidas, as petitioners below, could have expedited the resolution of the controversy by moving for the appointment of a commissioner who could determine the exact location of the camimo vecinal and submit a vicinity map or plan indicating the same; and, if the parties cannot agree on its location, the latter could indicate its relative locations on the basis of the parties' respective versions. The trial court's decision does not even make any reference to a pre-trial conference being held. Neither does it appear that the appointment of a commissioner, allowed by the Rules of Court, 37 was sought. As a consequence thereof, it took the trial court more than six (6) long years to decide the case. And even then, it had to contend with conflicting testimonial evidence and draw conclusions from a sketch prepared by witness Sesenando Longakit, the zoning map prepared by Engineer Jordan and various tax declarations. The above issue has been further obscured by the unnecessary quibbling on whether or not the testimonies of Sesenando Longakit and Florentino Pepito should be accorded full faith and credit. To this Court's mind, the issue of their credibility has been rendered moot by the unrebutted evidence which shows that the Municipality of Liloan, through its Sangguniang Bayan, had approved a zoning plan, otherwise called an Urban Land Use Plan. 38 This plan indicates the relative location of the camino vecinal in sitio Bahak, 39 Poblacion, Liloan, Cebu. It is beyond dispute that the establishment, closure or abandonment of the camino vecinal is the sole prerogative of the Municipality of Liloan. No private party can interfere with such a right. Thus, even if We are to agree with both the trial court and public respondent that Longakit and Pepito were telling the truth, the decision of the Municipality of Liloan with respect to the said camino vecinal in sitio Bahak must prevail. It is thus pointless to concentrate on the testimonies of both witnesses since the same have, for all intents and purposes, become irrelevant. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property.40 The first consists of the provincial roads, city streets, municipal streets, squares, fountains, public waters, promenades, and public works for public service paid for by the said provinces, cities or municipalities. 41 They are governed by the same principles as property of public dominion of the same character. 42 Under the applicable law in this case, Batas Pambansa Blg. 337 (The Local Government Code), the Sangguniang Bayan, the legislative body of the municipality, 43 had the power to adopt zoning and subdivision ordinances or regulations subject to the provisions of existing laws, and to provide for the construction, improvement, repair and maintenance of municipal streets, avenues, alleys, sidewalks, bridges, parks and other public places, regulate the use thereof and prohibit the construction or placing of obstacles or encroachments on them 44 Section 10, Chapter 2, Title One, Book I of said Code provided: 45 Sec. 10. Closure of roads. A local government unit may likewise, through its head acting pursuant to a resolution of its Sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or place or any part thereof shall be closed without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed. A camino vecinal is a municipal road. It is also property for public use. Pursuant, therefore, to the above powers of a local government unit, the Municipality of Liloan had the unassailable authority to (a) prepare and adopt a land use map, (b) promulgate a zoning ordinance which may consider, among other things, the municipal roads to be constructed, maintained, improved or repaired and (c) close any municipal road.

In the instant case, the Municipality of Liloan, through the Sangguniang Bayan, approved the Urban Land Use Plan; this plan was duly signed by the Municipal Mayor (Exhibit "1"). By doing so, the said legislative body determined, among others, the location of the camino vecinal in sitio Bahak. The following unrebutted testimony of Engineer Epifanio Jordan shows that the same was approved by the Sangguniang Bayan: ATTY. CAETE: xxx xxx xxx Q After you prepared this map, what did you do with this? A I submitted the map to the Sangguniang Bayan of Liloan, Cebu for approval and action. Q What action was taken by the Sangguniang Bayan of Liloan, Cebu in (sic) this map that you prepared and submitted? A It approved the map. Q Why do you know that this map was approved by the Sangguniang Bayan of Liloan, Cebu? A I was present during the session. COURT: Q You mean there was a resolution passed by the Sangguniang Bayan of Liloan, Cebu? A Yes, sir. 46 The reluctance of the trial court and public respondent to give due weight to the testimony of Engineer Jordan stemmed from a doubt as to his authority to prepare the plan. There is also some confusion regarding the party who directed him to do so. Both courts observed that while on direct examination, he testified that the Sangguniang Bayan instructed him to prepare the zoning map, 47 during cross-examination, he stated that he prepared it upon the Mayor's oral order. 48 Such inconsistency is quite trivial and hence, did not affect the preparation and subsequent approval of the zoning map. In the first place, under the applicable law, the mayor was both a member and the presiding officer of the Sangguniang Bayan. 49 Secondly, what invested the zoning map with legal effect was neither the authority of the person who ordered its preparation nor the authority of the person who actually prepared it, but its approval by the Sangguniang Bayan. Furthermore, with or without the order of the Mayor or Sangguniang Bayan, Engineer Jordan, as the then Municipal Planning and Development Coordinator, had the authority to prepare the plan and admit it to the Sangguniang Bayan for approval. Among his functions under the governing law at the time was to formulate an integrated economic, social, physical and other development objectives and policies for the consideration and approval of the sangguniang bayan and the municipal mayor, and prepare municipal comprehensive plans and other development planning document. 50Thus, even if he had not been instructed by anyone to prepare the map, he could nevertheless, on his own initiative and by virtue of his functions, make one. The trial court and public respondent then failed to appreciate the role and function of a Municipal Planning and Development Coordinator. As further declared by Engineer Jordan, this camino vecinal in sitio Bahak "passes the side of the land of Socrates Pilapil. This is the proposed road leading to the national highway." 51 The Colomidas presented no rebuttal witness to show that by the approval of the zoning map by the Sangguniang Bayan, they were effectively deprived of access to the national highway from their property. Of course, they may argue that the zoning map was prepared for and approved by the Sangguniang Bayan after the filing of their petition in Civil Case No. R-20732. Be that as it may, this preparation and approval, clearly a supervening event, was relied upon, introduced in evidence without objection on the part of the Colomidas and evaluated by the trial court. In short, the latter allowed the issue raised by the supervening event to be tried. There was nothing procedurally objectionable to this; on the contrary, Section 5, Rule 10 of the Rules of Court allows it. Said section reads:

Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleading, to be amended and shall do so freely when the presentation on the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. Such supervening fact, duly proved to be an official act of the Municipality of Liloan, binds not only the Pilapils and the Colomidas, but also the general public. The solemn declarations of old people like Sesenando Longakit and Florentino Pepito cannot overturn the decision of the Municipality of Liloan. The foregoing exposition renders unnecessary further discussion on the other issues raised by the petitioners. WHEREFORE, the instant Petition is GRANTED. The challenged Decision of 26 October 1990 and Resolution of 13 February 1991 of public respondent Court of Appeals in CA-G.R. CV No. 17235, as well as the Decision of 8 February 1988 of Branch 17 of the Regional Trial Court of Cebu in Civil Case No. R-20732 are hereby SET ASIDE. Said Civil Case No. R-20732 is hereby DISMISSED with costs against the private respondents. SO ORDERED. Gutierrez, Jr., Romero and Melo, JJ., concur. Bidin, J., took no part. Footnotes

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 135962 March 27, 2000

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. BEL-AIR VILLAGE ASSOCIATION, INC., respondent. PUNO, J.: Not infrequently, the government is tempted to take legal shortcuts solve urgent problems of the people. But even when government is armed with the best of intention, we cannot allow it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the illegal attempt of the MMDA to open for public use a private road in a private subdivision. While we hold that the general welfare should be promoted, we stress that it should not be achieved at the expense of the rule of law. Petitioner MMDA is a government agency tasked with the delivery of basic services in Metro Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit corporation whose members are homeowners in Bel-Air Village, a private subdivision in Makati City. Respondent BAVA is the registered owner of Neptune Street, a road inside Bel-Air Village. On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. The notice reads: SUBJECT: NOTICE of the Opening of Neptune Street to Traffic. Dear President Lindo, Please be informed that pursuant to the mandate of the MMDA law or Republic Act No. 7924 which requires the Authority to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons, Neptune Street shall be opened to vehicular traffic effective January 2, 1996. In view whereof, the undersigned requests you to voluntarily open the points of entry and exit on said street. Thank you for your cooperation and whatever assistance that may be extended by your association to the MMDA personnel who will be directing traffic in the area. Finally, we are furnishing you with a copy of the handwritten instruction of the President on the matter. Very truly yours, PROSPERO I. ORETA Chairman 1 On the same day, respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial court issued a temporary restraining order the following day.

On January 23, 1996, after due hearing, the trial court denied issuance of a preliminary injunction. 2 Respondent questioned the denial before the Court of Appeals in CA-G.R. SP No. 39549. The appellate court conducted an ocular inspection of Neptune Street 3 and on February 13, 1996, it issued a writ of preliminary injunction enjoining the implementation of the MMDA's proposed action. 4 On January 28, 1997, the appellate court rendered a Decision on the merits of the case finding that the MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. The decision disposed of as follows: WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23, 1995, in Civil Case No. 96-001, is SET ASIDE and the Writ of Preliminary Injunction issued on February 13, 1996 is hereby made permanent. For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario in contempt is denied. 5 No pronouncement as to costs. SO ORDERED. 6 The Motion for Reconsideration of the decision was denied on September 28, 1998. Hence, this recourse. Petitioner MMDA raises the following questions: I HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE STREET TO PUBLIC TRAFFIC PURSUANT TO ITS REGULATORY AND POLICE POWERS? II IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE THE MMDA MAY ORDER THE OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC? III IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM DENYING OR ASSAILING THE AUTHORITY OF THE MMDA TO OPEN THE SUBJECT STREET? IV WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL MEETINGS HELD BETWEEN MMDA AND THE AFFECTED EEL-AIR RESIDENTS AND BAVA OFFICERS? V HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?7 Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a private residential subdivision in the heart of the financial and commercial district of Makati City. It runs parallel to Kalayaan Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates. Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic

services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court. 8 From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public.9 Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. 10 The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. 11 It bears stressing that police power is lodged primarily in the National Legislature. 12 It cannot be exercised by any group or body of individuals not possessing legislative power. 13 The National Legislature, however, may delegatethis power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. 14 Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. 15 A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." 16The Local Government Code of 1991 defines a local government unit as a "body politic and corporate." 17 one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. 18 Local government units are the provinces, cities, municipalities and barangays. 19 They are also the territorial and political subdivisions of the state. 20 Our Congress delegated police power to the local government units in the Local Government Code of 1991 . This delegation is found in Section 16 of the same Code, known as the general welfare clause, viz: Sec. 16. General Welfare. Every 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. 21 Local government units exercise police power through their respective legislative bodies . The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is thesangguniang barangay. The Local Government Code of 1991 empowers the sangguniang panlalawigan,sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], 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 . . . " 22 The same Code gives the sangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon." 23 Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924 24 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. 25 "Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." 26 There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5)

urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following: (b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users;administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs , including the institution of a single ticketing system in Metropolitan Manila;" 27 In the delivery of the seven (7) basic services, the MMDA has the following powers and functions: Sec. 5. Functions and powers of the Metro Manila Development Authority. The MMDA shall: (a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs for the delivery of metro-wide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities; (b) Prepare, coordinate and regulate the implementation of medium-term investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions; (c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices; (d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation; (e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management , specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation,including but not limited to, assignment of personnel, by all other government agencies and offices concerned; (f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila , through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and (g) Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned. The implementation of the MMDA's plans, programs and projects is undertaken by the local government units, national government agencies, accredited people's organizations, non-governmental organizations, and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into contracts, memoranda of agreement and other arrangements with these bodies for the delivery of the required services Metro Manila. 28 The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila Vice-Mayors' League and the president of the Metro Manila Councilors' League. 29 The Council is headed by Chairman who is appointed by the President and vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro

Manila Council approves metro-wide plans, programs and projects, and issues the necessary rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and promulgate the rules and regulations for the delivery of basic services, collection of service and regulatory fees, fines and penalties. These functions are particularly enumerated as follows: Sec. 6. Functions of the Metro Manila Council. (a) The Council shall be the policy-making body of the MMDA; (b) It shall approve metro-wide plans, programs and projects and issue rules and regulations deemed necessary by the MMDA to carry out the purposes of this Act; (c) It may increase the rate of allowances and per diems of the members of the Council to be effective during the term of the succeeding Council. It shall fix the compensation of the officers and personnel of the MMDA, and approve the annual budget thereof for submission to the Department of Budget and Management (DBM); (d) It shall promulgate rules and regulations and set policies and standards for metro-wide application governing the delivery of basic services, prescribe and collect service and regulatory fees, and impose and collect fines and penalties. Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under the service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, "development authority." 30 It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz: Sec. 2. Creation of the Metropolitan Manila Development Authority. . . . . The MMDA shall perform planning, monitoring and coordinative functions, and in the process exerciseregulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters. 31 Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate Court 32 where we upheld a zoning ordinance issued by the Metro Manila Commission (MMC), the predecessor of the MMDA, as an exercise of police power. The first Sangalang decision was on the merits of the petition, 33 while the second decision denied reconsideration of the first case and in addition discussed the case of Yabut v. Court of Appeals. 34 Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and three residents of BelAir Village against other residents of the Village and the Ayala Corporation, formerly the Makati Development Corporation, as the developer of the subdivision. The petitioners sought to enforce certain restrictive easements in the deeds of sale over their respective lots in the subdivision. These were the prohibition on the

setting up of commercial and advertising signs on the lots, and the condition that the lots be used only for residential purposes. Petitioners alleged that respondents, who were residents along Jupiter Street of the subdivision, converted their residences into commercial establishments in violation of the "deed restrictions," and that respondent Ayala Corporation ushered in the full commercialization" of Jupiter Street by tearing down the perimeter wall that separated the commercial from the residential section of the village. 35 The petitions were dismissed based on Ordinance No. 81 of the Municipal Council of Makati and Ordinance No. 81-01 of the Metro Manila Commission (MMC). Municipal Ordinance No. 81 classified Bel-Air Village as a Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street. The Municipal Ordinance was adopted by the MMC under the Comprehensive Zoning Ordinance for the National Capital Region and promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated therein as bounded by Jupiter Street and the block adjacent thereto was classified as a High Intensity Commercial Zone. 36 We ruled that since both Ordinances recognized Jupiter Street as the boundary between Bel-Air Village and the commercial district, Jupiter Street was not for the exclusive benefit of Bel-Air residents. We also held that the perimeter wall on said street was constructed not to separate the residential from the commercial blocks but simply for security reasons, hence, in tearing down said wall, Ayala Corporation did not violate the "deed restrictions" in the deeds of sale. We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate exercise of police power. 37 The power of the MMC and the Makati Municipal Council to enact zoning ordinances for the general welfare prevailed over the "deed restrictions". In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street was warranted by the demands of the common good in terms of "traffic decongestion and public convenience." Jupiter was opened by the Municipal Mayor to alleviate traffic congestion along the public streets adjacent to the Village. 38 The same reason was given for the opening to public vehicular traffic of Orbit Street, a road inside the same village. The destruction of the gate in Orbit Street was also made under the police power of the municipal government. The gate, like the perimeter wall along Jupiter, was a public nuisance because it hindered and impaired the use of property, hence, its summary abatement by the mayor was proper and legal. 39 Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of Bulacan. 40Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning; and this coordination, "especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the flames of rebellion and discontent [were] part of reform measures under Martial Law essential to the safety and security of the State."41 Metropolitan Manila was established as a "public corporation" with the following powers:

Sec. 1. Creation of the Metropolitan Manila. There is hereby created a public corporation, to be known as the Metropolitan Manila, vested with powers and attributes of a corporation including the power to make contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer and dispose of property and such other powers as are necessary to carry out its purposes . The Corporation shall be administered by a Commission created under this Decree. 42 The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) vested with the following powers: Sec. 4. Powers and Functions of the Commission. The Commission shall have the following powers and functions: 1. To act as a central government to establish and administer programs and provide services common to the area; 2. To levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness. Existing tax measures should, however, continue to be operative until otherwise modified or repealed by the Commission; 3. To charge and collect fees for the use of public service facilities; 4. To appropriate money for the operation of the metropolitan government and review appropriations for the city and municipal units within its jurisdiction with authority to disapprove the same if found to be not in accordance with the established policies of the Commission, without prejudice to any contractual obligation of the local government units involved existing at the time of approval of this Decree; 5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within Metropolitan Manila; 6. To enact or approve ordinances, resolutions and to fix penalties for any violation thereof which shall not exceed a fine of P10,000.00 or imprisonment of six years or both such fine and imprisonment for a single offense; 7. To perform general administrative, executive and policy-making functions; 8. To establish a fire control operation center, which shall direct the fire services of the city and municipal governments in the metropolitan area; 9. To establish a garbage disposal operation center, which shall direct garbage collection and disposal in the metropolitan area; 10. To establish and operate a transport and traffic center, which shall direct traffic activities; 11. To coordinate and monitor governmental and private activities pertaining to essential services such as transportation, flood control and drainage, water supply and sewerage, social, health and environmental services, housing, park development, and others; 12. To insure and monitor the undertaking of a comprehensive social, economic and physical planning and development of the area; 13. To study the feasibility of increasing barangay participation in the affairs of their respective local governments and to propose to the President of the Philippines definite programs and policies for implementation; 14. To submit within thirty (30) days after the close of each fiscal year an annual report to the President of the Philippines and to submit a periodic report whenever deemed necessary; and 15. To perform such other tasks as may be assigned or directed by the President of the Philippines.

The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. P.D. No. 824 further provided: Sec. 9. Until otherwise provided, the governments of the four cities and thirteen municipalities in the Metropolitan Manila shall continue to exist in their present form except as may be inconsistent with this Decree. The members of the existing city and municipal councils in Metropolitan Manila shall, upon promulgation of this Decree, and until December 31, 1975, become members of the Sangguniang Bayan which is hereby created for every city and municipality of Metropolitan Manila. In addition, the Sangguniang Bayan shall be composed of as many barangay captains as may be determined and chosen by the Commission, and such number of representatives from other sectors of the society as may be appointed by the President upon recommendation of the Commission. xxx xxx xxx

The Sangguniang Bayan may recommend to the Commission ordinances, resolutions or such measures as it may adopt; Provided, that no such ordinance, resolution or measure shall become effective, until after its approval by the Commission; and Provided further, that the power to impose taxes and other levies, the power to appropriate money and the power to pass ordinances or resolutions with penal sanctions shall be vested exclusively in the Commission. The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided: Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao. 43 Section 11 of the same Article X thus provided: Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

Constitution itself expressly provides that Congress may, by law, create "special metropolitan political subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies. 44 Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority, viz: Sec. 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area. 45 In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA. 46 It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila." 47 The MMA's governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power. 48 Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMA's jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly." 49 When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the House of Representatives by the Committee on Local Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the local government units in the National Capital Region (NCR), with former Chairmen of the MMC and MMA,50 and career officials of said agencies. When the bill was first taken up by the Committee on Local Governments, the following debate took place: THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been debated a long time ago, you know. It's a special . . . we can create a special metropolitan political subdivision. Actually, there are only six (6) political subdivisions provided for in the Constitution: barangay, municipality, city, province, and we have the Autonomous Region of Mindanao and we have the Cordillera. So we have 6. Now. . . . . HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous Region, that is also specifically mandated by the Constitution. THE CHAIRMAN: That's correct. But it is considered to be a political subdivision. What is the meaning of a political subdivision? Meaning to say, that it has its own government, it has its own political personality, it has the power to tax, and all governmental powers: police power and everything. All right. Authority is different; because it does not have its own government. It is only a council, it is an organization of political subdivision, powers, "no, which is not imbued with any political power. If you go over Section 6, where the powers and functions of the Metro Manila Development Authority, it is purely coordinative. And it provides here that the council is policy-making. All right. Under the Constitution is a Metropolitan Authority with coordinative power. Meaning to say, it coordinates all of the different basic services which have to be delivered to the constituency. All right.

There is now a problem. Each local government unit is given its respective . . . as a political subdivision. Kalookan has its powers, as provided for and protected and guaranteed by the Constitution. All right, the exercise. However, in the exercise of that power, it might be deleterious and disadvantageous to other local government units. So, we are forming an authority where all of these will be members and then set up a policy in order that the basic services can be effectively coordinated. All right. Of course, we cannot deny that the MMDA has to survive. We have to provide some funds, resources. But it does not possess any political power. We do not elect the Governor. We do not have the power to tax. As a matter of fact, I was trying to intimate to the author that it must have the power to sue and be sued because it coordinates. All right. It coordinates practically all these basic services so that the flow and the distribution of the basic services will be continuous. Like traffic, we cannot deny that. It's before our eyes. Sewerage, flood control, water system, peace and order, we cannot deny these. It's right on our face. We have to look for a solution. What would be the right solution? All right, we envision that there should be a coordinating agency and it is called an authority. All right, if you do not want to call it an authority, it's alright. We may call it a council or maybe a management agency. xxx xxx x x x 51

Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill's presentation to Congress. Thus: THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this was already approved before, but it was reconsidered in view of the proposals, set-up, to make the MMDA stronger. Okay, so if there is no objection to paragraph "f". . . And then next is paragraph "b," under Section 6. "It shall approve metro-wide plans, programs and projects and issue ordinances or resolutions deemed necessary by the MMDA to carry out the purposes of this Act ." Do you have the powers? Does the MMDA... because that takes the form of a local government unit, a political subdivision. HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it has the policies, it's very clear that those policies must be followed. Otherwise, what's the use of empowering it to come out with policies. Now, the policies may be in the form of a resolution or it may be in the form of a ordinance. The term "ordinance" in this case really gives it more teeth, your honor. Otherwise, we are going to see a situation where you have the power to adopt the policy but you cannot really make it stick as in the case now, and I think here is Chairman Bunye. I think he will agree that that is the case now. You've got the power to set a policy, the body wants to follow your policy, then we say let's call it an ordinance and see if they will not follow it. THE CHAIRMAN: That's very nice. I like that. However, there is a constitutional impediment.1wphi1 You are making this MMDA a political subdivision. The creation of the MMDA would be subject to a plebiscite. That is what I'm trying to avoid. I've been trying to avoid this kind of predicament. Under the Constitution it states: if it is a political subdivision, once it is created it has to be subject to a plebiscite. I'm trying to make this as administrative. That's why we place the Chairman as a cabinet rank. HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is . . . . . THE CHAIRMAN: In setting up ordinances, it is a political exercise, Believe me. HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and regulations. That would be . . . it shall also be enforced. HON. BELMONTE: Okay, I will . . . . HON. LOPEZ: And you can also say that violation of such rule, you impose a sanction. But you know, ordinance has a different legal connotation.

HON. BELMONTE: All right, I defer to that opinion, your Honor. THE CHAIRMAN: So instead of ordinances, say rules and regulations. HON. BELMONTE: Or resolutions. Actually, they are actually considering resolutions now. THE CHAIRMAN: Rules and resolutions. HON. BELMONTE: Rules, regulations and resolutions. 52 The draft of H. B. No. 14170/11116 was presented by the Committee to the House of Representatives. The explanatory note to the bill stated that the proposed MMDA is a "development authority" which is a "national agency, not a political government unit." 53 The explanatory note was adopted as the sponsorship speech of the Committee on Local Governments. No interpellations or debates were made on the floor and no amendments introduced. The bill was approved on second reading on the same day it was presented. 54 When the bill was forwarded to the Senate, several amendments were made.1wphi1 These amendments, however, did not affect the nature of the MMDA as originally conceived in the House of Representatives. 55 It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected." 56 R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, 57 whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues as they are unnecessary. We stress that this decision does not make light of the MMDA's noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our people's productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law. 1wphi1.nt IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 39549 are affirmed. SO ORDERED. Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

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. 43-89 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.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 103125 May 17, 1993 PROVINCE OF CAMARINES SUR, represented by GOV. LUIS R. VILLAFUERTE and HON. BENJAMIN V. PANGA as Presiding Judge of RTC Branch 33 at Pili, Camarines Sur, petitioners, vs. THE COURT OF APPEALS (THIRD DIVISION), ERNESTO SAN JOAQUIN and EFREN SAN JOAQUIN,respondents. The Provincial Attorney for petitioners. Reynaldo L. Herrera for Ernesto San Joaquin.

