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POWER OF TAXATION

FRANCHISES

PLDT vs Davao

Facts: Petitioner PLDT applied for a Mayors Permit to operate its Davao Metro Exchange. Respondent
City of Davao withheld action on the application pending payment by petitioner of the local franchise
tax. Petitioner protested the assessment of the local franchise tax and requested a refund of the
franchise tax paid by it for the year 1997 and the first to the third quarters of 1998. Petitioner
contended that it was exempt from the payment of franchise tax based on an opinion of the Bureau of
Local Government Finance (BLGF). PLDT cites R.A. No. 7925, otherwise known as the Public
Telecommunications Policy Act Sec. 23 Equality of Treatment of Telecommunications Industry that
because Smart and Globe are exempt from franchise tax, they are also exempted.

Issue: WON PLDT is exempt from payment of franchise tax

Held:

NO. It does not appear that, in approving Sec 23 of R.A. No. 7925, Congress intended it to operate as a
blanket tax exemption to all telecommunications entities. Applying the rule of strict construction of
laws granting tax exemptions and the rule that doubts should be resolved in favor of municipal
corporations in interpreting statutory provisions on municipal taxing powers, we hold that 23 of R.A.
No. 7925 cannot be considered as having amended petitioners franchise so as to entitle it to exemption
from the imposition of local franchise taxes. The tax exemption must be expressed in the statute in clear
language that leaves no doubt of the intention of the legislature to grant such exemption. And, even if it
is granted, the exemption must be interpreted in strictissimi juris against the taxpayer and liberally in
favor of the taxing authority.

Quezon City vs Bayantel

Facts:

Respondent Bayan Telecommunications, Inc. (Bayantel) is a legislative franchise holder under Republic
Act (Rep. Act) No. 3259 to establish and operate radio stations for domestic telecommunications,
radiophone, broadcasting and telecasting. LGC was enacted repealing all tax exemptions. After LGC was
enacted, Congress enacted RA 7925. Bayantel wrote the office of the City Assessor seeking the exclusion
of its real properties in the city from the roll of taxable real properties. With its request having been
denied, Bayantel interposed an appeal with the Local Board of Assessment Appeals (LBAA). And,
evidently on its firm belief of its exempt status, Bayantel did not pay the real property taxes assessed
against it by the Quezon City government. Quezon City filed writ of attachment for the real properties of
Bayanyel. RTC decided in favor of Bayantel granting tax exemptions on the real properties.

Issue: WON Bayantels real properties are exempt from real property tax
Held:

YES. Rep. Act No. 7633 was enacted subsequent to the LGC. Perfectly aware that the LGC has already
withdrawn Bayantels former exemption from realty taxes, Congress opted to pass Rep. Act No. 7633
using, under Section 11 thereof, exactly the same defining phrase "exclusive of this franchise" which was
the basis for Bayantels exemption from realty taxes prior to the LGC. In plain language, Section 11 of
Rep. Act No. 7633 states that "the grantee, its successors or assigns shall be liable to pay the same taxes
on their real estate, buildings and personal property, exclusive of this franchise, as other persons or
corporations are now or hereafter may be required by law to pay." The Court views this subsequent
piece of legislation as an express and real intention on the part of Congress to once again remove from
the LGCs delegated taxing power, all of the franchisees (Bayantels) properties that are actually,
directly and exclusively used in the pursuit of its franchise.

FELS Energy vs Batangas

Facts:

NPC entered into a lease contract with Polar Energy, Inc. over 3x30 MW diesel engine power barges
moored at Balayan Bay in Calaca, Batangas. Subsequently, Polar Energy, Inc. assigned its rights under
the Agreement to FELS. The NPC initially opposed the assignment of rights. FELS received an assessment
of real property taxes on the power barges. . FELS referred the matter to NPC, reminding it of its
obligation under the Agreement to pay all real estate taxes. It then gave NPC the full power and
authority to represent it in any conference regarding the real property assessment of the Provincial
Assessor. Petitioners maintain nevertheless that the power barges are exempt from real estate tax
under Section 234 (c) of R.A. No. 7160 because they are actually, directly and exclusively used by
petitioner NPC, a government- owned and controlled corporation engaged in the supply, generation,
and transmission of electric power.

Issue: WON the power barges are exempted from real property tax

Held:

YES. As found by the appellate court, the CBAA and LBAA power barges are real property and are thus
subject to real property tax. Tax assessments by tax examiners are presumed correct and made in good
faith, with the taxpayer having the burden of proving otherwise.48 Besides, factual findings of
administrative bodies, which have acquired expertise in their field, are generally binding and conclusive
upon the Court; we will not assume to interfere with the sensible exercise of the judgment of men
especially trained in appraising property. Where the judicial mind is left in doubt, it is a sound policy to
leave the assessment undisturbed. We affirm the findings of the LBAA and CBAA that the owner of the
taxable properties is petitioner FELS, which in fine, is the entity being taxed by the local government.

DigiTel vs Pangasinan
Facts:

FACTS:

Pangasinan filed a petition for Mandamus, Collection of Sum of Money and Damages against Digitel on
March 1, 2000. LGC withdrew any exemption from payment of a tax on businesses enjoying a franchise
and authorized LGUs to impose a franchise tax, on business enjoying a franchise within its territorial
jurisdiction. (Sec 137, RA 7160) under Provincial Ordinance, Digitel was granted a provincial franchise
but was required to pay franchise & real property taxes. Pangasinan likewise enacted The Real Property
Tax Ordinance of 1992 and technically expanded the application of franchise to include machineries
and other improvements, thereinafter exempted to Digitel. Since 92, 93 & 94, Digitel allegedly had a
franchise tax deficiency which hasnt been paid since the start of its operation. In 1995, congress passed
RA 7925, The public Telecoms Policy Act Section 23 provided: for the application to any previously
granted telecoms franchises of any advantage granted under existing franchise.

ISSUE:

WON Digitel is exempted to pay the provincial franchise tax in view of RA 7925

RULING:

YES. Prior to the enactment and effectivity of its legislative franchise, with only a provincial franchise to
speak of, Digitel did not enjoy any exemption from payment of franchise and real property taxes. The
word exemption as used in RA 7925 pertains to an exemption from regulatory or reporting
requirements of the DOTC or the NTC and not to the grantees tax liability. In many resolved cases, the
Court ruled that

when exemption is claimed, it must be shown indubitably to exist a well-founded doubt is fatal to the
claim. It is only when the terms of the concession are too explicit to admit fairly of any other,
construction that the preposition can be supported.

On whether Congress may lift the taxing power of LGU, Court said: the grant of taxing powers to LGUs
under LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a
declared national policy. The legal effect of that in interpreting statutory provisions on municipal
corporations, Congress exempted real property tax on those properties actually, exclusively and directly
used by DIGITEL in the pursuit of its franchise.
Land Reclassification

1. Fortich vs Corona 398 SCRA 685

The Office of the President modified its decision which had already become final and executory.

FACTS:
On November 7, 1997, the Office of the President (OP) issued a win-win Resolution which reopened case O.P. Case
No. 96-C-6424. The said Resolution substantially modified its March 29, 1996 Decision. The OP had long declared the
said Decision final & executory after the DARs Motion for Reconsideration was denied for having been filed beyond the
15-day reglementary period.
The SC then struck down as void the OPs act, it being in gross disregard of the rules & basic legal precept that accord
finality to administrative determinations.
The respondents contended in their instant motion that the win-win Resolution of November 7, 1997 is not void since it
seeks to correct an erroneous ruling, hence, the March 29, 1996 decisioncould not as yet become final and executory
as to be beyond modification. They further explained that the DARs failure to file their Motion for Reconsideration on time
was excusable.

ISSUE:
Was the OPs modification of the Decision void or a valid exercise of its powers and prerogatives?
1. Whether the DARs late filing of the Motion for Reconsideration is excusable.
2. Whether the respondents have shown a justifiable reason for the relaxation of rules.
3. Whether the issue is a question of technicality.

HELD:
1.
No.
Sec.7 of Administrative Order No. 18, dated February 12, 1987, mandates that decisions/resolutions/orders of the Office
of the President shallbecome final after the lapse of 15 days from receipt of a copy therof xxx unless a Motion for
Reconsideration thereof is filed within such period.
The respondents explanation that the DARs office procedure made it impossibleto file its Motion for Reconsideration
on time since the said decision had to be referred to its different departments cannot be considered a valid justification.
While there is nothing wrong with such referral, the DAR must not disregard the reglementary period fixed by law, rule or
regulation.
The rules relating to reglementary period should not be made subservient to the internal office procedure of an
administrative body.

2.
No. The final & executory character of the OP Decision can no longer be disturbed or substantially modified. Res judicata
has set in and the adjudicated affair should forever be put to rest.
Procedural rules should be treated with utmost respect and due regard since they are designed to facilitate the
adjudication of cases to remedy the worsening problem of delay in the resolution of rival claims and in the administration
of justice. The Constitution guarantees that all persons shall have a right to the speedy disposition of their cases before
all judicial, quasi-judicial and administrative bodies.
While a litigation is not a game of technicalities, every case must be prosecuted in accordance with the prescribed
procedure to ensure an orderly & speedy administration of justice. The flexibility in the relaxation of rules was never
intended to forge a bastion for erring litigants to violate the rules with impunity.
A liberal interpretation & application of the rules of procedure can only be resorted to in proper cases and under justifiable
causes and circumstances.

3.
No. It is a question of substance & merit.
A decision/resolution/order of an administrative body, court or tribunal which is declared void on the ground that the same
was rendered Without or in Excess of Jurisdiction, or with Grave Abuse of Discretion, is a mere technicality of law or
procedure. Jurisdiction is an essential and mandatory requirement before a case or controversy can be acted on.
Moreover, an act is still invalid if done in excess of jurisdiction or with grave abuse of discretion.
In the instant case, several fatal violations of law were committed. These grave breaches of law, rules & settled
jurisprudence are clearly substantial, not of technical nature.

When the March 29, 1996 OP Decision was declared final and executory, vested rights were acquired by the petitioners,
and all others who should be benefited by the said Decision.
In the words of the learned Justice Artemio V. Panganiban in Videogram Regulatory Board vs CA, et al., just as a losing
party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy
the finality of the resolution of his/her case.
2. Roxas and Co., Inc. v. IAC

Puno, J.

Facts:

Petitioner Roxas and Co. Is a corporation that owns 3 haciendas in Batangas, which the government wishes to acquire
under the Comprehensive Agrarian Law (CARL). Before the effectivity of the law, the petitioner filed with the Department
of Agrarian Reform a voluntary offer to sell (VOS) Hacienda Caylaway pursuant to EO 229, which served as guidelines to
the comprehensive agrarian program.

The two other haciendasBanilad and Palicowere placed under compulsory acquisition by the DAR in accordance with
the CARL.

Hacienda Banilad and Palico

DAR sent invitations to Roxas and Co in order to discuss the results of the DAR investigation, finding both Banilad and
Palico qualified under the CARP. For Hacienda Palico, DAR sent a letter of acquisition to Roxas and Co at their offices in
Manila, while for Hacienda Banilad, DAR addressed the notices to Jaime Pimintel, caretaker of the said hacienda. It was
petitioner Pimintel who attended all the proceedings regarding the two haciendas. Hence, during trial, Roxas and Co
claimed that they were not informed of the acquisition proceedings on their two haciendas.

DAR then opened a trust account in favor of petitioner Roxas and Co. These trust accounts were replaced by DAR with
cash and Land Bank of the Philippines (LBP) bonds. Meanwhile, petitioner Roxas applied for the conversion of the
haciendas from agricultural to non-agricultural. Despite this, DAR proceeded with the acquisition of the two haciendas. It
then issued and distributed certificate of land ownership awards (CLOA) to farmer beneficiaries.

Hacianda Caylaway

Although Hacienda Caylaway was initially offered for sale to the government, Roxas and Co sent a letter to DAR secretary
withdrawing its offer. According to Roxas, the reclassification of Caylaway from agricultural to non agricultural was
authorized by the Sangguniang Bayan of Nasugbu. Also, the municipality of Nasugbu where the haciendas are located
had been declared a tourist zone. Roxas also argued that the land is not suitable for agricultural purposes.

DAR secretary denied Roxas withdrawal of his VOS. According to the secretary, the withdrawal can only be based on
specific grounds such as unsuitability of soil for agriculture, slope of the lad is over 180 degrees and that the land is
undeveloped.

Despite the denial of the withdrawal of the VOS, petitioner still filed an application for conversion with the DAR
Adjudication Board (DARAB), which submitted the case to the Secretary of DAR for resolution. The DAR secretary
dismissed the case.

Roxas and Co went to the CA on appeal. CA dismissed appeal claiming that petitioners failed to exhaust administrative
remedies.

Issues:

1. WON the court can take cognizance of petitioners petition despite failure to exhaust administrative remedies

2. WON acquisition proceedings against the petitioners were valid

3. WON the court can rule on whether the haciendas may be reclassified from agricultural to non agricultural

Held:

1. Yes. Petitioners action falls under the exception to the doctrine of exhaustion of administrative remedies sine
there is no other plain, speedy, and adequate remedy for the petitioners at this point. The CLOAs were already
issued despite the fact that there was no just compensation.

2. Acquisition proceedings against petitioners violated their right to due process. First, there was an improper
service of the Notice of Acquisition. Notices to corporations should be served through their president, manager,
secretary, cashier, agent, or any of its directors or partners. Jaime Pimintel, to whom the notice was served, was
neither of those. Second, there was no notice of coverage, meaning, the parcels of land were not properly
identified before they were taken by the DAR. Under the law, the land owner has the right to choose 5 hectares of
land he wishes to retain. Upon receiving the Notice of Acquisition, petitioner corporation had no idea which
portions of its estate were subject to compulsory acquisiton. Third, The CLOAs were issued to farmer
beneficiaries without just compensation. The law provides that the deposit must be made only in cash or LBP
bonds. DARs opening of a trust account in petitioners name does not constitute payment. Even if later, DAR
substituted the trust account with cash and LBP bonds, such does not cure the lack of notice, which still amounts
to a violation of the petitioners right to due process.

3. Despite all this, the court has not jurisdiction to rule on the reclassification of land from agricultural to non
agricultural. DARs failure to observe due process does not give the court the power to adjudicate over petitioners
application for land conversion. DAR is charged with the mandate of approving applications for land conversion.
They have the tools and experience needed to evaluate such applications; hence, they are the proper agency
with which applications for land use conversion are lodged. DAR should be given a chance to correct their defects
with regard to petitioners right to due process.

Petitioner dismissed.

Note: Pertinent section although not mentioned in the case is Sec. 20 of the LGC on power of LGU to reclassify land.
However, the code also provides that the CARL prevails over LGC provisions.

Zoning Ordinance

1. Alfredo Patalinghug vs. Court of Appeals

Facts:
On November 17, 1982, the Sangguniang Panlungsod of Davao City enacted Ordinance No. 363, otherwise known as the
Expanded Zoning Ordinance of Davao City, Sec.8 of which states:
A C-2 District shall be dominantly for commercial and compatible industrial uses as provided hereunder:

xxx

3.1. Funeral Parlors/Memorial Homes with adequate off street parking space and provided that they shall be established
not less than 50 meters from any residential structures, churches and other institutional buildings.
Petitioner constructed a funeral parlor in the name and style of Metropolitan Funeral Parlor at Cabaguio Avenue, Agdao,
Davao City.
Acting on the complaint of several residents of Brgy. Agdao that the construction of petitioners 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 Tepoot, is only 8 inches to the south.
Notwithstanding the findings of the Sangguniang Panlungsod, petitioner continued with the construction of his funeral
parlor until it was finished on November 3, 1987.

Issues:

Whether petitioners operation of a funeral home constitutes permissible use within a particular district or zone in Davao
City?

Held:

Petitioner did not violate Sec.8 of Davao City Ordinance No. 363. The question of whether Mr. Tepoots building is
residential or not is a factual determination which we should not disturb. Although the general rule is that findings of the
lower courts are conclusive upon the Supreme Court, this admits of exceptions as when the findings and conclusions of
the Court of Appeals and of the trial court are contrary to each other. While the trial court ruled that Tepoots building was
commercial, the Appellate Court ruled otherwise.
Tax declaration is not conclusive of the nature of the property for zoning purposes. A property may well be 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--vis the determination of a
property for zoning purposes.
A tax declaration only enables the assessor to identify the evidentiary value of a tax 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, appraisal and
assessment are based on the actual use irrespective of any previous assessment or taxpayers valuation thereon. A
piece of land declared by a taxpayer as residential may be assessed by the provincial/city assessor as commercial
because its actual use is commercial.
Even if Tepoots 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 through 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 as commercial purposes as gleaned from
Ordinance No. 363.
The declaration of said area as a commercial zone through 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 may interfere with
personal liberty, with property, and with business and occupations in order to promote the general welfare. 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 the 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.
Notes. The appraisal and assessment of real property for taxation purposes is that the property must be appraised at its
current and fair market value (Reyes vs. Almanzor, 196 SCRA 322).
The exercise by local government of the power to tax is ordained by the present constitution, only guidelines and
limitations that may be established by Congress can define and limit such power of local governments (Philippine
Petroleum Corporation vs. Municipality of Pililia, Rizal, 198 SCRA 82).

2. Ortigas vs. FEATI (1979)

Facts:
Ortigas & Co., Limited Partnership engaged in real estate business developing and selling lots to the public
particularly Highway Hills subdivision along EDSA
March 4, 1952 Augusto Padilla y Angeles and Natividad Angeles entered into separate agreements of sale on
installments over Lots 5 and 6 Block 31, Highway Hills
July 19, 1962 Augusto and Natividad transferred their rights and interests in favor of Emma Chavez
o Transfer contained the following restrictions and stipulations:
For residential purposes only
All buildings and improvements (except fences) should use strong building material, have modern sanitary installations
connected to the public sewer or own septic tank and shall not be more than 2 meters from the boundary lines
Resolution 27 Feb 4, 1960 reclassified the western part of EDSA (Shaw boulevard to Pasig River) as a commercial
and industrial zone
Such restrictions were annotated on the TCTs
July 23, 1962 - Feati bank bought Lot 5 from Emma Chavez while lot 6 was purchased by Republic Flour Mills

May 5, 1963 Feati Bank began laying foundation and construction of a building for banking purposes on lots 5 and 6
Ortigas & Co. Demanded that they comply with the annotated restrictions
Feati Bank refused arguing that it was following the zoning regulations
Ortigas & Co. filed a case in the lower courts which held that Resolution No. 27 was a valid exercise of police power of
the municipality hence the zoning is binding and takes precedence over the annotations in the TCTs because private
interest should bow down to general interest and welfare.
March 2, 1965 motion for reconsideration by Ortigas & Co. which was denied on March 26, 1965
April 2, 1965 Ortigas filed notice of appeal which was given due course on April 14, 1965 hence this case.

Issues:
WON Resolution No. 27 is a valid exercise of police power
WON Resolution No. 27 can nullify or supersede contractual obligations by Feati Bank and Trust Co.

Held:
YES it is a valid exercise police power.
YES it can nullify contractual obligations by Feati with Ortigas & Co.

Ratio:
The validity of the resolution was never assailed in the lower courts and can therefore not be raised for the first time on
appeal
o The rule against flip flopping issues and arguments prevents deception in courts
o Ortigas & Co. also did not dispute the factual findings of the lower court on the validity of the resolution
Assuming arguendo it was properly raised the resolution is still valid
o RA 2264 (Local Autonomy Act) Sec 3 empowers municipalities to adopt zoning and subdivision ordinances or regulations
for the municipality
o The resolution is regulatory measure!
o RA 2264 Sec 12 any fair and reasonable doubt as to the existence of the power should be interpreted in favor of the
local government and it shall be presumed to exist this gives more power to LGUs to promote general welfare,
economic conditions, social welfare and material progress in their locality
The non-impairment clause of contracts is not absolute since it must be reconciled with the legitimate exercise of
police power
o when general welfare and private property rights clash, the former must prevail through police powers of the state
Lots 5 and 6 front EDSA and has become surrounded by industrial and commercial complexes
o Development in the area has resulted in extreme noise and air pollution that is not conducive to health, safety and welfare
of the would-be residents justifies the usage by Feati Bank of the land for more reasonable purposes

Decision: Affirmed

Dissenting: Abad Santos, J.


Resolution 27 is valid because it has not yet been struck down but it is not a legitimate exercise of police power
because its means (zoning) do not fit with its purpose of general welfare
Zoning the area as industrial and commercial will contribute to chaos, frenzy, pollution, noise which suffocate and
cause the deterioration of the ecology Lowers quality of life for residents in Metro Manila

Closure and Opening of Roads

1. BRUNO S. CABRERA, vs.CA

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.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

2 MMDA v Bel-Air Village Association, Inc.

GR 135962
March 27, 2000

FACTS:
On December 30, 1995, respondent received from petitioner a notice requesting the former to open its private road,
Neptune Street, to public vehicular traffic starting January 2, 1996. On the same day, respondent was apprised that the
perimeter separating the subdivision from Kalayaan Avenue would be demolished.
Respondent instituted a petition for injunction against petitioner, praying for the issuance of a TRO and preliminary
injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall.

ISSUE:
WON MMDA has the authority to open Neptune Street to public traffic as an agent of the state endowed with police
power.

HELD:
A local government is a political subdivision of a nation or state which is constituted by law and has substantial control of
local affairs. It is a body politic and corporate one endowed with powers as a political subdivision of the National
Government and as a corporate entity representing the inhabitants of its territory (LGC of 1991).

Our Congress delegated police power to the LGUs in Sec.16 of the LGC of 1991. It empowers the sangguniang
panlalawigan, panlungsod and bayan to enact ordinances, approve resolutions and appropriate funds for the general
welfare of the [province, city or municipality] and its inhabitants pursuant to Sec.16 of the Code and in the proper exercise
of the [LGU's corporate powers] provided under the Code.

There is no syllable in RA 7924 that grants the MMDA police power, let alone legislative power. Unlike the legislative
bodies of the LGUs, there is no grant of authority in RA 7924 that allows the MMDA to enact ordinances and regulations
for the general welfare of the inhabitants of Metro Manila. The MMDA is merely a development authority and not a
political unit of government since it is neither an LGU or a public corporation endowed with legislative power. The MMDA
Chairman is not an elective official, but is merely appointed by the President with the rank and privileges of a cabinet
member.

In sum, the MMDA has no power to enact ordinances for the welfare of the community. It is the LGUs, acting through their
respective legislative councils, that possess legislative power and police power.

The Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune
Street, hence, its proposed opening by the MMDA is illegal.

3. Sangalang v. IAC (G.R. No. 71169. December 22, 1988)

FACTS:

The Mayor of Makati directed Bel-Air Village Association (BAVA) to opening of several streets to the general public, after
a series of developments in zoning regulations. All but Jupiter St. was voluntarily opened. The strong opposition later gave
way when the municipal officials force-opened the gates of said street for public use. The area ceased to be purely
residential. Action for damages was brought against Ayala Corporation and BAVA for alleged breach of contract, to
maintain the purely residential status of the area. Other similarly situated also filed their respective cases. All were
dismissed in the trial court. The Court of Appeals affirmed the said dismissals.

ISSUE:
Whether or not there is a contract between homeowners and Ayala Corporation violated in opening the Jupiter street for
public use.

HELD:

No. There was no contract to speak of in the case, hence nothing was violated.

RATIO:

Petitioners cannot successfully rely on the alleged promise by Ayala Corporation, to build a [f]ence along Jupiter [street]
with gate for entrance and/or exit as evidence of Ayalas alleged continuing obligation to maintain a wall between the
residential and commercial sections. Assuming there was a contract violated, it was still overtaken by the passage of
zoning ordinances which represent a legitimate exercise of police power. The petitioners have not shown why Courts
should hold otherwise other than for the supposed non-impairment guaranty of the Constitution, which 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.

4. Macasiano vs Diokno GR 97764 (August 10, 1992)

G.R. No. 97764

August 10, 1992

Facts:

Respondent Municipality passed Ordinance No. 86 which authorized the closure of J.Gabriel, G.G. Cruz, Bayanihan, Lt.
Garcia Extension and Opena Streets and the establishment of a flea market thereon. This was passed pursuant to MMC
Ordinance No.2 and was approved by the Metropolitan Manila Authority on July 20, 1990.

On August 8, 1990, respondent municipality and Palanyag entered into a contract agreement whereby the latter shall
operate, maintain & manage the flea markets and/or vending areas in the aforementioned streets with the obligation to
remit dues to the treasury of the municipal government of Paraaque.

On September 13, 1990 Brig. Gen. Macasiano ordered the destruction and confiscation of stalls along G.G. Cruz &
Gabriel Street in Baclaran. He also wrote a letter to Palanyag ordering the destruction of the flea market.

Hence, respondent filed a joint petition praying for preliminary injunction. The trial court upheld the assailed Ordinance
and enjoined petitioner from enforcing his letter-order against Palanyag.

Issues:

WON an ordinance/resolution issued by the municipal council of Paraaque authorizing the lease & use of public
streets/thoroughfares as sites for the flea market is valid.

Held:

No.

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 devoted to public
service are deemed public and are under the absolute control of Congress. Hence, local governments have no authority
to control/regulate the use of public properties unless specific authority is vested upon them by Congress.

Sec. 10, Chapter II of the LGC should be read and interpreted in accordance with basic principles already established by
law.
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/necessary for public use/service. Once withdrawn, the
property then becomes patrimonial property of the LGU concerned and only then can said LGU use the property as an
object of an ordinary contract. Roads and streets available to the public and ordinarily used for vehicular traffic are still
considered public property devoted to public use. The LGU has no power to use it for another purpose or to dispose of or
lease it to private persons.

Also, the disputed ordinance cannot be validly implemented because it cant be considered approved by the Metropolitan
Manila Authority due to non-compliance with the conditions it imposed for the approval of said ordinance.

The powers of an LGU are not absolute, but subject to the limitations laid down by the Constitution and laws such as the
Civil Code. Every LGU has the sworn obligation to enact measures that will enhance the public health, safety &
convenience, maintain peace & order and promiote the general prosperity of the inhanbitants pf the local units.

As in the Dacanay case, the general public have the right to demand the demolition of the illegally constructed stalls in
public roads & streets. The officials of the respondent municipality have the corresponding duty arising from public office
to clear the city streets and restore them to their specific public purpose.

The ordinance is void and illegal for lack of basis in authority in laws applicable during its time.
Local
Government
Code
Reviewer
based on
Atty
Fragantes
Syllabus
Adamson University

foobarph
Local Government Code Reviewer based on Atty Fragantes Syllabus

Contents
General Powers and Attributes of LGU ..................................................................................................... 3

Municipal Liability ..................................................................................................................................... 8

Qualifications & Election of Elective Local Officials .................................................................................. 9

Vacancies and Succession ....................................................................................................................... 10

Local Legislation ...................................................................................................................................... 11

Disciplinary Actions ................................................................................................................................. 12

Recall ....................................................................................................................................................... 13

Human Resources and Development ..................................................................................................... 14

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General Powers and Attributes of LGU


Matalin Coconut Co. vs Municipal Council of Malabang, Lanao Del Sur, GR No. L-28138, August 13, 1986

- In an action for declaratory relief assailing the validity of a municipal tax ordinance, the court, in
deciding that the ordinance is void, is authorized to require a refund oftaxes paid there under
without the necessity of converting the proceeding into an ordinary action there having been no
alleged violation yet.
- A fixed tax denominatd as a police inspection fee of P0.30 per sack of cassava starch shipped
out of the municipality is VOID where it is not for public purpose, just and uniform because the
police do nothing but count the number of cassava sacks shipped out.
- Inspection fee should not be excessive and confiscatory
- The power to regulate as an exercise of police power does not include the power
to impose fees for revenue purposes.
- Fees for purely regulatory purposes must be no more sufficient to cover the actual cost of
inspection and examination as nearly as the same can be estimated.

Magtajas vs Pryce Properties, Inc, GR No. 111097, July 20, 1994

- Tests of a valid ordinance to be valid, it must conform to the following substantive


requirements
o It must not contravene the Constitution or any statute.
o It must not be unfair or oppressive.
o It must not be partial or discriminatory.
o It must not prohibit but regulate trade.
o It must not be unreasonable.
o It must be general and consistent with public policy.
o MNEMONIC: CUP PUG
- The rationale of the requirement that the ordinances should not contravene a statute is obvious
as municipal governments are ONLY AGENTS of the national government and that the delegate
cannot be superior to the principal or exercise powers higher than those of the latter.
- Implied repeals it is a familiar rule that implied repeals are not lightly presumed in the absence
of a clear and unmistakable showing of such intention.
- A contravention of a law is not necessarily a contravention of the constitution.

Tatel vs Municipality of Virac, GR No. 40243, March 11, 1992

- Municipal corporations are agencies of the State for the promotion and maintenance of local
self-government and as such are endowed with police power in order to effectively accomplish
and carry out the declared objects of their creation.
- Role of a local agency unit and tests of a valid ordinance was discussed here as well.

City of Cebu vs CA, GR No. 109173, July 5, 1996

- A Local Government Unit may, through its Chief Executive and acting pursuant to an ordinance,
exercise the power of eminent domain x x x provided, however, that the power of eminent
domain may not be exercised unless a valid and efinite offer has been previously made to the
owner and as such offer was not accepted.

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- RA 7160, Section 19. Eminent Domain


o General Rule: Upon payment of just compensation
o Provided, however a valid and definite offer has been made previously to the owner.
o Provided, further LGU may immediately take possession of the property upon filing of
the expropriation proceedings AND upon making a deposity with the propert court of at
least 15% of the fair market value of the property to be expropriated.
o Provided, finally Such amount shall be determined by the proper court, based on the
fair market value at the time of the taking of the property.

Dacanay vs Asistio, Jr., 208 SCRA 404

- The right of the public to use the city streets may not be bargained away through a contract.
- Executive Order may not infringe upon vested right of the public to use city streets for the
purpose they were intended to serve.

Macasiano vs. Diokno, Gr No. 97764, August 10, 1992

- Properties of the local government which are devoted to public service are deemed public and
are under the absolute control of Congress.
- Properties of public dominion devoted to public use and made available to the public in general
are outside the commerce of men and cannot be disposed of or leased by the LGU to private
persons.
- 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.

Erwin Javellana vs DILG, GR No. 102549

- Court accords great respect to the decisions and/or actions of administrative authorities. Why?
Because it is presumed that they are knowledgeable and expertise in the enforcement of laws
and regulations entrusted to their jurisdiction.
- It is prohibited for a government official to engage in private practice of his profession IF such
practice would represent interests adverse to the government.

Metropolitan Manila Development Authority (MMDA) vs. Bel-Air Village Association, Inc. 328 SCRA 836

Police power is an inherent attribute of sovereignty.


Police power is lodged primarily in Congress which may delegate the power to the President and
administrative boards as well as the lawmaking bodies of municipal corporations or LGU.
Local government is a political subdivision of a nation or state which is constituted by law and
has substantial control of local affairs.
Police power is delegated to LGU. This delegation is known as the general welfare clause.

LGUs exercise police power through their respective legislative bodies.


o Sangguniang Panlalawigan -> Provincial government
o Sangguniang Panlungsod -> City government
o Sangguniang Bayan -> Municipal government
o Sangguniang Barangay -> Barangay

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o Above legislative bodies has the power to enact ordinances, approve resolutions and
appropriate funds for the general welfare of their jurisdiction and its inhabitants and in
the proper exercise of corporate powers of the same.
Nothing was found in RA 7924 which grants the MMDA police power, let alone legislative
power.
MMDA is not a political unit of government unlike with Metro Manila Council which has the
power to promulgate administrative rules and regulations in the implementation of
MMDAs functions.
MMDA is not a LGU or public corporation endowed with legislative power. It is not even a
special metropolitan political subdivision as contemplated in Constitution, Sec 11, Art X.
o The creation of special metropolitan political subdivision requires the approval by a
majority of the votes cast in a plebiscite in political units directly affected.
o The Chairman of MMDS is not even an official elected by the people, but appointed by
the President with rank and privileges of a cabinet member.
o Unlike MMC, MMDA has no power to enact ordinances for the welfare of the
community.

Lina vs Dizon Pano (GR 129093) - This statute remains valid today. While lotto is clearly a game of
chance, the national government deems it wise and proper to permit it. Hence, the Sangguniang
Panlalawigan of Laguna, a local government unit, cannot issue a resolution or an ordinance that would
seek to prohibit permits. Stated otherwise, what the national legislature expressly allows by law, such
as lotto, a provincial board may not disallow by ordinance or resolution.

In our system of government, the power of local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress.

Chus, Sr. vs Benilda Estate Corporation - A cause of action is defined as an act or omission by which a
party violates a right of another.6 The test of the sufficiency of the facts found in a petition as
constituting a cause of action is whether or not, admitting the facts alleged, the court can render a valid
judgment upon the same in accordance with the prayer thereof.7

Alvarez vs Guingona - In this regard, we hold that petitioners asseverations are untenable because
Internal Revenue Allotments form part of the income of Local Government Units.
It is true that for a municipality to be converted into a component city, it must, among others, have
an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based
on 1991 constant prices.1 Such income must be duly certified by the Department of Finance.2
Resolution of the controversy regarding compliance by the Municipality of Santiago with the
aforecited income requirement hinges on a correlative and contextual explication of the meaning of
internal revenue allotments (IRAs) vis-a-vis the notion of income of a local government unit and the
principles of local autonomy and decentralization underlying the institutionalization and intensified
empowerment of the local government system.
A Local Government Unit is a political subdivision of the State which is constituted by law and
possessed of substantial control over its own affairs.3Remaining to be an intra sovereign subdivision of
one sovereign nation, but not intended, however, to be an imperium in imperio,4 the local government
unit is autonomous in the sense that it is given more powers, authority, responsibilities and
resources.5 Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling

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especially the peripheral local government units to develop not only at their own pace and discretion
but also with their oWn resources and assets.6
The practical side to development through a decentralized local government system certainly
concerns the matter of financial resources. With its broadened powers and increased responsibilities, a
local government unit must now operate on a much wider scale. More extensive operations, in turn,
entail more expenses. Understandably, the vesting of duty, responsibility and accountability in every
local government unit is accompanied with a provision for reasonably adequate resources to discharge
its powers and effectively carry out its functions.7 Availment of such resources is effectuated through
the vesting in every local government unit of (1) the right to create and broaden its own source of
revenue; (2) the right to be allocated a just share in national taxes, such share being in the form of
internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the
utilization and development of the national wealth, if any, within its territorial boundaries.8.

Cordillera Broad Coalition vs CA (GR 79956) - the CAR is not a public corporation or a territorial and
political subdivision. It does not have a separate juridical personality, unlike provinces, cities and
municipalities. Neither is it vested with the powers that are normally granted to public corporations, e.g.
the power to sue and be sued, the power to own and dispose of property, the power to create its own
sources of revenue, etc. As stated earlier, the CAR was created primarily to coordinate the planning and
implementation of programs and services in the covered areas.

It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec.
2] refers to the administrative autonomy of local government units or, cast in more technical language,
the decentralization of government authority

Batangas CATV Inc vs CA (GR 138810) - Under cover of the General Welfare Clause as provided in this
section, Local Government Units can perform just about any power that will benefit their
constituencies. Thus, local government units can exercise powers that are: (1) expressly
granted; (2) necessarily implied from the power that is expressly granted; (3) necessary, appropriate or
incidental for its efficient and effective governance; and (4) essential to the promotion of the general
welfare of their inhabitants. (Pimentel, The Local Government Code of 1991, p. 46)

The grant of regulatory power to the NTC is easily understandable. CATV system is not a mere local
concern. The complexities that characterize this new technology demand that it be regulated by a
specialized agency. This is particularly true in the area of rate-fixing. Rate fixing involves a series of
technical operations.[48] Consequently, on the hands of the regulatory body lies the ample discretion in
the choice of such rational processes as might be appropriate to the solution of its highly complicated
and technical problems. Considering that the CATV industry is so technical a field, we believe that the
NTC, a specialized agency, is in a better position than the LGU, to regulate it.

Speaking for the Court in the leading case of United States vs. Abendan,[37] Justice Moreland said: An
ordinance enacted by virtue of the general welfare clause 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. In De la Cruz
vs. Paraz,[38] we laid the general rule that ordinances passed by virtue of the implied power found in the
general welfare clause must be reasonable, consonant with the general powers and purposes of the
corporation, and not inconsistent with the laws or policy of the State.