QUIASON, J.: In this appeal by certiorari from the decision of the Court of Appeals in AC-G.R. SP No. 20551 entitled "Ernesto N. San Joaquin, et al., v. Hon. Benjamin V. Panga, et al.," this Court is asked to decide whether the expropriation of agricultural lands by local government units is subject, to the prior approval of the Secretary of the Agrarian Reform, as the implementator of the agrarian reform program. On December 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. The "WHEREAS" clause o:f the Resolution states: WHEREAS, the province of Camarines Sur has adopted a five-year Comprehensive Development plan, some of the vital components of which includes the establishment of model and pilot farm for non-food and non-traditional agricultural crops, soil testing and tissue culture laboratory centers, 15 small scale technology soap making, small scale products of plaster of paris, marine biological and sea farming research center,and other progressive feasibility concepts objective of which is to provide the necessary scientific and technology know-how to farmers and fishermen in Camarines Sur and to establish a housing project for provincial government employees; WHEREAS, the province would need additional land to be acquired either by purchase or expropriation to implement the above program component; WHEREAS, there are contiguous/adjacent properties to be (sic) present Provincial Capitol Site ideally suitable to establish the same pilot development center; WHEREFORE . . . . Pursuant to the Resolution, the Province of Camarines Sur, through its Governor, Hon. Luis R.Villafuerte, filed two separate cases for expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin, docketed as Special Civil Action Nos. P-17-89 and P-19-89 of the Regional Trial Court, Pili, Camarines Sur, presided by the Hon. Benjamin V. Panga.

Forthwith, the Province of Camarines Sur filed a motion for the issuance of writ of possession. The San Joaquins failed to appear at the hearing of the motion. The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. In an order dated December 6, 1989, the trial court denied the motion to dismiss and authorized the Province of Camarines Sur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. The trial court issued a writ of possession in an order dated January18, 1990. The San Joaquins filed a motion for relief from the order, authorizing the Province of Camarines Sur to take possession of their property and a motion to admit an amended motion to dismiss. Both motions were denied in the order dated February 1990. In their petition before the Court of Appeals, the San Joaquins asked: (a) that Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order dated December 6, 1989 (i) denying the motion to dismiss and (ii) allowing the Province of Camarines Sur to take possession of the property subject of the expropriation and the order dated February 26, 1990, denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of injunction. In its answer to the petition, the Province of Camarines Sur claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of Local Government Code (B.P. Blg. 337) and that the expropriations are for a public purpose. Asked by the Court of Appeals to give his Comment to the petition, the Solicitor General stated that under Section 9 of the Local Government Code (B.P. Blg. 337), there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. However, the Solicitor General expressed the view that the Province of Camarines Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project. The Court of Appeals set aside the order of the trial court, allowing the Province of Camarines Sur to take possession of private respondents' lands and the order denying the admission of the amended motion to dismiss. It also ordered the trial court to suspend the expropriation proceedings until after the Province of Camarines Sur shall have submitted the requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non-agricultural land. Hence this petition. It must be noted that in the Court of Appeals, the San Joaquins asked for: (i) the dismissal of the complaints for expropriation on the ground of the inadequacy of the compensation offered for the property and (ii) the nullification of Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan of the Province of Camarines Sur. The Court of Appeals did not rule on the validity of the questioned resolution; neither did it dismiss the complaints. However, when the Court of Appeals ordered the suspension of the proceedings until the Province of Camarines Sur shall have obtained the authority of the Department of Agrarian Reform to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use. Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SC.RA 461 [1987]). The expropriation of the property authorized by the questioned resolution is for a public purpose. The establishment of a pilot development center would inure to the direct benefit and advantage of the people of the

Province of Camarines Sur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced. The housing project also satisfies the public purpose requirement of the Constitution. As held in Sumulong v. Guerrero, 154 SCRA 461, "Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum the general welfare." It is the submission of the Province of Camarines Sur that its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law (R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the Department of Agrarian Reform before a parcel of land can be reclassified from an agricultural to a non-agricultural land. The Court of Appeals, following the recommendation of the Solicitor General, held that the Province of Camarines Sur must comply with the provision of Section 65 of the Comprehensive Agrarian Reform Law and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the San Joaquins. In Heirs of Juancho Ardana v. Reyes, 125 SCRA 220, petitioners raised the issue of whether the Philippine Tourism Authority can expropriate lands covered by the "Operation Land Transfer" for use of a tourist resort complex. There was a finding that of the 282 hectares sought to be expropriated, only an area of 8,970 square meters or less than one hectare was affected by the land reform program and covered by emancipation patents issued by the Ministry of Agrarian Reform. While the Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest," it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8,970 square meters formed part of the resort complex. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program. The Solicitor General denigrated the power to expropriate by the Province of Camarines Sur by stressing the fact that local government units exercise such power only by delegation. (Comment, pp. 14-15; Rollo, pp. 128129) It is true that local government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature (City of Cincinnati v. Vester, 28l US 439, 74 L.ed. 950, 50 SCt. 360). It is also true that in delegating the power to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments (Joslin Mfg. Co. v. Providence, 262 US 668 67 L. ed. 1167, 43 S Ct. 684). While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations. Resolution No. 129, Series of 1988, was promulgated pursuant to Section 9 of B.P. Blg. 337, the Local Government Code, which provides: 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. Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of Agrarian Reform. The closest provision of law that the Court of Appeals could cite to justify the intervention of the Department of Agrarian Reform in expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law, which reads: Sec. 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for, agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his obligation.

The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication (Schulman v. People, 10 N.Y. 2d. 249, 176 N.E. 2d. 817, 219 NYS 2d. 241). To sustain the Court of Appeals would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. Ordinarily, it is the legislative branch of the local government unit that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use (United States Ex Rel Tennessee Valley Authority v. Welch, 327 US 546, 90 L. ed. 843, 66 S Ct 715; State ex rel Twin City Bldg. and Invest. Co. v. Houghton, 144 Minn. 1, 174 NW 885, 8 ALR 585). There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto (Alliance of Government Workers v. Minister of Labor and Employment, 124 SCRA 1 [1983]). The Republic of the Philippines, as sovereign, or its political subdivisions, as holders of delegated sovereign powers, cannot be bound by provisions of law couched in general term. The fears of private respondents that they will be paid on the basis of the valuation declared in the tax declarations of their property, are unfounded. This Court has declared as unconstitutional the Presidential Decrees fixing the just compensation in expropriation cases to be the value given to the condemned property either by the owners or the assessor, whichever was lower ([Export Processing Zone Authority v. Dulay, 149 SCRA 305 [1987]). As held in Municipality of Talisay v. Ramirez, 183 SCRA 528 [1990], the rules for determining just compensation are those laid down in Rule 67 of the Rules of Court, which allow private respondents to submit evidence on what they consider shall be the just compensation for their property. WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is set aside insofar as it (a) nullifies the trial court's order allowing the Province of Camarines Sur to take possession of private respondents' property; (b) orders the trial court to suspend the expropriation proceedings; and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify private respondents' property from agricultural to non-agricultural use. The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the trial court, denying the amended motion to dismiss of the private respondents. SO ORDERED. Cruz, Grio-Aquino and Bellosillo, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 72126 January 29, 1988 MUNICIPALITY OF MEYCAUAYAN, BULACAN, HON. ADRIANO D. DAEZ, MUNICIPAL MAYOR, MEYCAUAYAN, BULACAN, petitioners, vs. INTERMEDIATE APPELLATE COURT and PHILIPPINE PIPES & MERCHANDIZING CORPORATION,respondents.

GUTIERREZ, JR., J.: This is a petition for review on certiorari of the resolution dated April 24,1985 by the former Intermediate Appellate Court, now Court of Appeals, setting aside its earlier decision dated January 10, 1985 and dismissing the special civil action for expropriation filed by the petitioner. In 1975, respondent Philippine Pipes and Merchandising Corporation filed with the Office of the Municipal Mayor of Meycauayan, Bulacan, an application for a permit to fence a parcel of land with a width of 26.8 meters and a length of 184.37 meters covered by Transfer Certificates of Title Nos. 215165 and 37879. The fencing of said property was allegedly to enable the storage of the respondent's heavy equipment and various finished products such as large diameter steel pipes, pontoon pipes for ports, wharves, and harbors, bridge components, pre-stressed girders and piles, large diameter concrete pipes, and parts for low cost housing. In the same year, the Municipal Council of Meycauayan, headed by then Mayor Celso R. Legaspi, passed Resolution No. 258, Series of 1975, manifesting the intention to expropriate the respondent's parcel of land covered by Transfer Certificate of Title No. 37879. An opposition to the resolution was filed by the respondent with the Office of the Provincial Governor, which, in turn, created a special committee of four members to investigate the matter. On March 10, 1976, the Special Committee recommended that the Provincial Board of Bulacan disapprove or annul the resolution in question because there was no genuine necessity for the Municipality of Meycauayan to expropriate the respondent's property for use as a public road. On the basis of this report, the Provincial Board of Bulacan passed Resolution No. 238, Series of 1976, disapproving and annulling Resolution No. 258, Series of 1975, of the Municipal Council of Meycauayan. The respondent, then, reiterated to the Office of the Mayor its petition for the approval of the permit to fence the aforesaid parcels of land. On October 21, 1983, however, the Municipal Council of Meycauayan, now headed by Mayor Adriano D. Daez, passed Resolution No. 21, Series of 1983, for the purpose of expropriating anew the respondent's land. The Provincial Board of Bulacan approved the aforesaid resolution on January 25, 1984. Thereafter, the petitioner, on February 14, 1984, filed with the Regional Trial Court of Malolos, Bulacan, Branch VI, a special civil action for expropriation. Upon deposit of the amount of P24,025.00, which is the market value of the land, with the Philippine National Bank, the trial court on March 1, 1984 issued a writ of possession in favor of the petitioner. On August 27, 1984, the trial court issued an order declaring the taking of the property as lawful and appointing the Provincial Assessor of Bulacan as court commissioner who shall hold the hearing to ascertain the just compensation for the property.

The respondent went to the Intermediate Appellate Court on petition for review. On January 10, 1985, the appellate court affirmed the trial court's decision. However, upon motion for reconsideration by the respondent, the decision was re-examined and reversed. The appellate court held that there is no genuine necessity to expropriate the land for use as a public road as there were several other roads for the same purpose and another more appropriate lot for the proposed public road. The court, taking into consideration the location and size of the land, also opined that the land is more Ideal for use as storage area for respondent's heavy equipment and finished products. After its motion for reconsideration was denied, the petitioner went to this Court on petition for review on certiorari on October 25, 1985, with the following arguments: Petitioners most respectfully submit that respondent Court has decided a question of substance not in accord with law or with applicable decisions of this Honorable Supreme Court; that the judgment is based on a misapprehension of facts and the conclusion is a finding grounded entirely on speculation, surmises, and conjectures, because: a. It concluded, that by dismissing the complaint for expropriation the existence of legal and factual circumstance of grave abuse of discretion amounting to lack of jurisdiction committed by the respondent Judge without any shred of evidence at all contrary to the law on evidence; b. It concluded, in its decision that respondent Philippine Pipes and Merchandising Corporation has no need of the property sought to be condemned on the use to which it is devoted as a private road but allegedly for storage contrary to the allegations of respondent Philippine Pipes and Merchandising Corporation itself; c. It anchored its decision on factual situations obtaining a long, long time ago without regard to the relatively present situation now obtaining. (Rollo, pp. 8-9) In refuting the petitioner's arguments, the private respondent contends that this Court may only resolve questions of law and not questions of fact such as those which the petitioner puts in issue in this case. The respondent further argues that this Court may not also interfere with an action of the Court of Appeals which involves the exercise of discretion. We agree with the respondent. The jurisdiction of this Court in cases brought to us from the Court of Appeals is limited to the review of errors of law (Rizal Cement Co., Inc. v. Villareal, 135 SCRA 15, 24), factual issues not being proper in certiorari proceedings (See Ygay et al. v. Hon. Escareal et al., 135 SCRA 78, 82). This Court reviews and rectifies the findings of fact of the Court of Appeals only under certain established exceptions such as: (1) when the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd and impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; and (5) when the court, in making its finding, went beyond the issues of the case and the same is contrary to the admissions of both the appellant and the appellee (Moran, Jr. v. Court of Appeals, 133 SCRA 88). None of the exceptions warranting non-application of the rule is present in this case. On the contrary, we find that the appellate court's decision is supported by substantial evidence. The petitioner's purpose in expropriating the respondent's property is to convert the same into a public road which would provide a connecting link between Malhacan Road and Bulac Road in Valenzuela, Bulacan and thereby ease the traffic in the area of vehicles coming from MacArthur Highway. The records, however, reveals that there are other connecting links between the aforementioned roads. The petitioner itself admits that there are four such cross roads in existence. The respondent court stated that with the proposed road, there would be seven. Appreciating the evidence presented before it, with particular emphasis on the Special Committee's report dated March 10, 1976, the Court of Appeals declared:

xxx xxx xxx FACTS ESTABLISHED ON OCULAR INSPECTION In the ocular inspection, the following facts came into the limelight: (1) The property in question of the Philippine Pipes and Merchandazing Corporation intended to be expropriated by the Municipality of Meycauayan is embraced under Transfer Certificate of Title No. 37879 and is a private road of the company used in the conduct and operation of its business, with the inhabitation in nearby premises tolerated to pass the same. It extends from Bulac Road to the south, to Malhacan Road on the north, with a width of about 6 to 7 meters, more or less. (2) Adjoining this private road on the eastern side, is a vacant property also belonging to the Philippine Pipes and Merchandising Corporation and extending also from Bulac Road to Malhacan Road, with a high wall along the property line on the east side thereof serving as a fence. (3) Opposite the private road, after crossing Bulac Road, is the gate of the factory of the Philippine Pipes and Merchandising Corporation. (4) From the private road of the firm on the eastern direction about 30 to 40 meters distance are subdivision roads of an existing subdivision with a width of 6 to 7 meters, more or less, running parallel to the said private road of the firm and likewise extending from Bulac Road to Malhacan Road. Whether said subdivision roads had already been donated to the municipality is not known. (5) On the western side of the private road is a vacant lot with an area of l6,071 square meters offered for sale by its owner extending also from Bulac Road to Malhacan Road. (6) Bulac road, a municipal road with a width of about 6 to 7 meters and all the nearby subdivision roads are obviously very poorly developed and maintained, and are in dire need of repair. Like the Malhacan Road, Bulac road extends from the McArthur Highway with exit to North Diversion Road. xxx xxx xxx The Sketch Plan (Rollo, p. 26 or p. 97) clearly and conclusively shows that petitioner does not need this strip of land as a private road. The Sketch Plan clearly shows that petitioner's factory site is adjacent to Bulac Road which has a width of about seven meters, more or less. Petitioner can use Bulac Road in reaching McArthur Highway on the west or in reaching the Manila North Expressway on the east for the purpose of transporting its products. Petitioner does not need to go to Malhacan Road via this so-called private road before going to McArthur Highway or to the Manila North Expressway. Why should petitioner go first to Malhacan Road via this so called "private road" before going to McArthur Highway or to the Manila North Expressway when taking the Bulac Road in going to McArthur Highway or to the Manila North Expressway is more direct, nearer and more advantageous. Hence, it is beyond doubt that petitioner acquired this strip of land for the storage of its heavy equipments and various finished products and for growth and expansion and never to use it as a private road. This is the very reason why petitioner filed an application with the Office of the Municipal Mayor of Meycauayan, Bulacan to fence with hollow blocks this strip of land. Third, We will determine whether there is a genuine necessity to expropriate this strip of land for use as a public road. We hereby quote a relevant part of the Special Committee's Report dated March 10, 1976, which is as follows: OBSERVATION OF COMMITTEE

From the foregoing facts, it appears obvious to this Special Committee that there is no genuine necessity for the Municipality of' Meycauayan to expropriate the aforesaid property of the Philippine Pipes and Merchandising Corporation for use as a public road. Considering that in the vicinity there are other available road and vacant lot offered for sale situated similarly as the lot in question and lying Idle, unlike the lot sought to be expropriated which was found by the Committee to be badly needed by the company as a site for its heavy equipment after it is fenced together with the adjoining vacant lot, the justification to condemn the same does not appear to be very imperative and necessary and would only cause unjustified damage to the firm. The desire of the Municipality of Meycauayan to build a public road to decongest the volume of traffic can be fully and better attained by acquiring the other available roads in the vicinity maybe at lesser costs without causing harm to an establishment doing legitimate business therein. Or, the municipality may seek to expropriate a portion of the vacant lot also in the vicinity offered for sale for a wider public road to attain decongest (sic) of traffic because as observed by the Committee, the lot of the Corporation sought to be taken will only accommodate a one-way traffic lane and therefore, will not suffice to improve and decongest the flow of traffic and pedestrians in the Malhacan area. ... xxx xxx xxx It must be noted that this strip of land covered by Transfer Certificates of Titles Nos. 215165 and 37879 were acquired by petitioner from Dr. Villacorta. The lot for sale and lying Idle with an area of 16,071 square meter which is adjacent and on the western side of the aforesaid strip of land and extends likewise from Bulac Road to Malhacan Road belongs also to Dr. Villacorta. This lot for sale and lying Idle is most Ideal for use as a public road because it is more than three (3) times wider that the said strip of land. xxx xxx xxx xxx xxx xxx Since there is another lot ready for sale and lying Idle, adjacent and on the western side of the strip of land, and extending also from Malhacan Road to Bulac Road and most Ideal for a public road because it is very much wider than the lot sought to be expropriated, it seems that it is more just, fair, and reasonable if this lot is the one to be expropriated. (Rollo, pp. 22-26) The petitioner objects to the appellate court's findings contending that they were based on facts obtaining long before the present action to expropriate took place. We note, however, that there is no evidence on record which shows a change in the factual circumstances of the case. There is no showing that some of the six other available cross roads have been closed or that the private roads in the subdivision may not be used for municipal purposes. What is more likely is that these roads have already been turned over to the government. The petitioner alleges that surely the environmental progress during the span of seven years between the first and second attempts to expropriate has brought about a change in the facts of the case. This allegation does not merit consideration absent a showing of concrete evidence attesting to it. There is no question here as to the right of the State to take private property for public use upon payment of just compensation. What is questioned is the existence of a genuine necessity therefor. As early as City of Manila v. Chinese Community of Manila (40 Phil. 349) this Court held that the foundation of the right to exercise the power of eminent domain is genuine necessity and that necessity must be of a public character. Condemnation of private property is justified only if it is for the public good and there is a genuine necessity of a public character. Consequently, the courts have the power to inquire into the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity therefor (Republic v. La Orden de PP. Benedictos de Filipinas, 1 SCRA 646; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413). In the recent case of De Knecht v. Bautista, (100 SCRA 660) this court further ruled that the government may not capriciously choose what private property should be taken. Citing the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration (supra), the Court held: ... With due recognition then of the power of Congress to designate the particular property to be taken and how much thereof may be condemned in the exercise of the power of

expropriation, it is still a judicial question whether in the exercise of such competence, the party adversely affected is the victim of partiality and prejudice. That the equal protection clause will not allow. (At p. 436) There is absolutely no showing in the petition why the more appropriate lot for the proposed road which was offered for sale has not been the subject of the petitioner's attempt to expropriate assuming there is a real need for another connecting road. WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned resolution of the respondent court is AFFIRMED. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-34915 June 24, 1983 CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners, vs. HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents. City Fiscal for petitioners. Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.: This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void. Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death, to be determined by competent City Authorities. The area so designated shall immediately be developed and should be open for operation not later than six months from the date of approval of the application. For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after the enactment of the ordinance, the Quezon City Council passed the following resolution: RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon City where the owners thereof have failed to donate the required 6% space intended for paupers burial. Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code. There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void. A motion for reconsideration having been denied, the City Government and City Council filed the instant petition. Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the Quezon City Council is authorized under its charter, in the exercise of local police power, " to make such further ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein." On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is obvious because the questioned ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use of his property. The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the property in this case because it refers to "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The respondent points out that if an owner is deprived of his property outright under the State's police power, the property is generally not taken for public use but is urgently and summarily destroyed in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to prevent the spread of a conflagration. We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance: The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power? An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulatesuch other business, trades, and occupation as may be established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Neither can the ordinance in question be justified under sub- section "t", Section 12 of Republic Act 537 which authorizes the City Council to'prohibit the burial of the dead within the center of population of the city and provide for their burial in such proper place and in such manner as the council may determine, subject to the provisions of the general law regulating burial grounds and cemeteries and governing funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537). There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the respondents, 'donation' We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows: (00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this act and such as it shall deem necessary and proper to provide for the health and safety, promote, the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section. We start the discussion with a restatement of certain basic principles. Occupying the forefront in the bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution). On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty. Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most essential insistent and illimitable Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight. Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent

or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957). The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable. It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms. It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation. In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever challenges the validity of duly enacted legislation whether national or local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every presumption in favor of validity and, more so, where the ma corporation asserts that the ordinance was enacted to promote the common good and general welfare. In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando stated Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption of validity that attaches to a statute or ordinance. As was expressed categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular ... municipality and with all the facts and lances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-being of the people. ... The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.) We have likewise considered the principles earlier stated in Case v. Board of Health supra : ... Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best and highest interests of the municipality. It is a well-settled principle, growing out of the nature of well-ordered and society, that every holder of property, however absolute and may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. An property in the state is held subject to its general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the organic law and providing that such power is not exercised in such a manner as to justify the interference of the courts to prevent positive wrong and oppression. but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners. As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations. WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 94193-99 February 25, 1992 NATIONAL POWER CORPORATION, petitioner, vs. HON. ENRIQUE T. JOCSON, in his capacity as Presiding Judge, Regional Trial Court, 6th Judicial Region, Branch 47, Bacolod City; JESUS, FERNANDO, MARIA CRISTINA and MICHAEL, all surnamed

GONZAGA; LUIS, DIONISIO, ROBERTO, GABRIEL, BENJAMIN, ANA, ALEXANDER, CARLA, SOFIA and DANIEL, all surnamed GONZAGA; ROSARIO P. MENDOZA; CELSOY AGRO-IND. CORP.; EMMANUEL, LYDIA, HARRY, NOLI, CLIFFORD and CHRISTIAN DALE, all surnamed AO; MAYO L. LACSON; and LUCIA GOSIENFIAO,respondents. Amado B. Parreno Law Office for Gonzaga, et al. Francisco B. Cruz for R. Mendoza. Eduardo M. Casiple for Mayo Lacson.