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League of Cities of the Philippines vs COMELEC (GR 176951, 177499, 178056) - we should not be
restricted by technical rules of procedure at the expense of the transcendental interest of justice and
equity. While it is true that litigation must end, even at the expense of errors in judgment, it is nobler
rather for this Court of last resort, as vanguard of truth, to toil in order to dispel apprehensions and
doubt, as the following pronouncement of this Court instructs:

The right and power of judicial tribunals to declare whether enactments of the legislature exceed the
constitutional limitations and are invalid has always been considered a grave responsibility, as well as a
solemn duty. The courts invariably give the most careful consideration to questions involving the
interpretation and application of the Constitution, and approach constitutional questions with great
deliberation, exercising their power in this respect with the greatest possible caution and even
reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment,
beyond reasonable doubt. To justify a court in pronouncing a legislative act unconstitutional, or a
provision of a state constitution to be in contravention of the Constitution x x x, the case must be so
clear to be free from doubt, and the conflict of the statute with the constitution must be irreconcilable,
because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body
by which any law is passed to presume in favor of its validity until the contrary is shown beyond
reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative act to be
contrary to the constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its
validity.18

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Municipal Liability
1. Palafox vs Province of Ilocos Norte Municipality is not liable if it performs governmental
functions except if there is a law permitting it.
2. Torio vs Fontanilla Municipality is liable if it performs in proprietary functions (i.e. holding a
town fiesta) and therefore liable to third persons under the law of contracts or torts.
3. Province of Cebu vs IAC The doctrine of implied municipal liability has been said to apply to all
cases where money or other property of a party is received under such circumstances that the
general law, independent of express contract implies an obligation upon the municipality to do
justice with respect to the same."
4. Osmena vs COA (GR 98355) Quantum Meruit is based on justice and equity, to compensate a
property or benefit received if restitution is equitable and if such action involves no violation,
frustration or opposition to public policy.
5. Osmena vs COA (GR 110045) - That the City of Cebu complied with the relevant formalities
contemplated by law can hardly be doubted. The compromise agreement was submitted to its
legislative council, the Sangguniang Panlungsod, which approved it conformably with its
established rules and procedure, particularly the stipulation for the payment of P30,000.00 to
the de la Cerna family. Neither may it be disputed that since, as a municipal corporation, Cebu
City has the power to sue and be sued, 17 it has the authority to settle or compromise suits, 18 as
well as the obligation to pay just and valid claims against it.
6. Ramos vs CA (GR 99425) - Private attorneys cannot represent a province or municipality in
lawsuits. Law allows a private counsel to be hired by a municipality only when the municipality is
an adverse party in a case involving the provincial government or another municipality or city
within the province. Only accountable public officers may act for and in behalf of public entities
and that public funds should not be expanded to hire private lawyers.

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Qualifications & Election of Elective Local Officials

1. Borja Jr. vs COMELEC (GR 133495) - In both the Constitution and the Local Government Code,
the three-term limitation refers to the term of office for which the local official was elected. It
made no reference to succession to an office to which he was not elected. In the case before the
Commission, respondent Capco was not elected to the position of Mayor in the January 18,
1988 local elections. He succeeded to such office by operation of law and served for the
unexpired term of his predecessor. Consequently, such succession into office is not counted as
one (1) term for purposes of the computation of the three-term limitation under the
Constitution and the Local Government Code. The term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three consecutive terms in an
elective local office, he must also have been elected to the same position for the same number
of times before the disqualification can apply.
2. Romualdez vs RTC (GR 104960) - In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous
with "domicile", which imports not only an intention to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of such intention."
3. Rodriguez vs COMELEC (GR 120099) - Art. 73. Disqualifications. The following persons shall be
disqualified from running for any elective local position; (e) Fugitives from justice in criminal or
non-political cases here or abroad. Fugitive from justice refers to a person who has been
convicted by final judgment. (Emphasis supplied).
4. Frivaldo vs COMELEC (257 SCRA 727) - the Local Government Code speaks of "Qualifications" of
"ELECTIVE OFFICIALS," not of candidates. In case of doubt in the interpretation or application of
laws, it is to be presumed that the law-making body intended right and justice to prevail.

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Vacancies and Succession

1. Farinas vs Barba (GR 116763) - Where there is no political party to make a nomination, the
Sanggunian, where the vacancy occurs, must be considered the appropriate authority for
making the recommendation, by analogy to vacancies created in the Sangguniang Barangay
whose members are by law prohibited from having any party affiliation.
2. Victoria vs COMELEC (GR 109005) - The ranking in the Sanggunian shall be determined on the
basis of the proportion of the votes obtained by each winning candidate of the total number of
registered voters who actually voted. In such a case, the Court has no recourse but to merely
apply the law. The courts may not speculate as to the probable intent of the legislature apart
from the words
3. Gamboa Jr. vs Aguirre (GR 134213) - Being the Acting Governor, the Vice-Governor cannot
continue to simultaneously exercise the duties of the latter office, since the nature of the
duties of the provincial Governor call for a full-time occupant to discharge them. 19 Such is not
only consistent with but also appears to be the clear rationale of the new Code wherein the
policy of performing dual functions in both offices has already been abandoned. To repeat, the
creation of a temporary vacancy in the office of the Governor creates a corresponding
temporary vacancy in the office of the Vice-Governor whenever the latter acts as Governor by
virtue of such temporary vacancy.

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Local Legislation

1. Magtajas vs Pryce Properties Inc (GR 111097) - The rationale of the requirement that the
ordinances should not contravene a statute is obvious. Municipal governments are only agents
of the national government. Local councils exercise only delegated legislative powers conferred
on them by Congress as the national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a heresy to suggest that the
local government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
2. Moday vs CA (GR 107916) - 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.
3. SJS vs Atienza, Jr. (GR 156052) Ordinance No. 8027 was enacted right after the Philippines,
along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the
Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to
protect the residents of Manila from the catastrophic devastation that will surely occur in case
of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective
measure should be delayed.

Version 12.1.1 by foobarph pg. 11


Local Government Code Reviewer based on Atty Fragantes Syllabus

Disciplinary Actions

1. Salalima et al vs Guingona (GR 11589-92) - We agree with the petitioners that Governor Salalima
could no longer be held administratively liable in O.P. Case No. 5450 in connection with the
negotiated contract entered into on 6 March 1992 with RYU Construction for additional
rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held
administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer
contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is so because public
officials cannot be subject to disciplinary action for administrative misconduct committed
during a prior term. The underlying theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of the officers previous misconduct to
the extent of cutting off the right to remove him therefor. Such a rule is not only founded on the
theory that an officials reelection expresses the sovereign will of the electorate to forgive or
condone any act or omission constituting a ground for administrative discipline which was
committed during his previous term. We may add that sound public policy dictates it. To rule
otherwise would open the floodgates to exacerbating endless partisan contests between the
reelected official and his political enemies, who may not stop to hound the former during his
new term with administrative cases for acts, alleged to have been committed during his
previous term. His second term may thus be devoted to defending himself in the said cases to
the detriment of public service. This doctrine of forgiveness or condonation cannot, however,
apply to criminal acts which the reelected official may have committed during his previous term.

2. The City of Angeles, Hon. Antonio Abad Santos vs CA (GR 97882) - But the end never justifies the
means, and however laudable the purpose of the construction in question, this Court cannot
and will not countenance an outright and continuing violation of the laws of the land, especially
when committed by public officials.I

In theory, the cost of such demolition, and the reimbursement of the public funds expended in
the construction thereof, should be borne by the officials of the City Angeles who ordered and
directed such construction. This Court has time and again ruled that public officials are not
immune from damages in their personal capacities arising from acts done in bad faith.
Otherwise stated, a public official may be liable in his personal capacity for whatever damage he
may have caused by his act done with malice and in bad faith or beyond the scope of his
authority or jurisdiction. 20 Indisputably, said public officials acted beyond the scope of their
authority and jurisdiction and with evident bad faith. However, as noted by the trial court 21, the
petitioners mayor and members of the Sangguniang Panlungsod of Angeles City were sued only
in their official capacities, hence, they could not be held personally liable without first giving
them their day in court. Prevailing jurisprudence 22 holding that public officials are personally
liable for damages arising from illegal acts done in bad faith are premised on said officials
having been sued both in their official and personal capacities.

Version 12.1.1 by foobarph pg. 12


Local Government Code Reviewer based on Atty Fragantes Syllabus

Recall

1. Angabung vs COMELEC (GR 126576) - In the instant case, this court is confronted with a
procedure that is unabashedly repugnant to the applicable law and no less such to the spirit
underlying that law. Private respondent who is a lawyer, knows that Section 69 (d) of the Local
Government Code plainly provides that recall is validly initiated by a petition of 25% of the total
number of registered voters. Notwithstanding such awareness, private respondent proceeded
to file the petition for recall with only herself as the filer and initiator. She claims in her petition
that she has, together with many others in Tumauini, Isabela, lost confidence in the leadership
of petitioner. But the petition does not bear the names of all these other citizens of Tumauini
who have reportedly also become anxious to oust petitioner from the post of mayor. There is no
doubt that private respondent is truly earnest in her cause, and the very fact that she affixed her
name in the petition shows that she claims responsibility for the seeming affront to petitioner's
continuance in office. But the same cannot be said of all the other people whom private
respondent claims to have sentiments similar to hers. While the people are vested with the
power to recall their elected officials, the same power is accompanied by the concomitant
responsibility to see through all the consequences of the exercise of such power, including rising
above anonymity, confronting the official sought to be recalled, his family, his friends, and his
supporters, and seeing the recall election to its ultimate end. The procedure of allowing just one
person to file the initiatory recall petition and then setting a date for the signing of the petition,
which amounts to inviting and courting the public which may have not, in the first place, even
entertained any displeasure in the performance of the official sought to be recalled, is not only
violative of statutory law but also tainted with an attempt to go around the law. We can not and
must not, under any and all circumstances, countenance a circumvention of the explicit 25%
minimum voter requirement in the initiation of the recall process.

2. Malonzo vs COMELEC (GR 127066) - The Minutes of the session of the Preparatory Assembly
indicated that there was a session held. Attendees constitute the majority of all the members of
the Preparatory Assembly, as we shall later on establish. Rules of procedure, simple they may be
were formulated. Deliberations were conducted on the main issue, which was that of
petitioner's recall. The members were given the opportunity to articulate on their resolve about
the matter. More importantly, their sentiments were expressed through their votes signified by
their signatures and thumbmarks affixed to the Resolution. No proof was adduced by Petitioner
to substantiate his claim that the signatures appearing thereon represented a cause other than
that of adopting the resolution. The law on recall did not prescribe an elaborate proceeding.
Neither did it demand a specific procedure. What is fundamental is compliance with the
provision that there should be a session called for the purpose of initiating recall proceedings,
attended by a majority of all the members of the preparatory recall assembly, in a public place
and that the resolution resulting from such assembly be adopted by a majority of all the PRA
members.

Version 12.1.1 by foobarph pg. 13


Local Government Code Reviewer based on Atty Fragantes Syllabus

Human Resources and Development

1. Javellana vs DILG (GR 102549) In the first place, complaints against public officers and
employees relating or incidental to the performance of their duties are necessarily impressed
with public interest for by express constitutional mandate, a public office is a public trust. The
complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is
in effect a complaint against the City Government of Bago City, their real employer, of which
petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia would
actually be a judgment against the City Government. By serving as counsel for the complaining
employees and assisting them to prosecute their claims against City Engineer Divinagracia, the
petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713)
prohibiting a government official from engaging in the private practice of his profession, if
such practice would represent interests adverse to the government.

2. Tobias vs Hon. Benjamin Abalos (GR 114783) 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.

Version 12.1.1 by foobarph pg. 14


CHUAT HUAT VS. CA
FACTS:

Manuel Uy and Sons, Inc. requested Manila City Engineer and Building Official Manuel delRosario to condemn the
dilapidated structures located in Paco, Manila, all occupied by petitioners. The said official issued notices of
condemnation to petitioners based onInspection Reports showing that the buildings suffered from structural
deterioration of as much as 80%. 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 was stated that the notice was not an order to demolish as
the findings of the City Engineer are still subject to the approval of the Mayor. The Mayor confirmed the condemnation
orders.

More than 3 months after the issuance of the condemnation order, petitioners protested against the notices of
condemnation on the ground that the buildings are still in good physical condition and are structurally sound.

Later, the City Engineer issued a demolition order. The petitioners filed a Petition for Prohibition, with PI or TRO
against the City Mayor, City Engineer, Building Officer and Manuel Uy and Sons Inc.

The Court issued the TRO and required respondents to comment. Respondents prayed that the petition be dismissed
claiming that: (1) 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); and (2) 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.

ISSUE:

(1) WON 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 Official;

(2) WON the City Mayor and City Engineer committed grave abuse of discretion in the exercise of such powers.

HELD:

(1) YES. 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. The Compilation of Ordinances of the City of Manila
and the National Building Code, also provide the authority of the Building Officials, with respect to dangerous
buildings. Respondent City Engineer and Building Official can, therefore, validly issue the questioned condemnation
and demolition orders. This is also true with the Mayor who can approve or deny the condemnation orders as provided
in Section 276 of the Compilation of Ordinances of the City of Manila.

(2) NO. 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%. The respondent
Mayor's act of approving the condemnation orders was likewise done in accordance with law. Petitioners were given
the opportunity to protest the condemnation but only did so long after the lapse of the period (7 days) allowed them
under Section 276 of the Compilation of Ordinances of the City of Manila.

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."
Tatel vs Municipality of Virac

Facts: Petitioner Celestino Tatel owns a warehouse in barrio Sta. Elena, Municipality of
Virac. Complaints were received by the municipality concerning the disturbance caused by the operation of
the abaca bailing machine inside petitioner's warehouse. A committee was then appointed by the
municipal council, and it noted from its investigation on the matter that an accidental fire within the
warehouse of the petitioner created a danger to the lives and properties of the people in the
neighborhood. Resolution No. 29 was then passed by the Municipal council declaring said warehouse as a
public nuisance within a purview of Article 694 of the New Civil Code. According to respondent
municipal officials, 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 Ordinance No. 13 is
unconstitutional.

Issues:

(1) Whether or not petitioner's warehouse is a nuisance within the meaning Article 694 of the Civil Code

(2) Whether or not Ordinance No. 13, series of 1952 of the Municipality of Virac is unconstitutional and
void.

Held: The storage of abaca and copra in petitioner's warehouse is a nuisance under the provisions of
Article 694 of the Civil Code. At the same time, Ordinance No. 13 was passed by the Municipal Council of
Virac in the exercise of its police power. It is valid because it meets the criteria for a valid 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. The purpose of the said ordinance is to
avoid the loss of property and life in case of fire which is one of the primordial obligation of government.
The lower court did not err in its decision.
Bayan, et al., Vs. Eduardo Ermita, et al.,
G.R. No. 169838
April 25, 2006

Facts:

The petitioners, Bayan, et al., alleged that they are citizens and taxpayers of the Philippines and that their right as
organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed
by policemen implementing Batas Pambansa No. 880.

Petitioners contended that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International
Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. They argue
that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a
clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause
as the time and place of a public assembly form part of the message which the expression is sought. Furthermore, it is not
content-neutral as it does not apply to mass actions in support of the government. The words lawful cause, opinion,
protesting or influencing suggest the exposition of some cause not espoused by the government. Also, the phrase
maximum tolerance shows that the law applies to assemblies against the government because they are being tolerated.
As a content-based legislation, it cannot pass the strict scrutiny test. This petition and two other petitions were ordered to
be consolidated on February 14, 2006. During the course of oral arguments, the petitioners, in the interest of a speedy
resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue
of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

Issue: Whether the Calibrated Pre-emptive response and the Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12,
13(a) and 14(a) violates Art. III Sec. 4 of the Philippine Constitution as it causes a disturbing effect on the exercise by the
people of the right to peaceably assemble.

Held: Section 4 of Article III of the Philippine Constitution provides that no law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for
redress of grievances. The right to peaceably assemble and petition for redress of grievances, together with freedom of
speech, of expression, and of the press, is a right that enjoys dominance in the sphere of constitutional protection. For this
rights represent the very basis of a functional democratic polity, without which all the other rights would be meaningless
and unprotected.

However, it must be remembered that the right, while sacrosanct, is not absolute. It may be regulated that it shall not be
injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is termed the sovereign police power, which is the
power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare
of the people.

B.P. No 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner
of the assemblies. B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public
places. The reference to lawful cause does not make it content-based because assemblies really have to be for lawful
causes, otherwise they would not be peaceable and entitled to protection. Neither the words opinion, protesting, and
influencing in of grievances come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyist and is independent of the content of the expression in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety,
public convenience, public morals or public health. This is a recognized exception to the exercise of the rights even under
the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights.

Wherefore, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local
Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas
Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city
and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or
plaza in every city or municipality that has not yet complied with section 15 of the law. Furthermore, Calibrated pre-
emptive response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID
and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum
tolerance, The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is
SUSTAINED
G.R. No. 175241 February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose Anselmo I. Cadiz, H. HARRY
L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,

vs.

HONORABLE MANILA MAYOR JOSE LITO ATIENZA, Respondent.

Petitioners Integrated Bar of the Philippines 1 (IBP) and lawyers H. Harry L. Roque and Joel R. Butuyan appeal the June
28, 2006 Decision 2 and the October 26, 2006 Resolution 3 of the Court of Appeals that found no grave abuse of discretion
on the part of respondent Jose Lito Atienza, the then mayor of Manila, in granting a permit to rally in a venue other than
the one applied for by the IBP.

On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed with the Office of the
City Mayor of Manila a letter application 4 for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30
p.m. to 5:30 p.m. to be participated in by IBP officers and members, law students and multi-sectoral organizations.

Respondent issued a permit 5 dated June 16, 2006 allowing the IBP to stage a rally on given date but indicated therein
Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received on June 19, 2006.

Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari docketed as CA-G.R. SP
No. 94949.6 The petition having been unresolved within 24 hours from its filing, petitioners filed before this Court on June
22, 2006 a petition for certiorari docketed as G.R. No. 172951 which assailed the appellate courts inaction or refusal to
resolve the petition within the period provided under the Public Assembly Act of 1985. 7

The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively, denied the petition for
being moot and academic, denied the relief that the petition be heard on the merits in view of the pendency of CA-G.R.
SP No. 94949, and denied the motion for reconsideration.

The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan
whose contingent from the Manila Police District (MPD) earlier barred petitioners from proceeding thereto. Petitioners
allege that the participants voluntarily dispersed after the peaceful conduct of the program.

The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as I.S. No. 06I-12501, against Cadiz for
violating the Public Assembly Act in staging a rally at a venue not indicated in the permit, to which charge Cadiz filed a
Counter-Affidavit of August 3, 2006.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance, that the petition
became moot and lacked merit. The appellate court also denied petitioners motion for reconsideration by the second
assailed issuance.

Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment of November 18,
2008 which merited petitioners Reply of October 2, 2009.

The main issue is whether the appellate court erred in holding that the modification of the venue in IBPs rally permit does
not constitute grave abuse of discretion.

Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act and violates their
constitutional right to freedom of expression and public assembly.

The Court shall first resolve the preliminary issue of mootness.

Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the passing of the date of the
rally on June 22, 2006.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that
a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness. However, even in cases where supervening events had made the cases moot, this
Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the
bench, bar and public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if
it is capable of repetition, yet evading review.9

In the present case, the question of the legality of a modification of a permit to rally will arise each time the terms of an
intended rally are altered by the concerned official, yet it evades review, owing to the limited time in processing the
application where the shortest allowable period is five days prior to the assembly. The susceptibility of recurrence compels
the Court to definitively resolve the issue at hand.
Respecting petitioners argument that the issues presented in CA-G.R. SP No. 94949 pose a prejudicial question to the
criminal case against Cadiz, the Court finds it improper to resolve the same in the present case.

Under the Rules,10 the existence of a prejudicial question is a ground in a petition to suspend proceedings in a criminal
action. Since suspension of the proceedings in the criminal action may be made only upon petition and not at the instance
of the judge or the investigating prosecutor,11 the latter cannot take cognizance of a claim of prejudicial question without a
petition to suspend being filed. Since a petition to suspend can be filed only in the criminal action, 12 the determination of
the pendency of a prejudicial question should be made at the first instance in the criminal action, and not before this Court
in an appeal from the civil action.

In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of discretion on the part of
respondent because the Public Assembly Act does not categorically require respondent to specify in writing the imminent
and grave danger of a substantive evil which warrants the denial or modification of the permit and merely mandates that
the action taken shall be in writing and shall be served on respondent within 24 hours. The appellate court went on to hold
that respondent is authorized to regulate the exercise of the freedom of expression and of public assembly which are not
absolute, and that the challenged permit is consistent with Plaza Mirandas designation as a freedom park where protest
rallies are allowed without permit.

The Court finds for petitioners.

Section 6 of the Public Assembly Act reads:

Section 6. Action to be taken on the application

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public
convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official
acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application [sic] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court,
the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court
within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring supplied)

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court reiterated:

x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters
of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had
occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free
speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court
in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were
coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for
redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil
to public safety, public morals, public health, or any other legitimate public interest.14 (emphasis supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the 1983 ruling
in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion of
the Reyes case, the Court elucidated as follows:

x x x [The public official concerned shall] appraise whether there may be valid objections to the grant of the permit or to its
grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger
of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse,
must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial
authority.16 (italics and underscoring supplied)

In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP
who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may
warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant
may directly go to court after an unfavorable action on the permit.

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and
present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued
permit adverts to an imminent and grave danger of a substantive evil, which blank denial or modification would, when
granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.

It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the
assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be abridged on the plea that it may be exercised in some other
place.17 (emphasis and underscoring supplied)

Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and
caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. It is
thus reversible error for the appellate court not to have found such grave abuse of discretion and, under specific statutory
provision, not to have modified the permit in terms satisfactory to the applicant. 18

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 94949 are REVERSED.
The Court DECLARES that respondent committed grave abuse of discretion in modifying the rally permit issued on June
16, 2006 insofar as it altered the venue from Mendiola Bridge to Plaza Miranda.

G.R. No. 122846 January 20, 2009


WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT
CORPORATION, Petitioners,

vs.

CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

Facts:

On December 3, 1992, City Mayor Alfredo S. Lim signed into law Manila City Ordinance No. 7774 entitled An Ordinance
Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns,
Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila (the Ordinance). The ordinance
sanctions any person or corporation who will allow the admission and charging of room rates for less than 12 hours or the
renting of rooms more than twice a day.

The petitioners White Light Corporation (WLC), Titanium Corporation (TC), and Sta. Mesa Tourist and Development
Corporation (STDC), who own and operate several hotels and motels in Metro Manila, filed a motion to intervene and to
admit attached complaint-in-intervention on the ground that the ordinance will affect their business interests as operators.
The respondents, in turn, alleged that the ordinance is a legitimate exercise of police power.

RTC declared Ordinance No. 7774 null and void as it strikes at the personal liberty of the individual guaranteed and
jealously guarded by the Constitution. Reference was made to the provisions of the Constitution encouraging private
enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply
paying for a 12-hour stay,

When elevated to CA, the respondents asserted that the ordinance is a valid exercise of police power pursuant to Section
458 (4)(iv) of the Local Government Code which confers on cities the power to regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar
establishments, including tourist guides and transports. Also, they contended that under Art III Sec 18 of Revised Manila
Charter, they have the power to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general
welfare of the city and its inhabitants and to fix penalties for the violation of ordinances.

Petitioners argued that the ordinance is unconstitutional and void since it violates the right to privacy and freedom of
movement; it is an invalid exercise of police power; and it is unreasonable and oppressive interference in their business.

CA, in turn, reversed the decision of RTC and affirmed the constitutionality of the ordinance. First, it held that the
ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or operators of
establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only
constrained by having a lawful object obtained through a lawful method. The lawful objective of the ordinance is satisfied
since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate.
Third, the adverse effect on the establishments is justified by the well-being of its constituents in general.

Hence, the petitioners appeared before the SC.

Issue:

Whether Ordinance No. 7774 is a valid exercise of police power of the State.

Held:

No. Ordinance No. 7774 cannot be considered as a valid exercise of police power, and as such, it is unconstitutional.

The facts of this case will recall to mind not only the recent City of Manila v Laguio Jr ruling, but the 1967 decision in
Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. The common thread that runs
through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective
ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in
transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on
motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is
another case about the extent to which the State can intrude into and regulate the lives of its citizens

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass
according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory;
(4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.

The ordinance in this case prohibits two specific and distinct business practices, namely wash rate admissions and renting
out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local
government units by the Local Government Code through such implements as the general welfare clause.

Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.
Police power has been used as justification for numerous and varied actions by the State.

The apparent goal of the ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex,
prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the
police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement.
Those means must align with the Constitution.

SC contended that if they were to take the myopic view that an ordinance should be analyzed strictly as to its effect only
on the petitioners at bar, then it would seem that the only restraint imposed by the law that they were capacitated to act
upon is the injury to property sustained by the petitioners. Yet, they also recognized the capacity of the petitioners to
invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time
access or wash-up rates to the lodging establishments in question. The rights at stake herein fell within the same
fundamental rights to liberty. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom
from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare,

Indeed, the right to privacy as a constitutional right must be recognized and the invasion of it should be justified by a
compelling state interest. Jurisprudence accorded recognition to the right to privacy independently of its identification with
liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions
into the personal life of the citizen.

An ordinance which prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative
business ties in with another constitutional requisite for the legitimacy of the ordinance as a police power measure. It must
appear that the interests of the public generally, as distinguished from those of a particular class, require an interference
with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly
oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less
intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the
measure and the means employed for its accomplishment, for even under the guise of protecting the public interest,
personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private
rights.

The behavior which the ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by
applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through
active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and
regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that the ordinance can easily be circumvented by merely
paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and
prostitutes can in fact collect wash rates from their clientele by charging their customers a portion of the rent for motel
rooms and even apartments.
SC reiterated that individual rights may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly
intruding into the lives of its citizens. However well-intentioned the ordinance may be, it is in effect an arbitrary and
whimsical intrusion into the rights of the establishments as well as their patrons. The ordinance needlessly restrains the
operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification.
The ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without
accommodating innocuous intentions.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the
Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared
UNCONSTITUTIONAL. No pronouncement as to costs.
Dela Cruz v Paras

G.R. No. L-42571-72 July 25, 1983

Facts:

Assailed was the validity of an ordinance which prohibit the operation of night clubs. Petitioners contended that the ordinance is
invalid, 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.

RA 938, as amended, was originally enacted on June 20, 1953. It is entitled: "An Act Granting Municipal or City Boards and Councils the
Power to Regulate the Establishments, Maintenance and Operation of Certain Places of Amusement within Their Respective
Territorial Jurisdictions.'

The first section 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:
On May 21, 1954, the first section was amended to include not merely "the power to regulate, but likewise "Prohibit ... " The title,
however, remained the same. It is worded exactly as RA 938.

As thus amended, if only the said portion of the Act was considered, a municipal council may go as far as to prohibit the operation of
night clubs. The title was not in any way altered. It was not changed one bit. The exact wording was followed. The power granted
remains that of regulation, not prohibition

Petitioners contended that RA 938 which prohibits the operation of night clubs would give rise to a constitutional question. The lower
court upheld the constitutionality and validity of Ordinance No. 84 and dismissed the cases. Hence this petition forcertiorari by way
of appeal.

ISSUE: Whether or not the ordinance is valid

NO. It is unconstitutional. It undoubtly involves a measure not embraced within the regulatory power but an exercise of an assumed
power to prohibit. The Constitution mandates: "Every bill shall embrace only one subject which shall be expressed in the title
thereof. "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, and improve the morals, in the
language of the Administrative Code, such competence extending to all "the great public needs.

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.

Under the Local Govt Code, 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.

Herein what was involved is a measure not embraced within the regulatory power but an exercise of an assumed power to prohibit.

CITY OF MANILA VS. LAGUIO

MARCH 30, 2013 ~ VBDIAZ


CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in his

capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of Manila, et.al vs. HON. PERFECTO

A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION

G.R. No. 118127, April 12, 2005

FACTS: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of

operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court in Malate which was licensed as a

motel although duly accredited with the DOT as a hotel. On 28 June 1993, MTDC filed a Petition for Declaratory Relief

with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7 with the lower court impleading as

defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the

City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among

its prohibited establishments, be declared invalid and unconstitutional.

Enacted by the City Council and approved by petitioner City Mayor, the said Ordinance is entitled

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN

FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,

PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.

Judge Laguio rendered the assailed Decision (in favour of respondent).

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower

court in its ruling:

(1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive

exercise of police power;

(2) It erred in holding that the questioned Ordinance contravenes P.D. 499 which allows operators of all kinds of

commercial establishments, except those specified therein; and

(3) It erred in declaring the Ordinance void and unconstitutional.

ISSUE: WON the ordinance is unconstitutional.

HELD: The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did,

ultra vires and therefore null and void.

The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it

must not only be within the corporate powers of the local government unit to enact and must be passed according to the

procedure prescribed by law, it must also conform to the following substantive requirements:

(1) must not contravene the Constitution or any statute;

(2) must not be unfair or oppressive;

(3) must not be partial or discriminatory;

(4) must not prohibit but may regulate trade;

(5) must be general and consistent with public policy; and

(6) must not be unreasonable.

The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting

as agent of Congress. This delegated police power is found in Section 16 of the LGC, known as the general welfare clause.

The inquiry in this Petition is concerned with the validity of the exercise of such delegated power.
A. The Ordinance contravenes

the Constitution

The enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to

general laws.

The police power granted to LGUs must always be exercised with utmost observance of the rights of the people to due

process and equal protection of the law. Due process requires the intrinsic validity of the law in interfering with the rights

of the person to his life, liberty and property.

Requisites for the valid exercise

of Police Power are not met

To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from

the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as

distinguished from those of a particular class, require an interference with private rights, but the means adopted must be

reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.60 It must be

evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A

reasonable relation must exist between the purposes of the police measure and the means employed for its

accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private

property will not be permitted to be arbitrarily invaded.

a violation of the due process clause.Lacking a concurrence of these two requisites, the police measure shall be struck

down as an arbitrary intrusion into private rights

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the

community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City

Councils police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive.

The worthy aim of fostering public morals and the eradication of the communitys social ills can be achieved through

means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition.

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no

reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated

establishments will not per se protect and promote the social and moral welfare of the community; it will not in itself

eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.

The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community.

While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be

classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption.

If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose

reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses

or permits; it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose

increased license fees. In other words, there are other means to reasonably accomplish the desired end.
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental

interference itself, infringes on the constitutional guarantees of a persons fundamental right to liberty and property.

Modality employed is

unlawful taking

It is an ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes

beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and

violative of the private property rights of individuals.

There are two different types of taking that can be identified. A possessory taking occurs when the government

confiscates or physically occupies property. A regulatory taking occurs when the governments regulation leaves no

reasonable economically viable use of the property.

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no

reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. When the

owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good,

that is, to leave his property economically idle, he has suffered a taking.

The Ordinance gives the owners and operators of the prohibited establishments three (3) months from its approval

within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said

businesses to other kinds of business allowable within the area. The directive to wind up business operations amounts

to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner

converts his establishment to accommodate an allowed business, the structure which housed the previous business will

be left empty and gathering dust. It is apparent that the Ordinance leaves no reasonable economically viable use of

property in a manner that interferes with reasonable expectations for use.

are confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the

Ordinance is also equivalent to a taking of private property. to transfer to any place outside of the Ermita-Malate area

or to convert into allowed businessesThe second and third options

Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid

exercise of police power, which limits a wholesome property to a use which can not reasonably be made of it constitutes

the taking of such property without just compensation. Private property which is not noxious nor intended for noxious

purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of

justice as we know them. The police powers of local government units which have always received broad and liberal

interpretation cannot be stretched to cover this particular taking.

Further, The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments.

Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications

whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be

tested, are unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement

could be secured. Similarly, the Ordinance does not specify the standards to ascertain which establishments tend to

disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community.
The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers

in carrying out its provisions.

Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause.

These lawful establishments may be regulated, but not prevented from carrying on their business.

B. The Ordinance violates Equal

Protection Clause

In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or

other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and

other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging

houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly

treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions

bearing a just and fair relation to the purpose of the Ordinance.

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but

not outside of this area. A noxious establishment does not become any less noxious if located outside the area.

is not a profession exclusive to women. Both men and women have an equal propensity to engage in prostitution. Thus,

the discrimination is invalid.one of the hinted ills the Ordinance aims to banishThe standard where women are used

as tools for entertainment is also discriminatory as prostitution

C. The Ordinance is repugnant

to general laws; it is ultra vires

The Ordinance is in contravention of the Code (Sec 458) as the latter merely empowers local government units to regulate,

and not prohibit, the establishments enumerated in Section 1 thereof.

With respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar

establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general

welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation

and maintenance of such establishments.

It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of

nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety

of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels

are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance

per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its

summary abatement without judicial intervention.


Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly

argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree

allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage

depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral

establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the

powers of the council to enact but the same must not be in conflict with or repugnant to the general law.

Conclusion

All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is

constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is

not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the

City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.

Petition Denied.
G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,


vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC
NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO
CITY, respondents.

Ramon A. Gonzales for petitioner.

DECISION

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades Strike but hear me first! It is
this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against
inter-provincial movement of carabaos by transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the
disposition of the carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by
the Constitution, do hereby promulgate the following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex,
physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or
carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director
of Animal Industry may see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty.

(SGD.) FERDINAND E. MARCOS

President

Republic of the Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner
sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond
of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since
they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the
constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now
come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due
process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is
also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the
1973 Constitution. 4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question
raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be
considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this
Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A.
That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions,
they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest
tribunal. 6We have jurisdiction under the Constitution to review, revise, reverse, modify or affirm on appeal or certiorari, as
the law or rules of court may provide, final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first
instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in
fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then will
be the time to make the hammer fall, and heavily, 8 to recall Justice Laurels trenchant warning. Stated otherwise, courts
should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On
the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of
retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule
instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that
the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided
thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever
the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he
could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of
law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President in his judgment, a phrase that will lead to protracted discussion not
really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we
confine ourselves to the more fundamental question of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language
to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a
proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was
sustained by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt
necessary because due process is not, like some provisions of the fundamental law, an iron rule laying down an
implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty.
The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or
constricting its protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine
themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to
be gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they
arise. 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due
process and in so doing sums it all up as nothing more and nothing less than the embodiment of the sporting Idea
of fair play. 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth
not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law
of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark
of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the
ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of
the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear the other side before
an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the
question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation
of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in
leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A
judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13


which, generally speaking, may not be dispensed
with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial
system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of
law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power
of the State, is entitled to the law of the land, which Daniel Webster described almost two hundred years ago in the
famous Dartmouth College Case, 14 as the law which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial. It has to be so if the rights of every person are to be secured beyond the reach of officials who,
out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted
exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such
presumption is based on human experience or there is a rational connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight
because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated
meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for
a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16
Filthy restaurants
may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17
In such
instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both restraints and is restrained
by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for
the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described
as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing
taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects
him even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically
everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as
long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not
only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema
lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the
greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in
Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases, that present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs. We affirm at the outset
the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on
these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect
and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the
Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these
animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused
an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-
rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals.
The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows:

To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular class, require such interference; and second, that the means
are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.
From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was
required by the interests of the public generally, as distinguished from those of a particular class and that the prohibition
of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft
purposes was a reasonably necessary limitation on private ownership, to protect the community from the loss of the
services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a
desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be
measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor mans tractor, so to
speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly
oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of
these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their
improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot
say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to
strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on the slaughter of the
carabaos but on their movement, providing that no carabao regardless of age, sex, physical condition or purpose (sic)
and no carabeef shall be transported from one province to another. The object of the prohibition escapes us. The
reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure
is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter,
considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining
the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will
make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive
order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live
animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to
prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the
sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or
carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the
statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial
and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the
government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the
petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was
ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined
the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The
measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the
centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary
action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20
In
the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioners peremptory treatment. The
properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason
why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused
being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the
police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only
after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in
the questioned executive order. It is there authorized that the seized property shall be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of
carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of
carabaos. (Emphasis supplied.) The phrase may see fit is an extremely generous and dangerous condition, if condition
it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make
their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone
may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a roving
commission, a wide and sweeping authority that is not canalized within banks that keep it from overflowing, in short, a
clearly profligate and therefore invalid delegation of legislative powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method
employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his
defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to
adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine
of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby
declare Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated the petitioners
carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that
time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent
of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would
never have reached us and the taking of his property under the challenged measure would have become
a fait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have
ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever
they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned
to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of
the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered rest
CITY OF MANILA VS TEOTICO
[22 SCRA 267]It is not necessary for liability to attach to the City of Manila that the defective road or street belong to it.
It is sufficient that it has either control or supervision over the street or road. Under Article 2189 of the Civil Code, it is
not necessary for the liability therein established to attach that the defective roads or streets belong to the province,
city or municipality from which responsibility is exacted. What said article requires is that the province, city or
municipality have either "control or supervision "over said street or road. Even if P. Burgos Avenue were, therefore, a
national highway, this circumstance would not necessarily detract from its "control or supervision" by the City of
Manila, under Republic Act 409. The City of Manila is therefore liable for damages to Teotico

MUNICIPALITY OF SAN FERNANDO VS FIRME


[195 SCRA 692]
FACTS:
Laurence Banino, Sr., along with several other passengers in a jeepney they were riding in, died after collision
involving said jeepney, a privately owned graved and sand trucks and a dump truckowned by the Municipality of San
Fernando, La Union, driven byAlfredo Bislig, a regular employee of said municipality. The heirsincluded in its
complaint the municipality and the dump trucksdriver. The municipality invokes non-suability of the State. Is itcorrect?
HELD:
YES,1. The general rule is that the State may not be sued except when itgives consent to be sued. Consent takes the
form of express of implied consent.Express consent may be embodied in a general law or a special law.The standing
consent of the State to be sued in case of moneyclaims involving liability arising from contracts is found in Act
No.3083. A special law may be passed to enable a person to sue thegovernment for an alleged quasi-delict.Consent
is implied when the government enters into businesscontracts, thereby descending to the level of the other
contractingparty, and also when the State files a complaint thus opening itself to a counterclaim.Municipal
corporations for example, like provinces and cities, areagencies of the State when they are engaged in
governmentalfunctions and therefore should enjoy the sovereign immunity fromsuit. Nevertheless, they are subject to
suit even in the performanceof such functions because their charter provided that they can sueand be sued.2. A
distinction should first be made between suability and liability.
Suability depends on t
he consent of the state to be sued, liabilityon the applicable law and the established facts. The circumstancethat a
State is suable does not necessarily mean that it is liable; onthe other hand, it can never be held allowing itself to be
sued. Whenthe state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable.
3. About the issue of whether or not the municipality is liable for thetorts committed by its employee, the test of liability
of themunicipality depends on whether or not the driver, acting in behalf of the municipality is performing
governmental of proprietyfunctions. As emphasized in the case of Torio vs. Fontanilla, thedistinction of powers
becomes important for purposes of determining the liability of the municipality for the acts of its agentswhich result in
an injury to third persons.It has already been remarked that municipal corporations are suablebecause their charters
grant them the competence to sue and besued. Nevertheless, they are generally not liable for torts committedby them
in the discharge of governmental functions and can be heldanswerable only if it can be shown that they were acting in
apropriety capacity. In permitting such entities to be sued, the Statemerely gives the claimant the right to show that
the defendant is notacting in its governmental capacity when the injury was committedor that the case comes under
exceptions recognized by law. Failingthis, the claimant cannot recover.4. In the case at bar, the driver of the dump
truck of the municipality
insists that he was on his way to Naguilian River to get a load of sand and gravel for the repair of San Fernandos
municipal streets.

TORIO VS FONTANILLA
[85 SCRA 599]Since the holding of a town fiesta is an exercise of a proprietaryfunction, the Municipality of Malasiqui
is liable for any injurysustained on the occasion thereof.
FACTS:
The Municipal Council of Malasiqui, Pangasinan passed a resolutioncelebrating a town fiesta for 3 days on January,
1959. The resolutioncreated on Executive Committee which would oversee theoperations of the town fiesta. The
Executive Committee in turn hada sub-committee in charge of building 2 stages, one of which was fora zarzuela
program.Vicente Fontanilla was one of the actors of the zarzuela. While thezarzuela was going on the stage where
the play was set collapsed.Fontanilla, who has at the rear of the stage, was pinned underneathand died the following
day.The family and heirs of Fontanilla filed a complaint against theMunicipality of Malasiqui, the Municipal Council and
the individualmembers of the Municipal Council. Can they be held liable?
HELD:
The Municipality of Malasiqui is liable and the individual members of the Municipal Council are not liable.
REASONS:
1) The basic rule to be first followed is that a municipal corporationcannot be held liable for an injury caused in the
course of performance of a governmental function. With respect toproprietary functions, the settled rule is that a
municipal corporationcan be held liable upon contracts and in torts.2) The next question to be answered is that
whether the fiestaabove-quota was performed by the municipality in the exercise of itsgovernmental or proprietary
function. According to 2282 of therevised Administrative Code, municipalities are authorized to holdfiesta, but it is not
their duty to conduct such.Thus, the fiesta is proprietary in nature. The same analogy can beapplied to the
maintenance of parks, which is a private undertaking,as opposed to the maintenance of public schools and jails, which
arefor the public service. (The key word then is duty.)3) Under the doctrine of respondent superior (see first paragraph
of Art. 2180), the municipality can be held liable for the death of Fontanilla if a) the municipality was performing a
proprietaryfunction at that time and b) negligence can be attributed to the
municipalitys officers, employees or agents performing the
proprietary function. The evidence proved that the committeeoverseeing the construction of the stage failed to build a
strongenough to insure the safety of zarzuela participants. Fontanilla wasentitled to ensure that he would be exposed
to danger on thatoccasion.4) Finally, the municipal council is not responsible. The Municipalitystands on the same
footing as an ordinary private corporation withthe municipal council acting as its board of directors. It is anelementary
principle that a corporation has a personality, separateand distinct from its officers, directors, or persons composing it
andthe latter are not as a rule co-responsible in an action for damagesfor tort or negligence culpa aquillana committed
by the
corporations employees of agents unless there is a showing of bad
faith or gross or wanton negligence on their part. To make an officerof a corporation liable for the negligence of the
corporation theremust have been upon his part such a breach of duty as contributedto or helped to bring about, the
injury; that is to say, he must be aparticipant in the wrongful act.

SAN DIEGO VS MUNICIPALITY OF NAUJAN


FACTS:
ollowing a public bidding conducted by the municipality of Naujan,Oriental Mindoro for the lease of its municipal
waters, Resolution 46was passed awarding the concession of the Butas River and theNaujan Lake to Bartolome San
Diego. A contract was entered intobetween the said San Diego and the municipality, for a period of lease for 5
years.The lessee then requested for a five year extension of the originallease period, this was granted by the
municipal council. After theresolution had been approved by the Provincial Board of OrientalMindoro, the lessor and
the lessee, contracted for the extension of the period of the lease. The contract was approved and confirmedon
December 29, 1951 by Resolution 229 of the municipal council of Naujan whose term was then about to expire.
Pursuant to the saidcontract, the lessee filed a surety bond of P52,000 and thenreconstructed his fish corrals and
stocked the Naujan Lake withbangus fingerlings.On January 2, 1952, the municipal council of Naujan, this
timecomposed of a new set of members, adopted Resolution 3, series of 1952, revoking Resolution 222, series of
1951. On the same date, thenew council also passed Resolution 11, revoking Resolution 229 of the old council which
confirmed the extension of the lease period.The lessee requested for reconsideration and recall of Resolution 3,on the
ground, among others, that it violated the contract executedbetween him and the municipality on December 23, 1951,
and,therefore, contrary to Article III, section 1, clause 10 of theConstitution. The request, however, was not
granted.The lessee instituted proceedings to annul the Resolution. Thedefendant asserted that the original lease
contract, reducing thelease rentals and renewing the lease are null and void for not havingbeen passed in accordance
with law. The trial court upheld thevalidity of the lease contract.
ISSUE:
WON Resolution No. 3, series of 1952, revoking Resolution 222,series of 1951, of the municipal council of Naujan is
valid
HELD:
YesThe law (Sec. 2323 of the Revised Administrative Code) requires thatwhen the exclusive privilege of fishery or the
right to conduct a fish-breeding ground is granted to a private party, the same shall be letto the highest bidder in the
same manner as is being done inexploiting a ferry, a market or a slaughterhouse belonging to themunicipality. The
requirement of competitive bidding is for thepurpose of inviting competition and to guard against favoritism,fraud and
corruption in the letting of fishery privileges. There is nodoubt that the original lease contract in this case was awarded
tothe highest bidder, but the reduction of the rental and the extensionof the term of the lease appear to have been
granted withoutprevious public bidding.Furthermore, it has been ruled that statutes requiring public biddingapply to
amendments of any contract already executed incompliance with the law where such amendments alter the
originalcontract in some vital and essential particular. Inasmuch as theperiod in a lease is a vital and essential
particular to the contract, webelieve that the extension of the lease period in this case, which wasgranted without the
essential requisite of public bidding, is not inaccordance with law. And it follows the Resolution 222, series of 1951,
and the contract authorized thereby, extending the originalfive-year lease to another five years are null and void as
contrary tolaw and public policy.We agree with the defendant in that the question Resolution 3 is notan impairment of
the obligation of contract, because theconstitutional provision on impairment refers only to contract legallyexecuted.
While, apparently, Resolution 3 tended to abrogate thecontract extending the lease, legally speaking, there was no
contractabrogated because, as we have said, the extension contract is voidand inexistent.The lower court, in holding
that the defendant-appellantmunicipality has been estopped from assailing the validity of thecontract into which it
entered on December 23, 1951, seems to haveoverlooked the general rule that the doctrine of estoppel cannot
beapplied as against a municipal corporation to validate a contractwhich it has no power to make or which it is
authorized to make onlyunder prescribed conditions, within prescribed limitations, or in aprescribed mode or manner,
although the corporation has acceptedthe benefits thereof and the other party has fully performed his partof the
agreement, or has expended large sums in preparation forperformance. A reason frequently assigned for this rule is
that toapply the doctrine of estoppel against a municipality in such casewould be to enable it to do indirectly what it
cannot do directly.Also, where a contract is violative of public policy, the municipalityexecuting it cannot be estopped
to assert the invalidity of a contractwhich has ceded away, controlled, or embarrassed its legislative orgovernment
powers.As pointed out above, "public biddings are held for the bestprotection of the public and to give the public the
best possibleadvantages by means of open competition between the bidders."Thus, contracts requiring public bidding
affect public interest, and tochange them without complying with that requirement wouldindeed be against public
policy. There is, therefore, nothing toplaintiff-appellee's contention that the parties in this case being inpari delicto
should be left in the situation where they are found, for"although the parties are in pari delicto, yet the court may
interfereand grant relief at the suit of one of them, where public policyrequires its intervention, even though the result
may be that abenefit will be derived by a plaintiff who is in equal guilt withdefendant. But here the guilt of the parties is
not considered asequal to the higher right of the public, and the guilty party to whomthe relief is granted is simply the
instrument by which the public isserved."In consonance with the principles enunciated above, Resolution 59,series of
1947, reducing the rentals by 20% of the original price,which was also passed without public bidding, should likewise
beheld void, since a reduction of the rental to be paid by the lessee is asubstantial alternation in the contract, making
it a distinct anddifferent lease contract which requires the prescribed formality of public bidding.

Rivera vs Municipality of Malolos


Facts:
1. 1. In August 1949, the municipality of Malolos called for bids for the supply of road construction materials.
2. 2. Pedro P. Rivera, having the lowest bid, was awarded by the municipal treasurer with the contract. The
contract was signed by the mayor where it was stipulated that in consideration of P19, 235.00, Rivera will
supply the municipality with 2,700 cubic meters of crushed stone and 1,400 cubic meters of gravel.
3. 3. Rivera delivered said construction materials but he wasnt paid immediately. He demanded from the
treasurer the amount due and the treasurer replied thru the principal clerk that the municipal treasurer will pay
as soon as the funds are available.
4. 4. Municipal council ratified the public bidding and the contract.
5. 5. Rivera filed a complaint against the municipality and sought the intervention of the Presidential
Complaints and Actions Committee which endorsed the case to the Office of the Auditor General. Auditor
General denied Riveras claim on the ground that there was no sum of money appropriated to meet the
obligation incurred before the execution of the contract, as required by the Admin Code, thus it was a void
contract.
6. 6. Thus this petition for review before the SC
Issue: WON Rivera can demand the payment due for the delivery of stone and gravel even if there was no funds
appropriated for such purpose before the execution of the contract?
Held: No
Ratio:
-Municipal Mayor cannot enter into a contract with a private contractor for furnishing the municipality with public work
materials. Sec. 1920 of Admin Code requires that such contracts should be entered by the district engineer and not
the mayor.
-The law requires that before a contract involving Php 2,000.00 or more is entered, the municipal treasurer must
certify to the officer entering into such contract that funds have been duly appropriated for such purpose and the
amount is available.
-The law requires that provincial auditor or his representatives must check up the deliveries. No such check-up
occurred in this case.
-Motor Vehicle Law, which Rivera uses as reason to say that funds have been appropriated for the project merely
states that 10% of the money collected will be allocated for the repair of roads and bridges and proportional to the
population of the municipality. This does not constitute the sufficient appropriation required by law.

RIVERA v. MACLANG

Facts: The municipality of Malolos called for bids for furnishing and delivering materials to be used in the
maintenance and repair of barrio roads. Pedro Rivera won in the bidding and was asked by the Municipal Treasurer to
come to his office for execution of the corresponding contract. The contract was signed by him and by Carlo P.
Maclang in his capacity as Municipal Mayor of Malolos. Pursuant to the contract, Rivera subsequently delivered to the
municipality gravel and adobe stones valued at P19,235.00. The Municipal Council of Malolos passed a resolution
approving the contract, but in spite of repeated demands by Rivera the price of the materials was not paid.

In 1954, Rivera sought the intervention of the Presidential Complaint and Action Commission, which referred the
matter to the General Auditing Office. That Office turned down the claim for payment, whereupon Rivera filed in this
Court a petition for review. The Court sustained the action of the General Auditing Office and held that the contract in
question was void as far as Malolos was concerned on the ground that no money had been appropriated to meet the
obligation prior to the execution of the contract, as required by Section 607 of the Revised Administrative Code.

However, in the same decision, the Supreme Court indicated that Section 608 of the same Code afforded Rivera a
remedy. Consequently, he filed the present action against Maclang in his personal capacity pursuant to the said
provision.

The trial court dismissed the complaint since the contract had been declared null and void by the Court saying that "it
cannot produce any legal effect for which thereafter no recovery can be made."
Issue: WON the dismissal was proper

Held: No

Ratio: The ruling in the previous case is that the contract was null and void visa-vis Malolos, by reason of non-
compliance with the requirement of Section 607 of the Revised Administrative Code, which states that:

"except in the case of a contract for supplies to be carried in stock, no contract involving the
expenditure by any province, municipality, chartered city, or municipal district of two thousand pesos
or more shall be entered into or authorized until the treasurer of the political division concerned shall
have certified to the officer entering into such contract that funds have been duly appropriated for
such purpose and that the amount necessary to cover the proposed contract is available for
expenditure on account thereof."

It should be noted however that the present action is against Maclang in his personal capacity on the strength of
Section 608 of the same Code, which provides as follows:

SEC. 608. Void Contract - Liability of Officer - A purported contract entered into contrary to the
requirements of the next preceding section hereof shall be wholly void, and the officer assuming to
make such contract shall be liable to the Government or other contracting party for any consequent
damage to the same extent as if the transaction had been wholly between private parties.

The position of Maclang, as the officer who signed the contract with Rivera in violation of Section 607, comes squarely
under the provision just quoted. His liability is personal, as if the transaction had been entered into by him as a private
party. The intention of the law in this respect is to ensure that public officers entering into transactions with private
individuals calling for the expenditure of public funds observe a high degree of caution so that the government may
not be the victim of ill-advised or improvident action by those assuming to represent it.
Fernando vs Davao City
FACTS:
November 7, 1975: Bibiano Morta, market master of the Agdao Public Market filed a requisition request with
the Chief of Property of the City Treasurer's Office for the re-emptying of the septic tank in Agdao
wherein Bascon won
November 22, 1975: bidder Bertulano with four other companions namely Joselito Garcia, William Liagoso,
Alberto Fernando and Jose Fajardo, Jr. were found dead inside the septic tank.
o The bodies were removed by a fireman.
o The body of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional
Hospital but he expired there.
The City Engineer's office investigated the case and learned they entered the septic tank without clearance
from it nor with the knowledge and consent of the market master.
o Since the septic tank was found to be almost empty, they were presumed to be the ones who did the
re-emptying.
Dr. Juan Abear of the City Health Office found them to have died from "asphyxia" - diminution of oxygen
supply in the body and intake of toxic gas
November 26, 1975: Bascon signed the purchase order
RTC: Dismissed the case
CA: Reversed - law intended to protect the plight of the poor and the needy, the ignorant and the indigent
ISSUE: W/N Davao city is negligent and its negligence is the proximate cause therefore can be liable for damages

HELD: NO. CA affirmed.


test by which to determine the existence of negligence in a particular case:
o Did the defendant in doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence
standard supposed to be supplied by the imaginary conduct of the discreet pater familias of
the Roman law
Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that
an effect harmful to another was sufficiently probable warrant his foregoing the conduct or guarding against its
consequences
o The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in the
particular case
o Reasonable foresight of harm, followed by the ignoring of the suggestion born of this provision, is
always necessary before negligence can be held to exist
Distinction must be made between the accident and the injury
o Where he contributes to the principal occurrence, as one of its determining factors, he can not recover
o Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the
amount that the defendant responsible for the event should pay for such injury, less a sum deemed a
suitable equivalent for his own imprudence
Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil Code which would
necessitate warning signs for the protection of the public
o While the construction of these public facilities demands utmost compliance with safety and sanitary
requirements, the putting up of warning signs is not one of those requirements
accident such as toxic gas leakage from the septic tank is unlikely to happen unless one removes its covers
Considering the nature of the task of emptying a septic tank especially one which has not been cleaned for
years, an ordinarily prudent person should undoubtedly be aware of the attendant risks. The victims are no
exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the
hazards of the job. His failure, therefore, and that of his men to take precautionary measures for their safety
was the proximate cause of the accident.
proximate and immediate cause of the death of the victims was due to their own negligence. Consequently,
the petitioners cannot demand damages from the public respondent.

TUZON v. COURT OF APPEALS , mapagu


FACTS
The Sangguniang Bayan of Camalaniugan, Cagayan adopted Resolution No. 9. Said resolution authorized
the municipal treasurer to enter into an agreement with all thresher operators who apply for a Permit to Thresh
Palay to donate 1% of all the palay threshed by them. Thereafter, Jurado offered to pay the license fee for
thresher operators. Municipal Treasurer Magapu refused to accept payment and required him to first secure a
Mayors permit. Mayor Tuzon said that Jurado should first comply with Resolution No. 9 and sign the
agreement before the permit could be issued. Jurado filed with the Court of First Instance of Cagayan for
mandamus, and another with the same court for judgement against the said resolution. CFI upheld the
Resolution, and dismissed the claim for damages. CA affirmed the validity of the Resolution and found Tuzon
and Mapagu to have acted maliciously and in bad faith when they denied Jurados application.
ISSUE
Whether or not petitioners are liable in damages for having withheld Mayors permit and license because of
respondents refusal to comply with said Resolution.
HELD
NO. Article 27 presupposes that the refusal or omission of a public official to perform his official duty is
attributable to malice or inexcusable negligence. There was no evidence offered to show that petitioners
singled out respondent for persecution. Neither does it appear that the petitioners stood to gain personally
from refusing to issue the mayors permit and license. Moreover, the resolution was uniformly applied to all the
threshers in the municipality without preference. A public officer is not personally liable to one injured in
consequence of an act performed within the scope of his official authority and in line of his official duty. In the
absence of a judicial decision declaring said Resolution invalid, its legality would have to be presumed. As
executive officials of the municipality, they had the duty to enforce it. An erroneous interpretation of an
ordinance does not constitute nor amount to bad faith.
RECALL
RIVERA III V. COMELEC G.R. No. 167591 May 9, 2007
FACTS:
A petition for cancelation of the Certificate of Candidacy of Marino Morales as
mayoralty candidate in Mabalacat, Pampanga for the May 2004 mayoralty was
filed on the ground the he already served three consecutive terms in the office he
seeks to run.

Morales argues that this is not so because although he really served in 1995-
1998 (1st term) and 2004-2007 (3rd term), he was merely a caretaker or de facto
mayor in 1998-2001(2nd term) because his election was declared void by the
RTC due to an election protest.

Comelec ruled that Morales already served his third term and after an MR was
filed, declared it final and executory on May 14, 2004.

ISSUE:
WON Morales had already served his 3 consecutive terms and if so, who should
take his position.

HELD:
For the three-term limit for elective local government officials to apply, two
conditions or requisites must concur, to wit: (1) that the official concerned has
been elected for three (3) consecutive terms in the same local government post,
and (2) that he has fully served three (3) consecutive terms.

Here, Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed
the position. He served as mayor until June 30, 2001. He was mayor for the entire
period notwithstanding the Decision of the RTC in the electoral protest case filed
by petitioner Dee ousting him (respondent) as mayor. Such circumstance does
not constitute an interruption in serving the full term.

Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys
the prerequisites of the office which enables him "to stay on indefinitely".

With regard to the person who will replace Morales, it is a rule that the
ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A
minority or defeated candidate cannot be deemed elected to the office.

Since his disqualification became final and executory after the elections, the
candidate having the second highest number of votes cannot assume the
position. Hence, it is the petitioner, the elected Vice Mayor Anthony Dee who
should be declared as the mayor.
Evardone v. Comelec, 204 SCRA 464, 472, December 2, 1991Petitioner: Felipe
EvardoneRespondents: Comelec, Alexander Apelado, Victorino Aclana and Noel NivalPonente:
Padilla

Facts:
Felipe Evardone the mayor of Sulat, Eastern Samar, having been elected to the position during the
1988 local elections. Heassumedoffice immediately after proclamation. In 1990, Alexander R.
Apelado, Victozino E. Aclan and Noel A. Nival filed a petition for the recall ofEvardone with the Office
of the Local Election Registrar, Municipality of Sulat. The Comelec issued a Resolution approving
therecommendation of Election Registrar Vedasto Sumbilla to hold the signing of petition for recall
against Evardone.Evardone filed a petition for prohibition with urgent prayer of restraining order
and/or writ of preliminary injunction. Later, inan en banc resolution, the Comelec nullified the
signing process for being violative of the TRO of the court. Hence, this present petition.

Issue 1:
WON Resolution No. 2272 promulgated by the COMELEC by virtue of its powers under the
Constitution and BP 337 (Local GovernmentCode) was valid.

Held:

Yes
Ratio:
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg.
337 in favor of one to be enacted byCongress. Since there was, during the period material to thiscase,
no local government code enacted by Congress after the effectivity ofthe 1987 Constitution nor any
law for that matter on the subject of recall of elected government officials, Evardone contends that
there isno basis for COMELEC Resolution No. 2272and that the recall proceedings in the case at bar
is premature.The COMELEC avers that the constitutional provision does not refer only to a local
government code which is

in futurum
butalso in

esse
. It merely sets forth the guidelines which Congress will consider in amending the provisions of the
present LGC. Pending theenactment of the amendatory law, the existing Local Government Code
remains operative.Article XVIII, Section 3 of the 1987 Constitution express provides that all existing
laws not inconsistent with the 1987Constitution shall remain operative, until amended, repealed or
revoked. Republic Act No. 7160 providing for the Local Government Codeof 1991, approved by the
President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of
said Act.But the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg.337) is still the law applicable to the present case.
Prior to the enactment of the new Local Government Code, the effectiveness of B.P.Blg. 337 was
expressly recognized in the proceedings of the 1986 Constitutional Commission. We therefore rule
that Resolution No. 2272promulgated by the COMELEC is valid and constitutional. Consequently,
the COMELEC had the authority to approve the petition for recalland set the date for the signing of
said petition.
Issue 2:
WON the TRO issued by this Court rendered nugatory the signing process of the petition for recall
held pursuant to Resolution No. 2272.
Held:

No

Ratio:
In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, on
or about 21 February 1990 asevidenced by the Registry Return Receipt; yet, he was not vigilant in
following up and determining the outcomeof such notice. Evardonealleges that it was only on or
about 3 July 1990 that he came to know about the Resolution of the COMELEC setting the signing of
thepetition for recall on 14 July 1990. But despite his urgent prayer for the issuance of a TRO,
Evardone filed the petition for prohibition onlyon 10 July 1990. Indeed, this Court issued a TRO on
12 July 1990 but the signing of the petition for recall took place just the same on thescheduled date
through no fault of the COMELEC and Apelado. The signing process was undertaken by the
constituents of theMunicipality of Sulat and its Election Registrar in good faith and without
knowledge of the TRO earlier issued by this Court. As attested byElection Registrar Sumbilla, about
2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about 34% signed the petition for
recall.As held in Parades vs. Executive Secretary there is no turning back theclock.The right to recall is
complementary to the right to elect or appoint. It is included in the right of suffrage. It is based on
thetheory that the electorate must maintain a direct and elastic control over public functionaries. It is
also predicated upon the idea that apublic office is "burdened" with public interests and that the
representatives of the people holding public offices are simply agents orservants of the people with
definite powers and specific duties to perform and to follow if they wish to remain in their respective
offices.Whether or not the electorate of Sulat has lost confidence in the incumbentmayor is a political
question. It belongs to the realm ofpolitics where only the people are the judge. "Loss of confidence is
the formal withdrawal by an electorate of their trust in a person'sability to discharge his office
previously bestowed on him bythe same electorate. The constituents have made a judgment and
their willto recall Evardone has already been ascertained and must be afforded the highest respect.
Thus, the signing process held last 14 July1990 for the recall of Mayor Felipe P. Evardone ofsaid
municipality is valid and has legal effect.However, recall at this time is no longer possible because of
the limitation provided in Sec. 55 (2) of B.P. Blg, 337. TheConstitution has mandated a synchronized
national and local election prior to 30 June1992, or more specifically, as provided for in ArticleXVIII,
Sec. 5 on the second Monday of May, 1992. Thus, to hold an election on recall approximately seven
(7) months before the regularlocal election will be violative of the above provisions of the applicable
Local Government Code
GARCIA VS COMELEC
G.R. No. 111511 October 5, 1993 [Initiative and Referendum; Recall proceeding]

FACTS:
Enrique T. Garcia was elected governor of Bataan in the 1992 elections. Some
mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12)
municipalities of the province constituted themselves into a Preparatory Recall
Assembly to initiate the recall election of petitioner Garcia. They issued
Resolution No. 1 as formal initiation of the recall proceedings. COMELEC
scheduled the recall election for the gubernatorial position of Bataan.

Petitioners then filed a petition for certiorari and prohibition with writ of
preliminary injunction to annul the Resolution of the COMELEC because the
PRAC failed to comply with the "substantive and procedural requirement" laid
down in Section 70 of R.A. 7160 (Local Government Code 1991). They pointed
out the most fatal defect of the proceeding followed by the PRAC in passing the
Resolution: the deliberate failure to send notices of the meeting to 65 members
of the assembly.

ISSUES:
1) Whether or not the people have the sole and exclusive right to initiate recall
proceedings.
2) Whether or not the procedure for recall violated the right of elected local
public officials belonging to the political minority to equal protection of the law.

RULING:
1) No. There is nothing in the Constitution that will remotely suggest that the
people have the "sole and exclusive right to decide on whether to initiate a recall
proceeding." The Constitution did not provide for any mode, let alone a single
mode, of initiating recall elections.
The mandate given by section 3 of Article X of the Constitution is for Congress to
"enact a local government code which shall provide for a more responsive and
accountable local government structure through a system of decentralization
with effective mechanisms of recall, initiative, and referendum . . ." By this
constitutional mandate, Congress was clearly given the power to choose the
effective mechanisms of recall as its discernment dictates.
What the Constitution simply required is that the mechanisms of recall, whether
one or many, to be chosen by Congress should be effective. Using its
constitutionally granted discretion, Congress deemed it wise to enact an
alternative mode of initiating recall elections to supplement the former mode of
initiation by direct action of the people. The legislative records reveal there were
two (2) principal reasons why this alternative mode of initiating the recall
process thru an assembly was adopted, viz: (a) to diminish the difficulty of
initiating recall thru the direct action of the people; and (b) to cut down on its
expenses.

2) No. Under the Sec. 70 of the LGC, all mayors, vice-mayors and sangguniang
members of the municipalities and component cities are made members of the
preparatory recall assembly at the provincial level. Its membership is not
apportioned to political parties. No significance is given to the political affiliation
of its members. Secondly, the preparatory recall assembly, at the provincial level
includes all the elected officials in the province concerned. Considering their
number, the greater probability is that no one political party can control its
majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a
locally elected public official is loss of confidence of the people. The members of
the PRAC are in the PRAC not in representation of their political parties but as
representatives of the people. By necessary implication, loss of confidence
cannot be premised on mere differences in political party affiliation. Indeed, our
Constitution encourages multi-party system for the existence of opposition
parties is indispensable to the growth and nurture of democratic system. Clearly
then, the law as crafted cannot be faulted for discriminating against local officials
belonging to the minority.
Moreover, the law instituted safeguards to assure that the initiation of the recall
process by a preparatory recall assembly will not be corrupted by extraneous
influences. We held that notice to all the members of the recall assembly is a
condition sine qua non to the validity of its proceedings. The law also requires a
qualified majority of all the preparatory recall assembly members to convene in
session and in a public place. Needless to state, compliance with these
requirements is necessary, otherwise, there will be no valid resolution of recall
which can be given due course by the COMELEC.

Paras v. COMELEC
G.R. No. 123169 (November 4, 1996)

FACTS:
A petition for recall was filed against Paras, who is the incumbent
Punong Barangay. The recall election was deferred due to Petitioners
opposition that under Sec. 74 of RA No. 7160, no recall shall take place within
one year from the date of the officials assumption to office or one year
immediately preceding a regular local election. Since the Sangguniang
Kabataan (SK) election was set on the first Monday of May 2006, no recall
may be instituted.

ISSUE:
W/N the SK election is a local election.

HELD:
No. Every part of the statute must be interpreted with reference to its
context, and it must be considered together and kept subservient to its
general intent. The evident intent of Sec. 74 is to subject an elective local
official to recall once during his term, as provided in par. (a) and par. (b). The
spirit, rather than the letter of a law, determines its construction. Thus,
interpreting the phrase regular local election to include SK election will
unduly circumscribe the Code for there will never be a recall election
rendering inutile the provision. In interpreting a statute, the Court
assumed that the legislature intended to enact an effective law. An
interpretation should be avoided under which a statute or provision being
construed is defeated, meaningless, inoperative or nugatory.
CLAUDIO v. COMELEC
G.R. 140560. May 4, 2000

FACTS
Jovito Claudio was the duly elected mayor of Pasay City during the 11 May
1998 elections. He assumed office on 1 July 1998.
On 19 May 1999, an ad hoc committee was formed for the purpose of
convening a Preparatory Recall Assembly (PRA).
On 29 May 1999, majority of the members of the PRA adopted a Resolution
to Initiate the Recall of Mayor Jovito Claudio for Loss of Confidence.
On 2 July 1999, the petition for recall was formally submitted to the Office of
the Election Officer. Copies of the petition were posted in public places in
Pasay City and the authenticity of the signatures therein was verified by the
election officer for Pasay City.
The petition was opposed on several grounds. Principally, that the convening
of the PRA took place within the one-year prohibited period under Sec. 74,
LGC which provides:

Limitations on Recall. - (a) Any elective local official may be the subject
of a recall election only once during his term of office for loss of
confidence.

(b) No recall shall take place within one (1) year from the date of the
official's assumption to office or one (1) year immediately preceding a
regular local election. xxxx

The COMELEC granted the petition. It ruled that the petition did not violate
the one-year ban because the petition was filed on 2 July 1999, one day
after Claudios assumption of office.

ISSUES
1. WoN the word recall in Sec. 74(b), LGC covers a process which includes the
convening of the Preparatory Recall Assembly and its approval of the recall
resolution.
2. WoN the term "regular local election" in the last clause of Sec. 74(b), LGC includes
the election period for that regular election or simply the date of such election.

HELD/RATIO
1. The word recall in Sec. 74(b), LGC refers to the to the election itself by means of
which voters decided whether they shall retain their local official or elect his
replacement.

Recall is a process which involves the following steps:


(1) the convening of the preparatory assembly or gathering of the
signatures of at least 25% registered voters in the LGU;
(2) the filing of the recall resolution or petition with the COMELEC;
(3) the verification of the resolution or petition;
(4) fixing of the date of the recall election; and
(5) holding of the election.

That the word recall used in Sec. 74(b), LGC, refers to the recall election itself is
due to the following reasons:

(1) Sec. 69, LGC provides that the power of recall shall be exercised by
the registered voters of the LGU to which the local elective official
belongs. It is clear that the power of recall referred to in Sec. 69 is the
power to retain/replace officials and not the power to initiate recall
proceedings. Thus, the limitations under Sec. 74 (Limitations on
Recall) apply only to the recall elections.

In Garcia v. COMELEC, the delegation of the power to initiate recall


proceedings from the electorate to the PRAs was questioned. The
Supreme Court held that what the Constitution gave to the people is
the power to recall and not the power to initiate the recall
proceedings. The holding of the PRA is not the recall itself.

(2) That the word recall refers to the recall election is consistent with the
purposes1 of the limitations on recall.

The purpose of the first limitation is to provide a reasonable basis for


judging the performance of the official (Angobung v. COMELEC). This
judgment is not given during the preliminary proceedings (such as the

1
(1) that no recall shall take place within one year from the date of assumption of office of the official
concerned; and (2) that no recall shall take place within one year immediately preceding a regular
local election.
convening of the PRA) but through the vote during the recall election
itself.

(3) That the word recall refers to the recall election is to uphold the
constitutional rights of speech and freedom of assembly of PRA
members.

To hold that limitation includes the formation of opinion through


public discussions on the matter of recall of an official is to curtail
these constitutional rights.

2. The term regular elections does not include the election period.
To construe the word regular elections as including the election period would
emasculate the right of the people to exercise the power of recall.

In Paras v. COMELEC, the Supreme Court held that the limitations on Sec. 74 (a)
and Sec. 74 (b) would mean that a local elective official may be subject only to
recall during the second year of his/her term (in this case, from 1 July 1999 to
mid-May 2000)

If the regular elections mentioned in Sec. 74(b) would include the election
period, which commences 90 days from the date of the election and extends to
30 days thereafter, the period during which the power of recall may be exercised
will be reduced even more. (in this case, from 1 July 1999 to mid-February 2000)
PRACTICE OF PROFESSION

Javellana v. v. DILG
G.R. No. 102549 August 10, 1992
Grio-Aquino, J.

Facts:

Attorney Erwin B. Javellana was an elected City Councilor of Bago


City, Negros Occidental. On October 5, 1989, City Engineer Ernesto C.
Divinagracia filed Administrative Case No. C-10-90 against Javellana for: (1)
violation of Department of Local Government (DLG) Memorandum Circular
No. 80-38 dated June 10, 1980 in relation to DLG Memorandum Circular No.
74-58 and of Section 7, paragraph b, No. 2 of Republic Act No. 6713,
otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees, and (2) for oppression, misconduct and abuse of
authority.
Divinagracias complaint alleged that Javellana, an incumbent member
of the City Council or Sanggunian Panglungsod of Bago City, and a lawyer by
profession, has continuously engaged in the practice of law without securing
authority for that purpose from the Regional Director, Department of Local
Government, as required by DLG Memorandum Circular No. 80-38 in relation
to DLG Memorandum Circular No. 74-58 of the same department; that on July
8, 1989, Javellana, as counsel for Antonio Javiero and Rolando Catapang,
filed a case against City Engineer Ernesto C. Divinagracia of Bago City for
Illegal Dismissal and Reinstatement with Damages putting him in public
ridicule; that Javellana also appeared as counsel in several criminal and civil
cases in the city, without prior authority of the DLG Regional Director, in
violation of DLG Memorandum Circular No. 80-38.

On August 13, 1990, a formal hearing of the complaint was held in


Iloilo City in which the complainant, Engineer Divinagracia, and the
respondent, Councilor Javellana, presented their respective evidence.

Meanwhile, on September 10, 1990, Javellana requested the DLG for a


permit to continue his practice of law for the reasons stated in his letter-
request.

On September 21, 1991, Secretary Luis T. Santos issued


Memorandum Circular No. 90-81 setting forth guidelines for the practice of
professions by local elective officials.

In an order dated May 2, 1991, Javellanas motion to dismiss was


denied by the public respondents. His motion for reconsideration was likewise
denied on June 20, 1991.

Five months later or on October 10, 1991, the Local Government Code
of 1991 (RA 7160) was signed into law, Section 90 of which provides:

Sec. 90. Practice of Profession. (a) All governors, city and municipal
mayors are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours: Provided, That
sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local
government unit or any office, agency, or instrumentality of the government is
the adverse party;

(2) Appear as counsel in any criminal case wherein an officer or employee of


the national or local government is accused of an offense committed in
relation to his office;

(3) Collect any fee for their appearance in administrative proceedings involving
the local government unit of which he is an official; and

(4) Use property and personnel of the Government except when the
sanggunian member concerned is defending the interest of the Government.

(c) Doctors of medicine may practice their profession even during official
hours of work only on occasions of emergency: Provided, That the officials
concerned do not derive monetary compensation therefrom.

Issue:

whether or not DLG Memorandum Circulars Nos. 80-38 and 90-81


are unconstitutional because the Supreme Court has the sole and exclusive
authority to regulate the practice of law

Held:

No. Petitioners contention that Section 90 of the Local Government


Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII,
Section 5 of the Constitution is completely off tangent. Neither the statute nor
the circular trenches upon the Supreme Courts power and authority to
prescribe rules on the practice of law. The Local Government Code and DLG
Memorandum Circular No. 90-81 simply prescribe rules of conduct for public
officials to avoid conflicts of interest between the discharge of their public
duties and the private practice of their profession, in those instances where
the law allows it.

Catu vs. Rellosa [A.C. No. 5738. February 19, 2008]


16 Aug
Ponente: CORONA, J.

FACTS:

Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected thereon
located in Manila. His mother and brother contested the possession of Elizabeth C.
Diaz-Catu and Antonio Pastor of one of the units in the building. The latter ignored
demands for them to vacate the premises. Thus, a complaint was initiated against
them in the Lupong Tagapamayapa of Barangay. Respondent, as punong barangay,
summoned the parties to conciliation meetings. When the parties failed to arrive at an
amicable settlement, respondent issued a certification for the filing of the appropriate
action in court.Respondent entered his appearance as counsel for the defendants in the
(subsequent ejectment) case. Complainant filed the instant administrative
complaint, claiming that respondent committed an act of impropriety as a lawyer and
as a public officer when he stood as counsel for the defendants despite the fact that he
presided over the conciliation proceedings between the litigants as punong barangay.

ISSUE:

Whether or not Atty. Rellosa violated the Code of Professional Responsibility.

HELD:

YES. Respondent suspended for six (6) months.

RATIO:

[R]espondent was found guilty of professional misconduct for violating his oath as a
lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility.

A civil service officer or employee whose responsibilities do not require his time to
be fully at the disposal of the government can engage in the private practice of law
only with the written permission of the head of the department concerned in
accordance with Section 12, Rule XVIII of the Revised Civil Service Rules.

Respondent was strongly advised to look up and take to heart the meaning of the
word delicadeza.
--a corporation that may exist in fact although not
LAW ON PUBLIC CORPORATIONS point of law because of certain defects in some
essential features of its incorporation.