DAVIDE, JR., J.: This is a special civil action for certiorari to annul, for having been issued without or in excess of jurisdiction, in violation of law and in deprivation of petitioner's right to due process, four (4) orders successively issued by the respondent Judge in seven (7) eminent domain cases (1) fixing the provisional values of the parcels of land sought to be expropriated by the petitioner, National Power Corporation (NAPOCOR), in amounts far exceeding their market values, (2) increasing the provisional values of the parcels of land involved in two (2) of such cases without hearing and holding in abeyance the issuance of the writ of possession in favor of petitioner until deposit of the additional amount, (3) requiring the private respondents, as defendants in said cases, to state in writing within twenty-four (24) hours whether or not they are amenable to accepting and withdrawing the amount deposited by petitioner as provisional values in full and final satisfaction of their respective properties, and directing that the writ of possession be issued only until after the defendants shall have so manifested in writing their acceptance and receipt of said amounts, and (4) directing petitioner to release and pay within twenty-four (24) hours, through the Court and in favor of the defendants, the amount of P43,016,960.00. The antecedents of this case are not controverted. Petitioner is a government-owned and controlled corporation created and existing by virtue of Republic Act No. 6395, as amended, for the purpose of undertaking the development of hydraulic power, the production of power from any source, particularly by constructing, operating and maintaining power plants, auxiliary plants, dams, reservoirs, pipes, mains, transmission lines, power stations and other works for the purpose of developing hydraulic power from any river, creek, lake, spring and waterfall in the Philippines and supplying such power to the inhabitants thereof. In order to carry out these purposes, it is authorized to exercise the power of eminent domain. On 30 March 1990, petitioner filed seven (7) eminent domain cases before the Regional Trial Court of the Sixth Judicial Region in Bacolod City, to wit: (1) Civil Case No. 5938 against Jesus, Fernando, Ma. Cristina and Michael, all surnamed GONZAGA; 1 (2) Civil Case No. 5939 against Louis, Dionisio, Roberto, Gabriel, Benjamin, Ana, Alexander, Carla, Sofia, Daniel, all surnamed GONZAGA; 2 (3) Civil Case No. 5940 against Rosario P. Mendoza; 3 (4) Civil Case No. 5941 against Celsoy Agro-Ind. Corporation; 4 (5) Civil Case No. 5942 against Emmanuel, Lydia, Harry, Noli, Clifford and Christian, Dale, all surnamed AO;5 (6) Civil Case No. 5943 against Mayo L. Lacson; 6 (7) Civil Case No. 5944 against Lucia Gosiengfiao 7

for the acquisition of a right-of-way easement over portions of the parcels of land described in the complaints for its Negros-Panay Interconnection Project, particularly the Bacolod-Tomonton Transmission Line. The complaints uniformly (a) allege that petitioner urgently needs portions of the affected land to enable it to construct its tower and transmission line in a manner that is compatible with the greatest good while at the same time causing the least private injury; the purpose for which the lands are principally devoted will not be impaired by the transmission lines as it will only acquire a right-of-way-easement thereon; and it had negotiated with and offered to pay defendants for the portions affected by the Bacolod-Tomonton Transmission Line, but the parties failed to reach an agreement despite long and repeated negotiations, and (b) pray that: 1. This Honorable Court fix the provisional value of the portions of the parcel of land herein sought to be expropriated pursuant to Section 2, Rule 67 of the Rules of Court; 2. This Honorable Court, by proper order and writ, authorize the plaintiff to enter or take possession of the premises described in paragraph 3 hereof, and to commence and undertake the construction of the Bacolod-Tomonton T/L after depositing with the Provincial Treasurer of Negros Occidental the provisional value fixed by this Honorable Court, which amount shall be held by said official subject to the order and final disposition of the Court; 3. This Honorable Court appoint three (3) Commissioners to hear the parties, view the premises, assess the damages to be paid for the condemnation, and to report in full their proceedings to the Court; 4. The plaintiff be declared to have the lawful right to acquire portions of the properties of the defendants affected by the condemnation; 5. After the determination of the amount of indemnity, the Court authorize the payment by the plaintiff to the defendants; and 6. Judgment be rendered against the defendants, condemning the portion of the parcels of land referred to in paragraphs 3 and 4 hereof, including the improvements thereof, if any, for public use and for the purpose hereinabove set forth, free from all other liens and encumbrances whatsoever; and thereafter, upon plaintiff's compliance with the requirements of said judgment, a final order of condemnation be issued and entered in favor of the plaintiff. Plaintiff further prays for such other reliefs as may be deemed just and equitable in the premises. The cases were raffled to different branches of the trial court as follows: Civil Cases Nos. 5938, 5943 and 5944 to Branch 43; Civil Case No. 5939 to Branch 54; Civil Case No. 5940 to Branch 45; Civil Case No. 5941 to Branch 50; and Civil Case No. 5942 to Branch 46. Only the defendants in Civil Cases Nos. 5938, 5939, and 5942 filed Motions to Dismiss. 8 On 4 April 1990, petitioner filed a Motion to consolidate these cases for joint trial 9 and an Urgent Motion To Fix Provisional Value. 10 On 10 April 1990, Executive Judge Jesus V. Ramos issued an Order granting the motion for consolidation and ordering the consolidation of all the cases in Branch 43 of the court, then presided over by Judge Romeo Habaradas. 11 Considering that Judge Habaradas was on sick leave, petitioner filed on 8 May 1990 an Urgent Motion to Reraffle due to the urgent necessity for the hearing of the cases and the Urgent Motion to Fix Provisional Value. 12 Acting on said motion, Vice Executive Judge Bethel K. Moscardon issued on 9 May 1990 an Order granting the motion and directing the re-raffle of the cases. 13 Upon re-raffle, the cases were assigned to Branch 47, presided over by respondent Judge. Since the latter went on sick leave effective 16 May 1990, petitioner filed on said date an Urgent Motion for Special Re-raffle and for Immediate Fixing of Provisional Value. 14 As a consequence thereof, the cases were re-raffled to Branch 48 of the court.

On 17 May 1990, Judge Romeo Hibionada of Branch 48 issued an Order directing the defendants to appear before the court on 21 May 1990 at 8:30 A.M. to register their comments or objections to the fixing of the provisional values of the parcels of land subject of expropriation. 15 On 21 May 1990, the petitioner and the defendants, through their respective lawyers, appeared and orally argued their respective positions on the Motion to Fix Provisional Value. 16 Instead of ruling on the issues raised therein, Judge Hibionada, citing Circular No. 7 of this Court dated 23 September 1974 which establishes a pairing system, 17 promulgated an Order directing the return of the seven (7) cases to Branch 47 for further disposition. On 5 June 1990, Branch 47, through respondent Judge, issued an Order directing the petitioner: . . . to show by documents and otherwise within five (5) days from receipt hereof the following: 1. That it has earlier negotiated repeatedly with defendants but failed to reach agreement; 2. That expropriation of heavily populated subdivision areas in order to install primary electric transmission lines would not endanger lives and property in the area; 3. That such installation is of paramount public interest and there is no other demonstrable alternative. and warning that "no provisional order for tentative cost payment of the land affected would be issued" pending compliance by petitioner with the foregoing. 18 On 25 June 1990, respondent Judge, finding the existence of paramount public interest which. may be served by the expropriation, the long range benefit of the project involved, substantial compliance with the rules concerning efforts for negotiation and, taking into consideration the market value of the subject areas and the daily opportunity profit that the petitioner allegedly admitted in open court, issued an Order fixing the provisional values of the subject areas, to wit: CIVIL CASE AFFECTED MARKET PROVISIONAL NO. AREA(SQ. M.) VALUE 1. 5938 7,050 P 45,000.00 P 180,000.00 3,000 668,700.00 2,674,800.00 6,600 219,830.00 879,320.00 2. 5939 23,400 757,437.00 3,029,748.00 3. 5940 9,030 2,870.00 11,480.00 4. 5941 17,430 433,130.00 1,732,520.00 5. 5942 2,700 342,900.00 1,371,600.00 6. 5943 15,900 2,125,340.00 8,501,360.00 7. 5944 21,000 1,200,000.00 1,800,000.00 and directing the petitioner: . . . to deposit the amount with the Philippine National Bank in escrow for the benefit of the defendants pending decision on the merits. 19 The market values mentioned in the Order are the same values appearing in the tax declarations of the properties and the notices of assessment issued by the Assessor. In compliance with the said Order, petitioner deposited the total sum of P23,180,828.00 with the Philippine National Bank, NAPOCOR Branch, Quezon City, under Savings Account 249-505865-7 and manifested on 3 July 1990 with the court below that it did so. 20 On 11 July 1990, the defendants in Civil Case No. 5938 filed a motion for the reconsideration of the 25 June 1990 Order alleging that the provisional value of the property involved therein "had been set much too low"

considering the allegations therein adduced, stating that the real compensation that should accrue to them is estimated at P29,970,000.00 and praying that the questioned Order be reconsidered so as to reflect "the true amount covering the properties subject to (sic) Eminent Domain estimated at TWENTY NINE MILLION NINE HUNDRED SEVENTY THOUSAND (P29,970,000.00)." 21 It likewise appears that the defendants in "Civil Case No. 5939 filed a motion for reconsideration asking for a re-evaluation of the provisional value of the subject property. 22 On 12 July 1990, respondent Judge issued an Order 23 increasing the provisional values of the properties enumerated in the motions for reconsideration, directing the petitioner to deposit "whatever differential between the amounts above fixed and those already deposited within twenty four (24) hours from receipt of the Order" and holding in abeyance the issuance of the writ of possession pending compliance therewith. The Order reads in full as follows: ORDER I Before this Court are two (2) Motions for Reconsideration of the Order dated June 25, 1990 fixing provisional values of the lands sought to be expropriated belonging to the defendants in these cases. The first motion was filed by the Torres Valencia Ciocon Dabao Valencia & De La Paz Law Offices for the defendants Jesus, Fernando, Ma. Cristina and Michel (sic), all surnamed Gonzaga, seeking a reconsideration of the values set by this Court earlier at P3,734,120.00 for the areas affected consisting of the following: 7,050 square meters; 6,600 square meters; and 3,000 square meters belonging to the aforesaid persons. The Court is aware that the Order of July 25, 1990 was not based on ultimate factual conditions of the property of the movants. At that time, the Court is (sic) unaware that the expropriation of these areas would render the remaining portion practically a total loss considering that it is in a subdivision and not agricultural and that the fetching price (sic) now in the immediate vicinity is between P1,500.00 and P2,000.00 per square meter. Considering that the presence of the primary transmission lines of the property and the earlier intrusion of the Central Negros Cooperative at the side of the areas affected for free (sic) during the Martial Law Regime, and considering further the proximity of the Rolling Hills Memorial Park, the San Miguel Corporation manufacturing complex, Jesusa Heights, Green Hills Memorial Park and other posh subdivisions, as well as a golf course, the Court is convinced that that (sic), defendants Jesusa Gonzaga, Fernando Gonzaga, Ma. Cristina and Michel (sic) Gonzaga are entitled to a higher valuation for the property, not only because of the above-stated facts but because of the clear danger to the inhabitants in the area and the destruction of the marketability of the remaining portion after expropriation. II In respect to the plea of defendants Louis Gonzaga, et al. for re-evaluation of the areas owned by them, the Court feels that adjustment should also be made considering that it is contiguous to the areas belonging to Jesus Gonzaga, et al. above-stated and it is also affected by the same conditions. Considering that the area affected is 23,000 square meters and the fetching price (sic) in the vicinity is between P1,500.00 and P2,000.00 per square meter, the Court feels that the provisional value of the property should be P12,600,000.00. As to the rest of the defendants, there being no extra-ordinary or peculiar conditions which may warrant re-evaluation the amounts fixed earlier by this Court shall stand. WHEREFORE, (a) the Court rules that the provisional value of 7,050 square meters aforestated should be P6,000,000.00; the provisional value of 6,600 square meters aforestated should be P5,000,000.00; and the provisional value of 3,000 square meters aforestated should be P3,000,000.00 instead of those in the June 25, 1990 Order of this Court

for these properties. (b) The provisional value of 23,000 square meters belonging to Louis Gonzaga, et al. should be rightfully valued at P12,600,000.00. The plaintiff is directed to deposit whatever differential between the amounts above fixed and those already deposited in PNB Savings Account No. 249-5-5865-7 within 48 hours from receipt of this Order. Pending such compliance hereof, action on the Motion for Issuance of Writ of Possession will be held in abeyance. The representative of the plaintiff may get from the Branch Clerk of Court the corresponding bank book earlier attached to the expediente for the purpose of complying with this Order. SO ORDERED. In compliance with the said Order, petitioner immediately deposited the additional sum of P22,866,860.00 with the Philippine National Bank under Savings Account No. 249-505865-7 as evidenced by the Bank's certification dated 13 July 1990. 24 On 16 July 1990, respondent Judge issued an Order 25 mandatorily requiring the defendants: . . . to state in writing within twenty-four (24) hours whether or not they are amenable to accept and withdraw (sic) the amounts already deposited by the plaintiff for each of them at final and full satisfaction of the value of their respective property (sic) affected by expropriation, and this is mandatory. [t]he Writ of Possession sought for by the plaintiff will be issued immediately after manifestation of acceptance and receipt of said amounts. On 18 July 1990, respondent Judge, claiming to act on the Manifestation filed in compliance with the Order of 16 July 1990 of defendants Jesus Gonzaga, et al. in Civil Case No. 5938, Luis Gonzaga, et al. in Civil Case No. 5939, Rosario Mendoza in Civil Case No. 5940, Emmanuel Ao, et al. in Civil Case No. 5942 and Mayo Lacson in Civil Case No. 5943, issued an Order 26 directing the petitioner to pay the defendants within twenty-four (24) hours, through the court and from petitioner's Philippine National Bank Savings Account No. 249-505865-7 or from any other fund; whichever may be most expeditious, the following amounts by way of full payment for their expropriated property: CIVIL CASE NO. AFFECTED AREA VALUE (SQ. M.) 1. 5938 7,050 P 6,000,000.00 3,000 3,000,000.00 6,600 5,000,000.00 2. 5939 23,000 12,600,000.00 3. 5940 9,030 11,480.00 4. 5941 17,430 1,732,520.00 5. 5942 2,700 1,371,600.00 6. 5943 15,900 8,501,360.00 7. 5944 21,000 4,800,000.00 and ordering that the writ of possession be issued in these cases after the defendants "have duly received the amounts." Unable to accept the above Orders of 25 June, 12 July, 16 July and 18 July 1990, petitioner filed this petition on 24 July 1990 alleging therein, as grounds for its allowance, that respondent Judge acted in excess of jurisdiction, in violation of laws and in dereliction of the duty to afford respondents due process when he issued said Orders. In support thereof petitioner asserts that the Orders of 25 June and 12 July 1990 fixing the provisional values at excessive and unconscionable amounts, are utterly scandalous and unreasonable. As classified under their respective tax declarations, the several lots to be expropriated are sugarlands with the following assessed values: OWNER TAX DEC. NO. ASSESSED VALUE

1. JESUS L. GONZAGA 007-000621 P18,000.00 2. Estate of SOPHIA Vda. de GONZAGA 007-000495 267,480.00 3. JESUS GONZAGA 005-000007 87,930.00 4. LOUIS, DIONISIO ROBERTO, GABRIEL BENJAMIN, ANA ALEXANDER, CARLO SOPHIA, DANIEL also named GONZAGA 007-5224 398,260.00 5. ROSARIO MENDOZA Notice of Assessment of Real Property dated March 23, 1990, Lot No. 1278-B-1 860.00 6. ROSARIO MENDOZA Notice of Assessment of Real Property dated March 23, 1990, 861,380.00 Lot No. 1278-C-1 429,080.00 7. CEL-SOY-AGROIND. CORPORATION 2284 179,650.00 8. LYDIA S. ANO married to EMMANUEL ANO 4047 (0854-05) 137,160.00 9. PACITA LACSON (MAYO L. LACSON) Notice of Assessment of Real Property dated March 21, 1990 Lot No. 7-G 861,380.00 10. DOLORES D. COSCOLLUELA 020-00017 487,730.00 (LUCIA GOSIENFIAO) Yet, petitioner submits that in a clear display of abuse of discretion, respondent Judge fixed, in the Order of 25 June 1990, the provisional valued as follows: CIVIL CASE AFFECTED AREA MARKET PROVISIONAL VALUE (SQ. M.) VALUE NO. 1. 5938 7,050 P 45,000.00 P 180,000.00 3,000 668,700.00 2,674,800.00 6,600 219,830.00 879,320.00 2. 5939 23,400 757,437.00 3,029,748.00 3 5940 9,030 2,870.00 11,480.00 4. 5941 17,430 433,130.00 1,732,520.00 5. 5942 2,700 342,900.00 1,371,600.00 6. 5943 15,900 2,125,340.00 8,501,360.00 7. 5944 21,000 1,200,000.00 4,800,000.00 and that: . . . in another clear abuse (sic) of discretion, herein respondent Judge, on the basis of the respective Motion (sic) for Reconsideration of defendants in Civil Cases Nos. 5938 and 5939, without affording the herein petitioner an opportunity to be heard, and with evident and manifest partiality to therein defendants increased the previously fixed provisional value of their respective lands, as follows: a. Civil Case No. 5938: 1. 7,050 sq. m. From P180,000.00 to P6,000,000.00

2. 3,000 sq. m. From P2,674,800.00 to P3,000,000.00 3. 6,600 sq. m. From P879,320.00 to P5,000,000.00 b. Civil Case No. 5939 1. 23,400 sq. m. From P3,029,748.00 to P12,600,000.00 Nevertheless, due to its urgent need for the areas to be able to complete the interconnection project as soon as possible, petitioner deposited the amounts representing the provisional values fixed by the respondent Judge. Still, petitioner laments, the latter persisted in his stubbornness by not issuing a writ of possession, in violation of Section 2, Rule 67 of the Rules of Court which provides that upon the filing of the complaint or at any time thereafter, the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionally and promptly ascertained and fixed by the court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition of the court; and that after such deposit to made, the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved P.D. No. 42, which provides that: . . . upon filing in the proper court of the complaint in eminent domain proceedings or at anytime thereafter, and after due notice to the defendant, plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the Philippine National Bank, in its main office or any of its branches or agencies, an amount equivalent to the assessed value of the property for purposes of taxation, to be held by said bank subject to the orders and final disposition of the court. is also alleged to have been violated by respondent Judge. The issuance then of the writ of possession was an unqualified ministerial duty which respondent Judge failed to perform. Moreover, the Order of 16 July 1990 surrenders the judicial prerogative to fix the provisional value in favor of the defendants considering that respondent Judge's valuation may still be overruled by the latter since they were given twenty-four (24) hours to state in writing whether or not they are accepting and withdrawing the amount already deposited by petitioner. Finally, petitioner contends that the Order of 16 July 1990 partakes of the nature of a final disposition of the case should the defendants accept the provisional value as "final and full satisfaction of the value of their respective property (sic)affected by expropriation," thereby preempting and depriving the former of the right to dispute and contest the value of the property. Clearly, respondent Judge took a short-cut, violating in the process the procedure laid down in Sections 3 to 8, inclusive, of Rule 67 of the Rules of Court. In the Resolution of 31 July 1990, this court required the respondents to comment on the petition and resolved to issue a temporary restraining order, effective immediately and to continue until further orders from the Court, compelling the respondent Judge to cease and desist from enforcing and/or executing his questioned Orders and directing him, pending determination of this case, to place petitioner in possession of the properties subject of this petition. 27 The following respondents filed, through their counsels, their Answers on various dates, as follows: Mayo Lacson 14 September 1990 28 Rosario P. Mendoza 18 September 1990 29 Jesus Gonzaga, et al.; Emmanuel Ao, et al. 27 September 1990 30 Luis Gonzaga, et al. 20 September 1990 31 All of them, except for Rosario P. Mendoza who informed the Court that she filed a motion to reconsider the 18 July 1990 Order of respondent Judge and who agrees with petitioner that commissioners should be appointed

to determine the just compensation, 32 support and sustain the actions of respondent Judge and pray for the dismissal of the petition. Mayo Lacson, in submitting that the procedure prescribed in Rule 67 may be abbreviated provided that the rights of the parties are duly protected, cites the case of City Government of Toledo vs. Fernandos, et al. 33 wherein this Court sustained the judgment of the trial court on the basis of what transpired in the pre-trial conference. Complying with the Resolution of the 25 September 1990, petitioner filed on 6 November 1990 a Reply to the Comment of respondent Mayo Lacson, 34 stressing therein that the case of City Government of Toledo City vs.Fernandos, et al. 35 does not apply to the present case because a pre-trial was conducted in the former during which the parties were able to present their respective positions on just compensation. On 22 January 1991, this Court resolved to consider the respondents' Comments as Answers to the petition, give due course to the petition and require the parties to file simultaneously their respective Memoranda within twenty (20) days from notice, which petitioner complied with on 11 March 1991; 36 respondent Mendoza on 4 March 1991; 37 respondents Jesus Gonzaga, et al. and Emmanuel Ao, et al. on 19 March 1991; 38 and Mayo Lacson on 5 April 1991. 39 We find merit in the petition. Respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction, and is otherwise either unmindful or ignorant of the law: when he fixed the provisional values of the properties for the purpose of issuing a writ of possession on the basis of the market value and the daily opportunity profit petitioner may derive in violation or in disregard of P.D. No. 42; in amending such determination in Civil Cases Nos. 5938 and 5939 by increasing the same without hearing; in directing the defendants to manifest within twenty-four (24) hours whether or not they are accepting and withdrawing the amounts, representing the provisional values, deposited by the plaintiff for each of them as "final and full satisfaction of the value of their respective property (sic); " in declaring the provisional values as the final values and directing the release of the amounts deposited, in full satisfaction thereof, to the defendants even if not all of them made the manifestation; and in suspending the issuance of the writ of possession until after the suspending the amounts shall have been released to and received by defendants. In Municipality of Bian vs. Hon. Jose Mar Garcia, et al., 40 this Court ruled that there are two (2) stages in every action of expropriation: The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. 41 It ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint." 42 An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. 43 So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard." The second phase of the eminent domain action is concerned with the determination by the Court of the "just compensation for the property sought to be taken." This is done by the Court with the assistance of not more than three (3) commissioners. 44 The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. . . . However, upon the filing of the complaint or at any time thereafter, the petitioner has the right to take or enter upon the possession of the property involved upon compliance with P.D. No. 42 which requires the petitioner, after due notice to the defendant, to deposit with the Philippine National Bank in its main office or any of its branches or agencies, "an amount equivalent to the assessed value of the property for purposes of taxation." This assessed value is that indicated in the tax declaration.