7. Elements of De Facto Municipal Corporation:


A. General Principles a. A valid law authorizing incorporation
b. An attempt in good faith to organize
1. CORPORATIONan artificial being created by under it
operation of law, having the right of succession and c. A colorable compliance with the law
the powers, attributes and properties expressly d. An assumption of corporate powers
authorized by law or incident to its existence. 8. Three forms of decentralization:
a. PUBLIC CORPORATIONone formed and
organized for the government of a portion of the State. a. Devolution- is the transfer of power and
authority from the national government to
LGUs as the territorial and political
2. Classes of Corporation: subdivisions of the State. The nature of
a. Public or Municipala body politic power transfer is political and the approach
and corporate constituted by is territorial or areal.
incorporation of inhabitants of city or b. Deconcentration- is the transfer of power,
town for purposes of local government authority or responsibility, or the discretion
thereof or as agency of State to assist to plan, decide and manage from central
in civil government of the country; one point or local levels, but within the central or
formed and organized for the national government itself. The nature of
government of a portion of the State. the transfer is administrative and the
b. Privateone formed for some private approach is sectoral.
purpose, benefit, aim or end. c. Debureaucratization- is the transfer of
c. Quasi-Publica private corporation some public functions and responsibilities,
that renders public service or supplies which the government may perform, to
public wants. private entities or non-governmental
d. Quasi-corporationpublic organizations; it is peoples empowerment
corporations created as agencies of or participation in local governance.
State for narrow and limited purpose.
Decentralization of Administration- the central
3. Elements of Municipal Corporation government delegates administrative powers to
a. Legal creation or incorporation political subdivisions in order to broaden the base of
b. Corporate name government power.
c. Inhabitants
d. Territory Decentralization of Power (Political
Decentralization)- involves abdication of political
4. Dual Nature of Municipal Corporation power in favor of LGUs declared autonomous.
Every local government unit created or (Limbonas vs. Mangelin, 170 SCRA 786)
organized is a body politic and corporate endowed
with powers to be exercised by it in conformity with NOTE:
law. As such, it shall exercise powers as political Local Autonomy- is self-governing. It is
subdivision of the National Government and as a the granting of more powers, authority, responsibilities
corporate entity representing the inhabitants of its and resources to the lower or local levels of a
territory. government system. The principle of local autonomy
a. Public/Governmentalit acts as an under the 1987 Constitution simply means
agent of the State for the government decentralization. It does not make the local
of the territory and the inhabitants government sovereign within the state or an imperium
within the municipal limits; it exercises in imperio.
by delegation a part of the sovereignty
of the State.
b. Private/Proprietaryit acts in a
similar category as a business
corporation, performing functions not
strictly governmental or political; it Among the regulatory powers of the National
stands for the community in the Government Agencies transferred or devolved to the LGUs
administration of local affairs. It acts as include the following:
a separate entity for its own purposes
and not as a subdivision of the State. 1. The reclassification of agricultural lands- DAR to cities
and municipalities
5. Criterion to determine whether corporation is 2. Enforcement of environmental laws- DENR to all
public: LGUs
The relationship of the corporation to the 3. Inspection of food products and quarantine- DOH to
State, i.e., if created by the State as its own agency to cities and municipalities
help the State in carrying out its governmental 4. The enforcement of the National Building Code-
functions, then it is public, otherwise, it is private. DPWH to cities and municipalities
5. The processing and approval of subdivision plans-
6. De Facto Municipal Corporation HLURB to cities and municipalities

1
6. The operation of tricycles- LTFRB to cities and b. In case of doubt, any tax ordinance or
municipalities revenue measure shall be construed strictly
7. The establishment of cockpits and holding of against the local govt unit enacting it, and
cockfights- Philippine Gamefowl Commission to cities liberally in favor of the taxpayer. Any tax
and municipalities exemption, incentive or relief granted by any
local govt unit pursuant to the provisions of
Among the basic services and facilities devolved to this Code shall be construed strictly against
LGUs include: the person claiming it;

1. Agricultural extension and on-site research of the c. The general welfare provisions in this
Department of Agriculture; Code shall be liberally interpreted to
2. Community-based forestry project of the DENR; give more powers to local govt units in
3. Field health and hospital services and other tertiary accelerating economic development
health services of the DOH; and upgrading the quality of life for the
4. Public works and infrastructure projects funded out of people in the community.
local funds of the DPWH;
5. The school building program of the DECS; d. Rights and obligations existing on the
6. Social welfare services of the DSWD; date of effectivity of this Code and
7. Tourism facilities and tourism promotion and arising out of contracts or any other
development of the DOT; source of prestation involving a local
8. Telecommunications services for provinces and cities govt unit shall be governed by the
of the DOTC; original terms and conditions of said
9. Housing projects for provinces and cities; and contracts or the law in force at the time
10. Other services such as investment support. such rights were vested.

9. How local autonomy enhances governmental and e. In the resolution of controversies


corporate powers of LGUs: arising under this Code where no legal
provision or jurisprudence applies,
a. Every local government unit shall have: resort may be had to the customs and
i. Full autonomy in their exercise of proprietary traditions in the place where the
rights and management of economic enterprises. controversies take place.
ii. Full authority to secure domestic or foreign
grants without the approval of the NGAs 4. Declaration of State Policy over LGUs
concerned, unless these are projects with (Sec. 2, RA 7160)
national security implications, and
iii. Financial undertakings for LGUs for mutual a. The territorial and political
advantage thru loans and assistance to calamity- subdivisions of the State shall
stricken LGUs. enjoy genuine and meaningful
local autonomy to enable them
to attain their fullest
B. R.A. 7160Policy and Application; Constitutional development as self-reliant
Provisions communications and make
them more effective partners in
1. EffectivityJanuary 1, 1992 the attainment of national goals.
2. Scope of Application (Sec. 4, RA 7160) b. To ensure the accountability of
Applicable to: local govt units through the
a. all provinces institution of effective
b. cities mechanisms of recall, initiative
c. municipalities and referendum.
d. barangays c. To require all national agencies
e. and other political bodies as and offices to conduct periodic
may be created by law, and consultations with appropriate
f. to the extent provided in the local govt units, non-
LGC (i.e. devolution of powers): governmental and peoples
-officials organizations and other
-offices, or concerned sectors of the
-agencies of the community before any project
National Government or program is implemented in
their respective jurisdictions.
3. Rules of Interpretation (Sec. 5, RA 7160)
a. Any provision on a local government unit
shall be liberally interpreted its II. INTER-GOVERNMENTAL RELATIONS
favor, and in case of doubt, any question 1. National Government and Local Government Units
thereon shall be resolved in favor of
devolution of powers and of the lower local a. The President shall exercise general supervision
government unit. Any fair and reasonable over LGUs.
doubt as to the existence of the power shall i. The President shall exercise
be interpreted in favor of the local supervisory authority directly over
government unit concerned; provinces, highly urbanized cities and
independent component cities.

2
ii. The President shall exercise supervision b. General responsibilities of the National
over component cities and Government towards LGUs:
municipalities, through province, and i. formulate policies and set standards
over barangays through city and and guidelines
municipality. (Sec. 25) ii. provide funding support
iii. augment basic services assigned to
The Presidents power of general LGUs
supervision over LGUs includes the iv. provide technical and other forms of
authority to investigate and impose assistance and coordinate on the
disciplinary measures (suspension or discharge of NGA functions
removal) upon elective local officials. v. ensure the participation of LGUs in
planning and implementing national
projects
Power of vi. conduct mandatory consultations with
General LGUs
Basis Power of Control
Supervision
A. as to NOTE:
nature of Legislative Executive No project shall be implemented by government
power authorities without consultation with the local government units
President and prior approval of the Sanggunian concerned. (Sec.27)
B. as to who
assisted by the
exercises Congress The requirement of prior consultation applies only to
DILG
the power national projects and/or programs which are to be
Secretary
-creation, implemented in a particular local community. Although
conversion of sanctioned by the national government, the operation of lotto is
LGUs and neither a program nor project of the national government but of
alteration of its charitable institution, the Philippine Charity Sweepstakes Office.
boundaries; The projects and programs mentioned in Sec. 27 should be
-allocate powers, interpreted to mean projects and programs whose
-oversee environmental and ecological effects are among those
responsibilities
whether LGUs mentioned in Sec. 26 and 27 of the LGC (Lina vs. Pano, G.R.
and resources
are performing No. 129093, August 30, 2001).
among LGUs;
their duties in
-provide for
accordance c. Extent of the LCEs authority over NGAs and their
qualifications,
C. as to with law; functionaries:
election,
what the -investigate
appointment,
power and impose i. The LCE can call upon any employee
removal, term,
includes disciplinary stationed or assigned in his locality to
salaries and
measures advise him on matters affecting the LGU as
functions and
upon erring well as coordinate with said officials, plans,
duties of local
elective local programs and projects.
officials;
government ii. The LCE can enlist the attendance of the
-provide other
officials national official stationed in the LGU on a
matters relating to
the organization meeting of elective and appointed officials of
and operation of the LGU treating matters in the promotion of
LGUs; the general welfare of the residents.
-amendment of iii. The LCE can also initiate proper administrative
charters of LGUs. or judicial action against national government
official or employee who may have committed
an offense while stationed or assigned in the
LGU.

Power of Control and Power of General


Supervision distinguished:

2. Inter-Local Government Relations


b. The city or municipality, through the mayor, shall ensure
a. The province, through the governor, shall ensure that that barangays act within the scope of their powers.
every component city and municipality acts within its
powers.

The Sangguniang Panlalawigan of a province reviews


all ordinances enacted by the Sangguniang Panlungsod of
c. The governor shall review all executive orders component cities and Sangguniang Bayan of municipalities
promulgated by the mayor. The mayor shall review orders under their jurisdiction. In turn, the Sangguniang Panlungsod
promulgated by the punong barangay.

3
and Sangguniang Bayan review all ordinances passed by the
Sannguniang Barangay under the jurisdiction. III. CREATION, CONVERSION, DIVISION, MERGER AND
Likewise, the Sangguniang Panlalawigan of a CONSOLIDATION, AND ABOLITION OF LGUs
province exercises the quasi-judicial function (administrative
disciplinary authority) of hearing and deciding administrative A. Creation of LGUs:
cases involving elective municipal and component city officials A local government unit may be created, divided,
under their jurisdiction. In turn, the Sangguniang Panlungsod merged, abolished, or its boundaries substantially altered by
and Sangguniang Bayan exercise disciplinary authority over law enacted by Congress in the case of a province, city,
elective barangay officials within their jurisdiction. municipality, or other political subdivisions, or by Sanggunian
Panlalawigan or Sanggunian Panlungsod ordinance in the
3. Relations with Peoples Organizations and Non- case of a barangay. (Sec.6)
Government Organizations
NOTE:
a. Private Sector Participation in Local Governance nature of the power to create: LEGISLATIVE
Purpose: to ensure the viability of local autonomy as an
alternative strategy for sustainable development. LGUs 1. While the power to create barangays has been delegated
shall encourage private-sector participation in the to Sanggunian Panlalawigan and Sangguniang Panlungsod,
delivery of basic services. Congress, in order to enhance the delivery of basic services
b. Role of POs, NGOs in the LGUs: in indigenous cultural communities, may create barangays in
LGUs shall promote the establishment and operation such communities notwithstanding the requirements set forth
of peoples and non-governmental organizations as by law. (Sec.385a, LGC)
active partners.
2. The creation or conversion of a local government unit to
LGUs may enter into joint venture and cooperative another level shall be based on the following verifiable
undertakings with peoples and non-governmental indicators of viability and projected capacity to provide
organizations particularly in the following: services:
1. delivery of certain basic services a. Sufficient income and
2. capability building and livelihood b. Population and/or
projects; and c. Land area
3. developing local enterprises designed to
improve productivity and income, NOTE: Compliance with the above-cited indicators shall be
diversifies agriculture, spur rural attested by the Department of Finance, the National Statistics
industrialization, and enhance the Office and the Land Management Bureau of the DENR,
economic and social well-being of the respectively.
people.
3. Necessity of Fixing Corporate Limits:
c. Special Local Bodies where the private sector may As a matter of general rule, municipal corporations
participate in local governance: cannot, without legal authorization, exercise its powers
beyond its own corporate limits. It is necessary that it must
1. Local Development Council have its boundaries fixed, definite and certain, in order that
-a duly constituted body which shall assist the may be identified and that all may know the exact scope or
corresponding Sanggunian in setting the direction of section of territory or geographical division embraced within
economic and social development, and coordinating the corporate limits and over which the municipal corporation
development efforts in its territorial jurisdiction. has jurisdiction. A description of the boundaries of a
municipal corporation is said to be an essential part of its
2. Prequalification, Bids and Awards Committee charter and necessary to corporate existence. An
(PBAC) incorporation is void where the boundaries of the municipal
responsible for the conduct of prequalification of corporation are not described with certainty.
contractors, bidding, evaluation of bids, and the
recommendation of awards concerning local 4. Manner of Creation
infrastructure projects. 1. Creation of Barangays:
governor or the city or municipality mayor: a. Role: serves as the primary planning and
Chairman implementing unit of government policies, plans programs,
projects and activities in the community, and as a forum
3. Local Peace and Order Council, pursuant to wherein the collective views of the people may be expressed,
E.O. No.309, as amended, Series of 1988. crystallized and considered, and where disputes may be
amicably settled.
4. Local School Board
The DECS shall consult the Board on the b. Who creates: a barangay may be created,
appointment of division superintendents, district divided, merged, abolished or its boundary substantially
supervisors, school principals, and other school officials. altered by law or by an ordinance of the Sangguniang
Panlalawigan or Sangguniang Panlungsod. Where a
5. Local Health Board barangay is created by an ordinance of the Sangguniang
Panlalawigan, the recommendation of the Sangguniang
6. Peoples Law Enforcement Board (PLEB) Bayan concerned shall be necessary.

4
The IRAs regularly and automatically accrue to the local
c. Substantive Requisites: treasury without need of any further action on the part of the
1. Population- at least 2000 inhabitants local government unit (Alvarez vs. Guingona, 252 SCRA
Except in cities and municipalities within Metro 695).
Manila or in highly urbanized citiesmust be at
least 5000 inhabitants 4. Conversion of a Component City into a Highly
Urbanized City
2. Income- no minimum income requirement a. If a component city shall have met the minimum
requirements for a highly urbanized city, it shall be the duty of
3. Land Area- no minimum requirement, but it the President to declare the city as highly urbanized city
must be contiguous but it need not be upon: (1) proper application and (2) upon ratification in a
contiguous if the barangay is comprised with plebiscite by the majority of registered voters therein.
two or more islands.
b. Substantive Requisites:
NOTE: 1. Population- at least 200,000 inhabitants
The creation of the new barangay shall not however reduce 2. Income- at least P50 million
the population of the original barangay to less than the
minimum requirement prescribed in the Code. (Sec.386, 5. Creation of Provinces
LGC) a. Role- as a political and corporate unit of
government, it serves as a dynamic mechanism for
2. Creation of Municipalities development processes and effective governance of local
a. Role: serves primarily as a general purpose government units within its territorial jurisdiction.
government for the coordination and delivery of basic, regular
and direct services and effective governance of the b. Who creates- may be created, divided, merged,
inhabitants within its territorial jurisdiction. or abolished, or its boundary substantially altered, only by an
act of Congress, subject to the satisfaction of the criteria set
b. Who creates: may be created, divided, merged, forth by the LGC.
abolished or its boundary substantially altered only by an act
of Congress subject to the criteria established by the Code. c. Substantive Requirements:
1. Population- not less than 250,000 inhabitants
c. Substantive Requisites: 2. Income- average annual income of at least
1. Population- at least 25,000 inhabitants P20 million
2. Income- average annual income of at least 3. Land Area- a contiguous territory of at least
P2.5 million for the last two consecutive years 2000 square kilometers
based on the 1991 constant prices.
3. Land Area- a contiguous territory of 50 square NOTE:
kilometers. BP 885, which created the Province of Negros del
Norte was declared unconstitutional because it did not comply
3. Creation of Component Cities with the land area criterion prescribed under the LGC. The
a. Role- serves primarily as a general purpose use of the word territory in Sec. 17 of the LGC refers only to
government for the coordination and delivery of basic, regular the physical mass of land area, not to the waters comprising a
and direct services and effective governance of the political entity. It excludes the waters over which the political
inhabitants within its territorial jurisdiction. unit exercises control (Tan vs. Comelec, 142 SCRA 727).

b. Who creates- may be created, divided, merged 6. Status of Sub-provinces


or abolished, or its boundary substantially altered only by an Existing sub-provinces are converted into regular
act of Congress subject to the criteria provided in the Code. provinces upon the approval by a majority votes cast in a
plebiscite to be held in the said sub-province and the original
c. Substantive Requisites: province directly affected. (Sec.462, LGC)
1. Population- at least 150,000 inhabitants
2. Income- at least P100 million for the last two 7. Autonomous Regions
consecutive years The Philippine Constitution mandates the creation of
3. Land Area- contiguous territory of at least autonomous regions in Muslim Mindanao and in the
100 square kilometers Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical
NOTE: and cultural heritage, and economic and social cultures.
The Internal Revenue Allotments shall be included (Sec.15, Art.10, PC)
in the computation of the average annual income of the
municipality for purposes of determining whether the NOTE:
municipality may be validly converted into a city. Income is RA 6734, the organic act establishing the
defined in the LGC to be all revenues and receipts collected Autonomous Regional Government of Muslim Mindanao was
or received forming the gross accretions of funds of the local held valid by the Supreme Court. (Datu Firdausi Abbas vs.
government unit. The IRAs are regular and recurring income COMELEC, 179 SCRA 287). However, the sole Province of
and not merely special funds or transfers and/or budgetary Ifugao which, in the plebiscite, alone voted in favor of RA
aids from the national government or non-recurring income.

5
6766, cannot validly constitute the Autonomous Region of the LGU Created Income Population Land area
Cordilleras. (Ordillo vs. COMELEC, 192 SCRA 100) 2,000 but
5,000 for
8. Special Metropolitan Political Subdivisions Metro
The Congress may, by law, create special metropolitan No minimum Manila and No minimum
political subdivisions, but the component cities and Barangay
requirement highly requirement
municipalities shall retain their basic autonomy and shall be urbanized
entitled to their own local executives and legislative cities
assemblies. The jurisdiction of the metropolitan authority that Municipality P2.5 million 25,000, and 50 sq.km
will be thereby created shall be limited to basic services Component
requiring coordination. (Sec. 11, Art. X, PC) P100 million 150,000 or 100 sq.km.
City
Highly
NOTE: No minimum
Urbanized P50 million 200,000
With the passage of RA 7924, Metropolitan Manila requirement
City
was declared as a special development and administrative Province P20 million 250,000 or 2,000 sq.km.
region and the administration of metrowide basic services
affecting the region was placed under a development 11. Beginning of Corporate Existence
authority referred to as the Metropolitan Manila Development When a new local government unit is created, its
Authority (MMDA), whose functions were without prejudice to corporate existence shall commence upon the election and
the autonomy of the affected local government units. The law qualification of its chief executive and a majority members of
does not grant police nor legislative powers to MMDA. Even the Sanggunian, unless some other date is fixed therefore by
the Metro Manila Council, the governing board of the MMDA, law or ordinance creating it. (Sec.14, LGC)
has not been delegated any legislative power. Clearly,
MMDA is not a political unit. There is no grant of authority to 12. Division and Merger of LGUs
enact ordinances and regulations for the general welfare of The division and merger of local government units
the inhabitants of the metropolis. MMDA cannot open for shall comply with the same requirements for their creation.
public use a private road in a private subdivision (MMDA vs. The income, population or land area shall not be reduced to
Bel-Air Village Association, Inc., G.R. No. 135962, March less than the minimum requirements. Likewise, the income
27, 2000). classification of the original local government unit shall not fall
below its current income classification prior to such division.
9. Attack against invalidity of incorporation (Sec.8, LGC)
No collateral attack shall lie; an inquiry into the legal
existence of a municipal corporation is reserved to the State 13. Abolition of LGUs
in a proceeding for quo warranto or other direct proceeding. A local government unit may be abolished when its
But this rule applies only when the municipal corporation is, at income, population or land area has been irreversibly reduced
least, a de facto municipal corporation. to less than the minimum standards prescribed for its creation
under the LGC, as certified by the national agencies to
10. PLEBISCITE REQUIREMENT: Who shall participate Congress or to the Sanggunian concerned. Likewise, the law
Sec. 10 of the LGC provides that the creation, division or, ordinance abolishing an LGU shall specify the province,
and merger, abolition or substantial alteration of the city, municipality, or barangay with which the local
boundaries of local government units must be approved by a government unit sought to be abolished will be incorporated
majority of votes cast in a plebiscite in the political unit or or merged. (Sec.9, LGC)
units directly affected. Such plebiscite shall be conducted by
the COMELEC within 120 days from the date of the effectivity 14. Effects of Annexation/Consolidation of Municipal
of the law. The completion of the publication of the law Corporations
should be the reckoning point in determining the 120-day 1. On the legal existence of the territory
period within which to conduct the plebiscite, not from the annexed- Unless otherwise provided for by
date of its approval when the law had not yet been published. law, the annexation of one municipal
Since publication is indispensable for the effectivity of a law, a corporation to another will dissolve the
plebiscite can be scheduled only after the law creating a city annexed territory. It shall become part of the
took effect. (Cawaling vs. COMELEC, Oct. 26, 2002) annexing corporation and will fall under the
The plebiscite for the creation of a new province or jurisdiction of the latter.
municipality shall include the participation of the residents of 2. On the laws and ordinances of the annexed
the mother province or mother municipality in order to corporation- In the absence of any provision
conform to the constitutional requirement. (Padilla vs. of law to the contrary, when a territory is
COMELEC, 214 SCRA 735) annexed to a municipal corporation, it shall
become subject to all the laws and ordinances
In the conversion of a municipality into a component by which the annexing corporation is
city, however, only the registered voters of the municipality governed.
sought to be converted into a component city, shall participate 3. On the right of officers or employees of the
in the plebiscite. annexed or consolidated territory to continue
to hold their offices- Subject to what the
Summary of Substantive Requirements in the Creation of legislature may provide upon annexation, the
LGUs officers and employees of the annexed or

6
consolidated territory shall terminate their
official relation with their offices. 3. Execution of powers:
4. On the title to the property of the annexed a. Where the statute prescribes the manner of exercise,
territory- When a municipal corporation is the procedure must be followed.
annexed to another, the annexing territory b. Where the statute is silent, local government units
shall acquire title to the property of the have discretion to select reasonable means and methods of
annexed territory at the time of annexation exercise.
without compensation unless the annexing
statute provides otherwise. Where the B. GOVERNMENTAL POWERS:
annexed territory, however, forms part of a 1. General Welfare Clause- the statutory grant of police
municipality from which it is taken, the power to local government units.
legislature may provide for the payment of Limitations:
compensation for the indebtedness incurred a. Express grant by law
on account of the property taken. b. Exercisable only within the territorial limits of the LGU,
With regard to public buildings and except for protection of water supply
improvements located in the c. Equal protection clause
annexed territory, the annexing territory is not d. Due process clause
required to pay for said buildings or e. Must not be contrary to the Constitution and the laws.
improvements as they have already been paid
for by the annexed territory. It would be NOTE:
otherwise if there exists an indebtedness on A local government unit may exercise delegated
said buildings in which case, the annexing governmental powers:
state may be required to share in the payment Police power (under the General Welfare Clause)
of said indebtedness. Power of Taxation
5. On the debts and obligations of the annexed Power of Eminent Domain
territory- It has been stated that debts and
obligations of a municipal corporation a. Requisites for the validity of a municipal ordinance:
contracted before its annexation to another 1. Must not contravene the Constitution and any
territory shall be assumed by the annexing statute;
territory in the absence of any provision to the 2. Must not be unfair or oppressive;
contrary. The same rule applies of 3. Must not be partial or discriminatory;
consolidation where the consolidating 4. Must not prohibit, but may regulate trade which is
municipal corporation is held responsible for not illegal per se;
the indebtedness and obligations incurred by 5. Must not be unreasonable; and
the territories which are consolidated. 6. Must be general in application and consistent with
public policy.
15. Effects of Division of LGUs
On the legal existence of the original corporation: The An ordinance extending burial assistance of P500 to a
division of municipal corporation extinguishes the corporate bereaved family whose gross income does not exceed
existence of the original municipality. P2,000 a month, has been upheld by the Supreme Court as a
On the property, powers and rights of the original valid exercise of police power. This power is organic and
corporation: Unless the law provides otherwise, when a flexible. The care for the poor is generally recognized as a
municipal corporation is divided into two or more public duty. The support for the poor has long been an
municipalities, each municipality acquires title to all the accepted exercise of police power in the promotion of
property, powers, rights and obligations falling within its common good. The police power of a municipal corporation
territorial jurisdiction. is broad and commensurate with 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
IV. GENERAL POWERS AND ATTRIBUTES OF LGUs extends to all the great public needs and in a broad sense
A. Powers in general includes all legislation and almost every function of the
municipal government. (Binay vs. Domingo, 201 SCRA
1. Sources: 508)
a. Sec. 25, Art II: Secs. 5,6 and 7, Art. X, Philippine
Constitution
b. Statutes, e.g., R.A. 7160 2. Basic Services and Facilities:
c. Charter (particularly of cities) 17, LGC(a) Local government units shall endeavor to
d. Doctrine of the right of self-government, but applies be self-reliant and shall continue exercising the powers and
only in States which adhere to the doctrine. discharging the duties and functions currently vested upon
them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to
2. Classifications: them pursuant to this Code. Local government units shall
a. Express, implied and inherent likewise exercise such other powers and discharge such
b. Public or governmental, private or proprietary other functions and responsibilities as are necessary,
c. Intramural or extramural appropriate, or incidental to efficient and effective provision of
d. Mandatory and directory, ministerial and discretionary the basic services and facilities enumerated under the Code.

7
The share of the LGU in Internal Revenue Taxes is
Devolution refers to the act by which the national 40%. The 40% IRA is allocated to LGUs as follows: for
government confers powers and authority upon the various provinces and cities- 23%; for municipalities- 34%; for
local government units to perform specific functions and barangays- 20%.
responsibilities. This includes the transfer to the local No less than 20% of the IRA is allotted for
government units of the records, equipment and other assets development project by the local unit from the IRA.
and personnel of national agencies and offices.
Shares in National Wealth
3. Power to generate and apply resources (18, LGC) 40% of the gross collection from mining taxes,
The exercise by local governments of the power to tax royalties, forestry and fishery charges, and from each share in
is ordained by the present Constitution (5, Art. X, Phil. any joint effort in utilizing and developing the national wealth
Constitution). Only guidelines and limitations that may be within the LGUs jurisdiction and shall be remitted without
established by Congress can define and limit such power of need for further action to the local treasurer on a quarterly
local governments. But local governments have no power to basis within five days after the end of every quarter.
tax instrumentalities of the National Government. PAGCOR LGUs shall receive 1% of the gross sale or receipts of
being an instrumentality of the National Government is the preceding calendar year and 40% of taxes, fees or
therefore exempt from local taxes. (Basco vs. PAGCOR, charges that GOCCs would have paid if not tax exempt,
197 SCRA 52) whichever is higher.

Main Sources of Revenues of LGUs How National Wealth is Distributed


A. Under the Constitution If the national wealth is located in one province, the
1. taxes, fees and charges (5, Art. X) province shall receive 20%, the component city/municipality
2. share in the national taxes- Internal shall receive 45% and the barangays 35%.
Revenue Allotment If the national wealth is located in two or more LGUs,
3. share in the proceeds of the utilization distribution shall be based on the following: population- 70%
and development of the national wealth and land area- 30%.
within their areas (7, Art. X) If the national wealth is located in highly urbanized city
B. Under the Local Government Code or independent component city, the HUC or ICC shall receive
1. floating of bonds 65% and the barangays shall receive 35%.
2. grants/aids
D. Fundamental Principles of Local Fiscal
All LGUs are empowered to create their own sources of Administration
revenue and to levy taxes, fees and charges subject to the 1. No money shall be paid out of the local treasury
provisions on local taxation consistent with the basic policy of except in pursuance of an appropriation ordinance or law;
local autonomy. The Sanggunian concerned through an 2. Local government funds and monies shall be
ordinance has the power to impose a tax, fee or charge. The spent solely for public purposes;
procedural requirements of public hearing and publication 3. Local revenue is generated only from the sources
must be observed for purposes of compliance with the expressly authorized by law or ordinance, and collection
requirements of due process. thereof shall at all times be acknowledged properly;
4. All monies officially received by a local
C. Fundamental Principles on Local taxation government officer in any capacity or on any occasion shall
1. Taxation shall be uniform in each local government be accounted for as local funds, unless otherwise provided by
unit; law;
2. Taxes, fees, charges and other impositions shall: 5. Trust funds in the local treasury shall not be paid
a. be equitable and based as far as practicable on the out except in fulfillment of the purpose for which the trust is
taxpayers ability to pay; created or the funds received.
b. be levied and collected only for public purposes; 6. Every officer of the local government unit whose
c. not be unjust, excessive, oppressive or duties permit or require the possession or custody of local
confiscatory; funds shall be properly bonded, and such officer shall be
d. not be contrary to law, public policy, national accountable and responsible for said funds and for the
economic policy, or in restraint of trade. safekeeping thereof in conformity with the provisions of law.
3. The collection of taxes, fees, charges and other 7. Local governments shall formulate sound financial
impositions shall in no case be let to any private plans, and the local budgets shall be based on functions,
persons; activities and projects, in terms of expected results.
4. The revenue collected pursuant to the provisions of 8. Local budget plans and goals shall, as far as
the LGC shall inure solely to the benefit of, and be practicable, be harmonized with national development plans,
subject to disposition by, the local government unit goals and strategies in order to optimize the utilization of
levying the tax, fee, charge or other imposition resources and to avoid duplication in the use of fiscal and
unless otherwise specifically provided herein; and physical resources.
5. Each local government unit shall, as far as 9. Local budgets shall operationalize approved
practicable, evolve a progressive system of development plans.
taxation. 10. Local government units shall ensure that their
respective budgets incorporate the requirements of their
NOTES: component units and provide for equitable allocation of
Shares of LGUs in the proceeds of national taxes resources among these component units.

8
11. National planning shall be based on local purposes as determined by the
planning to ensure that the needs and aspirations of the Department of Agriculture;
people as articulated by the local government units in their ii. Where the land shall have substantially
respective local development plans are considered in the greater economic value for residential,
formulation of budgets of national line agencies or offices. commercial or industrial purposes as
12. Fiscal responsibility shall be shared by all those determined by the sanggunian; provided that
exercising authority over the financial affairs, transactions, such reclassification shall be limited to the
and operations of the local government units. following percentage of the total agricultural
13. The local government unit shall endeavor to have land area at the time of the passage of the
a balanced budget in each fiscal year of operation. ordinance:

for highly urbanized cities and independent


4. Eminent Domain (19, LGC) component cities: 15%
for component cities and 1st to 3rd class
The power to expropriate private property has been municipalities: 10%
delegated by Congress to LGUs under 19, LGC. The for 4th and 6th class municipalities: 5%
exercise by LGUs of the power of eminent domain are subject
to the usual constitutional limitations such as necessity, Provided that agricultural land distributed to land reform
private property, taking, public use, just compensation and beneficiaries shall not be affected by such reclassification.
due process of law.
The determination of whether there is genuine b. Closure and opening of roads (21, RA 7160)
necessity for the exercise of the power of eminent domain is a A local government unit may, pursuant to
justiciable question when exercised by the LGUs and an ordinance, permanent or temporarily close or open any
generally a political question when exercised by Congress. local road, alley, park, or square falling within its jurisdiction,
provided that in case of permanent closure, such ordinance
NOTE: must be approved by at least 2/3 of all the members of the
Private property already devoted to public use can still be a sanggunian, and when necessary, and adequate substitute
subject of expropriation by Congress but not by LGUs. for the public facility shall be provided.

The additional limitations on the exercise of the power of NOTE:


eminent domain by LGUs are, as follows: Additional limitations in case of permanent closure:
1. Exercised only by the local chief executive, acting pursuant i. Adequate provision for the maintenance of public
to a valid ordinance; safety must be made;
2. For public use or purpose or welfare, for the benefit of the ii. The property may be used or conveyed for any
poor and the landless; purpose for which other real property may be
3. Only after a valid and definite offer had been made to, and lawfully used or conveyed, but no freedom park
not accepted by, the owner; shall be closed permanently without provision for its
4. An LGU shall file a complaint for expropriation on the transfer or relocation to a new site.
strength of an ordinance and not a mere resolution passed by
the Sanggunian. (Municipality of Paranaque vs. VM Realty Temporary closure may be made during an actual
Corp., 292 SCRA 676) emergency, fiesta celebrations, public rallies, etc.