P.D. No. 42 repealed the "provisions of Rule 67 of the Rules of Court and of any other existing law contrary to or inconsistent" with it. Accordingly, it repealed Section 2 of Rule 67 insofar as the determination of the provisional value, the form of payment and the agency with which the deposit shall be made, are concerned. Said section reads in full as follows: Sec. 2. Entry of plaintiff upon depositing value with National or Provisional Treasurer. Upon the filing of the complaint or at any time thereafter the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionally and promptly ascertained and fixed by the court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a depository of the Republic of the Philippines payable on demand to the National or Provincial Treasurer, as the case may be, in the amount directed by the court to be deposited. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved. It will be noted that under the aforequoted section, the court has the discretion to determine the provisional value which must be deposited by the plaintiff to enable it "to take or enter upon the possession of the property." Notice to the parties is not indispensable. In interpreting a similar provision of Act No. 1592, this Court, in the 1915 case of Manila Railroad Company, et al. vs. Paredes, et al., 45 held: . . . The statute directs that, at the very outset, "when condemnation proceedings are brought by any railway corporation" the amount of the deposit is to be "provisionally and promptly ascertained and fixed by the court." It is very clear that it was not the intention of the legislator that before the order fixing the amount of the deposit could lawfully be entered the court should finally and definitely determine who are the true owners of the land; and after doing so, give them a hearing as to its value, and assess the true value of the land accordingly. In effect, that would amount to a denial of the right of possession of the lands involved until the conclusion of the proceedings, when there would no need for the filing of the deposit. Of course, there is nothing in the statute which denies the right of the judge to hear all persons claiming an interest in the land, and courts should ordinarily give all such persons an opportunity to be heard if that be practicable, and will cause no delay in the prompt and provisional ascertainment of the value of the land. But the scope and extent of the inquiry is left wholly in the discretion of the court, and a failure to hear the owners and claimants of the land, who may or may not be known at the time of the entry of the order, in no wise effects the validity of the order. . . . P.D. No. 42, however, effectively removes the discretion of the court in determining the provisional value. What is to be deposited is an amount equivalent to the assessed value for taxation purpose. 46 No hearing is required for that purpose. All that is needed is notice to the owner of the property sought to be condemned. 47 Clearly, therefore, respondent Judge either deliberately disregarded P.D. No. 42 or was totally unaware of its existence and the cases applying the same. In any event, petitioner deposited the provisional value fixed by the court. As a matter of right, it was entitled to be placed in possession of the property involved in the complaints at once, pursuant to both Section 2 of Rule 67 and P.D. No. 42. Respondent Court had the corresponding duty to order the sheriff or any other proper officer to forthwith place the petitioner in such possession. Instead of complying with the clear mandate of the law, respondent Judge chose to ignore and overlook it. Moreover, upon separate motions for reconsideration filed by the defendants in Civil Cases Nos. 5938 and 5939, he issued a new Order increasing the provisional values of the properties involved therein. No hearing was held on the motions. As a matter of fact, as the records show, the motion for reconsideration filed by defendants Jesus Gonzaga, et al. in Civil Case No. 5938 is dated 11 July 199048 while the Order granting both motions was issued the next day, 12 July 1990. 49 The motion for reconsideration in Civil Case No. 5938 does not even contain a notice of hearing. It is then a mere scrap of paper; it presents no question which merits the attention and consideration of the court. It is not even a mere motion for it does not comply with the rules, more particularly Sections 4 and 5, Rule 15 of the Rules of Court; the Clerk of Court then had no right to receive it. 50 There was, moreover, a much stronger reason why the respondent Court should not have issued the 12 July 1990 Order increasing the provisional values of the Gonzaga lots in Civil Cases Nos. 5938 and 5939. After having fixed these provisional values, albeit erroneously, and upon deposit by petitioner of the said amounts,

respondent Judge lost, as was held in Manila Railroad Company vs. Paredes, 51 "plenary control over the order fixing the amount of the deposit, and has no power to annul, amend or modify it in matters of substance pending the course of the condemnation proceedings." The reason for this is that a contrary ruling would defeat the very purpose of the law which is to provide a speedy and summary procedure whereby the peaceable possession of the property subject of the expropriation proceedings "may be secured without the delays incident to prolonged and vexatious litigation touching the ownership and value of such lands, which should not be permitted to delay the progress of the work." Compounding the above error and the capriciousness with which it was committed is respondent Judge's refusal to place the petitioner in possession of the property or issue the writ of possession despite the fact that the latter had likewise deposited the additional amount called for by the 12 July 1990 Order. Instead, respondent Judge issued the 16 July 1990 Order directing the defendants to state in writing within twenty-four (24) hours whether or not they would accept and withdraw the amounts deposited by the petitioner for each of them " as final and full satisfaction of the value of their respective property (sic) affected by the expropriation" and stating at the same time that the writ will be issued after such manifestation and acceptance and receipt of the amounts. The above Order has absolutely no legal basis even as it also unjustly, oppressively and capriciously compels the petitioner to accept the respondent Judge's determination of the provisional value as the just compensation after the defendants shall have manifested their conformity thereto. He thus subordinated his own judgment to that of the defendants' because he made the latter the final authority to determine such just compensation. This Court ruled in Export Processing Zone Authority vs. Dulay, et al. 52 that the determination of just compensation in eminent domain cases is a judicial function; accordingly, We declared as unconstitutional and void, for being, inter alia, impermissible encroachment on judicial prerogatives which tends to render the Court inutile in a matter which, under the Constitution, is reserved to it for final determination, the method of ascertaining just compensation prescribed in P.D. Nos. 76 464, 794 and 1533, to wit: the market value as declared by the owner or administrator or such market value as determined by the assessor, whichever is lower in the first three (3) decrees, and the value declared by the owner or administrator or anyone having legal interest in the property or the value as determined by the assessor, pursuant to the Real Property Tax Code, whichever is lower, prior to the recommendation or decision of the appropriate Government office to acquire the property, in the last mentioned decree. If the legislature or the executive department cannot even impose upon the court how just compensation should be determined, it would be far more objectionable and impermissible for respondent Judge to grant the defendants in an eminent domain case such power and authority. Without perhaps intending it to be so, there is not only a clear case of abdication of judicial prerogative, but also a complete disregard by respondent Judge of the provisions of Rule 67 as to the procedure to be followed after the petitioner has deposited the provisional value of the property. It must be recalled that three (3) sets of defendants filed motions to dismiss 53 pursuant to Section 3, Rule 67 of the Rules of Court; Section 4 of the same rule provides that the court must rule on them and in the event that it overrules the motions or, when any party fails to present a defense as required in Section 3, it should enter an order of condemnation declaring that the petitioner has a lawful right to take the property sought to be condemned. As may be gleaned from the 25 June 1990 Order, the respondent Judge found that the petitioner has that right and that "there will be a (sic) paramount public interest to be served by the expropriation of the defendants' properties." Accordingly, considering that the parties submitted neither a compromise agreement as to the just compensation nor a stipulation to dispense with the appointment of commissioners and to leave the determination of just compensation to the court on the basis of certain criteria, respondent Judge was duty bound to set in motion Section 5 of Rule 67; said section directs the court to appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to it regarding the just compensation for the property sought to be taken. Such commissioners shall perform their duties in the manner provided for in Section 6; upon the filing of their report, the court may, after a period of ten (10) days which it must grant to the parties in order that the latter may file their objections to such report, and after hearing pursuant to Section 8, accept and render judgment in accordance therewith or, for cause shown, recommit the same to the commissioners for further report of facts. The court may also set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the petitioner the property essential to the exercise of its right of condemnation, and to the defendant just compensation for the property so taken. Not satisfied with the foregoing violations of law and insisting upon his own procedure, respondent Judge declared in his Order of 18 July 1990 that the provisional amounts he fixed, later increased with respect to the properties of the Gonzagas, shall be considered as the full payment of the value of the properties after the defendants in Civil Cases Nos. 5938, 5939, 5940, 5942 and 5943 shall have filed their manifestations; he also ruled that the writ of possession will be issued only after the latter shall have received the said amounts. This

Order and the records before this Court do not disclose that the defendants in Civil Cases Nos. 5941 and 5944 filed any manifestation; yet, in the Order, respondent Judge whimsically and arbitrarily considered the so-called provisional values fixed therein as the final values. By such Order, the case was in fact terminated and the writ of execution then became a mere incident of an execution of a judgment. The right of the petitioner to take or enter into possession of the property upon the filing of the complaint granted by Section 2 of Rule 67 and P.D. No. 42 was totally negated despite compliance with the deposit requirement under the latter law. Nothing can justify the acts of respondent Judge. Either by design or sheer ignorance, he made a mockery of the procedural law on eminent domain by concocting a procedure which he believes to be correct. Judges must apply the law; they are not at liberty to legislate. As Canon 18 of the Canon of Judicial Ethics provides: A judge should be mindful that his duty his the application of general law to particular instances, that ours is a government of law and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may become a precedent unsettling accepted principles and may have detrimental consequences beyond the immediate controversy. He should administer his office with a due regard to the integrity of the system of the law itself, remembering that he is not a depositary of arbitrary power, but a judge under the sanction of law. They must be reminded once more that "the demands of fair, impartial, and wise administration of justice call for a faithful adherence to legal precepts on procedure which ensure to litigants the opportunity to present their evidence and secure a ruling on all the issues presented in their respective pleadings. "Short-cuts" in judicial processes are to be avoided where they impede rather than promote a judicious disposition of justice." 54 We agree with the petitioner that the ruling in the case of City Government of Toledo City vs. Fernandos, et al., 55does not apply to the instant petition because at the pre-trial conference held therein, the petitioner submitted to the discretion of the court as to the correct valuation, private respondents stated that they have no objections and are in conformity with the price of P30.00 per square meter as reasonable compensation for their land and the City Assessor informed the court of the current market and appraisal values of the properties in the area and the factors to be considered in the determination of such. The parties presented their documentary exhibits. In effect, therefore, the parties themselves agreed to submit to a judicial determination on the matter of just compensation and that judgment be rendered based thereon. In the instant case, no pretrial was conducted; the proceedings were still at that state where the provisional value was yet to be determined; and the parties made no agreement on just compensation. WHEREFORE, the instant petition is GRANTED and the Orders of respondent Judge of 25 June 1990, 12 July 1990, 16 July 1990 and 18 July 1990 are hereby SET ASIDE and the temporary restraining order issued by this Court on 31 July 1990 directing respondent Judge to cease and desist from enforcing the questioned Orders is hereby made permanent. The respondent Judge is hereby directed to fix the provisional values of the parcels of land in Civil Cases Nos. 5938, 5939, 5940, 5941, 5942, 5943, and 5944 in accordance with P.D. No. 42; thereafter, the petitioner may retain in Savings Account No. 249-505865-7 with the Philippine National Bank, NAPOCOR Branch, Diliman, Quezon City, a sum equivalent to the provisional value as thus fixed, which the Bank shall hold subject to the orders and final disposition of the court a quo, and withdraw the balance. The respondent Judge is further directed to proceed with the above eminent domain cases without unnecessary delay pursuant to the procedure laid down in Rule 67 of the Rules of Court. Finally, respondent Judge is reminded to comply faithfully with the procedure provided for in the Rules of Court. Let a copy of this Decision be appended to his record. Costs against private respondents. IT IS SO ORDERED. Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Romero and Nocon, JJ., concur.

Footnotes 1 Annex "A" of Petition. 2 Annex "B", Id. 3 Annex "C", Id. 4 Annex "D", Id. 5 Annex "E", Id. 6 Annex "F", Id. 7 Annex "G", Id. 8 Annexes "H", "I" and "J"; respectively, of Petition. 9 Annex "K", Id. 10 Annex "L", Id. 11 Annex "M", Id. 12 Annex "N" of Petition. 13 Annex "O", Id. 14 Annex "P", Id. 15 Annex "Q", Id. 16 Rollo, 7. 17 Annex "R" of Petition. 18 Annex "S", Id. 19 Annex "T" of Petition. 20 Annex "U", Id. 21 Annex "V" of Petition. 22 A copy of the motion is not attached to the petition, however, the Order of 12 July 1990 made reference to and resolved this motion. 23 Annex "W", op cit. 24 Annex "X" of Petition. 25 Annex "Y", Id. 26 Annex "Z" of Petition. Copies of the so-called Manifestation are not attached to the Petition. 27 Rollo, 140.

28 Id., 183, et seq. 29 Id., 211, et seq. 30 Id., 216, et seq. 31 Id., 236, et seq. 32 Id., 211-212. 33 160 SCRA 285 (G.R. No. L-45144, 15 April 1988). 34 Rollo, 261, et seq. 35 Supra. 36 Op. cit., 281. 37 Id., 276. 38 Id., 297, et seq. 39 Id., 308, et seq. 40 180 SCRA 576 (1989). 41 Citing Sections 1, 2 and 3, Rule 67 of the Rules of Court. 42 Citing Section 4, Rule 67; Nieto vs. Isip, 97 Phil. 31; Benguet Consolidated vs. Republic, 143 SCRA 466. 43 Citing Investments, Inc. vs. Court of Appeals, et al., 147 SCRA 334. 44 Citing Sections 5 to 8, Rule 67 of the Rules of Court. 45 31 Phil. 118, 132 (1915). 46 Haguisan vs. Emilia, et al., 131 SCRA 517. 47 Arce vs. Genato, 69 SCRA 544; San Diego vs. Valdellon, 80 SCRA 305. 48 Rollo, 133. 49 Annex "W" of Petition. 50 Bank of the Philippine Islands vs. Far East Molasses, Corp., G.R. 89125, 2 July 1991, 198 SCRA 689, citing Firme, et al. vs. Reyes, et al., 92 SCRA 713; Filipinas Fabricators & Sales, Inc., et al. vs. Magsino, et al., 157 SCRA 469. 51 Supra. 52 149 SCRA 305 (1987). 53 Annexes "H", "I" and "J" of Petition. 54 Constantino, et al., vs. Estenzo, et al., 65 SCRA 675.

55 Supra.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2929 February 28, 1950

THE CITY OF MANILA, plaintiff-appellant, vs. THE ARRELANO LAW COLLEGES, INC., defendant-appellee. City Fiscal Eugenio Angeles and Assistant City Fiscal Arsenio Naawa for appellant. Emmanuel Pelaez for appellee. TUASON, J.: Section 1 of Republic Act No. 267 provides: Cities and municipalities are authorized to contract loans from the Reconstruction Finance Corporation, the Philippine National Bank, and/or other entity or person at the rate of interest not exceeding eight per cent annum for the purpose of purchasing or expropriating homesites within their respective territorial jurisdiction and reselling them at cost to residents of the said cities and municipalities. The court below ruled that this provision empowers cities to purchase but not to expropriate lands for the purpose of subdivision and resale, and so dismissed the present action, which seeks to condemn, for the purpose just stated, several parcels of land having a combined area of 7,270 square meters and situated on Legarda Street, City of Manila. In the cases of Guido vs. Rural Progress Administration (G. R. No. L-2089)1 and Commonwealth of the Philippines vs. De Borja (G. R. No. L-1496),2 we discussed at great length the extent of the Philippine Government's power to condemn private property for resale. Among other things, we said: It has been truly said that the assertion of the right on the part of the legislature to take the property of one citizen and transfer it to another, even for a full compensation, when the public interest is not promoted thereby, is claiming a despotic power, and one inconsistent with every just principle and fundamental maxim of a free government. (29 C. J. S., 820.) In a broad sense, expropriation of large estates, trusts in perpetuity, and land that embraces a whole town, or large section of a town or city, bears direct relation to the public welfare. The size of the land expropriated, the large number of people benefited, and the extent of social and economic reform secured by the condemnation, clothes the expropriation with public interest and public use. The expropriation in such cases tends to abolish economic slavery, feudalistic practices, endless conflicts between landlords and tenants, and other evils inimical to community prosperity and contentment and public peace and order. Although courts are not in agreement as to the tests to applied in determining whether the use is public or not, some go so far in the direction of a liberal construction as to hold that public use is synonymous with public benefit, public utility, or public advantage, and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interest involved are of considerable magnitude. (29 C. J. S.; 823, 824; see also People of Puerto Rico vs. Eastern Sugar Associate et al., 156 Fed. [2d], 316.) In some instances, slumsites have been acquired by condemnation. The highest court of New York State has ruled that slum clearance and erection of houses for low-income families were public purpose for which New York City Housing authorities could exercise the power of condemnation. and this decision was followed by similar ones in other states. The underlying reasons for these decisions are that the destruction of congested areas and unsanitary dwellings diminished the potentialities of epidemics, crime and waste, prevents the spread of crime and diseases to unaffected areas, enhances the physical and moral value of the surrounding communities, and promote the safety and welfare of the public in general. (Murray et al.

vs. La Guardia, 52 N. e. [2d], 884; General Development Coop. vs. City of Detroit, 33 N. W. [2d], 919; Weizner vs. Stichman, 64 N. Y. S. [2d], 50.) But it will be noted that in all these cases and of similar nature extensive areas were involved and numerous people and the general public benefited by the action taken. The condemnation of a small property in behalf of 10, 20 or 50 persons and their families does not insure to the benefit of the public to a degree sufficient to give the use public character. The expropriation proceedings at bar have been instituted for the economic relief of a few families devoid of any consideration of public peace and order, or other public advantage. What is proposed to be done is to take plaintiff's property, which for all we know she acquired by sweat and sacrifices for her and her family's security, and sell it at cost to a few lessees who refuse to pay the stipulated rent or leave the premises. No fixed line of demarcation between what taking is for public use and what is not can made; each case has to be judged according to its peculiar circumstances. It suffices to say for the purpose of this decision that the case under consideration is far wanting in those elements which make for public convenience or public use. It is patterned upon an ideology far removed from the majority of the citizens of this country. If upheld, this case would open the gates to more oppressive expropriations. If this expropriation be constitutional, we see no reason why a 10-, 15-, or 25-hectare farm land might not be expropriated and subdivided, and sold to those who want to own a portion of it. to make the analogy closer, we find no reason why the Rural Progress Administration could not take by condemnation an urban lot containing and area of 1,000 or 2,000 square meters for subdivision into tiny lots for resale to its occupations or those who want to build thereon. We are inclined to believe that Act No. 267 empowers cities to expropriate as well as to purchase lands for homesites. The word "expropriating," taken singly or with the text, is susceptible of only meaning. But this power to expropriate is necessarily subject to the limitations and conditions noted in the decisions above cited. The National Government may not confer its instrumentalities authority which itself may not exercise. A stream can not run higher than its source. Viewed from another angle, the case at bar is weaker for the condemnor. In the first place, the land that is the subject of the present expropriation is only one-third of the land sought to be taken in the Guido case, and about two-thirds of that involved in the Borja condemnation proceeding. In the second place, the Arellano Colleges' land is situated in a highly commercial section of the city and is occupied by persons who are not bona fide tenants. Lastly, this land was brought by the defendant for a university site to take the place of rented buildings that are unsuitable for schools of higher learning. To authorize the condemnation of any particular land by a grantee of the power of eminent domain, a necessity must exist for the taking thereof for the proposed uses and purposes. (29 C. J. S., 884-885.) In City of Manila vs. Manila Chinese Community (40 Phil., 349), this Court, citing American decision, laid done this rule: The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.) And this passage in Blackstone's Commentaries on the English Law is cited in that decision: "So great is the regard of the law for private property that it will not authorize the least violation of it, even for the public good, unless there exist a very great necessity thereof." Perhaps modern decisions are not so exigent. 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 property owner consistent with such benefits. (29 C. J. S., 386.) But measured even by this standard, and forgetting for a moment the private character of the intended use, necessity for the condemnation has not been shown. The land in question has cost the owner P140,000. The people for whose benefit the condemnation is being undertaken are so poor they could ill afford to meet this high price, unless they intend to borrow the money with a view to disposing of the property later for a profits. Cheaper lands not dedicated to a purpose so worthy as a school and more suited to the occupants' needs and means, if really they only want to own their own homes, are plenty elsewhere. On the other hand, the defendant not only has invested a considerable amount for its property but had the plans for construction ready and would have completed the project a long time ago had it not been stopped by the city authorities. And again, while a

handful of people stand to profits by the expropriation, the development of a university that has a present enrollment of 9,000 students would be sacrificed. Any good that would accrue to the public from providing homes to a few families fades into insignificance in comparison with the preparation of a young men and young women for useful citizenship and for service to the government and the community, a task which the government alone is not in a position to undertake. As the Rural Progress Administration, the national agency lands for resale as homesites and to which the petition to purchase the land in question on behalf of the occupants was referred by the President, turning down the occupants request after proper investigation, commented that "the necessity of the Arellano Law College to acquire a permanent site of its own is imperative not only because denial of the same would hamper the objectives of that educational institution, but it would likewise be taking a property intended already for public benefit." The Mayor of the City of Manila himself confessed that he believes the plaintiff is entitled to keep this land. The order of the Court of First Instance of Manila is affirmed without costs. Moran, C.J., Ozaeta, Pablo, Padilla, Montemayor, Reyes and Torres, JJ., concur.

Footnotes
1

84 Phil., 847. 85 Phil., 51.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14355 October 31, 1919

THE CITY OF MANILA, plaintiff-appellant, vs. CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees. City Fiscal Diaz for appellant. Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and Ramon Salinas for appellees.

JOHNSON, J.:

The important question presented by this appeal is: In expropriation proceedings by the city of Manila, may the courts inquire into, and hear proof upon, the necessity of the expropriation? That question arose in the following manner: On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First Instance of said city, praying that certain lands, therein particularly described, be expropriated for the purpose of constructing a public improvement. The petitioner, in the second paragraph of the petition, alleged: That for the purpose of constructing a public improvement, namely, the extension of Rizal Avenue, Manila, it is necessary for the plaintiff to acquire ownership in fee simple of certain parcels of land situated in the district of Binondo of said city within Block 83 of said district, and within the jurisdiction of this court. The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of the plaintiff, alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine Islands, having for its purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it was the owner of parcels one and two of the land described in paragraph 2 of the complaint; that itdenied that it was either necessary or expedient that the said parcels be expropriated for street purposes; that existing street and roads furnished ample means of communication for the public in the district covered by such proposed expropriation; that if the construction of the street or road should be considered a public necessity, other routes were available, which would fully satisfy the plaintiff's purposes, at much less expense and without disturbing the resting places of the dead; that it had a Torrens title for the lands in question; that the lands in question had been used by the defendant for cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said expropriation be carried into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of money in the transfer or removal of the bodies to some other place or site and in the purchase of such new sites, would involve the destruction of existing monuments and the erection of new monuments in their stead, and would create irreparable loss and injury to the defendant and to all those persons owning and interested in the graves and monuments which would have to be destroyed; that the plaintiff was without right or authority to expropriate said cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a public improvement. The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of the complaint, and alleged that said expropriation was not a public improvement; that it was not necessary for the plaintiff to acquire the parcels of land in question; that a portion of the lands in question was used as a cemetery in which were the graves of his ancestors; that monuments and tombstones of great value were found thereon; that the land had become quasi-public property of a benevolent association, dedicated and used for the burial of the dead and that many dead were buried there; that if the plaintiff deemed it necessary to extend Rizal Avenue, he had offered and still offers to grant a right of way for the said extension over other land, without cost to the plaintiff, in order that the sepulchers, chapels and graves of his ancestors may not be disturbed; that the land so offered,free of charge, would answer every public necessity on the part of the plaintiff. The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of the other defendants, answering separately, presented substantially the same defense as that presented by theComunidad de Chinos de Manila and Ildefonso Tambunting above referred to. The foregoing parts of the defense presented by the defendants have been inserted in order to show the general character of the defenses presented by each of the defendants. The plaintiff alleged that the expropriation was necessary. The defendants each alleged (a) that no necessity existed for said expropriation and (b) that the land in question was a cemetery, which had been used as such for many years, and was covered with sepulchres and monuments, and that the same should not be converted into a street for public purposes. Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judge, in a very elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that there was no necessity for the expropriation of the particular strip of land in question, and absolved each and all of the defendants from all liability under the complaint, without any finding as to costs.