The promulgation of the ordinance authorizing the local c. Naming of LGUs, public places, streets and
chief executive to exercise the power must be promulgated structures
prior to the filing of the complaint for eminent domain with the 1. Provinces- The sangguniang panlalawigan may
proper court, and not after the court shall have determined change the name of the following within its territorial
the amount of just compensation to which the defendant is jurisdiction:
entitled. (Heirs of Suguitan vs. City of Mandaluyong, 328 i. Component cities and municipalities,
SCRA 137) upon the recommendation of the sangguniang
concerned;
NOTE: ii. Provincial roads, avenues, boulevards,
An LGU may immediately take possession of the property thoroughfares and bridges;
upon filing of expropriation proceedings and deposit in court iii. Public vocational or technical schools
of 15% of the FMV of the property. and other post secondary and tertiary schools;
iv. Provincial hospitals, health centers,
5. Other powers and other health facilities; and
a. Reclassification of lands (20, RA 7160) v. Any other public place or building
A city or municipality may, through an ordinance owned by the provincial government.
passed after conducting public hearings for the
purpose, may authorize the reclassification of 2. Highly Urbanized and Independent
agricultural lands and provide for the manner of Component Cities- The sanggunians of HUCs and ICCs
their utilization or their disposition: may change the name of the following within its territorial
i. When the land ceases to be economically jurisdiction:
feasible and sound for agricultural

9
i. City barangays, upon the sangguniang panlungsod or
recommendation of the sangguniang barangay sangguniang bayan concerned.
concerned; b. Boundary disputes involving two
ii. City roads, avenues, boulevards, or more municipalities within the
thoroughfares, and bridges; same province shall be referred
iii. Public elementary, secondary and for settlement to the
vocational or technical schools, community colleges sangguniang panlalawigan
and non-chartered colleges; concerned.
iv. City hospitals, health centers and c. Boundary disputes involving
other health facilities; and municipalities or component
v. Any other public place or building cities of different provinces shall
owned by the city government. be jointly referred for settlement
to the sanggunians of the
3. Component Cities and Municipalities- The provinces concerned.
sanggunians of component cities and municipalities may d. Boundary disputes involving a
change the name of the following within its territorial component city or municipality
jurisdiction: on the one hand and a highly
i. City and municipal barangays, upon urbanized city on the other, or
recommendation of the sangguniang barangay two or more highly urbanized
concerned; cities, shall be jointly referred for
ii. City, municipal and barangay roads, settlement to the respective
avenues, boulevards, thoroughfares, and bridges; sanggunians of the parties.
iii. City and municipal public elementary, Procedure:
secondary and vocational or technical schools, In the event the sanggunian fails to effect an
post-secondary and other tertiary schools; amicable settlement within 60 days from the date the dispute
iv. City and municipal hospitals, health was referred thereto, it shall issue a certification to that effect.
centers and other health facilities; and Thereafter, the dispute shall be formally tried by the
v. Any other public place or building sanggunian concerned which shall decide the issue within 60
owned by the municipal government. days from the date of the certification referred to above.
Within the time and manner prescribed by the Rules
NOTES: of Court, any party may elevate the decision of the
None of the foregoing local government units, institutions, sanggunian concerned, any party may elevate the decision of
places, or buildings shall be named after a living person, nor the sanggunian concerned to the proper Regional Trial Court
may a change of name be made unless for a justifiable having jurisdiction over the area in dispute. The Regional
reason and, in any case, not oftener than once every ten Trial Court shall decide the appeal within one (1) year from
years. The name of a local government unit or a public place, the filing thereof. Pending final resolution of the case, the
street or structure with historical, cultural, or ethnic disputed area prior to the dispute shall be maintained and
significance shall not be changed, unless by a unanimous continued for all legal purposes. (119, LGC)
vote of the sanggunian concerned and in consultation with the
Philippine Historical Commission. e. Authority over police units (6, Art. XVI,
Philippine Constitution)
A change of name of a public school shall be made only The State shall establish and maintain one police
upon the recommendation of the local school board force, which shall be national in scope and civilian in
concerned. character, to be administered and controlled by a National
Police Commission. The authority of local executives over
A change of name of public hospitals, health centers, and the police units in their jurisdiction shall be provided by law.
other health facilities shall be made only upon the
recommendation of the local health board concerned. 6. LOCAL LEGISLATIVE POWER
A. Products of legislative action
The change of name of any local government unit shall be 1. Ordinance- prescribes a rule of
effective only upon ratification in a plebiscite conducted for conduct.
the purpose in the political unit directly affected. 2. Resolution- of temporary character,
In any change of name, the Office of the President, the or expresses sentiment.
representative of the legislative district concerned, and the
Bureau of Posts shall be notified. (13, LGC) B. Requisites for validity:
1. Must not contravene the Constitution
d. Settlement of boundary disputes (118 a-d, and any statute
RA 7160): 2. Must not be unfair or oppressive
Boundary disputes between and among 3. Must not be partial or discriminatory
local government units shall, as much as possible, 4. Must not prohibit, but may regulate
be settled amicably. To this end: trade
a. Boundary disputes involving two 5. Must not be unreasonable
or more barangays in the same 6. Must be general in application and
city or municipality shall be consistent with public policy.
referred for settlement to the

10
Approval of ordinances: 7. An ordinance shall be approved by the local chief
Ordinances passed by the sangguniang executive by affixing his signature in each and every page
panlalawigan, sangguniang panlungsod or sangguniang thereof.
bayan shall be approved:
If the local chief executive approves the same, affixing his 8. The governor or mayor may veto any item in the following
signature on each and every page thereof. cases:
If the local chief executive vetoes the same, and the veto is a. Particular item or items in an appropriations
overridden by 2/3 vote of all the members of the sanggunian. ordinance
b. Ordinance adopting a local development plan and
Where petitioner was charged with falsification of a public public investment program
document for approving a resolution which purportedly c. Ordinance directing the payment of money or
appropriated money to pay for the terminal leave of 2 creating liability. (55)
employees when actually no such resolution was passed, the
petitioner argued that his signature on the resolution was 9. The grounds for veto are:
merely ministerial. The Supreme Court disagreed, saying a. The ordinance is ultra vires
that the grant of the veto power accords the Mayor the b. Or that it is prejudicial to public welfare
discretion whether or not to approve the resolution. (De Los
Reyes vs. Sandiganbayan, G.R. 121215, Nov. 13, 1997) 10. The veto shall be communicated to the sanggunian within
15 days in the case of a province and 10 days in the case of a
city or municipality; otherwise, the ordinance shall be deemed
NOTES: approved, as if he signed it. The sanggunian may override
the veto by 2/3 of all its members. (54)
1. The vice governor, the vice mayor and the punong
barangay shall be the presiding officer of the sanggunians but 11. Ordinances enacted by the sangguniang barangay shall,
shall vote only in case of tie. upon approval by a majority of all its members, be signed by
the Punong Barangay. The latter has no veto power.
2. In case of inability of the presiding officer, the members
shall elect a temporary presiding officer from among 12. Review
themselves. (49) a. The sangguniang panlalawigan shall review
ordinances and resolution of cities and
3. For disorderly behavior and absence without justifiable municipalities to determine if they are within their
cause for 4 consecutive sessions, a member may be power. (56)
censured, reprimanded, excluded from the session, Procedure:
suspended for not more than 60 days, or expelled. Within 3 days after approval, the
Suspension or expulsion shall require concurrence of at least secretary of the sangguniang panlungsod (in
2/3 of all sanggunian members. A member sentenced by component cities) or sangguniang bayan shall
final judgment to imprisonment for at least one year for a forward to the sangguniang panlalawigan for review
crime involving moral turpitude shall be automatically copies of approved ordinances and resolutions
expelled. (50) approving the local development plans and public
investment programs formulated by the local
4. Every sanggunian member, upon assumption of office development councils. The sangguniang
shall make a full disclosure of his business and financial panlalawigan shall review the same within 30 days;
interests. He shall also disclose any business, financial or if it finds that the ordinance or resolution is beyond
professional relationship or any relationship within the 4th the power conferred upon the sangguniang
degree which he may have with anyone affected by any panlungsod or sangguniang bayan concerned, it
ordinance or resolution of the sanggunian which involves a shall declare such ordinance or resolution invalid in
conflict of interests. whole or in part. If no action is taken within 30
Such relationship includes: days, the ordinance or resolution is presumed
i. Investment in the entity to which the ordinance consistent with law, and therefore, valid.
may apply
ii. Contracts with any person to which the ordinance b. The sangguniang panlungsod or bayan shall review
may apply sangguniang barangay ordinances to determine if
Conflict of interests refers to a situation where a they are lawful. (57)
sanggunian member may not act in the public interest due to
personal consideration that may affect his judgment to the Procedure:
prejudice of the public. (51) Within 10 days from enactment, the sangguniang
barangay shall furnish copies of all barangay ordinances
5. A special session may be called by the local chief to the sangguniang panlungsod or sangguniang bayan
executive or a majority of the sanggunian members. Unless for review. If the reviewing sanggunian finds the
concurred in by 2/3 vote of the members present, no matter barangay ordinances inconsistent with law or city or
may be reconsidered at the special session except those municipal ordinances, the sangguniang concerned shall,
stated in the notice. (52) within 30 days from receipt thereof, return the same with
6. A majority of all the members of the sanggunian shall its comments and recommendations to the sangguniang
constitute a quorum. (53) barangay for adjustment, amendment or modification, in
which case the effetivity of the ordinance is suspended

11
until the revision called for is effected. If no action is a. Requisites of a valid municipal contracts
taken by the sangguniang panlungsod or sangguniang i. The local government unit has the
bayan within 30 days, the ordinance is deemed express, implied or inherent power to
approved. enter into the particular contract.
ii. The contract is entered into by the
13. Enforcement of disapproved ordinances/resolutions: proper department, board, committee,
Any attempt to enforce an ordinance or resolution officer or agent. Unless otherwise
approving the local development plan and public investment provided by the Code, no contract
program, after the disapproval thereof, shall be sufficient may be entered into by the local chief
ground for the suspension or dismissal of the official or executive on behalf of the local
employee concerned. government unit without prior
authorization by the sangguniang
14. Effectivity concerned.
a. Unless otherwise stated in the ordinance, it shall iii. The contract must comply with certain
take effect after 10 days from posting at the substantive requirements, i.e., when
provincial capitol or city, municipal or barangay hall expenditure of public fund is to be
and two other conspicuous places. made, there must be an actual
b. The gist of all ordinances with penal sanction shall appropriation and a certificate of
be published in a newspaper of general circulation availability of funds.
in the province. In the absence of such newspaper, iv. The contract must comply with the
the ordinance shall be posted in all municipalities formal requirements of written
and cities of the province where the sanggunian of contracts, e.g., the Statute of Frauds.
origin is situated. b. Ultra vires contracts
c. In highly urbanized and independent component When a contract is entered into without
cities, in addition to posting, the main features of compliance with the first and the third requisites
the ordinance shall be published in a local (above), the same is ultra vires and is null and void.
newspaper of general circulation. In the absence of Such contract cannot be ratified or validated.
such newspaper, it shall be published in any Ratification of defective municipal contracts is
newspaper of general circulation. (59 possible only when there is non-compliance with the
second and/or fourth requirements above.
C. Corporate Powers (22, RA 7160) Ratification may be express or implied.
1. To have continuous succession in its corporate name
2. To sue and be sued c. Authority to negotiate and secure contracts (23,
3. To have and use a corporate seal RA 7160)
4. To acquire and convey real or personal property The local chief executive may, upon authority of
a. The local government unit may acquire real or the sanggunian, negotiate and secure financial
personal, tangible or intangible property, in any grants or donations in kind, in support of the basic
manner allowed by law, e.g., sale, donation, services and facilities enumerated under 17, from
etc. local and foreign assistance agencies without
b. The local government unit may alienate only necessity of securing clearance or approval from
patrimonial property, upon proper authority. any department, agency, or office of the national
c. In the absence of proof that the property was government or from any higher local government
acquired through corporate or private funds, unit; Provided, that projects financed by such grants
the presumption is that it came from the State or assistance with national security implications
upon the creation of the municipality and, thus, shall be approved by the national agency
is governmental or public property. (Salas vs. concerned.
Jarencio, 48 SCRA 734; Rebuco vs.
Villegas, 55 SCRA 656) 6. To exercise such other powers as are granted to
d. Town plazas are properties of public dominion; corporations, subject to limitations provided in the Code
they may be occupied temporarily, but only for and other laws.
the duration of an emergency (Espiritu vs.
Municipal Council of Pozorrubio,
Pangasinan, 102 Phil. 866). V. MUNICIPAL LIABILITY
e. A public plaza is beyond the commerce of
man, and cannot be the subject of lease or A. Specific provisions making LGUs liable:
other contractual undertaking. And, even a. 24, RA 7160- Liability for damages- Local
assuming the existence of a valid lease of the government units and their officials are not exempt
public plaza or part thereof, the municipal from liability for death or injury to persons or damage
resolution effectively terminated the to property.
agreement, for it is settled that the police b. Art. 2189, NCC- The local government unit is liable
power cannot be surrendered or bargained in damages for death or injuries suffered by reason
away through the medium of a contract of the defective condition of roads, streets, bridges,
(Villanueva vs. Castaneda, 154 SCRA 142). public buildings and other public works.
c. Art. 2180, (par.6), NCC- The State is responsible
5. Power to enter into contracts when it acts through a special agent.

12
d. Art. 34, NCC- The local government unit is the Province of Cebu is estopped to question its
subsidiarily liable for damages suffered by a person validity for the purpose of denying answerability.
by reason of the failure or refusal of a member of the
police force to render aid and prosecution in case of
danger to life and property. VI. LOCAL OFFICIALS

2. Liability for Tort A. Provisions applicable to elective and appointive


a. If the local government unit is engaged in officials
governmental functions, it is NOT liable. 1. 89, RA 7160: Prohibited business and pecuniary
b. If engaged in proprietary functions, local government interest- It shall be unlawful for any local government official
unit is liable. or employee, directly or indirectly, to:
Holding of town fiesta is a proprietary function. a. Engage in any business transaction with the local
The Municipality of Malasique, Pangasinan, was government unit in which he is an official or
held liable for the death of a member of the zarzuela employee or over which he has the power of
group when the stage collapsed, under the principle supervision, or with any of its authorized boards,
of respondeat superior. officials, agents, or attorneys, whereby money is
to be paid, or property or any other thing of value
NOTE: is to be transferred, directly or indirectly, out of the
The municipal council managed the town fiesta. resources of the local government unit to such
While the municipality was held liable, the councilors person or firm;
themselves are not liable for the negligence of their b. Hold such interests in any cockpit or other games
employees or agents. (Torio vs. Fontanilla, 85 SCRA 599) licensed by a local government unit;
c. Purchase any real estate or other property
c. Personal Liability of local officials forfeited in favor of such local government unit for
unpaid taxes or assessment, or by virtue of a legal
3. Liability for violation of law process at the instance of the said local
government unit;
Case: d. Be a surety for any person contracting or doing
The Municipality of Bunawan, Agusan del Sur, business with the local government unit for which
through the Mayor, was held in contempt and fined P1,000.00 a surety is required; and
with a warning, because of the refusal of the Mayor to abide e. Possess or use any public property of the local
by a Temporary Restraining Order issued by the Court government unit for private purposes.
(Moday vs. CA, 243 SCRA 152). f. The prohibitions and inhibitions prescribed in RA
6713 also apply.
4. Liability for contracts
a. General Rule- A municipal corporation, like an 2. Practice of Profession (90, RA 7160)
ordinary person, is liable on a contract it enters into, a. Governors or mayors are prohibited from
provided that the contract is intra vires. If the practicinstrative proceedings involving the local
contract is ultra vires, the munipal corporation is not government unit of which he is an official.
liable. iv. Use property and personnel of the government
except when the sanggunian member is
NOTES: defending the interest of the government.
A private individual who deals with a municipal
corporation is imputed constructive knowledge of the Case:
extent of the power or authority of the municipal It was held that by appearing as counsel for
corporation to enter into contracts. dismissed employees, City Councilor Javellana violated the
Ordinarily, therefore, the doctrine of estoppel does not prohibition against engaging in private practice if such
lie against municipal corporation. practice represents interests adverse to the government.
(Javellana vs. DILG, 212 SCRA 475)
b. Doctrine of Implied Municipal Liability- A b. Physicians may practice their profession even
municipality may become obligated upon an implied during office hours only on emergencies and
contract to pay the reasonable value of the benefits without monetary compensation.
accepted or appropriated by it as to which it has the
general power to contract (Province of Cebu vs. 3. Prohibition against appointment (94, RA 7160)
IAC, 147 SCRA 447). a. No elective or appointive local official shall be
The doctrine applies to all cases where money or eligible for appointment or designation to any
property of a party is received under such public office during his tenure.
circumstances that the general law, independent of b. Unless otherwise allowed by law or by the primary
an express contract, implies an obligation to do function of his office, no elective or appointive
justice with respect to the same. local official shall hold any other office.
Thus, in this case, the Province of Cebu cannot c. Except for losing candidates in barangay
set up the plea that the contract was ultra vires and elections, no candidate who lost in any election
still retain benefits thereunder. Having regarded the should be appointed to any office within one year
contract as valid for purposes of reaping benefits, after election.

13
B. ELECTIVE LOCAL OFFICIALS 3. Manner of Election
a. The governor, vice-governor, city or
1. Qualifications: municipal mayor, city or municipal vice-mayor
a. Common qualifications: and punong barangay shall be elected at
i. Filipino Citizen large in their respective units. The
ii. Registered voter of the local government unit, or sangguniang kabataan chairman shall be
of the district where he intends to be elected in the elected by the registered voters of the
case of the members of the sanggunian. katipunan ng kabataan.
iii. Resident therein for at least one year b. The regular members of the sangguniang
immediately before the election panlalawigan, panlungsod and bayan shall
iv. Ability to read and write Filipino or any other be elected by district, as may be provided by
local dialect. law. The presidents of the leagues of
b. Age sanggunian members of component cities
i. Candidates in provinces and highly urbanized and municipalities shall serve as ex officio
cities- at least 23 years old members of the sangguniang panlalawigan
ii. Candidates for mayor and vice mayor of concerned. The presidents of the liga ng
component cities and municipalities- at least 21 mga barangay and the pederasyon ng mga
years old sangguniang kabataan elected by their
iii. Candidates for sanggunian members in respective chapters, shall serve as ex officio
component cities and municipalities- at least 18 members of the sangguniang panlalawigan,
years old panlungsod or bayan.
iv. Barangay officials- at least 18 years old c. In addition, there shall be one sectoral
v. Sangguniang Kabataan- at least 15-21 years representative from the women, one from the
workers, and one from any of the following
NOTES: sectors: urban poor, indigenous cultural
Age- must be possessed on the day of the election. communities, disabled persons, or any other
The LGC does not specify any particular date when the sector as may be determined by the
candidate must possess Filipino citizenzship. Philippine sanggunian concerned within 90 days prior to
citizenship is required to ensure that no alien shall govern our the holding of the next local elections as may
people. An official begins to govern only upon his be provided by law. The Comelec shall
proclamation and on the day that his term begins. Since promulgate the rules and regulations to
Frivaldo took his oath of allegiance on June 30, 1995, when effectively provide for the election of such
his application for repatriation was granted by the Special sectoral representatives.
committee on Naturalization created under PD 825, he was
therefore qualified to be proclaimed. Besides, 39 of the LGC 4. Date of Election
speaks of qualifications of elective officials, not of candidates Every three years on the second Monday of May,
(Frivaldo vs. COMELEC, 271 SCRA 767). unless otherwise provided by law.

Petitioner was over 21 years of age on the day of the 5. Term of Office
election was ordered disqualified by the Supreme Court when Three years, starting from noon of June 30, 1992,
the latter rejected the contention of the petitioner that she was or such date as may be provided by law, except that of
qualified because she was less than 22 years old. The elective barangay officials. No local elective official shall
phrase not more than 21 years old is not equivalent to less serve for more than three consecutive terms in the same
than 22 years old (Garvida vs. Sales). position. The term of office of barangay officials and
members of the sangguniang kabataan shall be for five years,
2. Disqualifications (40, RA 7160)- The following are which shall begin after the regular election of barangay
disqualified from running for any elective local position: officials on the second Monday of May, 1997. (R.A. 8524)
a. Those sentenced by final judgment for an
offense involving moral turpitude or for an The three-term limit on a local official is to be understood to
offense punishable by one year or more of refer to terms for which the official concerned was elected.
imprisonment, within two years after serving Thus, a person who was elected Vice Mayor in 1988 and
sentence; who, because of the death of the Mayor, became Mayor in
b. Those removed from office as a result of an 1989, may still be eligible to run for the position of Mayor in
administrative case; 1998, even if elected as such in 1992 and 1995 (Borja v.
c. Those convicted by final judgment for violating Comelec, G.R. No. 133495, Sept. 3, 1998).
the oath of allegiance to the Republic;
d. Those with dual citizenship; 6. Rules on Succession (44-46, RA 7160)
e. Fugitives from justice in criminal or non- A. Permanent vacancies: A permanent vacancy arises
political cases here or abroad; when an elective local official fills a higher vacant office,
f. Permanent residents in a foreign country or refuses to assume office, fails to qualify, dies, is removed
those who have acquired the right to reside from office, voluntarily resigns, or is permanently
abroad and continue to avail of the same right incapacitated to discharge the functions of his office.
after the effectivity of the Code; and a. Governor and Mayor
g. The insane or feeble-minded. i. Vice Governor and Vice Mayor
ii. Sanggunian members according to ranking

14
b. Punong barangay per month for the punong barangay and P600 for the
i. Highest ranking sanggunian member sangguniang barangay members.
ii. Second highest ranking sangguniang barangay
member Elective local officials shall be entitled to the same leave
c. Ranking in the sanggunian shall be determined on privileges as those enjoyed by appointive local officials,
the basis of the proportion of the votes obtained to including the cumulation and commutation thereof.
the number of registered votes in each district.
d. Ties will be resolved by drawing of lots. (44) 7. Recall- termination of official relationship of an elective
e. Sanggunian: official for loss of confidence prior to the expiration of his term
i. Provinces, highly urbanized cities and independent through the will of the electorate.
component cities- appointment by the President
ii. Component city and municipality- appointment by a. By whom exercised- by the registered voters of a
governor local government unit to which the local elective official
iii. Sangguniang barangay- appointment by mayor subject to such recall belongs. (69, R.A. 7160)
iv. Except for the sangguniang barangay, the b. Two modes of initiating recall:
appointee shall come from the political party of the i. By a preparatory recall assembly
member who caused the vacancy. ii. By the registered voters of the local government
unit
NOTE: c. Preparatory recall assembly- composed of the
A nomination and a certificate of membership of the following:
appointee from the highest official of the political party i. Provincial level: All mayors, vice mayors and
concerned are conditions sine qua non, and any appointment sanggunian members of the municipalities and
without such nomination and certificate shall be null and void component cities.
and shall be a ground for administrative action against the ii. City level: All punong barangay and
official concerned. sangguniang barangay members in the city.
iii. Legislative district level: Where sangguniang
v. If the member does not belong to any party, the panlalalwigan members are elected by district, all
appointee shall be recommended by the elective municipal officials in the district; and in
sanggunian. cases where sangguniang panglungsod members
vi. The appointee for the sangguniang barangay are elected by district, all elective barangay officials
shall be recommended by the sangguniang in the district.
barangay. iv. Municipal level: All punong barangay and
vii. Vacancy in the representation of the youth and sangguniang barangay members in the
the barangay in the sanggunian shall be filled by the municipality.
official next in rank of the organization. (45)
d. Procedure for initiating recall by preparatory recall
B. Temporary vacancy assembly
a. When the governor, mayor or punong barangay is A majority of all the preparatory recall assembly
temporarily incapacitated to perform his duties, the members may convene in session in a public place and
vice governor, vice mayor, or ranking sangguniang initiate a recall proceeding against any elective official in the
barangay member shall exercise his powers except local government unit concerned. Recall of provincial, city or
the power to appoint, suspend or dismiss municipal officials shall be validly initiated through a
employees, which can only be exercised after 30 resolution adopted by a majority of all the members of the
working days. preparatory recall assembly concerned during its session
b. When the local chief executive is traveling within called for that purpose.
the Philippines for not more than 3 consecutive
days, he may designate an officer-in-charge. The Case:
authorization shall specify the powers of the officer- It was held that notice to all the members of the
in-charge except the power to appoint, suspend or Preparatory Recall Assembly is imperative; thus, where the
dismiss employees. resolution was adopted without giving notice to all the
c. If the local chief executive does not issue the members of the PRA, the same is fatally flawed (Garcia vs.
authorization, the vice governor, vice mayor, or Comelec, G.R. No. 111511, October 5, 1993). However, in
highest ranking sangguniang barangay member Malonzo vs. Comelec, G.R. No. 127066, March 11, 1997, it
shall assume his powers on the fourth day of his was held that where the Comelec has already conducted an
absence. (46) investigation and found the initiatory recall proceedings to be
in accord with law, there is no necessity for the Supreme
7. Compensation (81, R.A. 7160) Court to refer the matter of the veracity of the questioned
The compensation of local officials and personnel shall be notices back to the Comelec.
determined by the sanggunian concerned, subject to the
provisions of R.A. 6758 (Compensation and Position e. Initiation of recall by registered voters: Recall of a
Classification Act of 1989). The elective barangay officials provincial, city, municipal or barangay official may also be
shall be entitled to receive honoraria, allowances and other validly initiated upon petition by at least 25% of the total
emoluments as may be provided by law or barangay, number of registered voters in the local government unit
municipal or city ordinance, but in no case less than P1,000 concerned during the election in which the local official sought
to be recalled was elected.

15
f. Procedure: 11. Discipline (60-68, R.A. 7160)
i. A written petition for recall duly signed before the a. Grounds for disciplinary action: An elective local
election registrar or his representative, and in the official may be disciplined, suspended, or removed from office
presence of a representative of the petitioner and on any of the following grounds:
representative of the official sought to be recalled, i. Disloyalty to the Republic of the Philippines.
and in a public place in the province, city, ii. Culpable violation of the Constitution
municipality or barangay, as the case may be, shall iii. Dishonesty, oppression, misconduct in office,
be filed with the Comelec through its office in the gross negligence, or dereliction of duty.
local government unit concerned. iv. Commission of any offense involving moral
ii. The Comelec or its duly authorized turpitude or an offense punishable by at least prision mayor.
representative shall cause the publication of the v. Abuse of authority.
petition in a public and conspicuous place for a vi. Unauthorized absence for 15 consecutive
period of not less than 10 days nor more than 20 working days, except in the case of members of the
days, for the purpose of verifying the authenticity sangguniang panlalawigan, panlungsod, bayan and
and genuineness of the petition and the required barangay.
percentage of voters. vii. Application for, or acquisition of, foreign
iii. Upon the lapse of the aforesaid period, the citizenship or residence or the status Elective barangay
Comelec or its duly authorized representative shall officials, shall be filed before the sangguiniang panlungsod or
announce the acceptance of candidates to the sangguniang bayan concerned, whose decision shall be final
position and thereafter prepare the list of candidates and executory.
which shall include the name of the official sought to
be recalled. c. Notice of Hearing (62, R.A. 7160)- (a) Within 7
days after the administrative complaint is filed, the Office
The elective local official sought to be recalled shall not be of the President or the sanggunian concerned as the
allowed to resign while the recall process is in progress. case may be, shall require the respondent to submit his
Limitations on Recall: verified answer within 15 days from receipt thereof, and
1. Any elective local official may be the subject of a recall commence the investigation of the case within 10 days
election only once during his term of office for loss of after the receipt of such answer of the respondent.
confidence. (b) When the respondent is an elective official of a
2. No recall shall take place within one year from the date province or highly urbanized city, such hearing and
of the officials assumption to office or one year immediately investigation shall be conducted in the place where he
preceding a regular local election. renders or holds office. For all other local elective
The official sought to be recalled is automatically a officials, the venue shall be the place where the
candidate. sanggunian concerned is located.
Recall shall be effective upon the election and proclamation (c) However, no investigation shall be held within 90
of successor receiving the highest number of votes. days immediately prior to any local election, and no
preventive suspension shall be imposed prior to the 90-
9. Resignation of elective local officials shall be deemed day period immediately preceding local election, it shall
effective only upon acceptance by the following be deemed automatically lifted upon the start of
authorities: aforesaid period.
a. The President, in case of governors, vice
governors, and mayors and vice mayors of highly d. Preventive Suspension
urbanized cities and independent component 1. Who may impose:
cities; a. By the President, if the respondent is an
b. The governor, in case of municipal mayors and elective official of a province, a highly
vice mayors, city mayors and vice mayors of urbanized or an independent component
component cities; city;
c. Sanggunian concerned, in case of sangguniang b. By the governor, if the respondent is an
members; and elective local official of a component city
d. The city or municipal mayor, in case of barangay or municipality;
officials. c. By the mayor, if the respondent is an
elective official of the barangay.
Effectivity: 2. When may be imposed: Preventive suspension
c. Resignation takes effect upon acceptance. may be imposed at any time:
d. It is deemed accepted if not acted upon within 15 a. After the issues are joined;
working days. b. When the evidence of guilt is strong; and
e. Irrevocable resignation by sanggunian members c. Given the gravity of the offense, there is
takes effect upon presentation before an open great probability that the continuance in
session. (82, R.A. 7160) office of the respondent could influence
the witnesses or pose a threat to the
10. Grievance Procedure (83, R.A. 7160)- The local chief safety and integrity of the records and
executive shall establish a procedure to inquire into, act upon, other evidence.
resolve or settle complaints and grievances presented by
local government employees.

16
Provided that any single preventive suspension penalty of removal from office as a result of an administrative
shall not extend beyond 60 days, and in the event investigation shall be a bar to the candidacy of the
several administrative cases are filed against the respondent for any elective position.
respondent, he cannot be suspended for more than
90 days within a single year on the same ground or Case:
grounds existing and known at the time of the first The Supreme Court upheld the imposition of the
suspension. administrative penalty of suspension of not more than 6
months for each offense, provided that the successive service
Case: of the sentence should not exceed the unexpired portion of
When the petitioner failed to file his answer despite the term of the petitioners. The suspension did not amount to
the many opportunities given to him, he was deemed to have removal from office (Salalima vs. Guingona, 257 SCRA 55).
waived his right to answer and to present evidence. At that
point, the issues were deemed joined, and it was proper for j. Administrative appeal- Decisions may, within 30
the Executive Secretary to suspend him, inasmuch as the days from receipt thereof, be appealed to:
Secretary found that the evidence of guilt was strong and that i. The sangguniang panlalawigan, in the case of
continuance in office could influence the witnesses and pose decisions of component cities sangguniang panlungsod and
a threat to the safety and integrity of the evidence against him the sangguiniang bayan;
(Joson vs. Torres, 290 SCRA 279). ii. The Office of the President, in the case of
decisions of the sangguniang panlalawigan and the
The authority to preventively suspend is exercised sangguniang panlungsod of highly urbanized cities and
concurrently by the Ombudsman, pursuant to R.A. 6770; the independent component cities. Decisions of the Office of the
same law authorizes a preventive suspension of six months President shall be final and executory.
(Hagad vs. Gozo-Dadole, G.R. no. 108072, Dec. 12, 1995).
Case:
e. Suspended elective official when deemed reinstated The Supreme Court ruled that certiorari will not lie
Upon expiration of the preventive suspension, the because there is still an adequate remedy available in the
respondent shall be deemed reinstated in office without ordinary course of law, i.e., appeal of the decision of the
prejudice to the continuation of the proceedings against him, Sangguniang Panlalawigan to the Office of the President
which shall be terminated within 120 days from the time he (Malinao vs. Reyes, 255 SCRA 616).
was formally notified of the case against him.
Any abuse of the exercise of the power of k. Execution pending appeal
preventive suspension shall be penalized as abuse of An appeal shall not prevent a decision from being
authority. executed; the respondent shall be considered as having been
placed under preventive suspension during the pendency of
f. Salary of respondent pending suspension (64, R.A. the appeal. But in Berces vs. Executive Secretary, 241
7160) SCRA 539, the Supreme Court pointed out that
The respondent official preventively suspended from Administrative Order No. 18 authorizes the Office of the
office shall receive no salary or compensation during such President to stay the execution of a decision pending appeal.
suspension; but, upon subsequent exoneration and A.O. No. 18 was not repealed by the Local Government
reinstatement, he shall be paid full salary or compensation Code.
including such emoluments accruing during such suspension.
l. Presidential power to grant executive clemency
g. Rights of respondent (65, R.A. 7160) m. Effect of re-election
The respondent shall be accorded full opportunity to The re-election of a local official bars the continuation
appear and defend himself in person or by counsel, to of the administrative case against him.
confront and cross-examine the witnesses against him, and to
require the attendance of witnesses and the production of C. Appointive Local Officials
documentary evidence in his favor through compulsory 1. Responsibility for human resources and
process of subpoena or subpoena duces tecum. development- The local chief executive shall be responsible
for human resources and development in his unit and shall
h. Form and notice of decision (66a, R.A. 7160) take all personnel actions in accordance with the Constitution,
The investigation of the case shall be terminated pertinent laws, including such policies, guidelines and
within 90 days from the start thereof. Within 30 days after the standards as the Civil Service Commission may establish;
end of the investigation, the Office of the President or the Provided that the local chief executive may employ
sanggunian concerned shall render a decision in writing emergency or casual employees or laborers paid on a daily
stating clearly an distinctly the facts and the reasons for such wage or piecework basis and hired through job orders for
decision. Copy of said decision shall immediately be local projects authorized by the sanggunian concerned,
furnished the respondent and all interested parties. without need of approval or attestation by the CSC as long as
the said employment shall not exceed 6 months.
i. Penalty
The penalty of suspension imposed upon the Case:
respondent shall not exceed his unexpired term, or a period But the Provincial Governor is without authority to
of 6 months for every administrative offense, nor shall said designate the petitioner as Assistant Provincial Treasurer for
penalty be a bar to the candidacy of the respondent as long Administration, because under 471 of the Local Government
as he meets the qualifications required for the office. But the Code, it is the Secretary of Finance who has the power to

17
appoint Assistant Provincial Treasurers from a list of Civil Service Commission which shall
recommendees of the Provincial Governor (Dimaandal vs. decide the appeal within 30 days from
Commission on Audit, 291 SCRA 322). receipt thereof.

2. Officials common to all Municipalities, Cities and


Provinces (469-490, R.A. 7160) VII. LOCAL INITIATIVE AND REFERENDUM
a. Secretary to the Sanggunian A. Local Initiative
b. Treasurer 1. Defined- It is the legal process
c. Assessor whereby the registered voters of a
d. Accountant local government unit may directly
e. Budget Officer propose, enact or amend any
f. Planning and Development Coordinator ordinance. It may be exercised by
g. Engineer all registered voters of the
h. Health Officer provinces, cities, municipalities and
i. Civil Registrar barangays
j. Administrator
k. Legal Officer 2. Procedure:
l. Agriculturist
m. Social Welfare and Development Officer a. Not less than 2,000 registered
n. Environment and Natural Resources voters in the region; 1,000
Officer registered voters in case of
o. Architect provinces and cities; 100 voters
p. Information Officer in case of municipalities, and
q. Cooperatives Officer 50 in case of barangays, may
r. Population Officer file a petition with the
s. Veterinarian sanggunian concerned
t. General Services Officer proposing the adoption,
enactment, repeal or
NOTE: amendment of an ordinance.
In the barangay, the mandated appointive officials b. If no favorable action is taken
are the Barangay Secretary and the Barangay Treasurer, by the sanggunian concerned
although other officials of the barangay may be appointed by within 30 days from
the punong barangay. presentation, the proponents,
through their duly authorized
3. Administrative discipline and registered representatives,
Investigation and adjudication of may invoke their power of
administrative complaints against appointive local officials initiative, giving notice thereof
and employees as well as their suspension and removal shall to the sanggunian concerned.
be in accordance with the civil service law and rules and other c. The proposition shall be
pertinent laws. numbered serially, starting from
Roman numeral I. Two or more
a. Preventive suspension- The local chief propositions may be submitted
executive may preventively suspend for a in an initiative. The Comelec or
period not exceeding 60 days any its designated representative
subordinate official or employee under shall extend assistance in the
his authority pending investigation if the formulation of the proposition.
charge against such official or employee d. Proponents shall have 90 days
involves dishonesty, oppression or grave (in case of provinces and
misconduct or neglect in the performance cities), 60 days (in case of
of duty, or if there is reason to believe municipalities) and 30 days (in
that the respondent is guilty of the case of barangays) from notice
charges which would warrant his removal mentioned in (b) to collect the
from the service. required number of signatures.
e. The petition shall be signed
b. Disciplinary Action- Except as otherwise before the election registrar or
provided by law, the local chief executive his designated representatives,
may impose the penalty of removal from and in the presence of a
service, demotion in rank, suspension for representative of the proponent
not more than 1 year without pay, fine in and a representative of the
an amount not exceeding 6 months sanggunian concerned in a
salary or reprimand. If the penalty public place in the local
imposed is suspension without pay for government unit.
not more than 30 days, his decision shall f. Upon the lapse of the period,
be final; if the penalty imposed is heavier, the Comelec shall certify as to
the decision shall be appealable to the whether or not the required

18
number of signatures has been government units may approve, amend or
obtained. Failure to obtain the reject any ordinance enacted by the
required number of signatures sanggunian.
defeats the proposition. 4. The local referendum shall be held under
g. If the required number is the control and direction of the Comelec
obtained, the Comelec shall set within 60 days (in case of provinces), 45
a date for the initiative during days (in case of municipalities) and 30
which the proposition is days (in case of barangays). The
submitted to the registered Comelec shall certify and proclaim the
voters in the local government results of the said referendum.
unit for their approval within 60
days (in case of provinces), 45 C. Authority of Courts- Nothing in the foregoing shall
days (in case of municipalities), preclude the proper courts from declaring null and
and 30 days (in case of void any proposition approved pursuant hereto for
barangays) from the date of violation of the Constitution or want of capacity of
certification by the Comelec. the sanggunian concerned to enact said measure.
The initiative shall be held on
the date set after which the
results thereof shall be certified VIII. LOCAL GOVERNMENT UNITS
and proclaimed by the A. The Barangay
Comelec. 1. Chief Officials and Offices
h. If the proposition is approved a. There shall be in each barangay a
by a majority of the votes cast, punong baranagy, seven (7) sangguniang
it shall take effect 15 days after barangay members, the sangguniang
the certification by the Comelec kabataan chairman, a barangay secretary
as if affirmative action had been and a barangay treasurer. There shall
taken thereon by the also be in every barangay a lupong
sanggunian and the local chief tagapamayapa. The sangguniang
executive concerned. barangay may form community brigades
and create such other positions or offices
3. Limitations: as may be deemed necessary to carry out
a. On local initiative: the purposes of the barangay
i. The power of local initiative shall government.
not be exercised more than once a b. For purposes of the Revised Penal Code,
year. the punong barangay, sangguniang
ii. Initiative shall extend only to barangay members, and the members of
subjects or matters which are within the lupong tagapamayapa in each
the legal powers of the sanggunian barangay shall be deemed as persons in
to enact. authority in their jurisdiction, while other
iii. If at any time before the initiative barangay officials and members who may
is held, the sanggunian concerned be designated by law or ordinance and
adopts in toto the proposition charged with the maintenance of public
presented and the local chief order, protection and security of life and
executive approves the same, the property, or the maintenance of a
initiative shall be cancelled. desirable and balanced environment, and
However, those against such action any barangay member who comes to the
may, if they so desire, apply for aid of persons in authority, shall be
initiative in the manner herein deemed as agents of persons in authority.
provided. c. 389 (b)5), R.A. 7160, provides that the
b. On the sanggunian: Any proposition punong barangay shall, upon approval by
or ordinance approved through an a majority of all the members of the
initiative and referendum shall not be Sangguniang Barangay, appoint or
repealed, modified or amended by replace the barangay treasurer, the
the sanggunian within 6 months from barangay secretary, and other appointive
the date of approval thereof, and local officials.
may be amended, modified or
repealed within 3 years thereafter by 2. The Barangay Assembly
a vote of of all its members. In There shall be a barangay assembly
case of barangays, the period shall composed of all persons who are actual residents
be 18 months after the approval of the barangay for at least 6 months, 15 years of
thereof. age or over, citizens of the Philippines, and duly
registered in the list of barangay assembly
B. Local referendum: members. It shall meet at least twice a year to hear
3. Defined- It is the legal process whereby and discuss the semestral report of the
the registered voters of the local sangguniang barangay concerning its activities and

19
finances, as well as problems affecting the iv. Offenses where there is no private
barangay. offended party;
v. Where the dispute involves real
a. Powers of the Barangay Assembly: properties located in different cities or
i. Initiate legislative processes by municipalities unless the parties thereto
recommending to the sangguniang agree to submit their differences to
barangay the adoption of measures for the amicable settlement by an appropriate
welfare of the barangay and the city or lupon;
municipality concerned; vi. Disputes involving parties who actually
ii. Decide on the adoption of initiative as a reside in barangays of different cities or
legal process whereby the registered municipalities, except where such
voters of the barangay may directly barangay units adjoin each other and the
propose, enact or amend any ordinance; parties thereto agree to submit their
and differences to amicable settlement by an
iii. Hear and pass upon the semestral appropriate lupon;
report of the sangguniang barangay vii. Such other classes of disputes which
concerning its activities and finances. the President may determine in the
interest of justice or upon the
3. Katarungang Pambarangay recommendation of the Secretary of
a. Lupong Tagapamayapa Justice.
There is hereby created in each barangay
a lupong tagapamayapa, composed of the punong 4. Sangguniang Kabataan:
barangay as chairman and 10 to 20 members. The a. Creation; composition: There shall be in
Lupon shall be constituted every 3 years. every barangay a sangguniang kabataan to be
b. Powers of the Lupon: composed of a chairman, seven members, a
i. Exercise administrative supervision secretary and a treasurer. An official who, during
over the conciliation panels; his term of office, shall have passed the age of 21
ii. Meet regularly once a month to provide shall be allowed to serve the remaining portion of
a forum for exchange of ideas among its the term for which he was elected.
members and the public of matters
relevant to the amicable settlement of b. Katipunan ng Kabataan: Shall be compsed of
disputes, and to enable various all citizens of the Philippines actually residing in the
conciliation panel members to share with barangay for at least 6 months, who are 15 but not
one another their observations and more than 21 years of age, who are duly registered
experiences in effecting speedy resolution in the list of the sangguniang kabataan or in the
of disputes; and official list in the custody of the barangay secretary.
iii. Exercise such other powers and It shall meet once every 3 months, or at the call of
perform such other duties and functions as the sanggunian kabataan chairman, or upon written
may be prescribed by law or ordinance. petition of at least 1/20 of its members.
c. Pangkat ng Tagapagkasundo
There shall be constituted for each dispute c. Pederasyon ng mga sangguniang kabataan:
brought before the lupon a conciliation There shall be an organization of all the pederasyon
panel to be known as the pangkat ng ng mga sangguniang kabataan:
tagapagkasundo, consisting of 3 members i. In municipalities, the pambayang
who shall be chosen by the parties to the pederasyon;
dispute from the list of members of the ii. In cities, panlungsod na pederasyon;
lupon. Should the parties fail to agree on iii. In provinces, panlalawigang
the pangkat membership, the same shall pederasyon;
be determined by lots drawn by the lupon iv. In special metropolitan political
chairman. subdivisions, pangmetropolitang pederasyon;
d. Subject matter of amicable settlement: v. On the national level, pambansang
The Lupon of each barangay shall have pederasyon.
authority to bring together the parties
actually residing in the same city or B. The Municipality
municipality for amicable settlement of all C. The City
disputes except; D. The Province
i. Where one party is the government or E. Leagues of Local Government Units/Officials:
any subdivision or instrumentality thereof; 1. Liga ng mga Barangay- Organization of all barangays
ii. Where one party is a public officer or for the primary purpose of determining the representation of
employee, and the dispute relates to the the Liga in the sanggunians, and for ventilating, articulating
performance of his official functions; and crystallizing issues affecting barangay government
iii. Offenses punishable by imprisonment administration and securing, through proper and legal means,
exceeding one (1) year or a fine of solutions thereto.
P5,000.00.
Case:

20
Where the Supreme Court held that Sec. 493, R.A.
7160, which empowers the Liga to create such other
positions as may be deemed necessary, is valid, and does
not constitute an irregular delegation of power (Viola vs.
Alunan, G.R. No. 115844, August 15, 1997)

2. League of Municipalities- Organized for the primary


purpose of ventilating, articulating and crystallizing issues
affecting municipal governments administration, and securing,
through proper and legal means, solutions thereto.