From that judgment the plaintiff appealed and presented the above question as its principal ground of appeal. The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that the courts are mere appraisers of the land involved in expropriation proceedings, and, when the value of the land is fixed by the method adopted by the law, to render a judgment in favor of the defendant for its value. That the city of Manila has authority to expropriate private lands for public purposes, is not denied. Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn privateproperty for public use." The Charter of the city of Manila contains no procedure by which the said authority may be carried into effect. We are driven, therefore, to the procedure marked out by Act No. 190 to ascertain how the said authority may be exercised. From an examination of Act No. 190, in its section 241, we find how the right of eminent domain may be exercised. Said section 241 provides that, "The Government of the Philippine Islands, or of any province or department thereof, or of any municipality, and any person, or public or private corporation having, by law, the right to condemn private property for public use, shall exercise that right in the manner hereinafter prescribed." Section 242 provides that a complaint in expropriation proceeding shall be presented; that the complaint shall state with certainty the right of condemnation, with a description of the property sought to be condemned together with the interest of each defendant separately. Section 243 provides that if the court shall find upon trial that the right to expropriate the land in question exists, it shall then appoint commissioners. Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provides for an appeal from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the Supreme Court authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on appeal shall determine that no right of expropriation existed, it shall remand the cause to the Court of First Instance with a mandate that the defendant be replaced in the possession of the property and that he recover whatever damages he may have sustained by reason of the possession of the plaintiff. It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the rightto expropriate exists," means simply that, if the court finds that there is some law authorizing the plaintiff to expropriate, then the courts have no other function than to authorize the expropriation and to proceed to ascertain the value of the land involved; that the necessity for the expropriation is a legislative and not a judicial question. Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene except for the purpose of determining the value of the land in question, there is much legal legislature. Much has been written upon both sides of that question. A careful examination of the discussions pro and con will disclose the fact that the decisions depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the legislature under proper authority should grant the expropriation of a certain or particular parcelof land for some specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation. If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to expropriate private land for public purposes, we think the courts have ample authority in this jurisdiction, under the provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or not the lands were private and whether the purpose was, in fact, public. In other words, have no the courts in this jurisdiction the right, inasmuch as the questions relating to expropriation must be referred to them (sec. 241, Act No. 190) for final decision, to ask whether or not the law has been complied with? Suppose in a particular case, it should be denied that the property is not private property but public, may not the courts hear proof upon that question? Or, suppose the defense is, that the purpose of the expropriation is not public butprivate, or that there exists no public purpose at all, may not the courts make inquiry and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for public purposes. Can it be possible that said authority confers the right to determine for itself that the land is private and that the purpose is public, and that the people of the city of Manila who pay the taxes for its support, especially those who are directly affected, may not question one or the other, or both, of these questions? Can it be successfully contended that the phrase used in Act No. 190, "and if the court upon trial shall find that such right exists," means simply that the court shall examine the statutes simply for the purpose of ascertaining whether a law exists authorizing the petitioner to exercise the right of eminent domain? Or, when the case arrives in the Supreme Court, can it be possible that the phrase, "if the Supreme Court shall determine that no right of expropriation exists," that that simply means that the Supreme Court shall also examine the enactments of the legislature for the purpose of determining whether or not a law exists permitting the plaintiff to expropriate? We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the power upon it. When the courts come to determine the question, they must only find ( a) that a law or authority exists for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance with the law. In the present case there are two conditions imposed upon the authority conceded to the City of Manila: First, the land must be private; and, second, the purpose must be public. If the court, upon trial, finds that neither of these conditions exists or that either one of them fails, certainly it cannot be contended that the right is being exercised in accordance with law. Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. Whether the land is public, is a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine Islands the right to ascertain upon trial whether the right exists for the exercise of eminent domain, it intended that the courts should inquire into, and hear proof upon, those questions. Is it possible that the owner of valuable land in this jurisdiction is compelled to stand mute while his land is being expropriated for a use not public, with the right simply to beg the city of Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities to expropriate lands, without question, simply for the purpose of satisfying the aesthetic sense of those who happen for the time being to be in authority? Expropriation of lands usually calls for public expense. The taxpayers are called upon to pay the costs. Cannot the owners of land question the public use or the public necessity? As was said above, there is a wide divergence of opinion upon the authority of the court to question the necessity or advisability of the exercise of the right of eminent domain. The divergence is usually found to depend upon particular statutory or constitutional provisions. It has been contended and many cases are cited in support of that contention, and section 158 of volume 10 of Ruling Case Law is cited as conclusive that the necessity for taking property under the right of eminent domain is not a judicial question. But those who cited said section evidently overlooked the section immediately following (sec. 159), which adds: "But it is obvious that if the property is taken in the ostensible behalf of a public improvement which it can never by any possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for protection by the courts. While many courts have used sweeping expression in the decisions in which they have disclaimed the power of supervising the power of supervising the selection of the sites of public improvements, it may be safely said that the courts of the various states would feel bound to interfere to prevent an abuse of the discretion delegated by the legislature, by an attempted appropriation of land in utter disregard of the possible necessity of its use, or when the alleged purpose was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., 620.) Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention of the appellant, says: The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people.

Practically every case cited in support of the above doctrine has been examined, and we are justified in making the statement that in each case the legislature directly determined the necessity for the exercise of the right of eminent domain in the particular case. It is not denied that if the necessity for the exercise of the right of eminent domain is presented to the legislative department of the government and that department decides that there exists a necessity for the exercise of the right in a particular case, that then and in that case, the courts will not go behind the action of the legislature and make inquiry concerning the necessity. But, in the case ofWheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the doctrine laid down in section 158 above quoted, the court said: But when the statute does not designate the property to be taken nor how may be taken, then the necessity of taking particular property is a question for the courts. Where the application to condemn or appropriate is made directly to the court, the question (of necessity) should be raised and decided in limene. The legislative department of the government was rarely undertakes to designate the precise property which should be taken for public use. It has generally, like in the present case, merely conferred general authority to take land for public use when a necessity exists therefor. We believe that it can be confidently asserted that, under such statute, the allegation of the necessity for the appropriation is an issuable allegation which it is competent for the courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].) There is a wide distinction between a legislative declaration that a municipality is given authority to exercise the right of eminent domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a particular case. The first is a declaration simply that there exist reasons why the right should be conferred upon municipal corporation, while the second is the application of the right to a particular case. Certainly, the legislative declaration relating to the advisability of granting the power cannot be converted into a declaration that a necessity exists for its exercise in a particular case, and especially so when, perhaps, the land in question was not within the territorial authority was granted. Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the right of eminent domain, is a question with which the courts are not concerned. But when that right or authority is exercised for the purpose of depriving citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to hear proof upon the necessity in the particular case, and not the general authority. Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive authority upon the question that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial question. Cyclopedia, at the page stated, says: In the absence of some constitutional or statutory provision to the contrary, the necessity andexpediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. The determination of those questions (the necessity and the expediency) belongs to the sovereign power; the legislative department is final and conclusive, and the courts have no power to review it (the necessity and the expediency) . . . . It (the legislature) may designate the particular property to be condemned, and its determination in this respect cannot be reviewed by the courts. The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted. While time has not permitted an examination of all of said citations, many of them have been examined, and it can be confidently asserted that said cases which are cited in support of the assertion that, "the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial," show clearly and invariably that in each case the legislature itself usually, by a special law, designated the particular case in which the right of eminent domain might be exercised by the particular municipal corporation or entity within the state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].) In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United States said: "It is erroneous to suppose that the legislature is beyond the control of the courts in exercising the power of eminent domain, either as to the nature of the use or the necessity to the use of any particular property. For if the use be not public or no necessity for the taking exists, the legislature cannot authorize the taking of private property against the will of the owner, notwithstanding compensation may be required."

In the case of School Board of Carolina vs. Saldaa (14 Porto Rico, 339, 356), we find the Supreme Court of Porto Rico, speaking through Justice MacLeary, quoting approvingly the following, upon the question which we are discussing: "It is well settled that although the legislature must necessarily determine in the first instance whether the use for which they (municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities, etc.) determination is not final, but is subject to correction by the courts, who may undoubtedly declare the statute unconstitutional, if it shall clearly appear that the use for which it is proposed to authorize the taking of private property is in reality not public but private." Many cases are cited in support of that doctrine. Later, in the same decision, we find the Supreme Court of Porto Rico says: "At any rate, the rule is quite well settled that in the cases under consideration the determination of the necessity of taking a particular piece or a certain amount of land rests ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) . In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court of Connecticut approvingly quoted the following doctrine from Lewis on Eminent Domain (3d ed.), section 599: "In all such cases the necessity of public utility of the proposed work or improvement is a judicial question. In all such cases, where the authority is to take property necessary for the purpose, the necessity of taking particular property for a particular purpose is a judicial one, upon which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71 S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390, 403.) The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of the state, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky., 692, 697.) In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of the State of Maryland, discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain) where the legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the purpose of the incorporation, as in this case, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations, would likely lead to oppression and the sacrifice of private right to corporate power." In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is not a general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist. Such necessity must appear upon the face of the petition to condemn. If the necessary is denied the burden is upon the company (municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].) It is true that naby decisions may be found asserting that what is a public use is a legislative question, and many other decisions declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or statutory provision denying the right to take land for any use other than a public use, it occurs to us that the question whether any particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is true, in effect declare certain uses to be public, and, under the operation of the well-known rule that a statute will not be declared to be unconstitutional except in a case free, or comparatively free, from doubt, the courts will certainly sustain the action of the legislature unless it appears that the particular use is clearly not of a public nature. The decisions must be understood with this limitation; for, certainly, no court of last resort will be willing to declare that any and every purpose which the legislative might happen to designate as a public use shall be conclusively held to be so, irrespective of the purpose in question and of its manifestly private character Blackstone in his Commentaries on the English Law remarks that, so great is the regard of the law for private property that it will not authorize the least violation of it, even for the public good, unless there exists a very great necessity therefor. In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of the United States said: "That government can scarcely be deemed free where the rights of property are left solely defendant on the legislative body, without restraint. The fundamental maxims of free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them a power so repugnant to the common principles of justice and civil liberty lurked in any general grant of legislature authority, or ought to

be implied from any general expression of the people. The people ought no to be presumed to part with rights so vital to their security and well-being without very strong and direct expression of such intention." (Lewis on Eminent Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann., 182.) Blackstone, in his Commentaries on the English Law said that the right to own and possess land a place to live separate and apart from others to retain it as a home for the family in a way not to be molested by others is one of the most sacred rights that men are heirs to. That right has been written into the organic law of every civilized nation. The Acts of Congress of July 1, 1902, and of August 29, 1916, which provide that "no law shall be enacted in the Philippine Islands which shall deprive any person of his property without due process of law," are but a restatement of the time-honored protection of the absolute right of the individual to his property. Neither did said Acts of Congress add anything to the law already existing in the Philippine Islands. The Spaniard fully recognized the principle and adequately protected the inhabitants of the Philippine Islands against the encroachment upon the private property of the individual. Article 349 of the Civil Code provides that: "No one may be deprived of his property unless it be by competent authority, for some purpose of proven public utility, and after payment of the proper compensation Unless this requisite (proven public utility and payment) has been complied with, it shall be the duty of the courts to protect the owner of such property in its possession or to restore its possession to him , as the case may be." 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, and the rule in that case is that the authority must be strictly construed. No species of property is held by individuals with greater tenacity, and none is guarded by the constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right, and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec., 576].) The statutory power of taking property from the owner without his consent is one of the most delicate exercise of government authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict observance of the substantial provisions of the law which are prescribed as modes of the exercise of the power, and to protect it from abuse. Not only must the authority of municipal corporations to take property be expressly conferred and the use for which it is taken specified, but the power, with all constitutional limitation and directions for its exercise, must be strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.) It can scarcely be contended that a municipality would be permitted to take property for some public use unless some public necessity existed therefor. The right to take private property for public use originates in the necessity, and the taking must be limited by such necessity. The appellant contends that inasmuch as the legislature has given it general authority to take private property for public use, that the legislature has, therefore, settled the question of the necessity in every case and that the courts are closed to the owners of the property upon that question. Can it be imagined, when the legislature adopted section 2429 of Act No. 2711, that it thereby declared that it was necessary to appropriate the property of Juan de la Cruz, whose property, perhaps, was not within the city limits at the time the law was adopted? The legislature, then, not having declared the necessity, can it be contemplated that it intended that a municipality should be the sole judge of the necessity in every case, and that the courts, in the face of the provision that "if upon trial they shall find that a right exists," cannot in that trial inquire into and hear proof upon the necessity for the appropriation in a particular case? The Charter of the city of Manila authorizes the taking of private property for public use. Suppose the owner of the property denies and successfully proves that the taking of his property serves no public use: Would the courts not be justified in inquiring into that question and in finally denying the petition if no public purpose was proved? Can it be denied that the courts have a right to inquire into that question? If the courts can ask questions and decide, upon an issue properly presented, whether the use is public or not, is not that tantamount to permitting the courts to inquire into the necessity of the appropriation? If there is no public use, then there is no necessity, and if there is no necessity, it is difficult to understand how a public use can necessarily exist. If the courts can inquire into the question whether a public use exists or not, then it seems that it must follow that they can examine into the question of the necessity. The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a particular case. The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority, is a question which the courts have the right to inquire into. The conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain is purely legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing the exercise of the right of eminent domain instead of in the question of the right to exercise it in a particular case. (Creston Waterworks Co. vs. McGrath, 89 Iowa, 502.) By the weight of authorities, the courts have the power of restricting the exercise of eminent domain to the actual reasonable necessities of the case and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48 Minn., 540.) And, moreover, the record does not show conclusively that the plaintiff has definitely decided that their exists a necessity for the appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate that the municipal board believed at one time that other land might be used for the proposed improvement, thereby avoiding the necessity of distributing the quiet resting place of the dead. Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend that the street in question should not be opened through the cemetery. One of the defendants alleges that said cemetery is public property. If that allegations is true, then, of course, the city of Manila cannot appropriate it for public use. The city of Manila can only expropriate private property. It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general community, or neighborhood, or church, while the latter is used only by a family, or a small portion of the community or neighborhood. (11 C. J., 50.) Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses under a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good faith for future use. (Lewis on Eminent Domain, sec. 434, and cases cited.) The cemetery in question seems to have been established under governmental authority. The Spanish Governor-General, in an order creating the same, used the following language: The cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and fraternal contribution of their protector, merchants and industrials, benefactors of mankind, in consideration of their services to the Government of the Islands its internal administration, government and regime must necessarily be adjusted to the taste and traditional practices of those born and educated in China in order that the sentiments which animated the founders may be perpetually effectuated. It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which fact, in the general acceptation of the definition of a public cemetery, would make the cemetery in question public property. If that is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila has no authority or right under the law to expropriate public property. But, whether or not the cemetery is public or private property, its appropriation for the uses of a public street, especially during the lifetime of those specially interested in its maintenance as a cemetery, should be a question of great concern, and its appropriation should not be made for such purposes until it is fully established that the greatest necessity exists therefor. While we do not contend that the dead must not give place to the living, and while it is a matter of public knowledge that in the process of time sepulchres may become the seat of cities and cemeteries traversed by streets and daily trod by the feet of millions of men, yet, nevertheless such sacrifices and such uses of the

places of the dead should not be made unless and until it is fully established that there exists an eminent necessity therefor. While cemeteries and sepulchres and the places of the burial of the dead are still within the memory and command of the active care of the living; while they are still devoted to pious uses and sacred regard, it is difficult to believe that even the legislature would adopt a law expressly providing that such places, under such circumstances, should be violated. In such an appropriation, what, we may ask, would be the measure of damages at law, for the wounded sensibilities of the living, in having the graves of kindred and loved ones blotted out and desecrated by a common highway or street for public travel? The impossibility of measuring the damage and inadequacy of a remedy at law is too apparent to admit of argument. To disturb the mortal remains of those endeared to us in life sometimes becomes the sad duty of the living; but, except in cases of necessity, or for laudable purposes, the sanctity of the grave, the last resting place of our friends, should be maintained, and the preventative aid of the courts should be invoked for that object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery Associationvs. The City of New Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.) In the present case, even granting that a necessity exists for the opening of the street in question, the record contains no proof of the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent lands have been offered to the city free of charge, which will answer every purpose of the plaintiff. For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is hereby affirmed, with costs against the appellant. So ordered. Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.

Separate Opinions

MALCOLM, J., concurring: The Government of the Philippine Islands is authorized by the Philippine Bill to acquire real estate for public use by the exercise of the right of eminent domain. (Act of Congress of July 1, 1902, sec. 63.) A portion of this power has been delegated by the Philippine Legislature to the city of Manila, which is permitted to "condemn private property for public use." (Administrative Code of 1917, sec. 2429.) The Code of Civil Procedure, in prescribing how the right of eminent domain may be exercised, also limits the condemnation to "private property for public use." (Sec. 241.) As under the facts actually presented, there can be no question that a public street constitutes a public use, the only remaining question is whether or not the Chinese Cemetery and the other property here sought to be taken by the exercise of the right of eminent domain is "private property." As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public and private. A public cemetery is one used by the general community, or neighborhood, or church; while a private cemetery is one used only by a family, or small portion of a community. (Lay vs. State, 12 Ind. App., 362; Cemetery Associationvs. Meninger [1875], 14 Kan., 312.) Our specific question, then, is, whether the Chinese Cemetery in the city of Manila is a public, or a private graveyard. If it be found to be the former, it is not subject to condemnation by the city of Manila; if it be found to be the latter, it is subject to condemnation. The Chinese Cemetery of Manila was established during the Spanish administration in the Philippines by public spirited Chinese. The order of the Governor-General giving governmental recognition to the cemetery reads as follows: "The cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and fraternal contribution of their protectors, merchants and industrials, benefactors of mankind, in consideration of their services to the Government of the Islands, its internal

administration, government and regime, must necessarily be adjusted to the taste and traditional practices of those born and educated in China in order that the sentiments which animated the founders may be perpetually effectuated." Sometimes after the inauguration of the new regime in the Philippines, a corporation was organized to control the cemetery, and a Torrens title for the lands in question was obtained. From the time of its creation until the present the cemetery has been used by the Chinese community for the burial of their dead. It is said that not less than four hundred graves, many of them with handsome monuments, would be destroyed by the proposed street. This desecration is attempted as to the las t resting places of the dead of a people who, because of their peculiar and ingrained ancestral workship, retain more than the usual reverence for the departed. These facts lead us straight to the conclusion that the Chinese Cemetery is not used by a family or a small portion of a community but by a particular race long existing in the country and of considerable numbers. The case, then, is one of where the city of Manila, under a general authority permitting it to condemn private property for public use, is attempting to convert a property already dedicated to a public use to an entirely different public use; and this, not directly pursuant to legislative authority, but primarily through the sole advice of the consulting architect. Two well considered decisions coming from the American state courts on almost identical facts are worthy of our consideration. The first is the case of The Evergreen Cemetery Association vs. The City of New Haven ([1875], 43 Conn., 234), of cited by other courts. Here the City of New Haven, Connecticut, under the general power conferred upon it to lay out, construct, and maintain all necessary highways within its limits, proceeded to widen and straighten one of its streets and in so doing took a small piece of land belonging to the Evergreen Cemetery Association. This association was incorporated under the general statute. The city had no special power to take any part of the cemetery for such purposes. It was found that the land taken was needed for the purposes of the cemetery and was not needed for the purpose of widening and straightening the avenue. The court said that it is unquestionable that the Legislature has the power to authorize the taking of land already applied to one public use and devote it to another. When the power is granted to municipal or private corporations in express words, no question can arise. But, it was added, "The same land cannot properly be used for burial lots and for a public highway at the same time. . . . Land therefore applied to one use should not be taken for the other except in cases on necessity. . . . There is no difficulty in effecting the desired improvement by taking land on the other side of the street. . . . The idea of running a public street, regardless of graves, monuments, and the feelings of the living, through one of our public cemeteries, would be shocking to the moral sense of the community, and would not be tolerated except upon the direst necessity." It was then held that land already devoted to a public use cannot be taken by the public for another use which is inconsistent with the first, without special authority from the Legislature, or authority granted by necessary and reasonable implication. The second decision is that of Memphis State Line Railroad Company vs. Forest Hill Cemetery Co. ([1906], 116 Tenn., 400.) Here the purpose of the proceedings was to condemn a right of way for the railway company through the Forest Hill Cemetery. The railroad proposed to run through the southeast corner of the cemetery where no bodies were interred. The cemetery had been in use for about eight years, and during this period thirteen hundred bodies had been buried therein. The cemetery was under the control of a corporation which, by its character, held itself out as being willing to sell lots to any one who applies therefor and pays the price demanded, except to members of the Negro race.1awph!l.net It was found that there were two other routes along which the railroad might be located without touching the cemetery, while the present line might be pursued without interfering with Forest Hill Cemetery by making a curve around it. In the court below the railroad was granted the right of condemnation through the cemetery and damages were assessed. On appeal, the certiorari applied for was granted, and the supersedeas awarded. The court, in effect, found that the land of the Cemetery Company was devoted to a public purpose, and that under the general language of the Tennessee statute of eminent domain it could not be taken for another public purpose. The court said that in process of time the sepulchres of the dead "are made the seats of cities, and are traversed by streets, and daily trodden by the feet of man. This is inevitable in the course of ages. But while these places are yet within the memory and under the active care of the living, while they are still devoted to pious uses, they are sacred, and we cannot suppose that the legislature intended that they should be violated, in the absence of special provisions upon the subject authorizing such invasion, and indicating a method for the disinterment, removal, and reinterment of the bodies buried, and directing how the expense thereof shall be borne." Two members of the court, delivering a separate concurring opinion, concluded with this significant and eloquent sentence: "The wheels of commerce must stop at the grave." For the foregoing reasons, and for others which are stated in the principal decision, I am of the opinion that the judgment of the lower court should be affirmed.

STREET, J., dissenting: It may be admitted that, upon the evidence before us, the projected condemnation of the Chinese Cemetery is unnecessary and perhaps ill-considered. Nevertheless I concur with Justice Moir in the view that the authorities of the city of Manila are the proper judges of the propriety of the condemnation and that this Court should have nothing to do with the question of the necessity of the taking. MOIR, J., dissenting: I dissent from the majority opinion in this case, which has not yet been written, and because of the importance of the question involved, present my dissent for the record. This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue north. The petition for condemnation was opposed by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and various other who obtained permission of the trial court to intervene in the case. All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts through a part of the Chinese Cemetery, North of Manila, and necessitates the destruction of many monuments and the removal of many graves. The Court of First Instance of Manila, Honorable S. del Rosario, judge after hearing the parties, decided that there was no need for constructing the street as and where proposed by the city, and dismissed the petition. The plaintiff appealed and sets up the following errors: 1. The court erred in deciding that the determination of the necessity and convenience of the expropriation of the lands of the defendants lies with the court and not with the Municipal Board of the city of Manila. 2. The court erred in permitting the presentation of proofs over the objection and exception of the plaintiff tending to demonstrate the lack of necessity of the projected street and the need of the lands in question. 3. The court erred in declaring that the plaintiff had no right to expropriate the lands in question. 4. The court erred in dismissing the complaint. The right of the plaintiff to expropriate property for public use cannot be denied. The "right of eminent domain is inherent in all sovereignties and therefore would exist without any constitutional recognition . . . . The right of eminent domain antedates constitutions . . . . The right can only be denied or restricted by fundamental law and is right inherent in society." (15 Cyc., pp. 557-8.) . This general right was recognized in the Philippine Code of Civil Procedure effective October 1st, 1901, which prescribed the manner of exercising the right. (Sections 241 et seq.) It was further recognized in the Organic Act of July 1st, 1902, which provides in section 74 " that the Government of the Philippine Islands may grant franchises . . . including the authority to exercise the right of eminent domain for the construction and operation of works of public utility and service, and may authorize said works to be constructed and maintained over and across the public property of the United States including . . . reservations." This provisions is repeated in the Jones Law of August, 1916. The legislature of the Islands conferred the right on the city of Manila. (Section 2429, Administrative Code of 1917; section 2402, Administrative Code of 1916.) Clearly having the right of expropriation, the city of Manila selected the line of its street and asked the court by proper order to place the plaintiff in possession of the land described in the complaint, and to appoint Commissioners to inspect the property, appraise the value, and assess the damages. Instead of doing so, the court entered upon the question of the right of the city to take the property and the necessity for the taking.