21
PUBLIC CORPORATION
Definition of public corporation

It is formed or organized for the government of a portion of the State (Corporation Code)

Elements of a municipal corporation


1. A legal creation or incorporation
2. A corporate name by which the artificial personality or legal entity is known and in which all
corporate acts are done
3. Inhabitants constituting the population who are invested with the political and corporate powers
which are executed through duly constituted officers and agents
4. A place or territory within which the local civil government and corporate functions are exercised.

Dual nature of municipal corporations


1. Governmental
a. The municipal corporation acts as an agent of the State for the government of the territory and
the inhabitants within the municipal limits
b. It exercises by delegation a part of the sovereignty of the State
2. Private/proprietary
a. It acts in a similar category as a business corporation, performing functions not strictly
governmental or political
b. Those exercised for the special benefit and advantage of the community.

*Note: Local Government Code 15. Every LGU created or recognized under this Code is a body politic
and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise
powers as a POLITICAL SUBDIVISION of the national government and as a CORPORATE ENTITY
representing the inhabitants of its territory.

Requisites for the Incorporation of a Municipal Corporation


1. Territory
2. Population
3. Charter

Requisites of a De Facto Municipal Corporation


1. A valid law authorizing incorporation
2. An attempt in good faith to organize under it
3. A colorable compliance with the law
4. An assumption of corporate powers

An attack on Legal Existence


A quo warranto proceeding brought by the State is the proper remedy. It should be commenced within 5
years from the time the act complained of was committed.

Creation of Local Government Units (LGUs)

1. Authority to Create LGUs ( 6, LGC)


By law enacted by Congress
Province
City
Municipality
Any other political subdivision (A barangay may also be created by law. See 386)
2. By ordinance passed by Sangguniang Panlalawigan/Panlungsod
For barangay located within its territorial jurisdiction
3. Indicators for creation/conversion
a. Income
b. Population
c. Land Area
4. Plebiscite Requirement
a. It applies to the creation, division, merger, abolition or substantial alteration of boundaries of
LGU.
b. Creation etc. should be approve by a majority of the votes cast in a plebiscite called for
the purpose in the political unit or units directly affected.
5. Beginning of Corporate Existence ( 14, LGC)
Corporate existence commences upon the election and qualification of its chief executive and a
majority of members of the Sanggunian unless some other time is fixed by the law or ordinance
creating it.
Local Autonomy
Local autonomy can be considered a measure of decentralization of the functions of government. Under
the principle of local autonomy and decentralization, LGUs have more powers, authority, responsibilities
and resources.

Decentralization
It is the devolution of national administration, not power, to the local levels, in which local officials remain
accountable to the central government in the manner the law may provide.

Levels of Decentralization
1. Administrative Autonomy
a. The central government delegates administrative powers to the political subdivisions.
b. Purposes
To broaden the local power base
To make the units more responsive and accountable
To ensure the full development of LGUs into self-reliant communities
To break the monopoly of the national government over managing local affairs
To relieve the national government from the burden of managing local affairs
2. Political Autonomy
a. Involves the abdication of political power in favor of LGUs declared to be autonomous
b. It would amount to self-immolation because the autonomous government would become
accountable to its constituency, not to the central government.

Devolution
It refers to the act by which the national government confers power and authority upon the various LGUs
to perform specific functions and responsibilities. ( 17, LGC). It is considered mandatory under the LGC.

Distinction between Supervision and Control


1. Supervision
a. It means the overseeing or the power or authority of an officer to see that the subordinate
officers perform their duties.
b. In relation to LGUS, the President only has the power of supervision over LGUS. Thus, he
cannot interfere with the local governments as long as they act within the scope of their
authority.
c. Under the LGC (25), the President exercises direct supervision over provinces, highly
urbanized cities and independent component cities. He exercises indirect supervision over
component cities and municipalities through the provinces. He also exercises indirect
supervision over barangays through the city or municipality concerned.
2. Control
a. It means the power of an officer to alter or modify or nullify or set aside what a subordinate
officer has done in the performance of his/her duties and to substitute the judgment of the
former for that of the latter.
b. In relation to LGUs, it is Congress which exercises control over them.

Police Power
1. Police power is not inherent in municipal corporations. Under the LGC, LGUs exercise police power
under the general welfare clause (See 16)
2. Branches of the general welfare clause
a. One branch 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.
b. The second branch is more independent of the specific functions of the council. It authorizes
ordinances as are necessary and proper to provide for the health and safety, promote
prosperity, improve morals, peace, good order etc.

Eminent Domain and Reclassification of Land


1. Requisites for Valid Exercise [CODE: OPJO]
a. ORDINANCE authorizing the local chief executive to subject a certain property to
expropriation
b. Expropriation should be for a PUBLIC USE/PURPOSE or for the WELFARE of the
POOR/LANDLESS.
c. Payment of JUST COMPENSATION
d. Valid and definite OFFER TO PAY which was NOT accepted.
2. Role of Supervising Local Government Unit
It can only declare the ordinance invalid on the sole ground that it is beyond the power of the
lower LGU to issue. Hence, it cannot declare the ordinance invalid on the ground that it is
unnecessary. (Moday v. CA, Feb. 20, 1997)
3. Role of National Government
The approval of the national government is not required for local governments to exercise the
power of eminent domain.
4. Role of Judiciary
a. Can inquire into the legality of the exercise of the right.
b. Can determine whether there was a genuine necessity
5. Only cities and municipalities can reclassify agricultural lands through the proper ordinance after
conducting public hearings for the purpose.
6. Grounds for Reclassification
a. When the land ceases to be economically feasible and sound for agricultural purposes as
determined by the Department of Agriculture.
b. When the land shall have substantially greater economic value for residential, commercial or
industrial purposes as determined by the Sanggunian concerned.

Taxation
1. Power to tax of LGUs is now pursuant to direct authority conferred by the 1987 Constitution.
2. Since LGUs have no inherent power to tax, their power must yield to a legislative act.

Legislative Power
1. Local chief executive (except for punong barangay because he is already a member of the
Sangguniang barangay) has to approve the ordinance enacted by the council.
2. Veto power of local chief executive. ( 55)
a. Grounds
1. Ultra vires
2. Prejudicial to public welfare
b. Item veto
1. Appropriations ordinance
2. Ordinance/resolution adopting local development plan and public investment
program
3. Ordinance directing the payment of money or creating liability.
3. Review by Higher/Supervising Council
a. The higher council can declare the ordinance/resolution invalid if it is beyond the scope of
the power conferred upon the lower Sanggunian.
b. For barangay ordinances, the higher council can also rule that it is inconsistent with law or
city/municipal ordinances.

Corporate Powers (Sec. 22)


1. To have continuous succession in its corporate name
2. To have and use a corporate seal
3. To acquire and convey real or personal property
4. To enter into contracts
5. To exercise such other powers as are granted to corporations, subject to limitations in LGC/other
laws.

Qualifications of Elective Local Officials ( 39)


1. Filipino citizen
2. Registered voter in the barangay, municipality, city or province where he intends ti be
elected/Registered voter in the district where he intends to be elected in case of a member of the
Sangguniang panlalawigan, Sangguniang panlungsod or Sangguniang bayan.
3. Resident therein for at least 1 year immediately preceding the day of the election.
4. Able to read and write Filipino/ any other local language or dialect
5. Age requirement

AGE REQUIREMENT POSITION

at least 23 years old on election day A. Governor


B. Vice-Governor
C. Mayor, Vice-Mayor, member of
Sangguniang Panglungsod of
highly urbanized cities

at least 21 years old A. Mayor,


B. Vice-Mayor
of independent component cities,
component cities or municipalities

at least 18 years old on election day A. Member of Sangguniang


Panglungsod
B. Member of Sangguniang Bayan
C. Punong Barangay
D. Member of Sangguniang
Barangay

Disqualifications for Local Elective Officials (Sec. 40)


1. Those sentenced by final judgment for an offense involving moral turpitude, or for an offense
punishable by 1 year or more of imprisonment within 2 years after serving sentence
2. Those removed from office as a result of an administrative case.
3. Those convicted by final judgment for violating the oath of allegiance to the Republic
4. Those with dual citizenship
5. Fugitives from justice in criminal or non-political cases here or abroad
6. Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code
7. The insane or feeble minded

Term of Office
1. Term of office: 3 years
2. No local elective official shall serve for more than 3 consecutive terms in the same position
3. Voluntary renunciation of the office for any length of time shall be considered an interruption in the
continuity of service for the full term for which the elective official concerned was elected.

Vacancies
1. Permanent vacancy
a. Grounds
1.Elective local official fills a higher vacant office
2.Refuses to assume office
3.Fails to qualify
4.Dies
5.Removed from office
6.Voluntarily resigns
7.Permanently incapacitated to discharge the functions of his office
b. Filling of vacancy
1.Automatic succession

VACANCY SUCCESSOR
1. In the office of the governor, mayor Vice-Governor, Vice-Mayor
2. In the office of the governor, vice-governor, Highest ranking Sanggunian member
mayor or vice-mayor
3. In the office of the highest ranking Second highest ranking Sanggunian member
Sanggunian member (who was supposed to fill
the vacant position of governor etc.
4. In the office of the punong barangay Highest ranking sangguniang barangay
member/2nd highest ranking sanggunian
member
2. By appointment

VACANCY APPOINTMENT BY WHOM


1. Sanggunian Panlalawigan or Panlungsod of President, through Executive Secretary
highly urbanized cities and independent
component cities
2. Sangguniang Panlungsod of Component Governor
Cities, Sangguniang Bayan
3. Sangguniang Barangay City/Municipal Mayor upon
Recommendation of the Sanggunian barangay
concerned

c. Ranking- It is determined on the basis of proportion of votes obtained by each winning


candidate to the total number of registered voters in each district in the immediately preceding
local election

d. The general rule is that the successor (by appointment) should come from the same political
party as the Sanggunian member whose position has become vacant. The exception would be in
the case of vacancy in the Sangguniang barangay.

2. Temporary Vacancy
a. Grounds (not exclusive list)
1.Leave of absence
2.Travel abroad
3.Suspension from office

b. If the positions of governor, mayor or punong barangay become temporarily vacant, the vice-
governor, vice-mayor or highest ranking Sanggunian member will automatically exercise the
powers and perform the duties and functions of the local chief executive concerned.
c. Exception: He/she cannot exercise the power to appoint, suspend or dismiss employees.
Exception to exception: If the period of temporary incapacity exceeds 30 working days.

d. Termination of temporary incapacity


1. Upon submission to the appropriate Sanggunian of a written declaration by the local
chief that he has reported back to office
2. IF the temporary incapacity was due to legal reasons, the local chief executive should
also submit necessary documents showing that the legal causes no longer exist.

3. Appointment of OIC
a. The local chief executive can designate in writing an OIC if he is traveling within the country
but outside his territorial jurisdiction for a period not exceeding 3 consecutive days.
b. The OIC cannot exercise the power to appoint, suspend or dismiss employees.

4. Omnibus Election Code (Sec. 67)


Any elective official, whether national or local, running for any office other than the one which he
is holding in a permanent capacity, except for President and Vice-President, shall be considered
ipso facto resigned from his office upon filing of his certificate of candidacy.

Grounds for Disciplinary Actions (Sec. 60)


An elective local official may be disciplined, suspended or removed from office on any of the following
grounds:

1. Disloyalty to the Republic of the Philippines


2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in office, gross negligence, dereliction of duty
4. Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor
5. Abuse of authority
6. Unauthorized absence for 15 consecutive working days, except in the case of members of the
Sanggunian panlalawigan, Sangguniang panlungsod, Sangguniang bayan, Sangguniang barangay.
7. Application for or acquisition of foreign citizenship or residence or the status of an immigrant of
another country.
8. Such other grounds as may be provided by the Code/other laws.

Preventive Suspension (Sec. 63)

1. When can it be imposed


a. After the issues are joined
b. When the evidence of guilt is strong
c. Given the gravity of the offense, there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence

2. Who can impose preventive suspension

IMPOSED BY: RESPONDENT LOCAL OFFICIAL


1. President Elective official of a province, highly urbanized or Independent
component city
2. Governor Elective official of a component city or municipality
3. Mayor Elective official of a barangay

3. Duration of preventive suspension


a. Single preventive suspension should not exceed 60 days.
b. IF several administrative cases are filed against an elective official, he cannot be preventively
suspended for more than 90 days within a single year on the same ground/s existing and
known at the time of the first suspension.

Suspension

1. It should not exceed the unexpired term of the respondent or a period of 6 months for every
administrative offense.
2. Penalty is NOT a bar to the candidacy of the respondent suspended as long as he meets the
qualifications for the office.

Removal as result of Administrative Investigation


It serves as a BAR to the candidacy of the respondent for any elective position.

Recall ( 69-75)

1. By whom Exercised
It is exercised by the registered voters of a LGU to which the local elective official subject to recall
belongs.

2. GROUNDS = Loss of confidence

3. Initiation of Recall Process

Preparatory Recall Assembly ( PRA)

1. Composition

LEVEL COMPOSITION
1. Provincial Mayors, vice-mayors, Sanggunian members of the municipalities and
component cities
2. City Punong barangay and Sangguniang barangay members in the city
3. Legislative district Elective municipal/barangay officials
4. Municipal Punong barangay and sangguniang barangay members in the
municipality

2. Procedure

Session in a public place to initiate recall proceeding


Resolution adopted by a majority of all the members of the PRA during the session called for the
purpose of initiating recall proceedings

Petition by Registered Voters

1. Petition OF at least 25% of the total number of registered voters in the LGU concerned during the
election in which the local official sought to be recalled was elected.
2. The written petition for recall should be duly signed before the election registrar or his representativ
and in the presence of the representative of the petitioner and the official sought to be recalled.
3. It should be signed in a public place
4. Petition should be filed wit COMELEC through its office in the LGU concerned
5. Publication of petition for 10-20 days in order to verify the authenticity and genuineness of the petition
and the required % of voters.

Recall Election
a. The official/s sought to be recalled are automatically considered as duly registered candidates.
b. The date set for the recall election should not be less than 30 days after filing of resolution/petition in
the case of barangay, city or municipal officials and 45 days in the case of provincial officials

Effectivity of Recall
a. Recall will only be effective upon the election and proclamation of a successor.
b. IF the official sought to be recalled receives the highest number of votes, confidence in him is
affirmed and he shall continue in office.

Limitations on Recall
a. Elective local official can be the subject of a recall election only onece during his term of office
b. No recall shall take place within 1 year from the date of the officials assumption to office or 1 year
immediately preceding a regular local election.

Initiative ( 120-125)

Definition of Local Initiative

It is the legal process whereby the registered voters of a LGU may directly propose, enact or amend any
ordinance

Note: In Garcia v. Comelec, the SC ruled that a resolution can also be the proper subject of an initiative
Who May Exercise Power

It may be exercised by all registered voters of the provinces, cities, municipalities, barangays.

Procedure
a. Number of voters who should file petition with Sanggunian concerned
1. Provinces and cities - at least 1000 registered voters
2. Municipality - at least 100
3. Barangay - at least 50

b. Sanggunian concerned has 30 days to act on the petition. If the Sanggunian does not take any
favorable action, the proponents may invoke the power of initiative, giving notice to Sanggunian.

c. Proponents will have the following number of days to collect required number of signatures
1. Provinces and cities - 90 days
2. Municipalities - 60 days
3. Barangays - 30 days

d. Signing of petition

e. Date for initiative set by Comelec if required number of signatures has been obtained.

Effectivity of Proposition

a. If proposition is approved by a majority of the votes cast, it will take effect 15 days after certification
by the Comelec as if the Sanggunian and the local chief executive had taken affirmative action.

b. IF it fails to obtain required number of votes, it is considered defeated

Limitations

a. It should not be exercised more than once a year.

b. It can only extend to subjects or matters which are within the legal powers of the Sanggunians to
enact.
c. If the Sanggunian adopts in toto the proposition presented and the local chief executive approves the
same, the initative shall be cancelled.

Limitations upon Sanggunians

a. The Sanggunian cannot repeal, modify or amend any proposition or ordinance approved through
system of initiative/referendum within 6 months from the date of approval thereof.

b. The Sanggunian can amend, modify or repeal the proposition/ordinance w/in 3 years thereafter by a
vote of of all its members.

c. For barangays, the applicable period is 18 months.

Referendum ( 126-127)

Definition
It is the legal process whereby the registered voters of the local government units may approve, amend or
reject any ordinance enacted by the Sanggunian.

Authority of Courts
The proper courts can still declare void any proposition adopted pursuant to an initiative/referendum on
the following grounds
a. Violation of the Constitution
b. Want of capacity of the Sanggunian concerned to enact the measure.
Notes

I. Public Corporation: Introduction


a. Corporation- an artificial being created by operation of law, having the right of succession and the powers,
attributes and properties expressly authorized by law or incident to its existence.

b. Classes of Corporations
Private Corporation Public Corporation
-those formed for some private -one created by the State either by general
purpose, benefit, aim or end. or special act for purposes of
DEFINITION administration of local government or
rendering service in the public interest.
-created for private aim, gain, or -established for purposes connected with
benefits of its members PURPOSE OF the administration of civil or local
CREATION governments
-created by the will of the -creations of the State either by general or
incorporators with the recognizance of CREATORS special act
the State.
-constitute a voluntary agreement by -involuntary consequence of legislation
and among its members NATURE

Metropolitan Manila Development Authority vs. Bel-Air Village Association, Inc


G.R. No. 135962, March 27, 2000

A local government is a "political subdivision of a nation or state which is constituted by law and has
substantial control of local affairs." The Local Government Code of 1991 defines a local government unit as a "body
politic and corporate"-- one endowed with powers as a political subdivision of the National Government and as a
corporate entity representing the inhabitants of its territory. Local government units are the provinces, cities,
municipalities and barangays. They are also the territorial and political subdivisions of the state

c. Classes of Public Corporations


Quasi-public Corporations Municipal Corporations/Local Government
-created as agencies of the State for narrow and -body politic and corporate constituted by the
limited purposes without the powers and liabilities incorporation of the inhabitants for purposes of local
of self-governing corporations. government thereof.

-established by law partly as an agency of the State to


assist in the civil government of the country, but
chiefly to regulate and administer the local or internal
affairs of the city, town or district which is
incorporated.

-political subdivision of a nation or state which is


constituted by law and has substantial control of local
affairs

d. Elements: Municipal Corporations


1. A legal creation or incorporation
2. A corporate name by which the artificial personality or legal entity is known and in which all corporate
acts are done
3. Inhabitants constituting the population who are invested with the political and corporate power which
are executed through duly constituted officers and agents
4. A place or territory within which the local civil government and corporate functions are exercised

e. Local Government: Dual Personality


1

Public or Governmental Private or Corporate


Page

-it is an agent of the state for the government -acts in a similar category as a business corporation,
of the territory and the inhabitants within the performing functions not strictly governmental or
Notes
local government limits political
-exercises by delegation a part of the -patrimonial powers
sovereignty of the state
-they serve as an instrumentality of the State -they act as an agency of the community in the
in carrying out the functions of government. administration of local affairs.

f. Local Governments: Power and Functions


i. Sources of Power of Local governments
1. Constitution
2. R. A. No. 7160
3. All existing laws, acts, decrees. Executive orders, proclamations and administrative orders not
inconsistent with the Constitution and R. A. No. 7160.

ii. Classification of local government power


1. Express power- those granted in express words
2. Implied powers- those necessarily or fairly implied in or incident to the powers expressly
granted
3. Inherent powers- those essential to the declared objects and purposes of the corporation not
simply convenient but indispensable.
4. Legislative powers- power to make laws
5. Executive powers- power to execute laws.
6. Intramural powers- those exercised within the corporate limits of a municipal corporation
7. Extramural powers- those exercised outside of the corporate limits, like those given for the
protection of water supply, prevention of nuisance and also for police forces
8. Governmental powers- administer the powers of the State and promoting the public welfare
within it. Example: Police power, Power of Eminent Domain. Power of Taxation
9. Municipal powers- those for the special benefit and advantage of the community. Example:
erection of waterworks, gas works, electric plants, from which profits may be derived by the
municipality.

g. R.A. 7924 (Metropolitan Manila Development Authority)


This Act states the policy of the State to treat Metro Manila as a special development and administrative region and
certain basic services affecting or involving Metro Manila as metro wide services more efficiently and effectively
planned, supervised and coordinated by a development authority as created herein, without prejudice to the autonomy of
the affected LGU. Among its pertinent provisions are:
1) Scope of MMDA (metro-wide) services: Development planning; transport and traffic management; solid
waste disposal and management; Flood control; Urban renewal; zoning and land use planning; health
sanitation; Urban protection and pollution control; pu8blic safety;
2) Creation of Metro Manila Council (MMC) consisting of all mayors in Metro Manila
3) Powers and Functions of MMDA, mainly to formulate, coordinate, and regulate implementation of above
metro-wide services
4) Functions of MMC, mainly to approve projects of MMDA
5) Function of MMDA chairman: Execute policies of MMC and manage operations of MMDA; appointment
power; prepare budget of MMDA; disciplinary power on subordinates; ex officio board member (or his
representative) of departments related to activities of MMDA such as DOTC, DOH, etc.
6) Institutional linkages of MMDA: NEDA, NGOs , accredited peoples organizations
Only political units of the government can exercise police power

Metropolitan Manila Development Authority vs. Bel-Air Village Association, Inc


G.R. No. 135962, March 27, 2000

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.
2

The MMAs jurisdiction was limited to addressing common problems involving basic services that
Page

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
Notes
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."
The MMDA is not a political unit of government thus cannot validly exercise police power.

Solicitor General v. Metropolitan Manila Authority

The measures in question are enactments of local governments acting only as agents of the national
legislature. Necessarily, the acts of these agents must reflect and conform to the will of their principal. To test the
validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid
down by the accepted principles governing municipal corporations.
According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any
statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit
but may regulate trade; 5) must not be unreasonable; and 6) must be general and consistent with public
policy.
A careful study of the Gonong decision will show that the measures under consideration do not pass the
first criterion because they do not conform to existing law. The pertinent law is PD 1605. PD 1605 does not allow
either the removal of license plates or the confiscation of driver's licenses for traffic violations committed in
Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila
Commission (and now the Metropolitan Manila Authority) to impose such sanctions.
In fact, the provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission
was allowed to "impose fines and otherwise discipline" traffic violators only "in such amounts and under such
penalties as are herein prescribed," that is, by the decree itself. Nowhere is the removal of license plates directly
imposed by the decree or at least allowed by it to be imposed by the Commission. Notably, Section 5 thereof
expressly provides that "in case of traffic violations, the driver's license shall not be confiscated." These restrictions
are applicable to the Metropolitan Manila Authority and all other local political subdivisions comprising
Metropolitan Manila, including the Municipality of Mandaluyong.
The requirement that the municipal enactment must not violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national
legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the
Constitution itself.) They are mere agents vested with what is called the power of subordinate legislation. As
delegates of the Congress, the local government unit cannot contravene but must obey at all times the will of their
principal. In the case before us, the enactments in question, which are merely local in origin, cannot prevail against
the decree, which has the force and effect of a statute.

h. Administrative Regions

DEFINITION
Chiongbian vs. Orobos 254 SCRA 253 (1995)
Administrative regions are mere groupings of contiguous Provinces for administrative
purposes. They are not territiorial and political subdivisions like Provinces, Cities, Municipalities and Barangays.

R. A. 6766 (Organic Act for Cordillera Autonomous Region of 1989)


This Act provides for creation of the Cordillera Autonomous Region (CAR) shall consist of the cities and provinces that
shall vote favorable in a plebiscite pursuant ant 10, Sec. 18 of the Constitution. Those cities and provinces are Benguet,
Ifugao, Muslim Province, Abra, Kalinga-Apayao and Baguio
The Act consists of the following pertinent articles:
1) Guiding principles and policies similar to that of Art. 2 of the 1987 Constitution
2) Vesting of legislative power in the Cordillera Assembly; executive power Cordillera governor with a deputy
governor as well; creation of indigenous special courts whose decisions are final and executory but subject to
the original and appellate jurisdiction of the Supreme Court
3) Creation of a Regional Commission on Appointments
4) Measures to protect and develop the ancestral lands and ancestral domains of indigenous cultural communities
3

as well as the national economy and patrimony


Page

The rest of its provisions are roughly similar to the Organic Act for ARMM (see11-c) CAR never came to existence. Only
Ifugao province voted in favor of CAR, so the Supreme Court in Ordillo v. COMELEC ruled that Ifugao could no constitute
itself into the CAR
Notes

The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.

Cordillera Regional Assembly v. COMELEC, G. R. No. 93054, December 4, 1990

The keywords provinces, cities, municipalities and geographical areas connote that "region" is to be made
up of more than one constituent unit. The term "region" used in its ordinary sense means two or more provinces.
This is supported by the fact that the thirteen (13) regions into which the Philippines is divided for administrative
purposes are groupings of contiguous provinces.
Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766 strengthens the
petitioner's position that the Region cannot be constituted from only one province.
xxx
From these sections, it can be gleaned that Congress never intended that a single province may constitute
the autonomous region. Otherwise, we would be faced with the absurd situation of having two sets of officials, a set
of provincial officials and another set of regional officials exercising their executive and legislative powers over
exactly the same small area.

R.A. 6732 (Organic Act for ARMM [Autonomous Region in Muslim Mindanao])

Mindanao, encompassing 13 provinces and 9 cities, through a plebiscite for that purpose. This government shall operate
within the framework of the Regional Government. The executive power is conferred on the Regional Governor. The
legislative power is conferred in the Regional Assembly. The Supreme Court, the Court of Appeals and the lower courts
shall continue to exercise their power as mandated in the Constitution; however, there shall be a Shariah Appellate Court
which shall also be learned in Islamic law and jurisprudence. The Shariah Courts decisions shall be final and executory
subject to the original and appellate jurisdiction of the Supreme Court. Tribal Appellate Courts for cases dealing with tribal
codes shall also be established.
The Regional Government shall have fiscal autonomy or the power to create its own sources of revenue, subject to
the limitations of the Constitution and this Organic Act. The Organic Act also provides for: Protection of ancestral lands,
ancestral domain and indigenous cultural communities; urban and rural planning and development; power to enact laws
pertaining to the national economy and patrimony responsive to the needs of the Regional Government; public order and
security; education, science and technology and sports development; social justice and services; and power to amend or
revise the Organic Act, either by Congress or by the Regional Assembly, the latter being subject to approval by Congress.

Meaning of majority vote required to approve the creation of administrative region

Abbas vs. COMELEC G.R. No. 89651 (1989)


As provided in the Constitution, the creation of the autonomous region in Muslim Mindanao is made
effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the
purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it refer to a majority of
the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both?
We need not go beyond the Constitution to resolve this question.
It will readily be seen that the creation of the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso
underscores this. For if the intention of the framers of the Constitution was to get the majority of the totality of the
votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution,
i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a
plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple majority of votes approving the
Organic Act in individual constituent units and not a double majority of the votes in all constituent units put
together, as well as in the individual constituent units.

Executive has power to merge administrative regions; no plebiscite is required

Abbas vs. COMELEC G.R. No. 89651 (1989)


4

It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e.
Page

Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for
administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the land by
Notes
Pres. Dec. No. 1, Pres. Sec. No. 742]. Administrative regions are not territorial and political subdivisions like
provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge
administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been
lodged with the President to facilitate the exercise of the power of general supervision over local governments [see
Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative
regions with the constitutional provision requiring a plebiscite in the merger of local government units because the
requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to
administrative regions.

i. General Principles (R.A. No. 7160)

POLICY AND APPLICATION


SEC. 2. Declaration of Policy.
(a) 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. The process of
decentralization shall proceed from the national government to the local government units.
(b) It is also the policy of the State to ensure the accountability of local government units through the institution of
effective mechanisms of recall, initiative and referendum.
(c)It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions.

Section 536. Effectivity Clause. This code shall take effect on January first, ineteen hundred ninety-two, unless
otherwise provided herein, after its complete publication in at least one newspaper of general circulation.

SEC. 3. Operative Principles of Decentralization.


The formulation and implementation of policies and measures on local autonomy shall be guided by the following
operative principles:
(a) There shall be an effective allocation among the different local government units of their respective powers,
functions, responsibilities, and resources;
(b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational
structure and operating mechanism that will meet the priority needs and service requirements of its communities;
(c) Subject to civil service law, rules and regulations, local officials and employees paid wholly or mainly from
local funds shall be appointed or removed, according to merit and fitness, by the appropriate appointing authority;
(d) The vesting of duty, responsibility, and accountability in local government units shall be accompanied with
provision for reasonably adequate resources to discharge their powers and effectively carry out their functions;
hence, they shall have the power to create and broaden their own sources of revenue and the right to a just share in
national taxes and an equitable share in the proceeds of the utilization and development of the national wealth
within their respective areas;
(e) Provinces with respect to component cities and municipalities, and cities and municipalities with respect to
component barangays, shall ensure that the acts of their component units are within the scope of their prescribed
powers and functions;
(f) Local government units may group themselves, consolidate or coordinate their efforts, services, and resources
for purposes commonly beneficial to them;
(g) The capabilities of local government units,especially the municipalities and barangays, shall beenhanced by
providing them with opportunities to participate actively in the implementation of national programs and projects;
(h) There shall be a continuing mechanism to enhance local autonomy not only by legislative enabling acts but
also by administrative and organizational reforms;
5

(i) Local government units shall share with the national government the responsibility in the management and
Page

maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and
national policies;
Notes
(j) Effective mechanisms for ensuring the accountability of local government units to their respective constituents
shall be strengthened in order to upgrade continually the quality of local leadership;
(k) The realization of local autonomy shall be facilitated through improved coordination of national government
policies and programs and extension of adequate technical and material assistance to less developed and deserving
local government units;
(l) The participation of the private sector in local governance, particularly in the delivery of basic services, shall be
encouraged to ensure the viability of local autonomy as an alternative strategy for sustainable development; and
(m) The national government shall ensure that decentralization contributes to the continuing improvement of the
performance of local government units and the quality of community life.

San Juan vs. Civil Service Commission 196 SCRA 69

The tug of war between the Secretary of Budget and Management and the Governor of the premier
province of Rizal over a seemingly innocuous position involves the application of a most important constitutional
policy and principle, that of local autonomy. We have to obey the clear mandate on local autonomy. Where a law is
capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial to local
autonomy, the scales must be weighed in favor of autonomy.
xxx
National officials should not only comply with the constitutional provisions on local autonomy but should
also appreciate the spirit of liberty upon which these provisions are based.

The 1987 Constitution by deleting the phrase "as may be provided by law," did not stripped the
President of the power of control over local governments.

Ganzon vs. CA G. R. No. 93252 August 5, 1991


It is a mistaken impression because legally, supervision is not incompatible with disciplinary authority.
As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the
objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by
the Court of Appeals, like the power of local legislation. The Constitution did nothing more, however, and insofar as
existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local
officials administratively, the Constitution contains no prohibition.
"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of
the latter." "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that
subordinate officers perform their duties." As we held, however, "investigating" is not inconsistent with
"overseeing", although it is a lesser power than "altering".

Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987
Constitution.

De Leon v. Esguerra, G.R. No. 78059 August 31, 1987


The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC
Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions
occupied by petitioners.
Petitioners must now be held to have acquired security of tenure especially considering that the Barangay
Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to
ensure their fullest development as self-reliant communities. Similarly, the 1987 Constitution ensures the autonomy
of local governments and of political subdivisions of which the barangays form a part, and limits the President's
power to "general supervision" over local governments.

LOCAL AUTONOMY
-means a more responsive and accountable local government structure instituted through a system of
6

decentralization.
Page

-not meant to end the relation of partnership and interdependence between the central administration and LGU.
Notes
TYPES OF DECENTRALIZATION

Limbona vs. Mangelin 170 SCRA 786 (1989)


Now, autonomy is either decentralization of administration or decentralization of power. There is
decentralization of administration when the central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in the process to make local governments "more
responsive and accountable," "and ensure their fullest development as self-reliant communities and make them
more effective partners in the pursuit of national development and social progress." At the same time, it relieves the
central government of the burden of managing local affairs and enables it to concentrate on national concerns. The
President exercises "general supervision" over them, but only to "ensure that local affairs are administered according
to law." He has no control over their acts in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in the favor of
local governments units declare to be autonomous. In that case, the autonomous government is free to chart its own
destiny and shape its future with minimum intervention from central authorities. According to a constitutional
author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government
becomes accountable not to the central authorities but to its constituency.

Decentralization of power is a political question; decentralization of administration is a judicial


question

Limbona vs. Mangelin 170 SCRA 786 (1989)


An autonomous government that enjoys autonomy of the latter category [decentralization of power] is
subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of
"autonomy." On the other hand, an autonomous government of the former class [decentralization of administration]
is, as we noted, under the supervision of the national government acting through the President (and the Department
of Local Government). If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense
[decentralization of power], its acts are, debatably beyond the domain of this Court in perhaps the same way that the
internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the
former category [decentralization of administration] only, it comes unarguably under our jurisdiction.

DEVOLUTION
Tano vs. Socrates 278 SCRA 154
Finally, the centerpiece of LGC is the system of decentralization as expressly mandated by the Constitution.
Indispensable thereto 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, 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.
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. This necessarily includes enactment of
ordinances to effectively carry out such fishery laws within the municipal waters.

FISCAL AUTONOMY
Internal Revenue Allotment forms part of a local governments annual income

Alvarez v Giungona 252 SCRA 695


The practical side to development through a decentralized local government system certainly concerns the
matter of financial resources. With its broadened powers and increased responsibilities, a local government unit
must now operate on a much wider scale. More extensive operations, in turn, entail more expenses. Understandably,
the vesting of duty, responsibility and accountability in every local government unit is accompanied with a provision
for reasonably adequate resources to discharge its powers and effectively carry out its functions. Availment of such
resources is effectuated through the vesting in every local government unit of (1) the right to create and
broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share being in
7

the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the
Page

utilization and development of the national wealth, if any, within its territorial boundaries.
xxx
Notes
The IRAs are items of income because they form part of the gross accretion of the funds of the local
government unit. The IRAs regularly and automatically accrue to the local treasury without need of any further
action on the part of the local government unit. They thus constitute income which the local government can
invariably rely upon as the source of much needed funds.

SEC. 4. Scope of Application. - This Code shall apply to all provinces, cities, municipalities, barangays, and other
political subdivisions as may be created by law, and, to the extent herein provided, to officials, offices, or agencies
of the national government.

Cordillera Broad Coalition vs. Commission on Audit G. R. No. 79956, January 29, 1990

We find that it [EO 220] did not create a new territorial and political subdivision or merge existing ones
into a larger subdivision. Firstly, the CAR is not a public corporation or a territorial and political subdivision. It does
not have a separate juridical personality, unlike provinces, cities and municipalities. Neither is it vested with the
powers that are normally granted to public corporations, e.g. the power to sue and be sued, the power to own and
dispose of property, the power to create its own sources of revenue, etc. As stated earlier, the CAR was created
primarily to coordinate the planning and implementation of programs and services in the covered areas.
Then, considering the control and supervision exercised by the President over the CAR and the offices
created under E.O. No. 220, and considering further the indispensable participation of the line departments of the
National Government, the CAR may be considered more than anything else as a regional coordinating agency of the
National Government, similar to the regional development councils which the President may create under the
Constitution. These councils are "composed of local government officials, regional heads of departments and other
government offices, and representatives from non-governmental organizations within the region for purposes of
administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and
social growth and development of the units in the region." In this wise, the CAR may be considered as a more
sophisticated version of the regional development council.