The court says: The controversy relates to whether or not the Chinese Cemetery, where a great majority of this race is buried and other persons belonging to other nationalities have been formerly inhumed, is private orpublic; whether or not said cemetery, in case it is public, would be susceptible to expropriation for the purpose of public improvements proposed by the city of Manila; whether or not the latter is justified of the necessity and expediency of similar expropriation before its right to the same would be upheld by the courts of justice; and whether or not the appreciation of said necessity pertains to the legislative or the judicial department before which the expropriation proceedings have been brought. Relative to the first point, it is not necessary for the court to pass upon its consideration, in view of the conclusion it has arrived at the appreciation of the other points connected with each other. From the testimony of two reputable engineers produced by some of the defendants, it appears that the land chosen by the plaintiff for the extension of Rizal Avenue to the municipality of Caloocan is not the best or the less expensive, although upon it there may be constructed a straight road, without curves or winding; but that in order to construct said road upon said land, the city of Manila would have to remove and transfer to other places about four hundred graves and monuments, make some grubbings, undergo some leveling and build some bridges the works thereon, together with the construction of the road and the value of the lands expropriated, would mean an expenditure which will not be less than P180,000. Beside that considerable amount, the road would have a declivity of 3 per cent which, in order to cover a distance of one kilometer, would require an energy equivalent to that which would be expanded in covering a distance of two and one-half kilometers upon a level road. On the other hand, if the road would be constructed with the deviation proposed by Ildefonso Tambunting, one of the defendants, who even offered to donate gratuitously to the city of Manila part of the land upon which said road will have to be constructed, the plaintiff entity would be able to save more than hundreds of thousand of pesos, which can be invested in other improvements of greater pressure and necessity for the benefit of the taxpayers; and it will not have to employ more time and incur greater expenditures in the removal and transfer of the remains buried in the land of the Chinese Community and of Sr. Tambunting, although with the insignificant disadvantage that the road would be little longer by a still more insignificant extension of 426 meters and 55 centimeters less than one-half kilometer, according to the plan included in the records; but it would offer a better panorama to those who would use it, and who would not have to traverse in their necessary or pleasure-making trips or walks any cemetery which, on account of its nature, always deserves the respect of the travellers. It should be observed that the proposed straight road over the cemetery, which the city of Manila is proposing to expropriate, does not lead to any commercial, industrial, or agricultural center, and if with said road it is endeavored to benefit some community or created interest, the same object may be obtained by the proposed deviation of the road by the defendants. The road traced by the plaintiffs has the disadvantage that the lands on both sides thereof would not serve for residential purposes, for the reason that no one has the pleasure to construct buildings upon cemeteries, unless it be in very overcrowded cities, so exhausted of land that every inch thereof represents a dwelling house. And it is against the ruling, that it lies with the court to determine the necessity of the proposed street and not with the municipal board, that the appellant directs its first assignment of error. It is a right of the city government to determine whether or not it will construct streets and where, and the court's sole duty was to see that the value of the property was paid the owners after proper legal proceedings ascertaining the value. The law gives the city the right to take private property for public use. It is assumed it is unnecessary to argue that a public road is a public use. But it is argued that plaintiff must show that it is necessary to take this land for a public improvement. The law does not so read, and it is believed that the great weight of authority, including the United States Supreme Court, is against the contention.

The question of necessity is distinct from the question of public use, and former question is exclusively for the legislature, except that if the constitution or statute authorizes the taking of property only in cases of necessity, then the necessity becomes a judicial question. (McQuillen Municipal Corporations, Vol. IV, pp. 3090-3091.) In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. The determination of those questions belongs to the sovereign power; the legislative determination is final and conclusive, and the courts have no power to review it. It rests with the legislature not only to determine when the power of eminent domain may be exercised, but also the character, quality, method, and extent of such exercise. And this power is unqualified, other than by the necessity of providing that compensation shall be made. Nevertheless, under the express provisions of the constitution of some states the question of necessity is made a judicial one, to be determined by the courts and not by the legislature. While the legislature may itself exercise the right of determining the necessity for the exercise of the power of eminent domain, it may, unless prohibited by the constitution, delegate this power to public officers or to private corporations established to carry on enterprises in which the public are interested, and their determination that a necessity for the exercise of the power exists is conclusive. There is no restraint upon the power except that requiring compensation to be made. And when the power has been so delegated it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. It has been held that in the absence of any statutory provision submitting the matter to a court or jury the decision of the question of necessity lies with the body of individuals to whom the state has delegated the authority to take, and the legislature may be express provision confer this power on a corporation to whom the power of eminent domain is delegated unless prohibited by the constitution. It is of course competent for the legislature to declare that the question shall be a judicial one, in which case the court and not the corporation determines the question of necessity. (15 Cyc., pp. 629-632.) To the same effect is Lewis on Eminen Domain (3d Edition, section 597). I quote from the notes to Vol. 5, Encyclopedia of United States Supreme Court Reports, p. 762, as follows: Neither can it be said that there is any fundamental right secured by the constitution of the United States to have the questions of compensation and necessity both passed upon by one and the same jury. In many states the question of necessity is never submitted to the jury which passes upon the question of compensation. It is either settled affirmatively by the legislature, or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. (Boom Co. vs.Patterson, 98 U.S., 403, 406 [25 L. ed., 206]; United States vs. Jones, 109 U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street Union Depot Co., 169 U.S., 557, 568 [42 L. ed., 853].) Speaking generally, it is for the state primarily and exclusively, to declare for what local public purposes private property, within its limits may be taken upon compensation to the owner, as well as to prescribe a mode in which it may be condemned and taken. (Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S., 239, 252 [49 L. ed., 462].) Courts have no power to control the legislative authority in the exercise of their right to determine when it is necessary or expedient to condemn a specific piece of property for public purposes. (Adirondack R. Co. vs. New York States, 176 U.S., 335 [44 L. ed., 492].) 10 R. C. L. (p. 183), states the law as follows: 158. Necessity for taking ordinarily not judicial question. The legislature, in providing for the exercise the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or

to substitute their own views for theseof the representatives of the people. Similarly, when the legislature has delegated the power of eminent domain to municipal or public service corporation or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the court will not inquire into the necessity or propriety of the taking. The United States Supreme Court recently said: The uses to which this land are to be put are undeniably public uses. When that is the case the propriety or expediency of the appropriation cannot be called in question by any other authority. (Cinnati vs.S. & N. R. R. Co., 223 U.S., 390, quoting U.S. vs. Jones, 109, U.S., 519.) And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said: Plaintiff contends that the ordinance is void because the general statute which authorized the appropriation violates both Article 1, paragraph 10, of the Federal Constitution, and the Fourteenth Amendment, in that it authorizes the municipality to determine the necessity for the taking of private propertywithout the owners having an opportunity to be hear as to such necessity; that in fact no necessity existed for any taking which would interfere with the company's project; since the city might have taken water from the Little Cuyahoga or the Tuscarawas rivers; and furthermore, that it has taken ten times as much water as it can legitimately use. It is well settled that while the question whether the purpose of a taking is a public one is judicial (Hairston vs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. Cas., 1008]), the necessity and the proper extent of a taking is a legislative question. (Shoemaker vs.United States, 147 U.S., 282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United States vs. Gettysburg Electric R. Co., 160 U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup. Ct. Rep., 667].) I think the case should be decided in accordance with foregoing citations, but one other point has been argued so extensively that it ought to be considered. It is contended for the defense that this Chinese Cemetery is a public cemetery and that it cannot therefore be taken for public use. In its answer the "Comunidad de Chinos de Manila" says it is "a corporation organized and existing under and by virtue of the laws of the Philippine Islands," and that it owns the land which plaintiff seeks to acquire. The facts that it is private corporation owning land would seem of necessity to make the land it owns private land. The fact that it belongs to the Chinese community deprives it of any public character. But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the city of Manila, can it not be taken for public use? Must we let the reverence we feel for the dead and the sanctity of their final resting-place obstruct the progress of the living? It will be instructive to inquire what other jurisdictions have held on that point. On the Application of Board of Street Openings of New York City to acquire St. Johns Cemetery (133 N.Y., 329) the court of appeal said: . . . The board instituted this proceeding under the act to acquire for park purposes the title to land below One Hundred and Fifty-fifth street known as St. John's cemetery which belonged to a religious corporation in the city of New York, commonly called Trinity Church. It was established as a cemetery as early as 1801, and used for that purpose until 1839, during which time about ten thousand human bodies had been buried therein. In 1839 an ordinance was passed by the city of New York forbidding interments south of Eighty-sixth street, and since that time no interments have been made in the cemetery, but Trinity Church has preserved and kept it in order and prevented any disturbance thereof. It is contended on behalf of Trinity Church that under the general authority given by statute of 1887, this land which had been devoted to cemetery purposes could not be taken for a park. The authority conferred upon the board by the act is broad and general. It is authorized to take for park purposes any land south of One Hundred and Fifty-fifth street. . . . . The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain. That is an absolute transcendent power belonging

to the sovereign which can be exercised for the public welfare whenever the sovereign authority shall determine that a necessity for its exercise exists. By its existence the homes and the dwellings of the living, and the resting-places of the dead may be alike condemned. It seems always to have been recognized in the laws of this state, that under the general laws streets and highways could be laid out through cemeteries, in the absence of special limitation or prohibition. . . . In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the Supreme Court of the State said: This was an action for the opening of a street through a cemetery in the City of Philadelphia. It was contended for the United American Mechanics and United Daughters of America Cemetery Association that by an act of the legislature of the State approved March 20th, 1849, they were forever exempt from the taking of any their property for streets, roads or alleys and this Act was formally accepted by the Cemetery Company on April 9th, 1849, and there was, therefore, a contract between the Cemetery Company and the State of Pennsylvania, which would be violated by the taking of any part of their property for street purposes. It was further contended that there were 11,000 persons buried in the cemetery. The court held that property and contracts of all kinds must yield to the demand of the sovereign and that under the power of eminent domain all properties could be taken, and that if there was a contract between the State of Pennsylvania and the Cemetery Association, the contract itself could be taken for public use, and ordered the opening of the street through the cemetery. In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it is said: Although it has been held, that where a state has delegated the power of eminent domain to a person or corporation and where by its exercise lands have been subject to a public use, they cannot be applied to another public use without specific authority expressed or implied to that effect, yet, the general rule seems to be that the fact that property is already devoted to a public use, does not exempt it from being appropriated under the right of eminent domain but it may be so taken for a use which is clearly superior or paramount to the one to which it is already devoted. (Citing many United States Supreme Court decisions.) A few cases have been cited where the courts refused to allow the opening of streets through cemeteries, but in my opinion they are not as well considered as the cases and authorities relied upon herein. The holding of this court in this case reverses well settled principles of law of long standing and almost universal acceptance. The other assignments of error need not be considered as they are involved in the foregoing. The decision should be reversed and the record returned to the Court of First Instance with instructions to proceed with the case in accordance with this decision.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 103125 May 17, 1993 PROVINCE OF CAMARINES SUR, represented by GOV. LUIS R. VILLAFUERTE and HON. BENJAMIN V. PANGA as Presiding Judge of RTC Branch 33 at Pili, Camarines Sur, petitioners, vs. THE COURT OF APPEALS (THIRD DIVISION), ERNESTO SAN JOAQUIN and EFREN SAN JOAQUIN,respondents. The Provincial Attorney for petitioners. Reynaldo L. Herrera for Ernesto San Joaquin.

QUIASON, J.: In this appeal by certiorari from the decision of the Court of Appeals in AC-G.R. SP No. 20551 entitled "Ernesto N. San Joaquin, et al., v. Hon. Benjamin V. Panga, et al.," this Court is asked to decide whether the expropriation of agricultural lands by local government units is subject, to the prior approval of the Secretary of the Agrarian Reform, as the implementator of the agrarian reform program. On December 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. The "WHEREAS" clause o:f the Resolution states: WHEREAS, the province of Camarines Sur has adopted a five-year Comprehensive Development plan, some of the vital components of which includes the establishment of model and pilot farm for non-food and non-traditional agricultural crops, soil testing and tissue culture laboratory centers, 15 small scale technology soap making, small scale products of plaster of paris, marine biological and sea farming research center,and other progressive feasibility concepts objective of which is to provide the necessary scientific and technology know-how to farmers and fishermen in Camarines Sur and to establish a housing project for provincial government employees;

WHEREAS, the province would need additional land to be acquired either by purchase or expropriation to implement the above program component; WHEREAS, there are contiguous/adjacent properties to be (sic) present Provincial Capitol Site ideally suitable to establish the same pilot development center; WHEREFORE . . . . Pursuant to the Resolution, the Province of Camarines Sur, through its Governor, Hon. Luis R.Villafuerte, filed two separate cases for expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin, docketed as Special Civil Action Nos. P-17-89 and P-19-89 of the Regional Trial Court, Pili, Camarines Sur, presided by the Hon. Benjamin V. Panga. Forthwith, the Province of Camarines Sur filed a motion for the issuance of writ of possession. The San Joaquins failed to appear at the hearing of the motion. The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. In an order dated December 6, 1989, the trial court denied the motion to dismiss and authorized the Province of Camarines Sur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. The trial court issued a writ of possession in an order dated January18, 1990. The San Joaquins filed a motion for relief from the order, authorizing the Province of Camarines Sur to take possession of their property and a motion to admit an amended motion to dismiss. Both motions were denied in the order dated February 1990. In their petition before the Court of Appeals, the San Joaquins asked: (a) that Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order dated December 6, 1989 (i) denying the motion to dismiss and (ii) allowing the Province of Camarines Sur to take possession of the property subject of the expropriation and the order dated February 26, 1990, denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of injunction. In its answer to the petition, the Province of Camarines Sur claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of Local Government Code (B.P. Blg. 337) and that the expropriations are for a public purpose. Asked by the Court of Appeals to give his Comment to the petition, the Solicitor General stated that under Section 9 of the Local Government Code (B.P. Blg. 337), there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. However, the Solicitor General expressed the view that the Province of Camarines Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project. The Court of Appeals set aside the order of the trial court, allowing the Province of Camarines Sur to take possession of private respondents' lands and the order denying the admission of the amended motion to dismiss. It also ordered the trial court to suspend the expropriation proceedings until after the Province of Camarines Sur shall have submitted the requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non-agricultural land. Hence this petition. It must be noted that in the Court of Appeals, the San Joaquins asked for: (i) the dismissal of the complaints for expropriation on the ground of the inadequacy of the compensation offered for the property and (ii) the nullification of Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan of the Province of Camarines Sur. The Court of Appeals did not rule on the validity of the questioned resolution; neither did it dismiss the complaints. However, when the Court of Appeals ordered the suspension of the proceedings until the Province

of Camarines Sur shall have obtained the authority of the Department of Agrarian Reform to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use. Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SC.RA 461 [1987]). The expropriation of the property authorized by the questioned resolution is for a public purpose. The establishment of a pilot development center would inure to the direct benefit and advantage of the people of the Province of Camarines Sur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced. The housing project also satisfies the public purpose requirement of the Constitution. As held in Sumulong v. Guerrero, 154 SCRA 461, "Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum the general welfare." It is the submission of the Province of Camarines Sur that its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law (R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the Department of Agrarian Reform before a parcel of land can be reclassified from an agricultural to a non-agricultural land. The Court of Appeals, following the recommendation of the Solicitor General, held that the Province of Camarines Sur must comply with the provision of Section 65 of the Comprehensive Agrarian Reform Law and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the San Joaquins. In Heirs of Juancho Ardana v. Reyes, 125 SCRA 220, petitioners raised the issue of whether the Philippine Tourism Authority can expropriate lands covered by the "Operation Land Transfer" for use of a tourist resort complex. There was a finding that of the 282 hectares sought to be expropriated, only an area of 8,970 square meters or less than one hectare was affected by the land reform program and covered by emancipation patents issued by the Ministry of Agrarian Reform. While the Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest," it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8,970 square meters formed part of the resort complex. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program. The Solicitor General denigrated the power to expropriate by the Province of Camarines Sur by stressing the fact that local government units exercise such power only by delegation. (Comment, pp. 14-15; Rollo, pp. 128129) It is true that local government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature (City of Cincinnati v. Vester, 28l US 439, 74 L.ed. 950, 50 SCt. 360). It is also true that in delegating the power to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments (Joslin Mfg. Co. v. Providence, 262 US 668 67 L. ed. 1167, 43 S Ct. 684). While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations. Resolution No. 129, Series of 1988, was promulgated pursuant to Section 9 of B.P. Blg. 337, the Local Government Code, which provides: 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.

Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of Agrarian Reform. The closest provision of law that the Court of Appeals could cite to justify the intervention of the Department of Agrarian Reform in expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law, which reads: Sec. 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for, agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his obligation. The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication (Schulman v. People, 10 N.Y. 2d. 249, 176 N.E. 2d. 817, 219 NYS 2d. 241). To sustain the Court of Appeals would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. Ordinarily, it is the legislative branch of the local government unit that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use (United States Ex Rel Tennessee Valley Authority v. Welch, 327 US 546, 90 L. ed. 843, 66 S Ct 715; State ex rel Twin City Bldg. and Invest. Co. v. Houghton, 144 Minn. 1, 174 NW 885, 8 ALR 585). There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto (Alliance of Government Workers v. Minister of Labor and Employment, 124 SCRA 1 [1983]). The Republic of the Philippines, as sovereign, or its political subdivisions, as holders of delegated sovereign powers, cannot be bound by provisions of law couched in general term. The fears of private respondents that they will be paid on the basis of the valuation declared in the tax declarations of their property, are unfounded. This Court has declared as unconstitutional the Presidential Decrees fixing the just compensation in expropriation cases to be the value given to the condemned property either by the owners or the assessor, whichever was lower ([Export Processing Zone Authority v. Dulay, 149 SCRA 305 [1987]). As held in Municipality of Talisay v. Ramirez, 183 SCRA 528 [1990], the rules for determining just compensation are those laid down in Rule 67 of the Rules of Court, which allow private respondents to submit evidence on what they consider shall be the just compensation for their property. WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is set aside insofar as it (a) nullifies the trial court's order allowing the Province of Camarines Sur to take possession of private respondents' property; (b) orders the trial court to suspend the expropriation proceedings; and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify private respondents' property from agricultural to non-agricultural use.

The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the trial court, denying the amended motion to dismiss of the private respondents. SO ORDERED. Cruz, Grio-Aquino and Bellosillo, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 127820 July 20, 1998 MUNICIPALITY OF PARAAQUE, petitioner, vs. V.M. REALTY CORPORATION, respondent.

PANGANIBAN, J.: A local government unit (LGU), like the Municipality of Paraaque, cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. The Local Government Code expressly and clearly requires an ordinance or a local law for the purpose. A resolution that merely expresses the sentiment or

opinion of the Municipal Council will not suffice. On the other hand, the principle of res judicata does not bar subsequent proceedings for the expropriation of the same property when all the legal requirements for its valid exercise are complied with. Statement of the Case These principles are applied by this Court in resolving this petition for review on certiorari of the July 22, 1996 Decision 1 of the Court of Appeals 2 in CA GR CV No. 48048, which affirmed in toto 3 the Regional Trial Court's August 9, 1994 Resolution. 4 The trial court dismissed the expropriation suit as follows: The right of the plaintiff to exercise the power of eminent domain is not disputed. However, such right may be exercised only pursuant to an Ordinance (Sec. 19, R.A No. 7160). In the instant case, there is no such ordinance passed by the Municipal Council of Paraaque enabling the Municipality, thru its Chief Executive, to exercise the power of eminent domain. The complaint, therefore, states no cause of action. Assuming that plaintiff has a cause of action, the same is barred by a prior judgment. On September 29, 1987, the plaintiff filed a complaint for expropriation involving the same parcels of land which was docketed as Civil Case No. 17939 of this Court (page 26, record). Said case was dismissed with prejudice on May 18, 1988 (page 39, record). The order of dismissal was not appealed, hence, the same became final. The plaintiff can not be allowed to pursue the present action without violating the principle of [r]es [j]udicata. While defendant in Civil Case No. 17939 was Limpan Investment Corporation, the doctrine of res judicata still applies because the judgment in said case (C.C. No. 17939) is conclusive between the parties and their successors-in-interest (Vda. de Buncio vs. Estate of the late Anita de Leon). The herein defendant is the successor-in-interest of Limpan Investment Corporation as shown by the "Deed of Assignment Exchange" executed on June 13, 1990. WHEREFORE, defendant's motion for reconsideration is hereby granted. The order dated February 4, 1994 is vacated and set aside. This case is hereby dismissed. No pronouncement as to costs. SO ORDERED. 5 Factual Antecedents Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, 6 the Municipality of Paraaque filed on September 20, 1993, a Complaint for expropriation 7 against Private Respondent V.M. Realty Corporation over two parcels of land (Lots 2-A-2 and 2-B-1 of Subdivision Plan Psd-17917), with a combined area of about 10,000 square meters, located at Wakas, San Dionisio, Paraaque, Metro Manila, and covered by Torrens Certificate of Title No. 48700. Allegedly, the complaint was filed "for the purpose of alleviating the living conditions of the underprivileged by providing homes for the homeless through a socialized housing project." 8 Parenthetically, it was also for this stated purpose that petitioner, pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, 9 previously made an offer to enter into a negotiated sale of the property with private respondent, which the latter did not accept. 10 Finding the Complaint sufficient in form and substance, the Regional Trial Court of Makati, Branch 134, issued an Order dated January 10, 1994, 11 giving it due course. Acting on petitioner's motion, said court issued an Order dated February 4, 1994, 12 authorizing petitioner to take possession of the subject property upon deposit with its clerk of court of an amount equivalent to 15 percent of its fair market value based on its current tax declaration. On February 21, 1994, private respondent filed its Answer containing affirmative defenses and a counterclaim, 13alleging in the main that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as required by RA 7160 (the Local Government Code); and (b) the cause of action, if any, was barred by a prior judgment or res judicata. On private respondent's motion, its Answer was treated as a motion to dismiss. 14 On March 24, 1991, 15 petitioner filed its opposition, stressing that the trial court's Order dated February 4, 1994 was in accord with Section 19 of RA 7160, and that the principle of res judicata was not applicable.