EO 220 which created CAR did not contravene the constitutional guarantee of local autonomy of the
member LGUs.

Cordillera Broad Coalition vs. Commission on Audit G. R. No. 79956, January 29, 1990

As we have said earlier, the CAR is a mere transitory coordinating agency that would prepare the stage for
political autonomy for the Cordilleras. It fills in the resulting gap in the process of transforming a group of adjacent
territorial and political subdivisions already enjoying local or administrative autonomy into an autonomous region
vested with political autonomy.

Abbas vs. COMELEC G.R. No. 89651 (1989)

Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. If
the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the
creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring
an Oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would
the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is
evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on
this point thus cannot be sustained as there is no basis therefor.

The power to merge administrative regions is executive in character.

Chiongbian, et al vs. Orbos, et al G.R. No. 96754, June 22, 1995

As this Court observed in Abbas, while the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has traditionally been lodged with the President to
facilitate the exercise of the power of general supervision over local governments. R.A. No. 5435 was passed
authorizing the President of the Philippines, with the help of a Commission on Reorganization, to reorganize the
8

different executive departments, bureaus, offices, agencies and instrumentalities of the government, including
Page

banking or financial institutions and corporations owned or controlled by it. The purpose was to promote
simplicity, economy and efficiency in the government. The law provided that any reorganization plan submitted
Notes
would become effective only upon the approval of Congress. Thus the creation and subsequent reorganization of
administrative regions have been exercised by the President pursuant to authority granted to him by law.

The power granted authorizes the reorganization even of regions, provinces and cities that did not
take part in the plebiscite on the creation of the Autonomous Region or did not vote in favor of it

While Article XIX, Section 13 provides that The provinces and cities which in the plebiscite do not vote
for inclusion in the Autonomous Region shall remain in the existing administrative regions, this provision is subject
to the qualification that the President may, by administrative determination, merge the existing regions. This
means that while non-assenting provinces and cities are to remain in the regions as designated upon the
creation of the Autonomous Region, they may nevertheless be regrouped with contiguous provinces forming
other regions as the exigency of administration may require.
On the applicability to only those which voted for inclusion in the Autonomous Region, the Presidents
power cannot be so limited without neglecting the necessities of administration.

A tribal court of the Cordillera Bodong Administration cannot render a valid and executory decision in a
land dispute

BADUA vs. CORDILLERA BODONG ADMINISTRATION 1991 Feb 14G.R. No. 92649
.
In "Cordillera Regional Assembly Member Alexander P. Ordillo, et al. vs. The Commission on Elections,
et al found that in the plebiscite that was held on January 23, 1990 pursuant to Republic Act 6766, the creation of the
Cordillera Autonomous Region was rejected by all the provinces and city of the Cordillera region, except Ifugao
province, hence, the Cordillera Autonomous Region did not come to be. As a logical consequence of that judicial
declaration, the Cordillera Bodong Administration created under Section 13 of Executive Order No. 220, the
indigenous and special courts for the indigenous cultural communities of the Cordillera region (Sec. 1, Art. VII,
Rep. Act 6766), and the Cordillera People's Liberation Army, as a regional police force or a regional command of
the Armed Forces of the Philippines (Secs. 2 and 4, Article XVIII of R.A. 6766), do not legally exist. Since the
Cordillera Autonomous Region did not come into legal existence, the Maeng Tribal Court was not constituted
into an indigenous or special court under R.A. No. 6766. Hence, the Maeng Tribal Court is an ordinary tribal
court existing under the customs and traditions of an indigenous cultural community.
Such tribal courts are not a part of the Philippine judicial system which consists of the Supreme
Court and the lower courts which have been established by law (Sec. 1, Art. VIII, 1987 Constitution). They do
not possess judicial power. Like the pangkats or conciliation panels created by P.D. No. 1508 in the
barangays, they are advisory and conciliatory bodies whose principal objective is to bring together the parties
to a dispute and persuade them to make peace, settle, and compromise.

SEC. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall
apply:
(a)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 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;
(b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local government
unit enacting it, and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local
government unit pursuant to the provisions of this Code shall be construed strictly against the person claiming it.
(c) 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;
(d) Rights and obligations existing on the date of effectivity of this 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
said contracts or the law in force at the time such rights were vested; and
(e)In the resolution of controversies arising under this Code where no legal provision or jurisprudence applies,
resort may be had to the customs and traditions in the place where the controversies take place.
9

Tano vs. Socrates 278 SCRA 154


Page
Notes
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.

Rights existing on the date of effectivity of this Code involving a local government unit shall be governed
by the law in force at the time such rights were vested

THE SECRETARY OF HEALTH vs.COURT OF APPEALS G. R. No. 112243, Feb. 23, 1995

At the time of the commencement of the administrative action, the operative laws are the Administrative
Code of 1987 and Executive Order No. 119. Under the said laws, the Secretary of Health exercises control, direction
and supervision over his subordinates, which include private respondent. Consequently, since jurisdiction has been
acquired by the Secretary of Health over the person of private respondent before the effectivity of the Local
Government Code on January 1, 1992, it continues until the final disposition of the administrative case.
Greater Balanga Dev. Corp vs Balanga G. R. No. 83987, Dec. 27, 1994

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.

Evardone vs COMELEC GR. No. 95063, December 2, 1991

Art. 18 Sec. 3 of the Consti expressly provides that all existing laws not inconsistent with the 1987 Consti
shall remain operative until amended repealed or revoked. RA 7160 providing for the Local Government Code of
1991, expressly repeals BP 337. But, the new LGC will take effect only on January 1, 1992 therefore the old LGC
(BP 337) is still the applicable law to the present case.
The Court ruled that Resolution 2272 is valid and constitutional.

CREATION, CONVERSION AND ABOLITION OF LOCAL GOVERNMENT UNITS

SEC. 6. Authority to Create Local Government Units. - A local government unit may be created, divided,
merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a
province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial
jurisdiction, subject to such limitations and requirements prescribed in this Code.

SEC. 7. Creation and Conversion. - As a general rule, the creation of alocal government unit or its conversion
from one level to another level shall be based on verifiable indicators of viability and projected capacity to
provide services, to wit:
(a) Income. - It must be sufficient, based on acceptable standards, to provide for all essential government
facilities and services and special functions commensu- rate with the size of its population, as expected of the
local government unit concerned;
(b) Population. - It shall be determined as the total number of inhabitants within the territorial jurisdiction of the
local government unit concerned; and
(c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a local
government unit independent of the others; properly identified by metes and bounds with technical descriptions;
and sufficient to provide for such basic services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the
NationalStatistics Office (NSO), and the Lands Management Bureau(LMB) of the Department of Environment
and Natural Resources(DENR).
10

SEC. 8. Division and Merger. - Division and merger of existinglocal government units shall comply with the
Page

same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the
income, population, or land area of the local government unit or units concerned to less than the minimum
Notes
requirements prescribed in this Code: Provided, further, That the income classification of the original local
government unit or units shall not fall below its current income classification prior to such division. The income
classification of local government units shall be updated within six (6) months from the effectivity of this Code to
reflect the changes in their financial position resulting from the increased revenues as provided herein.

SEC. 9. Abolition of Local Government Units. - A local government unit may be abolished when its income,
population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its
creation under Book III of this Code, as certified by the national agencies mentioned in Section 17 hereof to
Congress or to the sanggunian concerned, as the case may be.
The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or
barangay with which thelocal government unitsought to be abolished will be incorporated or merged.

SEC. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of
boundaries of local government units shall take effect unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted
by the Commission on Elections (Comelec) within one hundred twenty (120) days from the date of effectivity of
the law or ordinance effecting such action, unless said law or ordinance fixes another date.

MMDA vs Dante O. Garin G. R. No. 130230, April 15, 2005

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.
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the petitioner
to grant the MMDA the power to confiscate and suspend or revoke drivers' licenses without need of any other
legislative enactment, such is an unauthorized exercise of police power.
Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations. MMDA may
enforce, but not enact, ordinaces.

Sultan Osop B. Camid vs Office of the President et. al. G. R. No. 161414, Jan. 17, 2005

Section 442(d) of the Local Government Code requires that in order that the municipality created by
executive order may receive recognition, they must have their respective set of elective municipal officials holding
office at the time of the effectivity of the Local Government Code. Petitioner admits that Andong has never elected
its municipal officers at all.

Padilla vs. Comelec, G.R. No. 103328, October 19, 1992.

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 phrase
"political units directly affected," is the plurality of political units which would participate in the plebiscite.
Logically, those to be included in such political areas are the inhabitants of the barangays of the proposed
Municipality of Tulay-Na-Lupa as well as those living in the parent Municipality of Labo, Camarines Norte.

Grio v. COMELEC

"SEC. 462. Existing Subprovinces. Existing sub-provinces are hereby converted into regular provinces
upon approval by a majority of the votes cast in a plebiscite to be held in the said sub-provinces and the original
provinces directly affected. The plebiscite shall be conducted by the Comelec simultaneously with the national
11

elections following the effectivity of this Code.


"The new legislative districts created as a result of such conversion shall continue to be represented in
Page

Congress by the duly elected representatives of the original districts out of which said new provinces or districts
Notes
were created until their own representatives shall have been elected in the next regular congressional elections and
qualified.
As it is worded, Section 462 completely addresses an eventuality where the people of both the original district and
the people of the new district to be created agree to the proposed creation of the latter.

Mun. of San Narciso, Quezon v. Mendez

Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but
it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to
challenge the legality of the executive order. In the meantime, the Municipal District, and later the Municipality, of
San Andres, began and continued to exercise the powers and authority of a duly created local government unit.
Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts "organized
pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal
officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular
municipalities."

Tan v. COMELEC 142 SCRA 727

The phrase subject to the approval by a majority of the votes in a plebiscite in the unit or units affected
must be construed to mean that the remaining areas in the province of Negros Occidental should have been allowed
to participate in the said plebiscite. The reason is that cities belonging to Negros Occidental will be added to Negros
del Norte, thus Negros Occidentals land area will be dismembered. Certainly, the people of Negros Occidental
should have been allowed to vote in the plebiscite as they are directly affected by the diminution in land size of their
province.
A reading of the last sentence of the first paragraph of Section 197 LGC of 1983 says. The territory need not be
contiguous if it comprises 2 or more islands. The use of the word territory clearly reflects that the law refers only
to the land mass and excludes the waters over which the political unit has control. In other words, Negros del Norte
failed to meet the required land area of 3,500 sq. km for it to become a province.

Lopez v. COMELEC G. R. No. L-56022 & L-56124, May 31, 1985

The Court xxx came to the conclusion that the constitutional provision on the need for a majority of the
votes cast in the plebiscite in the unit or units affected would be satisfied even if "those voters who are not from the
barangay to be separated [were] excluded in the plebiscite." It cannot be argued therefore that the plebiscite held in
the areas affected to constitute Metropolitan Manila, having manifested their will, the constitutional provision relied
upon by petitioners has been satisfied.

Mun. of Malabang v. Benito G.R. No. L-28113, March 28, 1969

In the cases where a de facto municipal corporation was recognized as such despite the fact that the
statute creating it was later invalidated, the decisions could fairly be made to rest on the consideration that there was
some other valid law giving corporate vitality to the organization. Hence, in the case at bar, the mere fact that
Balabagan was organized at a time when the statute had not been invalidated cannot conceivably make it a de facto
corporation, as, independently of the Administrative Code provision in question, there is no other valid statute to
give color of authority to its creation.

Authority to create municipal corporations is essentially legislative in nature.

Pelaez vs. Auditor General, G. R. No. L-23825, December 24, 1965

Xxx the creation of municipalities, is not an administrative function, but one which is essentially
and eminently legislative in character. The question of whether or not "public interest" demands the exercise of
such power is not one of fact. it is "purely a legislative question or a political question.
Upon the other hand if the President could create a municipality, he could, in effect, remove any of its
12

officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for
his office would thereby become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he
Page

had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect,
exercising over them the power of control denied to him by the Constitution.
Notes
Note:

TYPES OF LOCAL GOVERNMENTS


1. De jure Municipal Corporations- those created or recognized by operation of law

2. De facto municipal corporations- where the people have organized themselves, under color of law, into
ordinary municipal bodies, and have gone on, year after year, raising taxes, making improvements, and
exercising their usual franchises, with their rights dependent quite as much on acquiescence as on the
regularity of their origin
Elements:
a. A valid law authorizing incorporation
b. An attempt in good faith to organize under it
c. A colorable compliance with law
d. An assumption of corporate powers

3. Municipal Corporation by prescription- exercised their powers from time immemorial with a charter
which is presumed to have been lost or destroyed.

Special thanks to:


Julse Bacolod
Lemuel Leal
Russel Pernites
Welfredo Pongot

..and to all who submitted their case


digests and made this possible.
Godbless EH 402!

13
Page
BASCO VS PAGCOR (MAY 1991 before enactment of LGC 1991)

BAsco contends that PD 1869(law creating PAGCOR) constitutes a waiver of the right
of the City of Manila to impose taxes and legal fees; that PD 1869 which exempts the franchise
holder from paying any tax of any kind or form, income or otherwise, as well as fees, charges or
levies of whatever nature, whether National or Local autonomy principle.

HELD: It is not violative of the principle of local autonomy for the power of the LGUs to create its
own source of revenue and to levy taxes fees and other charges is subject to subject to such
guidelines and limitation as the congress may provide.

IF the congress can grant the city of Manila the power to tax certain matters, it can also
provide for the exemptions or even take back the power.

PHILIPPINE PETROLEUM CORP VS. MUNICIPALITY OF PILILIA

PPC argues that the MUncipality of Pililia cannot subject them to pay local taxes such as
business tax, storage permit fees, mayors permit ad sanitary on the basis of the circulars
issued by the Sec. of Finance which orders the Provincial, City and Municipal treasurers to
refrain from collecting any local tax from businesses which manufactures petroleum products
subject to specific tax under the NIRC.

HELD: The PPC is liable to pay local taxes. A tax on business is distinct from a tax on the article
itself. Thus, if the imposition of tax on business of manufacturers etc. in petroleum products
contravene a declared national policy, it should have been expressly granted in PD 436.

FLORO CEMENT CORPORATION VS GOROSPE

Cement is not a mineral product but rather a manufactured product. Therefore Floro
Cement Corp. cannot use SEC.52 of PD 463 and Sec 5 of PD 231 to excuse itself from paying
manufacturers and exporters taxes to the municipality.

The exceptions mentioned in Sec. 52 of PD 463 only refers to machineries, equipment,


tools for production, etc as provided in Sec. 53 of the same decree. The manufacture and the
export of cement does not fall under the said provision for it is not a mineral product. It is not
cement that is mined, only the mineral products composing the finished product.

SECRETARY OF FINANCE VS ILARDE

Sec. of Finance argues that it there was no excess on the delinquent taxes collected
from Cipriano CAbaluna for according to him, EO 73 had accorded the Ministry of Finance the
authority to alter, increase or modify the tax structure.

HELD: EO 73 has merely designated the minister of finance to promulgate the rules and
regulations towars the implementation of EO 73.

PROPER RATE OF PENALTY FOR DELINQUENT REAL PROPERTY TAXES:

2% on the amount of the delinquent tax for each month of delinquency or fraction thereof
but in no case shall the total pending exceed 24% of the delinquent tax.

BENGUEST CORPORATION VS CBAA

Benguet Corp is questioning the act of CBAA in collecting realty taxes against them. It
contends that LGU are without any authority to levy realty taxes on mines pursuant to Sec. 52 of
PD 463.

HELD: The act of CBAA in collecting realty tax is valid for while LGUs are charged with fixing
the rate of real property taxes, it does not necessarily follow from that authority the
determination of whether or not to impose the tax. In fact, local governments have no alternative
but to collect taxes as mandated in Sec 38 of the real property tax code.

NATIONAL DEVELOPMENT CO. VS CEBU CITY

NDC is asking a full refund for the past assessment and collection made by cebu city on
their land and warehouse thereon. According to them, the land and warehouse belong to the
republic and therefore exempt from taxation.
HELD: NDC is not exempted from paying real estate taxes. NDC is an entity different from the
government and an agency performing purely corporate, proprietary or business functions.

The tax exemptions of property owned by the Republic of the Phil. Refers to the
properties owned by the government and by its agencies which do not have separate and
distinct personalities.

But the property (land subject of controversy) is exempt from payment of real estate taxes. As
the title remains with the Republic, the reserved land is clearly covered by the tax exemption
provision. The exemption of public property from taxation does not extend to improvements on
the public lands made by pre-emptioners, homesteaders, and other claimants, or occupants at
their own expense, and these are taxable by the state. Consequently, the warehouse
constructed on the reserved land by NWC, indeed, should properly be assessed real estate tax
as such improvement does not appear to belong to the republic.

PROVINCE OF TARLAC VS ALCANTARA

TArlac Enterprises refused to pay real property taxes for it is exempt from paying said
tax being a grantee of a franchise to generate, distribute and sell electric current for light.

HELD: Only taxes on earnings, receipts, income and privilege of generation, distribution
and sale shall not be collected in view of the imposition of the franchise tax. The enumerated
items have no relation and entirely different from real properties subject to tax.

Hence, they are liable to pay real property tax despite being a grantee of a franchise.
BASCO VS PAGCOR (MAY 1991 before enactment of LGC 1991)

BAsco contends that PD 1869(law creating PAGCOR) constitutes a waiver of the right
of the City of Manila to impose taxes and legal fees; that PD 1869 which exempts the franchise
holder from paying any tax of any kind or form, income or otherwise, as well as fees, charges or
levies of whatever nature, whether National or Local autonomy principle.

HELD: It is not violative of the principle of local autonomy for the power of the LGUs to create its
own source of revenue and to levy taxes fees and other charges is subject to subject to such
guidelines and limitation as the congress may provide.

IF the congress can grant the city of Manila the power to tax certain matters, it can also
provide for the exemptions or even take back the power.

PHILIPPINE PETROLEUM CORP VS. MUNICIPALITY OF PILILIA

PPC argues that the MUncipality of Pililia cannot subject them to pay local taxes such as
business tax, storage permit fees, mayors permit ad sanitary on the basis of the circulars
issued by the Sec. of Finance which orders the Provincial, City and Municipal treasurers to
refrain from collecting any local tax from businesses which manufactures petroleum products
subject to specific tax under the NIRC.

HELD: The PPC is liable to pay local taxes. A tax on business is distinct from a tax on the article
itself. Thus, if the imposition of tax on business of manufacturers etc. in petroleum products
contravene a declared national policy, it should have been expressly granted in PD 436.

FLORO CEMENT CORPORATION VS GOROSPE

Cement is not a mineral product but rather a manufactured product. Therefore Floro
Cement Corp. cannot use SEC.52 of PD 463 and Sec 5 of PD 231 to excuse itself from paying
manufacturers and exporters taxes to the municipality.

The exceptions mentioned in Sec. 52 of PD 463 only refers to machineries, equipment,


tools for production, etc as provided in Sec. 53 of the same decree. The manufacture and the
export of cement does not fall under the said provision for it is not a mineral product. It is not
cement that is mined, only the mineral products composing the finished product.

SECRETARY OF FINANCE VS ILARDE

Sec. of Finance argues that it there was no excess on the delinquent taxes collected
from Cipriano CAbaluna for according to him, EO 73 had accorded the Ministry of Finance the
authority to alter, increase or modify the tax structure.

HELD: EO 73 has merely designated the minister of finance to promulgate the rules and
regulations towars the implementation of EO 73.

PROPER RATE OF PENALTY FOR DELINQUENT REAL PROPERTY TAXES:

2% on the amount of the delinquent tax for each month of delinquency or fraction thereof
but in no case shall the total pending exceed 24% of the delinquent tax.

BENGUEST CORPORATION VS CBAA

Benguet Corp is questioning the act of CBAA in collecting realty taxes against them. It
contends that LGU are without any authority to levy realty taxes on mines pursuant to Sec. 52 of
PD 463.

HELD: The act of CBAA in collecting realty tax is valid for while LGUs are charged with fixing
the rate of real property taxes, it does not necessarily follow from that authority the
determination of whether or not to impose the tax. In fact, local governments have no alternative
but to collect taxes as mandated in Sec 38 of the real property tax code.

NATIONAL DEVELOPMENT CO. VS CEBU CITY

NDC is asking a full refund for the past assessment and collection made by cebu city on
their land and warehouse thereon. According to them, the land and warehouse belong to the
republic and therefore exempt from taxation.
HELD: NDC is not exempted from paying real estate taxes. NDC is an entity different from the
government and an agency performing purely corporate, proprietary or business functions.

The tax exemptions of property owned by the Republic of the Phil. Refers to the
properties owned by the government and by its agencies which do not have separate and
distinct personalities.

But the property (land subject of controversy) is exempt from payment of real estate taxes. As
the title remains with the Republic, the reserved land is clearly covered by the tax exemption
provision. The exemption of public property from taxation does not extend to improvements on
the public lands made by pre-emptioners, homesteaders, and other claimants, or occupants at
their own expense, and these are taxable by the state. Consequently, the warehouse
constructed on the reserved land by NWC, indeed, should properly be assessed real estate tax
as such improvement does not appear to belong to the republic.

PROVINCE OF TARLAC VS ALCANTARA

TArlac Enterprises refused to pay real property taxes for it is exempt from paying said
tax being a grantee of a franchise to generate, distribute and sell electric current for light.

HELD: Only taxes on earnings, receipts, income and privilege of generation, distribution
and sale shall not be collected in view of the imposition of the franchise tax. The enumerated
items have no relation and entirely different from real properties subject to tax.

Hence, they are liable to pay real property tax despite being a grantee of a franchise.
POLICE POWER

Liability for Judgments- Satisfying Executing Judgments

Tan Toco vs. Mun. of Iloilo

Facts:

The widow of Tan Toco sued the municipal council of Iloilo for the amount of P42,966.40, being the purchase price of two strips of land. The Court
of First Instance of Iloilo sentenced the said municipality to pay the plaintiff the amount so claimed, plus the interest. On account of lack of funds
the municipality of Iloilo was unable to pay the said judgment; the plaintiff had a writ of execution issue against the property of the said
municipality. The sheriff attached two auto trucks used for street sprinkling, one police patrol automobile, the police stations on Mabini street, and
in Molo and Mandurriao and the concrete structures, with the corresponding lots, used as markets by Iloilo.

Issue: WON the property levied are exempt from execution

Held:

YES. The Civil Code divides the property of provinces and towns (municipalities) into property for public use and patrimonial property. Provincial
roads and foot-path, squares, streets, fountains and public waters, drives and public improvements of general benefit built at the expense of the
said towns or provinces, are property for public use. All other property possessed by the said towns and provinces is patrimonial and shall be
subject to the provisions of the Civil Code except as provided by special laws.
It is generally held that property owned by a municipality, where not used for a public purpose but for quasi private purposes, is subject to
execution on a judgment against the municipality, and may be sold.

It is evident that the movable and immovable property of a municipality, necessary for governmental purpose, may not be attached and sold for
the payment of a judgment against the municipality. The supreme reason for this rule is the character of the public use to which such kind of
property is devoted. The necessity for government service justifies that the property of public of the municipality be exempt from execution

Makati vs CA

Facts:

The Municipality of Makati initiatied expropriation proceedings against Admiral Finance Creditors Consortium, Inc., Home Building System & Realty
Corporation and one Arceli P. Jo. Attached to Makatis complaint was a certification that a bank account had been opened with the PNB Buendia
Branch under petitioner's name containing the sum of P417,510.00, made pursuant to the provisions of PD 42. RTC appraised property at
P5,291,666.00 and ordered petitioner to pay amount minus the advanced payment of P338,160.00 which was earlier released to Admiral. Admiral
moved for the issuance of a writ of execution. RTC granted and issued writ. A Notice of Garnishment dated January 14, 1988 was served by sheriff
Pastrana upon the manager of the PNB Buendia Branch. However, he was informed that a "hold code" was placed on the account of petitioner.
Admiral filed motion, praying that an order be issued directing the bank to deliver to sheriff the amount equivalent to the unpaid balance due
under the RTC decision. Petitioner filed a motion to lift the garnishment, on the ground that the manner of payment of the expropriation amount
should be done in installments.

Issue: WON the funds deposited may be levied

Held:

NO. Well-settled is the rule that public funds are not subject to levy and execution, unless otherwise provided for by statute. More particularly, the
properties of a municipality, whether real or personal, which are necessary for public use cannot be attached and sold at execution sale to satisfy a
money judgment against the municipality. Municipal revenues derived from taxes, licenses and market fees, and which are intended primarily and
exclusively for the purpose of financing the governmental activities and functions of the municipality, are exempt from execution. The foregoing
rule finds application in the case at bar. Absent a showing that the municipal council of Makati has passed an ordinance appropriating from its
public funds an amount corresponding to the balance due under the RTC decision dated June 4, 1987, less the sum of P99,743.94 deposited in
Account No. S/A 265-537154-3, no levy under execution may be validly effected on the public funds of petitioner deposited in Account No. S/A
263-530850-7.

However, Makati had already used the land for three years. The court orders the plaintiff to pay the respondent the full amount of the
compensation.

Pasay vs CFI Manila

Facts:

V.D. Isip, Sons & Associates represented by Vicente David Isip entered into a contract with the City of Pasay. The former proceeded with the
construction of the new Pasay City Hall building and accomplished under various stages of construction the amount of work (including supplies and
materials) equivalent to an estimated value of P1,713,096.00 of the total contract price of P4,914,500.80. Pasay paid only the total amount of
P1,100,000.00 to VD Isip leaving an amount of P613,096.00 immediately due from the Pasay to the VD Isip. Pasay failed to pay. Action for specific
performance with damages was filed before the respondent Court. The parties arrived at a draft of amicable agreement which was submitted to
the Municipal Board of Pasay City for its consideration. Court granted an order of execution pursuant to which a writ of execution was issued.
Application for and notice of garnishment were made and effected upon the funds of appellant Pasay City Government with the PNB. VD Isip
moved for the quashal of the writ of execution and pushed to fight for their original claim and in effect setting aside the compromise agreement.
Issue: WON the Court was correct in refusing to quash the writ of execution

Held:

YES. Article 2037 of the New Civil Code which reads: "Article 2037. A compromise has upon the parties the effect and authority of res judicata; but
there shall be no execution except in compliance with a judicial compromise." VD Isip did not only succeed in enforcing the compromise but said
likewise wants to rescind the said compromise. It is clear from the language of the law, specifically Article 2041 of the New Civil Code that one of
the parties to a compromise has two options: 1) to enforce the compromise; or 2) to rescind the same and insist upon his original demand. VD Isip
in the case herein before Us wants to avail of both of these options. This cannot be done. They cannot ask for rescission of the compromise
agreement after it has already enjoyed the first option of enforcing the compromise by asking for a writ of execution resulting thereby in the
garnishment of the Pasay City funds deposited with the Philippine National Bank which eventually was delivered to them.

Paoay vs Manaois

Facts:

Teodoro Manaois having obtained a judgment against the municipality of Paoay, Ilocos Norte in civil case No. 8026 of the Court of First Instance of
Pangasinan, Judge De Guzman of said province issued a writ of execution against the defendant municipality. In compliance with said writ the
Provincial Sheriff of Ilocos Norte levied upon and attached certain properties including about forty fishery lots leased to thirty-five different persons
by the Municipality.The Provincial Fiscal of Ilocos Norte in representation of the municipality of Paoay, filed a petition in the CFI of Pangasinan
asking for the dissolution of that attachment of levy. Judge De Guzman in his order of October 6, 1949, denied the petition for the dissolution of
the attachment; a MR also denied. Instead of appealing from that order the municipality of Paoay has filed the present petition for certiorari with
the writ of preliminary injunction, asking that the order of respondent Judge dated October 6, 1946, be reversed and that the attachment of the
properties of the municipality be dissolved.

Issue: WON the properties (forty fishery lots) of the municipality may be levied

Held:

NO. The fishery or municipal waters of the town of Paoay, Ilocos Norte, which had been parceled out or divided into lots and later let out to private
persons for fishing purposes at annual rentals are clearly not subject to execution. In the first place, they do not belong to the municipality. They
may well be regarded as property of State. What the municipality of Paoay hold is merely what may be considered the usufruct or the right to use
said municipal waters, granted to it by section 2321 of the Revised Administrative Code. The municipality of Paoay is not holding this usufruct or
right of fishery in a permanent or absolute manner so as to enable it to dispose of it or to allow it to be taken away from it as its property through
execution. It is not a usufruct based on or derived from an inherent right of the town. It is based merely on a grant, more or less temporary, made
by the Legislature.
POWER OF TAXATION

SHARE OF LGU IN NATIONAL TAXES

PIMENTEL VS AGUIRRE

Facts:

This is a petition for certiorari and prohibition seeking to annul Section 1 of Administrative Order No.
372, issued by the President, insofar as it requires local government units to reduce their expenditures
by 25% of their authorized regular appropriations for non-personal services and to enjoin respondents
from implementing Section 4 of the Order, which withholds a portion of their internal revenue
allotments.

Issue: WON the AO violates the local fiscal autonomy of the LGUs

HELD:
NO. Section 1 of the AO does not violate local fiscal autonomy. Local fiscal autonomy does not rule out
any manner of national government intervention by way of supervision, in order to ensure that local
programs, fiscal and otherwise, are consistent with national goals. AO 372 is merely directory and has
been issued by the President consistent with his powers of supervision over local governments. A
directory order cannot be characterized as an exercise of the power of control. The AO is intended only
to advise all government agencies and instrumentalities to undertake cost-reduction measures that will
help maintain economic stability in the country. It does not contain any sanction in case of
noncompliance.

The Local Government Code also allows the President to interfere in local fiscal matters, provided that
certain requisites are met: (1) an unmanaged public sector deficit of the national government; (2)
consultations with the presiding officers of the Senate and the House of Representatives and the
presidents of the various local leagues; (3) the corresponding recommendation of the secretaries of the
Department of Finance, Interior and Local Government, and Budget and Management; and (4) any
adjustment in the allotment shall in no case be less than 30% of the collection of national internal
revenue taxes of the third fiscal year preceding the current one.

YES. Section 4 of AO 372 cannot be upheld. A basic feature of local fiscal autonomy is the automatic
release of the shares of LGUs in the national internal revenue. This is mandated by the Constitution and
the Local Government Code. Section 4 which orders the withholding of 10% of the LGUs IRA clearly
contravenes the Constitution and the law.
Appointive Official

De Rama vs CA

Case Digest: G.R. No. 131136. February 28, 2001

Conrado L. De Rama, petitioner, vs. The Court Of Appeals (Ninth Division, The Civil
Service Commission), Eladio Martinez, Divino De Jesus, Morell Ayala, Aristeo Catalla,
Daisy Porta, Flordeliza Oriasel, Graciela Glory, Felecidad Orinday, Ma. Petra Muffet Luce,
Elsa Marino, Bernardita Mendoza, Jane Macatangay, Adelfo Glodoviza and Florino
Ramos, respondents.

Facts: Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner
Conrado L. de Rama wrote a letter dated July 13, 1995 to the Civil Service Commission (or
CSC), seeking the recall of the appointments of fourteen (14) municipal employees.
Justifying his recall request on the allegation that the appointments of the said employees
were midnight appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation
of Article VII, Section 15 of the 1987 Constitution. The CSC denied petitioners request for
the recall of the appointments of the fourteen employees, for lack of merit. The CSC upheld
the validity of the appointments on the ground that they had already been approved by the
Head of the CSC Field Office in Lucena City, and for petitioners failure to present evidence
that would warrant the revocation or recall of the said appointments.

Issue: whether or not the recall made by petitioner is valid.

Ruling: No. It is the CSC that is authorized to recall an appointment initially approved, but
only when such appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations. Rule V, Section 9 of the Omnibus
Implementing Regulations of the Revised Administrative Code specifically provides that an
appointment accepted by the appointee cannot be withdrawn or revoked by the appointing
authority and shall remain in force and in effect until disapproved by the Commission.

Accordingly, the appointments of the private respondents may only be recalled on the
following grounds: (a) Non-compliance with the procedures/criteria provided in the agencys
Merit Promotion Plan; (b) Failure to pass through the agencys Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees
relative to promotion; or (d) Violation of other existing civil service law, rules and
regulations.
Posted by Brandon Mentol

Private Counsels
ALINSUG v RTC

FACTS

: Zonsayda L. Alinsug, had been a regular employee of the municipal government of


Escalante, Negros Occidental, when she received a permanent appointment as Clerk III in the
office of the Municipal Planning and Development Coordinator of the same municipality.
She absentedherself from work to attend to family matters. She had asked permission from
the personnel officer but not from the mayor. Mayor Ponsica issuedOffice Order No. 31,
suspending Zonsayda for one month and one day commencing on 24 June 1992 for "a simple
misconduct which can also becategorized as an act of insubordination." The order also stated
that the suspension "carries with it forfeiture of . . . benefits such as . . . salary andPERA and
leave credits during the duration of its effectivity." Zonsayda filed with the Regional Trial
Court of Negros Occidental, in San Carlos City,a petition, for "injunction with damages and
prayer for temporary restraining order and preliminary injunction" against Mayor Ponsica and
themunicipal treasurer. Mayor Ponsica and the municipal treasurer filed an answer to the
petition, through private practitioner Samuel SM Lezama,alleging that the petitioner had not
exhausted administrative remedies and that her suspension was in accordance with law.

ISSUE

: WON a private counsel may represent municipal officials sued in their official capacities?

HELD

: The appointment of a legal officer shall bemandatory for the provincial and city
governments and optional for the municipal government

. Section 481, Article 11 of Title V of the Local Government Code, paragraph (i) states one of
the functions of the legal officer :

(i) Represent the local government unit in all civil actions and special proceedings wherein
the local government unit or anyofficial thereof, in his official capacity, is a party:

Provided , that in actions or proceedings where a component city or municipality is a party


adverse to the provincial government or to another component city or municipality, a special
legalofficer may be employed to represent the adverse party.Indeed, it appears that the law
allows a private counsel to be hired by a municipality only when the municipality is an
adverse party in a case involving the provincial government or another municipality or city
within the province. This provision has its apparent origin in the ruling in DeGuia v. The
Auditor General where the Court held that the municipality's authority to employ a private
attorney is expressly limited only to situations where the provincial fiscal would be
disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code as legal
basis, the Court therein cited Enriquez, Sr. v. Gimenez which enumerated instances when the
provincial fiscal is disqualified to represent in court a particular municipality; if and when
original jurisdiction of case involving the municipality is vested in the Supreme Court, when
the municipality is a party adverse to the provincial government or to some other
municipality in the same province, and when, in a case involving the municipality, he, or his
wife, or child, is pecuniary involved, as heir legatee, creditor or otherwise.

MUNICIPALITY OF PILILLA, RIZAL vs. COURT OF APPEALS

REGALADO, J.:

Facts: Atty. Felix E. Mendiola served as counsel for the Municipality of Pililia in a collection
suit for unpaid business taxes, storage permit fee, mayors permit fee, sanitary inspection fee,
and the cost of the suit against private respondent Philippine Petroleum Corporation (PPC).
The municipality won in the trial court, and when PPC elevated the case to the Supreme
Court, the SC affirmed the aforesaid judgment. The judgment became final and executory
and the records were remanded to the trial court for execution.

In connection with the execution of said judgment, Atty. Felix E. Mendiola filed a motion in
behalf of the municipality for the examination of defendant corporation's gross sales for the
years 1976 to 1978 and 1984 to 1991 for the purpose of computing business tax. Defendant
corporation filed a manifestation that Pililla Mayor Nicomedes Patenia received from it the
sum of P11,457,907.00 as full satisfaction of the above-mentioned judgment of the Supreme
Court, as evidence by the release and quitclaim documents executed by said mayor. The RTC
denied the municipality's motion for examination and execution of judgment on the ground
that the judgment had already been satisfied.

It was when the case was only when the case was brought before to the CA that respondent
PPC filed a motion questioning Atty. Mendiola's authority to represent petitioner
municipality. The Court of Appeals dismissed the petition for having been filed by a private
counsel in violation of law and jurisprudence, but without prejudice to the filing of a similar
petition by the Municipality of Pililla through the proper provincial or municipal legal officer.

Issue: Whether or not Atty. Mendiola can represent the Municipality of Pilila

Held: No. The Court of Appeals is correct in holding that Atty. Mendiola has no authority to
file a petition in behalf of and in the name of the Municipality of Pililla. Section 1683 of the
Revised Administrative Code provides:

Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in


litigation. The provincial fiscal shall represent the province and any municipality
or municipal district thereof in any court, except in cases whereof original jurisdiction
is vested in the Supreme Court or in cases where the municipality or municipal district
in question is a party adverse to the provincial government or to some other
municipality or municipal district in the same province. When the interests of a
provincial government and of any political division thereof are opposed, the
provincial fiscal shall act on behalf of the province.

When the provincial fiscal is disqualified to serve any municipality or other political
subdivision of a province, a special attorney may be employed by its council.

Only the provincial fiscal and the municipal attorney can represent a province or municipality
in their lawsuits. The provision is mandatory. The municipality's authority to employ a
private lawyer is expressly limited only to situations where the provincial fiscal is
disqualified to represent it.

The fact that the provincial fiscal was disqualified to handle the municipality's case must
appear on record. In the case, there is nothing in the records to show that the provincial fiscal
is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the
appearance of herein private counsel is without authority of law.