Thereafter, the trial court issued its August 9, 1994 Resolution 16 nullifying its February 4, 1994 Order and dismissing the case. Petitioner's motions for reconsideration and transfer of venue were denied by the trial court in a Resolution dated December 2, 1994. 17 Petitioner then appealed to Respondent Court, raising the following issues: 1. Whether or not the Resolution of the Paraaque Municipal Council No. 9395, Series of 1993 is a substantial compliance of the statutory requirement of Section 19, R.A. 7180 [sic] in the exercise of the power of eminent domain by the plaintiff-appellant. 2. Whether or not the complaint in this case states no cause of action. 3. Whether or not the strict adherence to the literal observance to the rule of procedure resulted in technicality standing in the way of substantial justice. 4. Whether or not the principle of res judicata is applicable to the present case. 18 As previously mentioned, the Court of Appeals affirmed in toto the trial court's Decision. Respondent Court, in its assailed Resolution promulgated on January 8, 1997, 19 denied petitioner's Motion for Reconsideration for lack of merit. Hence, this appeal. 20 The Issues Before this Court, petitioner posits two issues, viz.: 1. A resolution duly approved by the municipal council has the same force and effect of an ordinance and will not deprive an expropriation case of a valid cause of action. 2. The principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily involved. 21 The Court's Ruling The petition is not meritorious. First Issue: Resolution Different from an Ordinance Petitioner contends that a resolution approved by the municipal council for the purpose of initiating an expropriation case "substantially complies with the requirements of the law" 22 because the terms "ordinance" and "resolution" are synonymous for "the purpose of bestowing authority [on] the local government unit through its chief executive to initiate the expropriation proceedings in court in the exercise of the power of eminent domain."23 Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the Rules and Regulations Implementing the Local Government Code, which provides. "If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU may expropriate said property through a resolution of theSanggunian authorizing its chief executive to initiate expropriation proceedings." 24 (Emphasis supplied.) The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. 25 An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter's control and restraints, imposed "through the law conferring the power or in other legislations." 26 In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. It provides as follows:

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. (Emphasis supplied) Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, 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. 27 In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. Petitioner cites Camarines Sur vs. Court of Appeals 28 to show that a resolution may suffice to support the exercise of eminent domain by an LGU. 29 This case, however, is not in point because the applicable law at that time was BP 337, 30 the previous Local Government Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160, 31 the present Local Government Code which was already in force when the Complaint for expropriation was filed, explicitly required an ordinance for this purpose. We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. 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. 32 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. 33 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, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance. Indeed, "[l]egislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice." 34 In the instant case, there is no reason to depart from this rule, since the law requiring an ordinance is not at all impossible, absurd, or unjust. Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people. 35 Accordingly, the manifest change in the legislative language from "resolution" under BP 337 to "ordinance" under RA 7160 demands a strict construction. "No species of property is held by individuals with greater tenacity, and is guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtful interpretation." 36

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said rule which merely seeks to implement it. 37 It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Besides, what the discrepancy seems to indicate is a mere oversight in the wording of the implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent domain, the chief executive of the LGU act pursuant to an ordinance. In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the Constitution, which provides that "territorial and political subdivisions shall enjoy local autonomy." It merely upholds the law as worded in RA 7160. We stress that an LGU is created by law and all its powers and rights are sourced therefrom. It has therefore no power to amend or act beyond the authority given and the limitations imposed on it by law. Strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior" domain, since it must conform to the limits imposed by the delegation, and thus partakes only of a share in eminent domain. 38Indeed, "the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it." 39 Complaint Does Not State a Cause of Action In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation. 40 This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was mentioned by private respondent, and only in passing. 41 In any event, this allegation does not cure the inherent defect of petitioner's Complaint for expropriation filed on September 23, 1993. It is hornbook doctrine that . . . in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted before the court for determination is the sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is beside the point, for their truth is hypothetically admitted by the motion. The issue rather is: admitting them to be true, may the court render a valid judgment in accordance with the prayer of the complaint? 42 The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently, the Court of Appeals committed no reversible error in affirming the trial court's Decision which dismissed the expropriation suit. Second Issue: Eminent Domain Not Barred by Res Judicata As correctly found by the Court of Appeals 43 and the trial court, 44 all the requisites for the application of res judicata are present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it. Be that as it may, the Court holds that the principle of res judicata, which finds application in generally all cases and proceedings, 45 cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can "reach every form of property which the State might need for public use." 46 "All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it." 47 Thus, the State or

its authorized agent cannot be forever barred from exercising said right by reason alone of previous noncompliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. 48 By the same token, our ruling that petitioner cannot exercise its delegated power of eminent domain through a mere resolution will not bar it from reinstituting similar proceedings, once the said legal requirement and, for that matter, all others are properly complied with. Parenthetically and by parity of reasoning, the same is also true of the principle of "law of the case." In Republic vs. De Knecht, 49 the Court ruled that the power of the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the property to be expropriated has become the law of the case as to the parties. The State or its authorized agent may still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule otherwise will not only improperly diminish the power of eminent domain, but also clearly defeat social justice. WHEREFORE, the petition is hereby DENIED without prejudice to petitioner's proper exercise of its power of eminent domain over subject property. Costs against petitioner. SO ORDERED. Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur. # Footnotes 1 Rollo, pp. 21-25. 2 Special Sixth Division, composed of J. Antonio M. Martinez (now an associate justice of the Supreme Court), ponente and chairman; and JJ. Ricardo P. Galvez and Hilarion L. Aquino, concurring. 3 See rollo, p. 25. 4 Penned by acting Presiding Judge Paul T. Arcangel. 5 Resolution of the Regional Trial Court, p. 2; rollo, p. 70. 6 Rollo, pp. 41-43. 7 Ibid., pp. 27-32. 8 Petitioner's Memorandum, p. 1; rollo, p. 184. 9 Rollo, pp. 37-38. 10 Complaint, p. 3; rollo, p. 29. 11 Rollo, p. 45. 12 Ibid., p. 47. 13 Ibid., pp. 48-51. 14 Private respondent's Memorandum, pp. 1-2; rollo, pp. 197-198. 15 Rollo, pp. 66-68.

16 Ibid., pp. 69-70. 17 Ibid., pp. 71-72. 18 Ibid., pp. 78-79. 19 Ibid., p. 26. 20 The case was deemed submitted for resolution on March 13, 1998, when the Court received private respondent's Memorandum. 21 Petitioner's Memorandum, p. 3; rollo, p. 187. 22 Ibid., p. 4; rollo, p. 188. 23 Ibid. 24 Paragraph A. 25 Moday vs. Court of Appeals, 268 SCRA 586, 592, February 20, 1997. 26 Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173, 179-180, May 17, 1993, per Quiason, J. 27 Senator Aquilino Q. Pimentel, Jr., The Local Government Code of 1991: The Key To National Development, 1993 ed., p. 110. 28 Supra. 29 Petitioner's Memorandum, p. 6; rollo, p. 189. 30 Approved on February 10, 1983 and published in 79 OG No. 7. See Maday vs. Court of Appeals,supra, p. 593. Sec. 9 of BP 337 reads: 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. 31 Effective January 1, 1992. 32 Mascuana vs. Provincial Board of Negros Occidental, 79 SCRA 399, 405, October 18, 1977;cited in private respondent's Memorandum, p. 5. 33 Art. 107, pars. a and c, Implementing Rules and Regulations of RA 7160; cited in Pimentel, Jr.,supra, pp. 163-164. 34 Azarcon vs. Sandiganbayan, 268 SCRA 747, 762, February 26, 1997, per Panganiban, J.; citingRamirez vs. Court of Appeals, 248 SCRA 590, 596, September 28, 1995. 35 City of Manila vs. Chinese Community of Manila, 40 Phil 349, 366 (1919), and Arriete vs. Director of Public Works, 58 Phil 507, 511 (1933). See also Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 348. 36 Justice Isagani A. Cruz, Constitutional Law, 1993 ed., p. 59. 37 See Villa vs. Llanes Jr., 120 SCRA 81, 84 January 21, 1983, and Wise & Co. vs. Meer, 78 Phil 655, 676 (1947). See also Art. 7, Civil Code of the Philippines.

38 Bernas, supra, pp. 348-349. 39 Magtajas vs. Pryce Properties, Corp., Inc., 234 SCRA 255, 272-273, July 20, 1994, per Cruz, J. 40 Rollo, pp. 81-82. 41 See private respondent's Memorandum, pp. 5-6; rollo, pp. 201-202. 42 Travel Wide Associated Sales (Phils.), Inc. vs. Court of Appeals, 199 SCRA 205, 210, July 15, 1991, per Cruz, J.; citing The Heirs of Juliana Clavano vs. Genato, 80 SCRA 217, 222, October 28, 1977. 43 Decision, p. 5; rollo, p. 25. 44 Resolution of the Regional Trial Court, p. 2; rollo, p. 70. 45 Republic vs. Director of Lands, 39 SCRA 651, 657, September 11, 1980. 46 Bernas, supra, p. 349. 47 Ibid. 48 See National Power Corporation vs. Court of Appeals, 254 SCRA 577, March 11, 1996. 49 182 SCRA 142, 147-148, February 12, 1990.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 142971 May 7, 2002

THE CITY OF CEBU, petitioner, vs. SPOUSES APOLONIO and BLASA DEDAMO, respondents. DAVIDE, JR., C.J.: In its petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, petitioner City of Cebu assails the decision of 11 October 1999 of the Court of Appeals in CA-G.R. CV No. 592041 affirming the

judgment of 7 May 1996 of the Regional Trial Court, Branch 13, Cebu City, in Civil Case No. CEB-14632, a case for eminent domain, which fixed the valuation of the land subject thereof on the basis of the recommendation of the commissioners appointed by it. The material operation facts are not disputed. On 17 September 1993, petitioner City of Cebu filed in Civil Case No. CEB-14632 a complaint for eminent domain against respondents spouses Apolonio and Blasa Dedamo. The petitioner alleged therein that it needed the following parcels of land of respondents, to wit: Lot No. 1527 Area-----------------------------------------------Tax Declaration---------------------------------Title No. -----------------------------------------Market value------------------------------------Assessed Value---------------------------------1,146 square meters 03472 31833 P240,660.00 P72,200.00

Lot No. 1528 Area-----------------------------------------------Area sought to be expropriated ---------------Tax Declaration ----------------------------------Title No. -------------------------------------------Market value for the whole lot -----------------Market value of the Area to be expropriated Assessed Value -----------------------------------793 square meters 478 square meters 03450 31832 P1,666,530.00 P100,380.00 P49,960.00

for a public purpose, i.e., for the construction of a public road which shall serve as an access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the back of Magellan International Hotel Roads in Cebu City. The lots are the most suitable site for the purpose. The total area sought to be expropriated is 1,624 square meters with an assessed value of P1,786.400. Petitioner deposited with the Philippine National Bank the amount of P51,156 representing 15% of the fair market value of the property to enable the petitioner to take immediate possession of the property pursuant to Section 19 of R.A. No. 7160.2 Respondents, filed a motion to dismiss the complaint because the purpose for which their property was to be expropriated was not for a public purpose but for benefit of a single private entity, the Cebu Holdings, Inc. Petitioner could simply buy directly from them the property at its fair market value if it wanted to, just like what it did with the neighboring lots. Besides, the price offered was very low in light of the consideration of P20,000 per square meter, more or less, which petitioner paid to the neighboring lots. Finally, respondents alleged that they have no other land in Cebu City. A pre-trial was thereafter had. On 23 August 1994, petitioner filed a motion for the issuance of a writ of possession pursuant to Section 19 of R.A. No. 7160. The motion was granted by the trial court on 21 September 1994.3

On 14 December 1994, the parties executed and submitted to the trial court an Agreement4 wherein they declared that they have partially settled the case and in consideration thereof they agreed: 1. That the SECOND PARTY hereby conforms to the intention to [sic] the FIRST PARTY in expropriating their parcels of land in the above-cited case as for public purpose and for the benefit of the general public; 2. That the SECOND PARTY agrees to part with the ownership of the subject parcels of land in favor of the FIRST PARTY provided the latter will pay just compensation for the same in the amount determined by the court after due notice and hearing; 3. That in the meantime the SECOND PARTY agrees to receive the amount of ONE MILLION SEVEN HUNDRED EIGHTY SIX THOUSAND FOUR HUNDRED PESOS (1,786,400.00) as provisional payment for the subject parcels of land, without prejudice to the final valuation as maybe determined by the court; 4. That the FIRST PARTY in the light of the issuance of the Writ of Possession Order dated September 21, 1994 issued by the Honorable Court, agreed to take possession over that portion of the lot sought to be expropriated where the house of the SECOND PARTY was located only after fifteen (15) days upon the receipt of the SECOND PARTY of the amount of P1,786,400.00; 5. That the SECOND PARTY upon receipt of the aforesaid provisional amount, shall turn over to the FIRST PARTY the title of the lot and within the lapse of the fifteen (15) days grace period will voluntarily demolish their house and the other structure that may be located thereon at their own expense; 6. That the FIRST PARTY and the SECOND PARTY jointly petition the Honorable Court to render judgment in said Civil Case No. CEB-14632 in accordance with this AGREEMENT; 7. That the judgment sought to be rendered under this agreement shall be followed by a supplemental judgment fixing the just compensation for the property of the SECOND PARTY after the Commissioners appointed by this Honorable Court to determine the same shall have rendered their report and approved by the court. Pursuant to said agreement, the trial court appointed three commissioners to determine the just compensation of the lots sought to be expropriated. The commissioners were Palermo M. Lugo, who was nominated by petitioner and who was designated as Chairman; Alfredo Cisneros, who was nominated by respondents; and Herbert E. Buot, who was designated by the trial court. The parties agreed to their appointment. Thereafter, the commissioners submitted their report, which contained their respective assessments of and recommendation as to the valuation of the property.1wphi1.nt On the basis of the commissioners' report and after due deliberation thereon, the trial court rendered its decision on 7 May 1996,5 the decretal portion o which reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered in accordance with the report of the commissioners. Plaintiff is directed to pay Spouses Apolonio S. Dedamo and Blasa Dedamo the sum of pesos: TWENTY FOUR MILLION EIGHT HUNDRED SIXTY-FIVE THOUSAND AND NINE HUNDRED THIRTY (P24,865.930.00) representing the compensation mentioned in the Complaint. Plaintiff and defendants are directed to pay the following commissioner's fee; 1. To Palermo Lugo 2. To Herbert Buot 3. To Alfredo Cisneros - P21,000.00 - P19,000.00 - P19,000.00

Without pronouncement as to cost. SO ORDERED. Petitioner filed a motion for reconsideration on the ground that the commissioners' report was inaccurate since it included an area which was not subject to expropriation. More specifically, it contended that Lot No. 1528 contains 793 square meters but the actual area to be expropriated is only 478 square meters. The remaining 315 square meters is the subject of a separate expropriation proceeding in Civil Case No. CEB-8348, then pending before Branch 9 of the Regional Trial Court of Cebu City. On 16 August 1996, the commissioners submitted an amended assessment for the 478 square meters of Lot No. 1528 and fixed it at P12,824.10 per square meter, or in the amount of P20,826,339.50. The assessment was approved as the just compensation thereof by the trial court in its Order of 27 December 1996.6 Accordingly, the dispositive portion of the decision was amended to reflect the new valuation. Petitioner elevated the case to the Court of Appeals, which docketed the case as CA-G.R. CV No. 59204. Petitioner alleged that the lower court erred in fixing the amount of just compensation at P20,826,339.50. The just compensation should be based on the prevailing market price of the property at the commencement of the expropriation proceedings. The petitioner did not convince the Court of Appeals. In its decision of 11 October 1999, 7 the Court of Appeals affirmed in toto the decision of the trial court. Still unsatisfied, petitioner filed with us the petition for review in the case at bar. It raises the sole issue of whether just compensation should be determined as of the date of the filing of the complaint. It asserts that it should be, which in this case should be 17 September 1993 and not at the time the property was actually taken in 1994, pursuant to the decision in "National Power Corporation vs. Court of Appeals."8 In their Comment, respondents maintain that the Court of Appeals did not err in affirming the decision of the trial court because (1) the trial court decided the case on the basis of the agreement of the parties that just compensation shall be fixed by commissioners appointed by the court; (2) petitioner did not interpose any serious objection to the commissioners' report of 12 August 1996 fixing the just compensation of the 1,624square meter lot at P20,826,339.50; hence, it was estopped from attacking the report on which the decision was based; and (3) the determined just compensation fixed is even lower than the actual value of the property at the time of the actual taking in 1994. Eminent domain is a fundamental State power that is inseparable from sovereignty. It is the Government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose.9 However, the Government must pay the owner thereof just compensation as consideration therefor. In the case at bar, the applicable law as to the point of reckoning for the determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that just compensation shall be determined as of the time of actual taking. The Section reads as follows: SECTION 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 petitioner has misread our ruling in The National Power Corp. vs. Court of Appeals.10 We did not categorically rule in that case that just compensation should be determined as of the filing of the complaint. We explicitly stated therein that although the general rule in determining just compensation in eminent domain is the value of the property as of the date of the filing of the complaint, the rule "admits of an exception: where this

Court fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings." Also, the trial court followed the then governing procedural law on the matter, which was Section 5 of Rule 67 of the Rules of Court, which provided as follows: SEC. 5. Ascertainment of compensation. Upon the entry of the order of condemnation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report is to be filed with the court. More than anything else, the parties, by a solemn document freely and voluntarily agreed upon by them, agreed to be bound by the report of the commission and approved by the trial court. The agreement is a contract between the parties. It has the force of law between them and should be complied with in good faith. Article 1159 and 1315 of the Civil Code explicitly provides: Art. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Art. 1315. Contracts are perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. Furthermore, during the hearing on 22 November 1996, petitioner did not interpose a serious objection. 11 It is therefore too late for petitioner to question the valuation now without violating the principle of equitable estoppel. Estoppel in pais arises when one, by his acts, representations or admissions, or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.12 Records show that petitioner consented to conform with the valuation recommended by the commissioners. It cannot detract from its agreement now and assail correctness of the commissioners' assessment.1wphi1.nt Finally, while Section 4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation,13 such law cannot prevail over R.A. 7160, which is a substantive law.14 WHEREFORE, finding no reversible error in the assailed judgment on the Court of Appeals in CA-G.R. CV No. 59204, the petition in this case is hereby DENIED. No pronouncement as to costs. SO ORDERED. Puno, Kapunan, Ynares-Santiago, De Leon, Jr., and Austria-Martinez, JJ., concur.

Footnote
1

Black, Law Dictionary 1081 (1957). Entitled "The Local Government Code of 1991." Rollo, 60. Annex "1" of Comment, Rollo, 57-58.

Rollo, 60-63. Per judgment of Judge Meinrado P. Paredes. Rollo, 64. Supra note 1. 254 SCRA 577 [1996]. Moday v. Court of Appeals, 268 SCRA 586, 592 [1997]. Supra note 8. Rollo, 64, Per Order of Judge Meinrado P. Paredes, 27 December 1996.

10

11

12

Ibaan Rural Bank, Inc. v. Court of Appeals, 321 SCRA 88, 93 [1999]; Philippine National Bank v. Court of Appeals, 315 SCRA 309, 314 [1999].
13

SEC 4. Order of Condemnation. When such motion is overruled or when any party fails to defend as required by this rule, the court may enter an order of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint.xxx (emphasis, ours).
14

See Philippine National Bank v. Independent Planters Association, Inc., 122 SCRA 113 [1983].

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 137621 February 6, 2002

HAGONOY MARKET VENDOR ASSOCIATION, petitioner, vs. MUNICIPALITY OF HAGONOY, BULACAN, respondent. DECISION PUNO, J.: Laws are of two (2) kinds: substantive and procedural. Substantive laws, insofar as their provisions are unambiguous, are rigorously applied to resolve legal issues on the merits. In contrast, courts generally frown upon an uncompromising application of procedural laws so as not to subvert substantial justice. Nonetheless, it is not totally uncommon for courts to decide cases based on a rigid application of the so-called technical rules of procedure as these rules exist for the orderly administration of justice. Interestingly, the case at bar singularly illustrates both instances, i.e., when procedural rules are unbendingly applied and when their rigid application may be relaxed. This is a petition for review of the Resolution1 of the Court of Appeals, dated February 15, 1999, dismissing the appeal of petitioner Hagonoy Market Vendor Association from the Resolutions of the Secretary of Justice for being formally deficient. The facts: On October 1, 1996, the Sangguniang Bayan of Hagonoy, Bulacan, enacted an ordinance, Kautusan Blg. 28,2 which increased the stall rentals of the market vendors in Hagonoy. Article 3 provided that it shall take effect upon approval. The subject ordinance was posted from November 4-25, 1996.3 In the last week of November, 1997, the petitioners members were personally given copies of the approved Ordinance and were informed that it shall be enforced in January, 1998. On December 8, 1997, the petitioners President filed an appeal with the Secretary of Justice assailing the constitutionality of the tax ordinance. Petitioner claimed it was unaware of the posting of the ordinance. Respondent opposed the appeal. It contended that the ordinance took effect on October 6, 1996 and that the ordinance, as approved, was posted as required by law. Hence, it was pointed out that petitioners appeal, made over a year later, was already time-barred. The Secretary of Justice dismissed the appeal on the ground that it was filed out of time, i.e., beyond thirty (30) days from the effectivity of the Ordinance on October 1, 1996, as prescribed under Section 187 of the 1991 Local Government Code. Citing the case of Taada vs. Tuvera,4 the Secretary of Justice held that the date of effectivity of the subject ordinance retroacted to the date of its approval in October 1996, after the required publication or posting has been complied with, pursuant to Section 3 of said ordinance.5 After its motion for reconsideration was denied, petitioner appealed to the Court of Appeals. Petitioner did not assail the finding of the Secretary of Justice that their appeal was filed beyond the reglementary period. Instead, it urged that the Secretary of Justice should have overlooked this "mere technicality" and ruled on its petition on the merits. Unfortunately, its petition for review was dismissed by the Court of Appeals for being formally deficient as it was not accompanied by certified true copies of the assailed Resolutions of the Secretary of Justice.6 Undaunted, the petitioner moved for reconsideration but it was denied.7 Hence, this appeal, where petitioner contends that:

I THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN ITS STRICT, RIGID AND TECHNICAL ADHERENCE TO SECTION 6, RULE 43 OF THE 1997 RULES OF COURT AND THIS, IN EFFECT, FRUSTRATED THE VALID LEGAL ISSUES RAISED BY THE PETITIONER THAT ORDINANCE (KAUTUSAN) NO. 28 WAS NOT VALIDLY ENACTED, IS CONTRARY TO LAW AND IS UNCONSTITUTIONAL, TANTAMOUNT TO AN ILLEGAL EXACTION IF ENFORCED RETROACTIVELY FROM THE DATE OF ITS APPROVAL ON OCTOBER 1, 1996. II THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN DENYING THE MOTION FOR RECONSIDERATION NOTWITHSTANDING PETITIONERS EXPLANATION THAT ITS FAILURE TO SECURE THE CERTIFIED TRUE COPIES OF THE RESOLUTIONS OF THE DEPARTMENT OF JUSTICE WAS DUE TO THE INTERVENTION OF AN ACT OF GOD TYPHOON "LOLENG," AND THAT THE ACTUAL COPIES RECEIVED BY THE PETITIONER MAY BE CONSIDERED AS SUBSTANTIAL COMPLIANCE WITH THE RULES. III PETITIONER WILL SUFFER IRREPARABLE DAMAGE IF ORDINANCE/KAUTUSAN NO. 28 BE NOT DECLARED NULL AND VOID AND IS ALLOWED TO BE ENFORCED RETROACTIVELY FROM OCTOBER 1, 1996, CONTRARY TO THE GENERAL RULE, ARTICLE 4 OF THE CIVIL CODE, THAT NO LAW SHALL HAVE RETROACTIVE EFFECT. The first and second assigned errors impugn the dismissal by the Court of Appeals of its petition for review for petitioners failure to attach certified true copies of the assailed Resolutions of the Secretary of Justice. The petitioner insists that it had good reasons for its failure to comply with the rule and the Court of Appeals erred in refusing to accept its explanation. We agree. In its Motion for Reconsideration before the Court of Appeals,8 the petitioner satisfactorily explained the circumstances relative to its failure to attach to its appeal certified true copies of the assailed Resolutions of the Secretary of Justice, thus: "x x x (D)uring the preparation of the petition on October 21, 1998, it was raining very hard due to (t)yphoon "Loleng." When the petition was completed, copy was served on the Department of Justice at about (sic) past 4:00 p.m. of October 21, 1998, with (the) instruction to have the Resolutions of the Department of Justice be stamped as "certified true copies. However, due to bad weather, the person in charge (at the Department of Justice) was no longer available to certify to (sic) the Resolutions. "The following day, October 22, 1998, was declared a non-working holiday because of (t)yphoon "Loleng." Thus, petitioner was again unable to have the Resolutions of the Department of Justice stamped "certified true copies." In the morning of October 23, 1998, due to time constraint(s), herein counsel served a copy by personal service on (r)espondents lawyer at (sic) Malolos, Bulacan, despite the flooded roads and heavy rains. However, as the herein counsel went back to Manila, (official business in) government offices were suspended in the afternoon and the personnel of the Department of Justice tasked with issuing or stamping "certified true copies" of their Resolutions were no longer available. "To avoid being time-barred in the filing of the (p)etition, the same was filed with the Court of Appeals "as is." We find that the Court of Appeals erred in dismissing petitioners appeal on the ground that it was formally deficient. It is clear from the records that the petitioner exerted due diligence to get the copies of its appealed Resolutions certified by the Department of Justice, but failed to do so on account of typhoon "Loleng." Under the circumstances, respondent appellate court should have tempered its strict application of procedural rules in view of the fortuitous event considering that litigation is not a game of technicalities. 9

Nonetheless, we hold that the petition should be dismissed as the appeal of the petitioner with the Secretary of Justice is already time-barred. The applicable law is Section 187 of the 1991 Local Government Code which provides: "SEC. 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory Public Hearings. - The procedure for the 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 receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and 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. The aforecited law requires that an appeal of a tax ordinance or revenue measure should be made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even during its pendency, the effectivity of the assailed ordinance shall not be suspended. In the case at bar, Municipal Ordinance No. 28 took effect in October 1996. Petitioner filed its appeal only in December 1997, more than a year after the effectivity of the ordinance in 1996. Clearly, the Secretary of Justice correctly dismissed it for being time-barred. At this point, it is apropos to state that the timeframe fixed by law for parties to avail of their legal remedies before competent courts is not a "mere technicality" that can be easily brushed aside. The periods stated in Section 187 of the Local Government Code are mandatory.10 Ordinance No. 28 is a revenue measure adopted by the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood, collection of revenues by the government is of paramount importance. The funds for the operation of its agencies and provision of basic services to its inhabitants are largely derived from its revenues and collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable length of time.11 Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue measures and tax ordinances. In a last ditch effort to justify its failure to file a timely appeal with the Secretary of Justice, the petitioner contends that its period to appeal should be counted not from the time the ordinance took effect in 1996 but from the time its members were personally given copies of the approved ordinance in November 1997. It insists that it was unaware of the approval and effectivity of the subject ordinance in 1996 on two (2) grounds: first, no public hearing was conducted prior to the passage of the ordinance and, second, the approved ordinance was not posted. We do not agree. Petitioners bold assertion that there was no public hearing conducted prior to the passage of Kautusan Blg. 28 is belied by its own evidence. In petitioners two (2) communications with the Secretary of Justice,12 it enumerated the various objections raised by its members before the passage of the ordinance in several meetings called by the Sanggunian for the purpose. These show beyond doubt that petitioner was aware of the proposed increase and in fact participated in the public hearings therefor. The respondent municipality likewise submitted the Minutes and Report of the public hearings conducted by the Sangguniang Bayans Committee on Appropriations and Market on February 6, July 15 and August 19, all in 1996, for the proposed increase in the stall rentals.13 Petitioner cannot gripe that there was practically no public hearing conducted as its objections to the proposed measure were not considered by the Sangguniang Bayan. To be sure, public hearings are conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or ordinance. These views, however, are not binding on the legislative body and it is not compelled by law to adopt the same. Sanggunian members are elected by the people to make laws that will promote the general interest of their constituents. They are mandated to use their discretion and best judgment in serving the people. Parties who participate in public hearings to give their opinions on a proposed ordinance should not expect that their views would be patronized by their lawmakers. On the issue of publication or posting, Section 188 of the Local Government Code provides: "Section 188. Publication of Tax Ordinance and Revenue Measures. Within ten (10) days after their approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue measures shall be published

in full for three (3) consecutive days in a newspaper of local circulation; Provided, however, That in provinces, cities and municipalities where there are no newspapers of local circulation, the same may be posted in at least two (2) conspicuous and publicly accessible places." (emphasis supplied) The records is bereft of any evidence to prove petitioners negative allegation that the subject ordinance was not posted as required by law. In contrast, the respondent Sangguniang Bayan of the Municipality of Hagonoy, Bulacan, presented evidence which clearly shows that the procedure for the enactment of the assailed ordinance was complied with. Municipal Ordinance No. 28 was enacted by the Sangguniang Bayan of Hagonoy on October 1, 1996. Then Acting Municipal Mayor Maria Garcia Santos approved the Ordinance on October 7, 1996. After its approval, copies of the Ordinance were given to the Municipal Treasurer on the same day. On November 9, 1996, the Ordinance was approved by the Sangguniang Panlalawigan. The Ordinance was posted during the period from November 4 - 25, 1996 in three (3) public places, viz: in front of the municipal building, at the bulletin board of the Sta. Ana Parish Church and on the front door of the Office of the Market Master in the public market.14 Posting was validly made in lieu of publication as there was no newspaper of local circulation in the municipality of Hagonoy. This fact was known to and admitted by petitioner. Thus, petitioners ambiguous and unsupported claim that it was only "sometime in November 1997" that the Provincial Board approved Municipal Ordinance No. 28 and so the posting could not have been made in November 199615 was sufficiently disproved by the positive evidence of respondent municipality. Given the foregoing circumstances, petitioner cannot validly claim lack of knowledge of the approved ordinance. The filing of its appeal a year after the effectivity of the subject ordinance is fatal to its cause. Finally, even on the substantive points raised, the petition must fail.1wphi1 Section 6c.04 of the 1993 Municipal Revenue Code and Section 191 of the Local Government Code limiting the percentage of increase that can be imposed apply to tax rates, not rentals. Neither can it be said that the rates were not uniformly imposed or that the public markets included in the Ordinance were unreasonably determined or classified. To be sure, the Ordinance covered the three (3) concrete public markets: the two-storey Bagong Palengke, the burnt but reconstructed Lumang Palengke and the more recent Lumang Palengke with wet market. However, the Palengkeng Bagong Munisipyo or Gabaldon was excluded from the increase in rentals as it is only a makeshift, dilapidated place, with no doors or protection for security, intended for transient peddlers who used to sell their goods along the sidewalk.16 IN VIEW WHEREOF, the petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J. (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

Footnotes
1

Per Justice Cancio C. Garcia and concurred in by Justices Conrado M. Vasquez, Jr. and Teodoro P. Regino; Rollo, pp. 25-26.
2

Annex "E," Petition; Rollo, pp. 35-36; The ordinance was signed by Councilor Felix V. Ople, Tagapangulo ng Sanggunian and Dr. Maria Garcia Santos as Pangulo Punong Bayan.
3

Per Certification of Sanggunian Secretary Ma. Perpetua R. Santos; Rollo, at p. 49. 146 SCRA 448, 452-454 (1986). Resolution, dated February 25, 1998; Rollo, pp. 27-29. Resolution, dated December 17, 1998; Rollo, pp. 22-23. Resolution, dated February 15, 1999; Rollo, pp. 25-26. Rollo, pp. 11-12.

Government Service Insurance System vs. Court of Appeals, 266 SCRA 187 (1997).

10

Reyes, et al., vs. Court of Appeals, et al., 320 SCRA 486 (1999), citing Agpalo, Statutory Construction, 1995 edition, p. 266.
11

Commissioner of Internal Revenue vs. Algue, Inc., 158 SCRA 9 (1998). Pagtutol sa Kautusan Blg. 28, C.A. Rollo, p. 18; Paghahabol, CA Rollo, pp. 29-30. Rollo, pp. 82-95.

12

13

14

Certification of Sanggunian Secretary Ma. Perpetua R. Santos; Rollo, p. 49; Affidavits of municipal employee Ruperto dela Cruz and Municipal Councilor Cruz; Rollo, pp. 99-100.
15

See Reply; Rollo, at p. 54. As shown in pictures attached to respondents Memorandum; Rollo, pp. 117-118.

16

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 146587 July 2, 2002

REPUBLIC OF THE PHILIPPINES, represented by the General Manager of the PHILIPPINE INFORMATION AGENCY (PIA), petitioner, vs. THE HONORABLE COURT OF APPEALS and the HEIRS OF LUIS SANTOS as herein represented by DR. SABINO SANTOS and PURIFICACION SANTOS IMPERIAL, respondents. DECISION VITUG, J.: Petitioner instituted expropriation proceedings on 19 September 1969 before the Regional Trial Court ("RTC") of Bulacan, docketed Civil Cases No. 3839-M, No. 3840-M, No. 3841-M and No. 3842-M, covering a total of 544,980 square meters of contiguous land situated along MacArthur Highway, Malolos, Bulacan, to be utilized for the continued broadcast operation and use of radio transmitter facilities for the "Voice of the Philippines" project. Petitioner, through the Philippine Information Agency ("PIA"), took over the premises after the previous lessee, the "Voice of America," had ceased its operations thereat. Petitioner made a deposit of P517,558.80, the sum provisionally fixed as being the reasonable value of the property. On 26 February 1979, or more than nine years after the institution of the expropriation proceedings, the trial court issued this order "WHEREFORE, premises considered, judgment is hereby rendered: "Condemning the properties of the defendants in Civil Cases Nos. 3839-M to 3842-M located at KM 43, MacArthur Highway, Malolos, Bulacan and covered by several transfer certificates of title appearing in the Commissioners Appraisal Report consisting of the total area of 544,980 square meters, as indicated in plan,

Exhibit A, for plaintiff, also marked as Exhibit I for the defendants, and as Appendix A attached to the Commissioners Appraisal Report, for the purpose stated by the plaintiff in its complaint; "Ordering the plaintiff to pay the defendants the just compensation for said property which is the fair market value of the land condemned, computed at the rate of six pesos (P6.00) per square meter, with legal rate of interest from September 19, 1969, until fully paid; and "Ordering the plaintiff to pay the costs of suit, which includes the aforesaid fees of commissioners, Atty. Victorino P. Evangelista and Mr. Pablo Domingo."1 The bone of contention in the instant controversy is the 76,589-square meter property previously owned by Luis Santos, predecessor-in-interest of herein respondents, which forms part of the expropriated area. It would appear that the national government failed to pay to herein respondents the compensation pursuant to the foregoing decision, such that a little over five years later, or on 09 May 1984, respondents filed a manifestation with a motion seeking payment for the expropriated property. On 07 June 1984, the Bulacan RTC, after ascertaining that the heirs remained unpaid in the sum of P1,058,655.05, issued a writ of execution served on the plaintiff, through the Office of the Solicitor General, for the implementation thereof. When the order was not complied with, respondents again filed a motion urging the trial court to direct the provincial treasurer of Bulacan to release to them the amount of P72,683.55, a portion of the sum deposited by petitioner at the inception of the expropriation proceedings in 1969, corresponding to their share of the deposit. The trial court, in its order of 10 July 1984, granted the motion. In the meantime, President Joseph Ejercito Estrada issued Proclamation No. 22,2 transferring 20 hectares of the expropriated property to the Bulacan State University for the expansion of its facilities and another 5 hectares to be used exclusively for the propagation of the Philippine carabao. The remaining portion was retained by the PIA. This fact notwithstanding, and despite the 1984 court order, the Santos heirs remained unpaid, and no action was taken on their case until 16 September 1999 when petitioner filed its manifestation and motion to permit the deposit in court of the amount of P4,664,000.00 by way of just compensation for the expropriated property of the late Luis Santos subject to such final computation as might be approved by the court. This time, the Santos heirs, opposing the manifestation and motion, submitted a counter-motion to adjust the compensation from P6.00 per square meter previously fixed in the 1979 decision to its current zonal valuation pegged at P5,000.00 per square meter or, in the alternative, to cause the return to them of the expropriated property. On 01 March 2000, the Bulacan RTC ruled in favor of respondents and issued the assailed order, vacating its decision of 26 February 1979 and declaring it to be unenforceable on the ground of prescription "WHEREFORE, premises considered, the court hereby: "1) declares the decision rendered by this Court on February 26, 1979 no longer enforceable, execution of the same by either a motion or an independent action having already prescribed in accordance with Section 6, Rule 39 of both the 1964 Revised Rules of Court and the 1997 Rules of Civil Procedure; "2) denies the plaintiffs Manifestation and Motion to Permit Plaintiff to Deposit in Court Payment for Expropriated Properties dated September 16, 1999 for the reason stated in the next preceding paragraph hereof; and "3) orders the return of the expropriated property of the late defendant Luis Santos to his heirs conformably with the ruling of the Supreme Court in Government of Sorsogon vs. Vda. De Villaroya, 153 SCRA 291, without prejudice to any case which the parties may deem appropriate to institute in relation with the amount already paid to herein oppositors and the purported transfer of a portion of the said realty to the Bulacan State University pursuant to Proclamation No. 22 issued by President Joseph Ejercito."3 Petitioner brought the matter up to the Court of Appeals but the petition was outrightly denied. It would appear that the denial was based on Section 4, Rule 65, of the 1997 Rules of Civil Procedure which provided that the filing of a motion for reconsideration in due time after filing of the judgment, order or resolution interrupted the running of the sixty-day period within which to file a petition for certiorari; and that if a motion for reconsideration was denied, the aggrieved party could file the petition only within the remaining period, but

which should not be less than five days in any event, reckoned from the notice of such denial. The reglementary period, however, was later modified by A.M. No. 00-2-03 S.C., now reading thusly: "Sec. 4. When and where petition filed. --- The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion." The amendatory provision, being curative in nature, should be made applicable to all cases still pending with the courts at the time of its effectivity. In Narzoles vs. NLRC,4 the Court has said: "The Court has observed that Circular No. 39-98 has generated tremendous confusion resulting in the dismissal of numerous cases for late filing. This may have been because, historically, i.e., even before the 1997 revision to the Rules of Civil Procedure, a party had a fresh period from receipt of the order denying the motion for reconsideration to file a petition for certiorari. Were it not for the amendments brought about by Circular No. 39-98, the cases so dismissed would have been resolved on the merits. Hence, the Court deemed it wise to revert to the old rule allowing a party a fresh 60-day period from notice of the denial of the motion for reconsideration to file a petition for certiorari. x x x "The latest amendments took effect on September 1, 2000, following its publication in the Manila Bulletin on August 4, 2000 and in the Philippine Daily Inquirer on August 7, 2000, two newspapers of general circulation. "In view of its purpose, the Resolution further amending Section 4, Rule 65, can only be described as curative in nature, and the principles governing curative statutes are applicable. "Curative statutes are enacted to cure defects in a prior law or to validate legal proceedings which would otherwise be void for want of conformity with certain legal requirements. (Erectors, Inc. vs. National Labor Relations Commission, 256 SCRA 629 [1996].) They are intended to supply defects, abridge superfluities and curb certain evils. They are intended to enable persons to carry into effect that which they have designed or intended, but has failed of expected legal consequence by reason of some statutory disability or irregularity in their own action. They make valid that which, before the enactment of the statute was invalid. Their purpose is to give validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with. (Batong Buhay Gold Mines, Inc. vs. Dela Serna, 312 SCRA 22 [1999].) Curative statutes, therefore, by their very essence, are retroactive. (Municipality of San Narciso, Quezon vs. Mendez, Sr., 239 SCRA 11 [1994].)"5 At all events, petitioner has a valid point in emphasizing the "public nature" of the expropriated property. The petition being imbued with public interest, the Court has resolved to give it due course and to decide the case on its merits. Assailing the finding of prescription by the trial court, petitioner here posited that a motion which respondents had filed on 17 February 1984, followed up by other motions subsequent thereto, was made within the reglementary period that thereby interrupted the 5-year prescriptive period within which to enforce the 1979 judgment. Furthermore, petitioner claimed, the receipt by respondents of partial compensation in the sum of P72,683.55 on 23 July 1984 constituted partial compliance on the part of petitioners and effectively estopped respondents from invoking prescription expressed in Section 6, Rule 39, of the Rules of Court. 6 In opposing the petition, respondents advanced the view that pursuant to Section 6, Rule 39, of the Rules of Court, the failure of petitioner to execute the judgment, dated 26 February 1979, within five years after it had become final and executory, rendered it unenforceable by mere motion. The motion for payment, dated 09 May 1984, as well as the subsequent disbursement to them of the sum of P72,683.55 by the provincial treasurer of Bulacan, could not be considered as having interrupted the five-year period, since a motion, to be considered otherwise, should instead be made by the prevailing party, in this case by petitioner. Respondents maintained that the P72,683.55 paid to them by the provincial treasurer of Bulacan pursuant to the 1984 order of the trial court was part of the initial deposit made by petitioner when it first entered possession of the property in 1969 and should not be so regarded as a partial payment. Respondents further questioned the right of PIA to transfer ownership of a portion of the property to the Bulacan State University even while the just compensation due the heirs had yet to be finally settled.

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.7 Fundamental to the independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. In the hands of the legislature, the power is inherent, its scope matching that of taxation, even that of police power itself, in many respects. It reaches to every form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property whenever the public interest so requires it.8 The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings. Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking. 9 Obviously, however, the power is not without its limits: first, the taking must be for public use, and second, that just compensation must be given to the private owner of the property.10 These twin proscriptions have their origin in the recognition of the necessity for achieving balance between the State interests, on the one hand, and private rights, upon the other hand, by effectively restraining the former and affording protection to the latter.11 In determining "public use," two approaches are utilized - the first is public employment or the actual use by the public, and the second is public advantage or benefit.12 It is also useful to view the matter as being subject to constant growth, which is to say that as society advances, its demands upon the individual so increases, and each demand is a new use to which the resources of the individual may be devoted. 13 The expropriated property has been shown to be for the continued utilization by the PIA, a significant portion thereof being ceded for the expansion of the facilities of the Bulacan State University and for the propagation of the Philippine carabao, themselves in line with the requirements of public purpose. Respondents question the public nature of the utilization by petitioner of the condemned property, pointing out that its present use differs from the purpose originally contemplated in the 1969 expropriation proceedings. The argument is of no moment. The property has assumed a public character upon its expropriation. Surely, petitioner, as the condemnor and as the owner of the property, is well within its rights to alter and decide the use of that property, the only limitation being that it be for public use, which, decidedly, it is. In insisting on the return of the expropriated property, respondents would exhort on the pronouncement inProvincial Government of Sorsogon vs. Vda. de Villaroya14 where the unpaid landowners were allowed the alternative remedy of recovery of the property there in question. It might be borne in mind that the case involved the municipal government of Sorsogon, to which the power of eminent domain is not inherent, but merely delegated and of limited application. The grant of the power of eminent domain to local governments under Republic Act No. 716015 cannot be understood as being the pervasive and all-encompassing power vested in the legislative branch of government. For local governments to be able to wield the power, it must, by enabling law, be delegated to it by the national legislature, but even then, this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as the real authority would want it to be.16 Thus, in Valdehueza vs. Republic17 where the private landowners had remained unpaid ten years after the termination of the expropriation proceedings, this Court ruled "The points in dispute are whether such payment can still be made and, if so, in what amount. Said lots have been the subject of expropriation proceedings. By final and executory judgment in said proceedings, they were condemned for public use, as part of an airport, and ordered sold to the government. x x x It follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are not entitled to recover possession of their expropriated lots - which are still devoted to the public use for which they were expropriated - but only to demand the fair market value of the same. "Said relief may be granted under plaintiffs' prayer for: `such other remedies, which may be deemed just and equitable under the premises'."18 The Court proceeded to reiterate its pronouncement in Alfonso vs. Pasay City19 where the recovery of possession of property taken for public use prayed for by the unpaid landowner was denied even while no requisite expropriation proceedings were first instituted. The landowner was merely given the relief of

recovering compensation for his property computed at its market value at the time it was taken and appropriated by the State. The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings provides not only for the payment of just compensation to herein respondents but likewise adjudges the property condemned in favor of petitioner over which parties, as well as their privies, are bound.20 Petitioner has occupied, utilized and, for all intents and purposes, exercised dominion over the property pursuant to the judgment. The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property.21 After condemnation, the paramount title is in the public under a new and independent title;22 thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.23 Respondents, in arguing laches against petitioner did not take into account that the same argument could likewise apply against them. Respondents first instituted proceedings for payment against petitioner on 09 May 1984, or five years after the 1979 judgment had become final. The unusually long delay in bringing the action to compel payment against herein petitioner would militate against them. Consistently with the rule that one should take good care of his own concern, respondents should have commenced the proper action upon the finality of the judgment which, indeed, resulted in a permanent deprivation of their ownership and possession of the property.24 The constitutional limitation of "just compensation" is considered to be the sum equivalent to the market value of the property, broadly described to be the price fixed by the seller in open market in the usual and ordinary course of legal action and competition or the fair value of the property as between one who receives, and one who desires to sell, it fixed at the time of the actual taking by the government.25 Thus, if property is taken for public use before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value to be computed from the time the property is taken to the time when compensation is actually paid or deposited with the court.26 In fine, between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a position as good as (but not better than) the position he was in before the taking occurred.27 The Bulacan trial court, in its 1979 decision, was correct in imposing interests on the zonal value of the property to be computed from the time petitioner instituted condemnation proceedings and "took" the property in September 1969. This allowance of interest on the amount found to be the value of the property as of the time of the taking computed, being an effective forbearance, at 12% per annum28 should help eliminate the issue of the constant fluctuation and inflation of the value of the currency over time.29 Article 1250 of the Civil Code, providing that, in case of extraordinary inflation or deflation, the value of the currency at the time of the establishment of the obligation shall be the basis for the payment when no agreement to the contrary is stipulated, has strict application only to contractual obligations.30 In other words, a contractual agreement is needed for the effects of extraordinary inflation to be taken into account to alter the value of the currency. 31 All given, the trial court of Bulacan in issuing its order, dated 01 March 2000, vacating its decision of 26 February 1979 has acted beyond its lawful cognizance, the only authority left to it being to order its execution. Verily, private respondents, although not entitled to the return of the expropriated property, deserve to be paid promptly on the yet unpaid award of just compensation already fixed by final judgment of the Bulacan RTC on 26 February 1979 at P6.00 per square meter, with legal interest thereon at 12% per annum computed from the date of "taking" of the property, i.e., 19 September 1969, until the due amount shall have been fully paid. WHEREFORE, the petition is GRANTED. The resolution, dated 31 July 2000, of the Court of Appeals dismissing the petition for certiorari, as well as its resolution of 04 January 2001 denying the motion for reconsideration, and the decision of the Regional Trial Court of Bulacan, dated 01 March 2000, are SET ASIDE. Let the case be forthwith remanded to the Regional Trial Court of Bulacan for the proper execution of its decision promulgated on 26 February 1979 which is hereby REINSTATED. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

Footnotes
1

Rollo, p. 66.

The Dispositive Portion of Proclamation No. 22, entitled "TRANSFERRING OWNERSHIP OF A PORTION OF THE PROPERTY OF THE PHILIPPINE INFORMATION AGENCY TO THE BULACAN STATE UNIVERSITY," reads: NOW, THEREFORE, I, JOSEPH EJERCITO ESTRADA, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby transfer to the Bulacan State University, twenty (20) hectares of the property mentioned above, and another five (5) hectares for the exclusive use of the propagation of the Philippine carabao, adjacent to the university campus, located in Malolos, Bulacan. The remaining portions of the property fronting the national highway shall be retained by the Philippine Information Agency for its proposed development plan, including offices of the PIA Regional Office, the Bulacan Provincial Information Center, the training center and the depository of equipment and other properties of PIA.
3

Rollo, pp. 76-77.

341 SCRA 533. See also PCGG vs. Desierto, 28 December 2001, G.R. No. 140358; PCGG vs. Desierto, 19 January 2001, G.R. No. 140323; Medina Investigation vs. Court of Appeals, 20 March 2001, G.R. No. 144074; Pfizer vs. Galan, 25 May 2001, G.R. No. 143389; Santos vs. Court of Appeals, 05 July 2001, G.R. No. 141947.
5

At pp. 537-538. Section 6, Rule 39 of the Rules of Court provides: Execution by motion or by independent action. A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the Statute of Limitations, a judgment may be enforced by action.

Bernas, 1987 Edition, p. 276, quoting Justice Story in Charles River Bridge vs. Warren Bridge. US vs. Certain Lands in Highlands (DY NY) 48 F Supp 306.

US vs. Certain Lands in Highlands (DY NY) 48 F Supp 306; San Bernardino Valley Municipal Water Districtvs. Gage Canal Co. (4th Dist) 226 Cal App 2d 206, 37 Cal Rptr 856.
10

Sea vs. Manila Railroad Co., 42 Phil. 102. Visayan Refining Co., vs. Camus, 40 Phil 550. Thornton Development Authority vs. Upah (DC Colo) 640 F Supp 1071. Visayan Refining, supra. 153 SCRA 291. See Local Government Code of 1991 City of Manila vs. Chinese Community of Manila, 40 Phil 349.

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17 SCRA 107. At p. 112. 106 Phil. 1017. Mines vs. Canal Authority of the State (Fla) 467 So2d 989, 10 FLW 230. Cadorette vs. US CCA (Mass) 988 F2d 215. Ibid. Ibid. 17 SCRA 107, supra. Manila Railway Co. vs. Fabie, 17 Phil 206. Philippine Railway Co. vs. Solon, 13 Phil 34. Commissioner of Public Highways vs. Burgos, 96 SCRA 831. Eastern Shipping Lines, Inc. vs. Court of Appeals, 234 SCRA 78. US vs. Klamath and Moadoc Tribes, 304 US 119, 82 L Ed 1219, 58 S Ct 799. Commissioner of Public Highways vs. Burgos, supra. Ibid.

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The Lawphil Project - Arellano Law Foundation