The submission of Atty. Mendiola that the exception is broad enough to apply to situations
where the provincial fiscal refuses to handle the case cannot be sustained. The fiscal's refusal
to represent the municipality is not a legal justification. A fiscal cannot refuse to perform his
functions on grounds not provided for by law without violating his oath of office. Instead of
engaging the services of a special attorney, the municipal council should request the
Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who
has declined to handle and prosecute its case in court.

It should also be noted that the lack of authority of Atty. Mendiola, was even raised by the
municipality itself in its comment and opposition to said counsel's motion for execution of his
lien, which was filed by the office of the Provincial Prosecutor of Rizal in behalf of said
municipality.

The contention of Atty. Mendiola that private respondent cannot raise for the first time on
appeal his lack of authority to represent the municipality is untenable. The legality of his
representation can be questioned at any stage of the proceedings.

Also, even assuming that the representation of the municipality by Atty. Mendiola was duly
authorized, said authority is deemed to have been revoked by the municipality when the
latter, through the municipal mayor and without said counsel's participation, entered into a
compromise agreement with PPC.

WHEREFORE, the petition at bar is DENIED for lack of merit and the judgment of
respondent Court of Appeals is hereby AFFIRMED.

Ramos vs CA (GR 99425)

Private attorneys cannot represent a province or municipality in lawsuits. Law allows a


private counsel to be hired by a municipality only when the municipality is an adverse party
in a case involving the provincial government or another municipality or city within the
province. Only accountable public officers may act for and in behalf of public entities and
that public funds should not be expanded to hire private lawyers.

Salalima v. Guingona

GR No. 117589-92, May 22 1996

FACTS:
This Supreme Court case involves four administrative complaints filed against Albay
Governor Salalima and the members of the Sangguniang Panlalawigan of Albay. The
complaints seek to hold the petitioners liable for a) wanton disregard of law amounting to
abuse of authority in OP case 5470; b) grave abuse of authority under Section 60 (e) of the
Local Government Code in OP cae 5649; c) oppression and abuse of authority under Section
60 (c) and (e) of the Local Government Code in OP case 5471 and d) abuse of authority and
negligence in OP case 5450. Relevant to our discussion on whether or not LGUs can hire
private lawyers in cases filed against it is OP case 5469.

The Province of Albay imposed real property tax against the National Power
Corporation. The latter, claiming that it is tax exempt, refused to pay the said tax liability.
Due to its refusal to pay, the Province of Albay took over the properties of NPC and sold
them in an auction sale. The Province was the sole bidder. Upon the failure of NPC to redeem
the property, the Province sought the issuance of a writ of possession from the Regional Trial
Court. The NPC challenged this in a petition filed with the Supreme Court. The Province,
through its legal office Atty. Ricaforte, filed its comment on the said petition on May 17,
1989.

On June 2, 1989, the Sangguniang Panlalawigan issued Resolution No. 129-89,


authorizing Salalima to engage the services of a Manila-based law firm to handle the case. As
such, on August 25, 1989, Atty. Jesus Carnago entered his appearance with the SC as a
collaborating counsel. On November 14, 1989, Atty. Antonio Jose Cortes of Cortes and
Reyna Law Firm sent a letter to Salalima, informing him that Atty. Carnago had filed a
memorandum in the SC. He then proposed that his law firm and that of Atty. Carnago enter
into a retainer agreement with the Province in connection with the case. He charged 50, 000
as acceptance fee and a contingency fee of 18%. In response to this, the Sangguniang
Panlalawigan passed Resolution No. 01-90 authorizing Salalima to sign a retainer contract
with Cortes and Reyna Law Firm.

On June 4, 1990, the Supreme Court ruled in favor of the Province. The latter then
paid the lawyers amounting to around 7 million. However, on May 31, 1993, the Provincial
Auditor informed the Province that COA had disallowed the payments for lack of prior
written conformity of the Solicitor General and a written concurrence of COA. An
administrative complaint was later on filed against the petitioners with the Office of the
President.

The OP found that the petitioners incurred administrative liability in hiring private
lawyers to defend it in the NPC case.

OPs RATIO

1. Section 481 of the LGC states that the legal officer of the province has the duty to
represent the LGU in all civil actions and special proceedings wherein the LGU or
any official thereof, in his official capacity, is a party.
2. In the case Municipality of Bocaue v. Manotok, the Supreme Court ruled that the
LGU cannot be represented by private lawyers and it is solely the Provincial legal
officer or provincial fiscal who can represent it. A private lawyer has no standing in
such a case.
3. Sec. 481 and Municipality of Bocaue v. Manotok are applicable in this case. In hiring
the private lawyers, the petitioners violated the LGC and the doctrine laid down by
the Supreme court.
4. Moreover, the transaction was also full of irregularities.
a. The disbursement of 7M as payment was disallowed by COA for failure to
comply with the prerequisite conformity from the SolGen and the COA.
b. Resolution 01-90 authorized Salalima to contract with Cortes and Reyna Law
Firm and NOT with Atty. Carnago. Salalima exceeded the authority given to him
in doing so.
c. Only Atty. Carnago appeared as counsel in the NPC case. It appears that Cortes
and Reyna did not render any form of legal service in relation thereto.
d. The provincial legal officer had already filed a comment in the SC. What Carnago
filed was merely a memorandum. The total attorneys fees of 38 Million is clearly
unconscionable.

Because of these findings, the OP imposed the penalty of suspension for 6 months
against Gov. Salalima and Vice governor Azana, while the members of the SP
were suspended for 4 months. The petitioners appealed the case to the SC. In the
meantime, the 1992 elections took place wherein the petitioners were reelected.

ISSUE: WON the petitioners incurred administrative liabilities in hiring private lawyers to
represent the Province

HELD: Whether or not they incurred liabilities, they can no longer be held to answer for
these in view of the fact that they have already been reelected. Their reelection operates as
condonation of any misconduct committed in their prior term.

RATIO

In Pascual v. Pascual, the SC ruled that offenses committed or acts done in a previous
term are generally held not to furnish a cause for removal in the current term of office. This is
because each term is separate from other terms and that the reelection operates as a
condonation of the officers previous misconduct to the extent of cutting off the right to
remove him therefore. Such a rule is founded on the theory that an officials reelection
expresses the sovereign will of the electorate to forgive or condone any act or omission
constituting a ground for administrative discipline which was committed during the previous
term. Also, sound policy dictates such a rule. A contrary rule would open the floodgates to
exacerbating endless partisan contests between reelected officials and their political enemies
who may not stop to hound the former during his new term with administrative cases for acts
alleged to have been committed during his previous term.

RULING: OP Decision imposing penalties is reversed and set aside


1. Pelaez vs Auditor General
FACTS:

From September 4, 1964 to October 29, 1964 the President of the Philippines issued executive orders to create thirty-three
municipalities pursuant to Section 69 of the Revised Administrative Code. Public funds thereby stood to be disbursed in
the implementation of said executive orders.

Suing as a private citizen and taxpayer, Vice President Emmanuel Pelaez filed a petition for prohibition with preliminary
injunction against the Auditor General. It seeks to restrain from the respondent or any person acting in his behalf, from
passing in audit any expenditure of public funds in implementation of the executive orders aforementioned.

ISSUE: Whether the executive orders are null and void, upon the ground that the President does not have the authority to
create municipalities as this power has been vested in the legislative department.

RULING:

Section 10(1) of Article VII of the fundamental law ordains:

The President shall have control of all the executive departments, bureaus or offices, exercise general supervision over
all local governments as may be provided by law, and take care that the laws be faithfully executed.
The power of control under this provision implies the right of the President to interfere in the exercise of such discretion
as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as
well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local
governments are concerned. Such control does not include the authority to either abolish an executive department or
bureau, or to create a new one. Section 68 of the Revised Administrative Code does not merely fail to comply with the
constitutional mandate above quoted, it also gives the President more power than what was vested in him by the
Constitution.

The Executive Orders in question are hereby declared null and void ab initio and the respondent permanently restrained
from passing in audit any expenditure of public funds in implementation of said Executive Orders or any disbursement by
the municipalities referred to.
2. Mun of san narciso vs mendez

G.R. No. 103702 December 6, 1994


FACTS:
On 20 August 1959, President Carlos P. Garcia, issued, pursuant to the then Sections 68 and 2630 of the Revised
Administrative Code, as amended, Executive Order No. 353 creating the municipal district of San Andres, Quezon, by
segregating from the municipality of San Narciso of the same province, the barrios of San Andres, Mangero, Alibijaban,
Pansoy, Camflora and Tala along with their respective sitios. EO No. 353 was issued upon the request, addressed to the
President and coursed through the Provincial Board of Quezon, of the municipal council of San Narciso, Quezon. By
virtue of EO No. 174, dated 05 October 1965, issued by President Diosdado Macapagal, the municipal district of San
Andres was later officially recognized to have gained the status of a fifth class municipality beginning 01 July 1963 by
operation of Section 2 of Republic Act No. 1515. 2 The executive order added that (t)he conversion of this municipal
district into (a) municipality as proposed in House Bill No. 4864 was approved by the House of Representatives.
Petitioner Municipality of San Narciso: filed a petition for quo warranto with RTC which petition sought the declaration
of nullity of EO No. 353 Invoking the ruling of this Court in Pelaez v. Auditor General.
Respondent San Andres: San Narciso is estopped from questioning the creation of the new municipality and that the case
had become moot and academic with the enactment of Republic Act No. 7160 (Sec. 442. Requisites for Creation. . .
.(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such.)
Petitioner: The above provision of law was inapplicable to the Municipality of San Andres since the enactment referred to
legally existing municipalities and not to those whose mode of creation had been void ab initio.

ISSUE: W/N Municipality of San Andres is a de jure or de facto municipal corporation.


HELD:
Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only
after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the
legality of the executive order. Granting the Executive Order No. 353 was a complete nullity for being the result of an
unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a
choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own
closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot
allow it to be otherwise. Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres had been
in existence for more than six years when, on 24 December 1965, Pelaez v. Auditor General was promulgated. The ruling
could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not
to be the case. On the contrary, certain governmental acts all pointed to the States recognition of the continued existence
of the Municipality of San Andres. Thus, after more than five years as a municipal district, Executive Order No. 174
classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement laid
out in Republic Act No. 1515. At the present time, all doubts on the de jure standing of the municipality must be
dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives,
appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12)
municipalities composing the Third District of the province of Quezon. Equally significant is Section 442(d) of the Local
Government Code to the effect that municipal districts organized pursuant to presidential issuances or executive orders
and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the)
Code shall henceforth be considered as regular municipalities.
All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded.
3. THE MUNICIPALITY OF SOGOD vs HON. AVELINO S. ROSAL,.

G.R. No. L-38204 September 24, 1991

Facts:

On June 15, 1950, Congress passed Republic Act No. 522 creating the municipality of Bontoc, formerly a barrio of the
municipality of Sogod in the province of Leyte, which shall be composed of the barrios of Bontoc, Divisoria, Onion,
Pacu, Beniton, Catmon, Hilaan, Taa, Sta. Cruz, Mahayahay and their corresponding sitios.

A boundary dispute however, later arose between the municipality of Bontoc and the municipality of Sogod with the latter
claiming that the former exercised jurisdiction not only over the barrios above-mentioned but also over other ten (10)
barrios allegedly belonging to Sogod.

On July 18, 1960, the Provincial Board of Southern Leyte passed Resolution No. 62 suspending the implementation of
Executive Order 368. The Board also created a committee to conduct the holding of a plebiscite in the barrios and sitios
affected by Executive Order 368 and to finally settle the boundary dispute.

On June 24, 1970, the municipality of Sogod filed a cases for certiorari and prohibition with the now Regional Trial
Court., to enjoin the provincial board and provincial governor from taking cognizance of the long pending boundary
dispute between the two municipalities and to enjoin the municipality of Bontoc from exercising territorial jurisdiction
over the barrios of Pangi, Taa Casao, Sta. Cruz, Tuburan and Laogawan all allegedly belonging to the municipality of
Sogod.

Issue: whether the trial court has the authority to decide on the municipal boundary dispute

Held: NO

Republic Act No. 522 defines the jurisdiction of the municipality of Bontoc. It clearly enumerates the barrios which shag
compose the municipality of Bontoc, to wit: Bontoc, Divisoria, Onion, Pacu, Beniton, Catmon, Hilaan, Taa Sta. Cruz,
Mahayahay and their corresponding sitios. This means that all the other barrios in Southern Leyte which are not included
in the law creating the municipality of Bontoc are deemed to remain under the jurisdiction of the municipality of Sogod.
Although the said law is clear as to which territories shall belong to each municipality, the law is silent however, as to the
specifications of the boundary line which will separate the two municipalities.

With the passage of Republic Act No. 2370 which took effect on January 1, 1960 as revised by Republic Act No. 3590 on
June 22, 1963, known as the Revised Barrio Charter, barrios may be created and their boundaries altered only by Act of
Congress or by the corresponding provincial board upon petition of the majority of the voters in the area affected and the
recommendation of the municipality in which the proposed barrios are situated. Thus, the provincial board was
empowered under the Id law to determine and alter boundaries of municipalities and barrios.

Further, the law then vested the right to settle boundary disputes between municipalities on the provincial board pursuant
to Section 2167 of the Revised Administrative Code, which reads:

SEC. 2167. Municipal boundary disputes. How settled Disputes as to jurisdiction of municipal
governments over places or barrios shall be decided by the province boards of the provinces in which
such municipalities are situated, after an investigation at which the municipalities concerned shall be duly
heard. From the decision of the provincial board appeal may be taken by the municipality aggrieved to the
Secretary of the Interior (now the Office of the Executive Secretary), whose decision shall be final. Where
the places or barrios in dispute are claimed by municipalities situated in different provinces, the provincial
boards of the provinces concerned shall come to an agreement if possible, but, in the event of their failing
to agree, an appeal shall be had to the Secretary of Interior (Executive Secretary), whose decision shall be
final. (Municipality of Hinabangan v. Municipality of Wright, 107 Phil. 394).

It is clear from the aforestated legal provision that the authority to hear and resolve municipal boundary disputes belongs
to the provincial boards and not to the trial courts. The decisions of the boards are then appealable to the Executive
Secretary.

In Pelaez v. Auditor General, No. L-23825, December 24, 1965, 15 SCRA 569, which applied Republic Act No. 2370,
known as the Barrio Charter, We held that the power to fix common boundaries in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities may also partake of an administrative nature that can be decided by the
administrative department, involving as it does, the adoption of means and ways to carry into effect the laws creating said
municipalities.

Considering the foregoing, We find that the trial court acted correctly in dismissing the cases for want of jurisdiction and
in allowing the provincial board to continue with the pending investigation and proceedings on the boundary dispute.
However, The 1987 Constitution now mandates that 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. Hence, any alteration or modification of the boundaries of the municipalities shall only be by a law to be enacted
by Congress subject to the approval by a majority of the votes cast in a plebiscite in the barrios affected (Section 134,
Local Government Code). Thus, under present laws, the function of the provincial board to fix the municipal boundaries
are now strictly limited to the factual determination of the boundary lines between municipalities, to be specified by
natural boundaries or by metes and bounds in accordance with the laws creating said municipalities.
4. Cawaling vs. COMELEC
G.R. No. 146319, October 26, 2001

Facts:
On August 16, 2000, former President Joseph E. Estrada signed into law R.A. No. 8806, an "Act Creating The City Of
Sorsogon By Merging The Municipalities Of Bacon And Sorsogon In The Province Of Sorsogon, And Appropriating
Funds Therefor." The COMELEC a plebiscite in the Municipalities of Bacon and Sorsogon and submitted the
matter for ratification proclaimed the creation of the City of Sorsogon as having been ratified and approved by the
majority of the votes cast in the plebiscite.
Petitioner instituted another petition declaring enjoin R.A. No. 8806 unconstitutional , contending, in essence,
that: The creation of Sorsogon City by merging two municipalities violates Section 450(a) of the Local
Government Code of 1991 (in relation to Section 10, Article X of the Constitution) which requires that only "a
municipality or a cluster of barangays may be converted into a component city"; and Petitioner contends that under
Section 450(a) of the Code, a component city may be created only by converting "a municipality or a cluster of
barangays," not by merging two municipalities, as what R.A. No. 8806 has done.

Issue: (1) WON a component city may be created by merging two municipalities.

Held:
Yes. Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase
"A municipality or a cluster of barangays may be converted into a component city" is not a criterion but simply one of the
modes by which a city may be created. Section 10, Article X of the Constitution allows the merger of local government
units to create a province city, municipality or barangay in accordance with the criteria established by the Code. The
creation of an entirely new local government unit through a division or a merger of existing local government
units is recognized under the Constitution, provided that such merger or division shall comply with the requirements
prescribed by the Code.
5. Bagabuyo vs. COMELEC

FACTS:
A representative of the city of Cagayan de Oro file and sponsored a bill (HB No.5859) which later became a law (RA
No. 9371). The said law increased the citys legislative district from one to two. COMELEC promulgated a resolution
implementing the said law for election purposes. Herein petitioner filed a petition against COMELEC arguing that it
cannot implement the law without the commencement of a plebiscite of which is indispensable for the division and
conversion of a local government unit. Inr elation to this, petitioner prayed for a TRO or writ of preliminary
injunction. Both were not granted, and the National and Local elections proceeded.

ISSUE: Whether or not the law, of which pertains to the legislative apportionment of a city, involve the division and
conversion of a local government unit

HELD: Petition DISMISSED for lack of merit.

Creation, division, merger, abolition, and alteration of boundaries under Art. X Sec. 10 requires the
commencement of a plebiscite, while legislative apportionment or reapportionment under Art. VI, Sec.5 need not.

They are related but are different from each other. Both provisions mentioned above are within the vested authority of the
legislature. The Legislature undertakes the apportionment and reapportionment of legislative districts, and likewise acts
on local government units by setting standards for their creation, division, merger, abolition and alteration of boundaries
and by actually creating, dividing, merging, abolishing local government units and altering their boundaries through
legislation. Other than this, not much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.

In the case at bar, no division of CDO city takes place or is mandated. CDO city politically remains a single unit and its
administration is not divided along territorial line. Its territory remains completely whole and intact; there is only the
addition of another legislative district and the delineation of the city into two districts for purposes of representation in the
House of Representatives.

Thus, Art. X, Sec.10 of the Constitution does not come into play and no plebiscite is necessary to validly apportion
Cagayan de Oro into two districts
Legislative Apportionment
-the determination of the number of representatives which a State, country or other subdivision may send to a legislative
body
-The allocation of seats in a legislative body in proportion to population; the drawing of voting district lines so as to
equalize population and voting power among the district

Reapportionment -The realignment or change in legislative districts brought about by changes in population and mandated
by the constitutional requirement of equality of representation
6. Navarro vs Executive Sec.

Facts:
The National Statistics Office certified that Dinagat Islands population is 120,813. Its land area is 802.12 square
kilometers and its average annual income is P82,696,433.23, as certified by the Bureau of Local Government Finance. On
October 2, 2006, the President approved into law R.A. 9355 creating the Province of Dinagat Islands. On December 3,
2006, the COMELEC conducted the mandatory plebiscite for the ratification of the creation of the province under the
LGC which yielded 69,943 affirmative votes and 63,502 negative votes. With the approval of the people from both the
mother province of Surigao del Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim
set of provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized
elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.

Meanwhile, on November 10, 2006, petitioners Rodolfo G. Navarro and other former political leaders of Surigao
del Norte, filed before the SC a petition for certiorari and prohibition (G.R. No. 175158) challenging the constitutionality
of R.A. No. 9355 alleging that that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal
act of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory,
Internal Revenue Allocation (IRA), and rich resources from the area.

Issue: Is R.A. No. 9355 constitutional?

Held: February 10, 2010 Ruling

No. The SC ruled that the population of 120,813 is below the Local Government Code (LGC) minimum
population requirement of 250,000 inhabitants. Neither did Dinagat Islands, with an approximate land area of 802.12
square kilometers meet the LGC minimum land area requirement of 2,000 square kilometers. The Court reiterated its
ruling that paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code, which
exempts proposed provinces composed of one or more islands from the land area requirement, was null and void as the
said exemption is not found in Sec. 461 of the LGC. There is no dispute that in case of discrepancy between the basic
law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations
cannot go beyond the terms and provisions of the basic law, held the Court. (GR No. 180050, Navarro v. Ermita, May
12, 2010)

The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for
reconsideration of the Decision. In its Resolution dated May 12, 2010, the Supreme Court denied the said motions.

April 12, 2011 Ruling

Yes. In Navarro vs. Executive Secretary (G.R. no. 180050, April 12, 2011), the Honorable Supreme Court ruled that
Republic Act No. 9355 is as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands
and the election of the officials thereof are declared VALID.

The SC also ruled that the provision in Article 9(2) of the Rules and Regulations Implementing the Local Government
Code of 1991 stating, The land area requirement shall not apply where the proposed province is composed of one (1) or
more islands, is declared VALID.

According to the SC, with respect to the creation of barangays, land area is not a requisite indicator of
viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators
of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is
exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local
government unit to be created is a municipality or a component city, respectively. This exemption is absent in the
enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated
under Article 9(2) of the LGC-IRR.

xxx There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but
not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood
that islands or group of islands would form part of the land area of a newly-created province than in most cities or
municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442
(for municipalities) and Section 450 (for component cities) of the LGC, but fellester.blogspot.com was inadvertently
omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR,
the inclusion was intended to correct the congressional oversight in Section 461 of the LGC and to reflect the true
legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.

xxxConsistent with the declared policy to provide local government units genuine and meaningful local
autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally
construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could
prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that
consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities
and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450
and 442, respectively, of the LGC. Yet, the province would be made to comply with the minimum land area criterion of
2,000 square kilometers, even if it consists of several islands. fellester.blogspot.com This would mean that Congress has
opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands
and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic
services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-
kilometer territory of a province is scattered because the islands are separated by bodies of water, as compared to one with
a contiguous land mass.

xxx What is more, the land area, while considered as an indicator of viability of a local government unit, is not
conclusive in showing that Dinagat cannot become a province, taking into account its average annual income
of P82,696,433.23 at the time fellester.blogspot.com of its creation, as certified by the Bureau of Local Government
Finance, which is four times more than the minimum requirement of P20,000,000.00 for the creation of a province. The
delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at the results of
the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot operate in favor of
Dinagats existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a
province. (Navarro vs. Executive Secretary (G.R. no. 180050, April 12, 2011)
7. TAN vs. COMELEC
G.R. No. 73155 July 11, 1986

Governing law: Art XI Sec. 3 of Constitution in relation to Sec. 197 of Local Government Code

Facts:
This case was 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, effective Dec. 3, 1985. (Cities of Silay, Cadiz and San Carlos
and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona, and Salvador
Benedicto proposed to belong to the new province).

Pursuant to and in implementation of this law, the COMELEC scheduled a plebiscite for January 3, 1986. Petitioners
opposed, filing a case for Prohibition and contending that the B.P. 885 is unconstitutional and not in complete accord with
the Local Government Code because:
The voters of the parent province of Negros Occidental, other than those living within the territory of the new province
of Negros del Norte, were not included in the plebiscite.
The area which would comprise the new province of Negros del Norte would only be about 2,856.56 sq. km., which is
lesser than the minimum area prescribed by the governing statute, Sec. 197 of LGC.

Issue:
WON the plebiscite was legal and complied with the constitutional requisites of the Consititution, which states that
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? NO.

Held:
Whenever a province is created, divided or merged and there is substantial alteration of the boundaries, the approval of a
majority of votes in the plebiscite in the unit or units affected must first be obtained. The creation of the proposed new
province of Negros del Norte will necessarily result in the division and alteration of the existing boundaries of Negros
Occidental (parent province).

Plain and simple logic will demonstrate 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.

Paredes vs. Executive (G.R. No. 55628) should not be taken as a doctrinal or compelling precedent. Rather, the dissenting
view of Justice Abad Santos is applicable, to wit:

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 of the people of two or more municipalities if there be a merger.

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 adverse economic effects it might suffer, eloquently argue the points raised by the
petitioners.

SC pronounced that the plebscite has no legal effect for being a patent nullity.
8 Torralba vs mun. of sibagat
FACTS:

Batas Pambansa 56, enacted February 1980, created the Municipality of Sibagat, Province of Agusan del Sur. Petitioners
assail its validity for being violative of Section 3, Article XI, 1973 Constitution:

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 cast in a plebiscite in the unit or units affected.

Petitioners argued that the LGC must first be enacted to determine the criteria for the creation of any province, city,
municipality, or barrio and since no LGC had yet been enacted as of the date BP 56 was passed, the latter could not have
possibly complied with any criteria when the Municipality was created.
The Local Government Code came into being only on 10 February 1983 so that when BP 56 was enacted, the code was
not yet in existence.

HELD:

The absence of the Local Government Code at the time of its enactment did not curtail nor was it intended to cripple
legislative competence to create municipal corporations. Section 3, Article XI of the 1973 Constitution does not proscribe
nor prohibit the modification of territorial and political subdivisions before the enactment of the Local Government Code.
It contains no requirement that the Local Government Code is a condition sine qua non for the creation of a municipality,
in much the same way that the creation of a new municipality does not preclude the enactment of a Local Government
Code. What the Constitutional provision means is that once said Code is enacted, the creation, modification or dissolution
of local government units should conform with the criteria thus laid down. In the interregnum before the enactment of
such Code, the legislative power remains plenary except that the creation of the new local government unit should be
approved by the people concerned in a plebiscite called for the purpose.

The creation of the new Municipality of Sibagat conformed to said requisite. A plebiscite was conducted and the people of
the unit/units affected endorsed and approved the creation of the new local government unit. In fact, the conduct of said
plebiscite is not questioned herein. The officials of the new Municipality have effectively taken their oaths of office and
are performing their functions. A dejure entity has thus been created.

The power to create a municipal corporation is legislative in nature. In the absence of any constitutional limitation, a
legislative body may create any corporation it deems essential for the more efficient administration of government. The
creation of the new Municipality was a valid exercise of legislative power vested by the 1973 Constitution in the Interim
Batasang Pambansa. (Torralba vs. Municipality of Sibagat, G.R. No. 59180. Jan. 29, 1987 147 SCRA 390)
9. Province of North Cotabato vs Government of the Republic of the Philippines
G.R. No. 183591 October 14 2008

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation Front (MILF)
were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of the GRP - MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel respondents to disclose and
furnish them the complete and official copies of the MA-AD and to prohibit the slated signing of the MOA-AD and the
holding of public consultation thereon. They also pray that the MOA-AD be declared unconstitutional. The Court issued a
TRO enjoining the GRP from signing the same.

ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2.. Whether or not the signing of the MOA, the Government of the Republic of the Philippines would be binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political
subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local government units or
communities affected constitutes a departure by respondents from their mandate under EO No. 3. Moreover, the
respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged
violation of the Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the
Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping
with the liberal stance adopted in David v. Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to
have ripened into a judicial controversy even without any other overt act . Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.x x x x
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility
of the courts.
That the law or act in question is not yet effective does not negate ripeness.

2.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political
subdivision not recognized by law;

Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status
of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative
relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by
the Constitution to any local or regional government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much
less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely
an expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in
the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to
enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit
animating it which has betrayed itself by its use of the concept of association runs counter to the national sovereignty
and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers
of the BJE are in conflict with the Constitution and the laws. The BJE is more of a state than an autonomous region. But
even assuming that it is covered by the term autonomous region in the constitutional provision just quoted, the MOA-
AD would still be in conflict with it.
b) to revise or amend the Constitution and existing laws to conform to the MOA:

The MOA-AD provides that any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework, implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect,
guaranteed to the MILF the amendment of the Constitution .

It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the
Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to
recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits
to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as
an unconstitutional act.

The suspensive clause in the MOA-AD viewed in light of the above-discussed standards.

Given the limited nature of the Presidents authority to propose constitutional amendments, she cannot guarantee
to any third party that the required amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
10. League of Cities vs Comelec

During the 11th Congress, 57 bills seeking the conversion of municipalities into component cities were filed
before the House of Representatives. However, Congress acted only on 33 bills. It did not act on bills converting 24 other
municipalities into cities. During the 12thCongress, R.A. No. 9009 became effective revising Section 450 of the Local
Government Code. It increased the income requirement to qualify for conversion into a city from P20 million annual
income to P100 million locally-generated income. In the 13th Congress, 16 of the 24 municipalities filed, through their
respective sponsors, individual cityhood bills. Each of the cityhood bills contained a common provisionexempting the
particular municipality from the 100 million income requirement imposed by R.A. No. 9009. Are the cityhood laws
converting 16 municipalities into cities constitutional?

November 18, 2008 Ruling

No. The SC (voting 6-5) ruled that the exemptions in the City Laws is unconstitutional because sec. 10, Art. X of
the Constitution requires that such exemption must be written into the LGC and not into any other laws. The Cityhood
Laws violate sec. 6, Art. X of the Constitution because they prevent a fair and just distribution of the national taxes to
local government units. The criteria, as prescribed in sec. 450 of the LGC, must be strictly followed because such
criteria prescribed by law, are material in determining the just share of local government units (LGUs) in national
taxes. (League of Cities of the Philippines v. Comelec GR No. 176951, November 18, 2008)

March 31, 2009 Ruling

No. The SC denied the first Motion for Reconsideration. 7-5 vote.

April 28, 2009 Ruling

No. The SC En Banc, by a split vote (6-6), denied a second motion for reconsideration.

December 21, 2009 Ruling

Yes. The SC (voting 6-4) reversed its November 18, 2008 decision and declared as constitutional the Cityhood
Laws or Republic Acts (RAs) converting 16 municipalities into cities. It said that based on Congress deliberations and
clear legislative intent was that the then pending cityhood bills would be outside the pale of the minimum income
requirement of PhP100 million that Senate Bill No. 2159 proposes; and RA 9009 would not have any retroactive effect
insofar as the cityhood bills are concerned. The conversion of a municipality into a city will only affect its status as a
political unit, but not its property as such, it added. The Court held that the favorable treatment accorded the sixteen
municipalities by the cityhood laws rests on substantial distinction.
The Court stressed that respondent LGUs were qualified cityhood applicants before the enactment of RA 9009. To impose
on them the much higher income requirement after what they have gone through would appear to be indeed unfair. Thus,
the imperatives of fairness dictate that they should be given a legal remedy by which they should be allowed to prove that
they have all the necessary qualifications for city status using the criteria set forth under the LGC of 1991 prior to its
amendment by RA 9009. (GR No. 176951, League of Cities of the Philippines v. COMELEC; GR No. 177499, League of
Cities of the Philippines v. COMELEC; GR No. 178056, League of Cities of the Philippines v. COMELEC, December 21,
2009) NOTE: The November 18, 2008 ruling already became final and executory and was recorded in the SCs Book of
Entries of Judgments on May 21, 2009.)

August 24, 2010 Ruling

No. The SC (voting 7-6) granted the motions for reconsideration of the League of Cities of the Philippines (LCP), et al.
and reinstated its November 18, 2008 decision declaring unconstitutional the Cityhood Laws or Republic Acts (RAs)
converting 16 municipalities into cities. Undeniably, the 6-6 vote did not overrule the prior majority en banc Decision of
18 November 2008, as well as the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-
vote on the second motion for reconsideration is not the same as a tie-vote on the main decision where there is no prior
decision, the Court said. In the latest resolution, the Court reiterated its November 18, 2008 ruling that the Cityhood
Laws violate sec. 10, Art. X of the Constitution which expressly provides that no cityshall be createdexcept in
accordance with the criteria established in the local government code. It stressed that while all the criteria for the creation
of cities must be embodied exclusively in the Local Government Code, the assailed Cityhood Laws provided an
exemption from the increased income requirement for the creation of cities under sec. 450 of the LGC. The
unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express
language of the Constitution.Congress exceeded and abused its law-making power, rendering the challenged Cityhood
Laws void for being violative of the Constitution, the Court held.

The Court further held that limiting the exemption only to the 16 municipalities violates the requirement that the
classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities
cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found
in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be
unconstitutional for violation of the equal protection clause. (GR No. 176951,League of Cities of the Philippines v.
Comelec; GR No. 177499, League of Cities of the Philippines v. Comelec; GR No. 178056, League of Cities of the
Philippines v. Comelec, August 24, 2010)
February 15, 2011 Ruling

Yes, the laws are constitutional. The February 15, 2011 resolution is the fourth ruling since the High Court first resolved
the Cityhood case in 2008.

April 12, 2011Ruling

Yes! Its final. The 16 Cityhood Laws are constitutional. We should not ever lose sight of the fact that the 16 cities
covered by the Cityhood Laws not only had conversion bills pending during the 11th Congress, but have also complied
with the requirements of the [Local Government Code] LGC prescribed prior to its amendment by RA No. 9009.
Congress undeniably gave these cities all the considerations that justice and fair play demanded. Hence, this Court should
do no less by stamping its imprimatur to the clear and unmistakable legislative intent and by duly recognizing the certain
collective wisdom of Congress, the SC said.

The Court stressed that Congress clearly intended that the local government units covered by the Cityhood Laws be
exempted from the coverage of RA 9009, which imposes a higher income requirement of PhP100 million for the creation
of cities.

The Court reiterated that while RA 9009 was being deliberated upon, the Congress was well aware of the
pendency of conversion bills of several municipalities, including those covered by the Cityhood Laws. It pointed out that
RA 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of the clear legislative intent to
exempt the municipalities covered by the conversion bills pending during the 11th Congress, the House of Representatives
adopted Joint Resolution No. 29 entitled Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in
Congress before June 30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on the said
Joint Resolution. Even so, the House readopted Joint Resolution No. 29 as Joint Resolution No. 1 during the 12th
Congress, and forwarded the same for approval to the Senate, which again failed to prove it. Eventually, the conversion
bills of respondents were individually filed in the Lower House and fellesters.blogspot.com were all unanimously and
favorably voted upon. When forwarded to the Senate, the bills were also unanimously approved. The acts of both
Chambers of Congress show that the exemption clauses ultimately incorporated in the Cityhood Laws are but the express
articulations of the clear legislative intent to exempt the respondents, without exception, from the coverage of RA No.
9009. Thereby, RA 9009, and, by necessity, the LCG, were amended, not by repeal but by way of the express exemptions
being embodied in the exemption clauses.

The Court held that the imposition of the income requirement of P100 million from local sources under RA 9009 was
arbitrary. While the Constitution mandates that the creation of local government units must comply with the criteria laid
down in the LGC, it cannot be justified to insist that the Constitution must have to yield to every amendment to the LGC
despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy,
decentralization, countryside development, and the concomitant national growth. (GR No. 176951, League of City of the
Philippines v. COMELEC; GR No. 177499, League of City of the Philippines v. COMELEC: GR No. 178056, League of
City of the Philippines v. COMELEC, April 12, 2011)
1. GANZON VS CA
FACTS:
Rodolfo Ganzon was the then mayor of Iloilo City. 10 complaints were filed against him on grounds of misconduct and
misfeasance of office. The Secretary of Local Government issued several suspension orders against Ganzon based on the
merits of the complaints filed against him hence Ganzon was facing about 600 days of suspension. Ganzon appealed the
issue to the CA and the CA affirmed the suspension order by the Secretary. Ganzon asserted that the 1987 Constitution
does not authorize the President nor any of his alter ego to suspend and remove local officials; this is because the 1987
Constitution supports local autonomy and strengthens the same. What was given by the present Constitution was mere
supervisory power.
ISSUE: Whether or not the Secretary of Local Government, as the Presidents alter ego, can suspend and or remove local
officials.
HELD:
Yes. Ganzon is under the impression that the Constitution has left the President mere supervisory powers, which
supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority.
It is a mistaken impression because legally, supervision is not incompatible with disciplinary authority.
The SC had occasion to discuss the scope and extent of the power of supervision by the President over local government
officials in contrast to the power of control given to him over executive officials of our government wherein it was
emphasized that the two terms, control and supervision, are two different things which differ one from the other in
meaning and extent. In administration law supervision means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or
step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. But
from this pronouncement it cannot be reasonably inferred that the power of supervision of the President over local
government officials does not include the power of investigation when in his opinion the good of the public service so
requires.
The Secretary of Local Government, as the alter ego of the president, in suspending Ganzon is exercising a valid power.
He however overstepped by imposing a 600 day suspension.

2. Espiritu vs. Melgar February 13, 1991

FACTS:

Ramir Garing filed a sworn letter-complaint with Secretary Luis Santos of DILGcharging Mayor Nelson Melgar of
Naujan. Oriental Mindoro, with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution
and conductprejudicial to the best interest of the public service. Melgar allegedly assaulted Garing and ordered his arrest
and detention in the municipal jail of Naujan without filing any charges until his released the following day. An identical
letter complaint was filed by Garing with Provincial Governor of Oriental Mindoro Benjamin Espiritu, accusing Melgar of
the same violations. A third complaint filed by Garing with the Presidential Action Center, OP. Mayor Melgar submitted
his answer wherein he said that while he was delivering a speech during a graduation ceremony, Garing suddenly clapped
causing disturbance on the part of the audience. When the Mayor ended his speech, he instructed a policeman to
investigate Garing. It appeared that Garing was drunk. The mayor also presented medical certificate proving thatGaring
was not hurt. A balisong was then taken from Garing. The mayor informed Garing to go home (he had sobered up), but he
refused to go and only did so the following morning. TheSangguniang Panlalawigan of Oriental Mindoro passed
Resolution No 55, recommending to the Provincial Governor that the Mayor be preventively suspended for 45 days
pending the investigation of the administrative complaint. When the mayor received the order of suspension, he filed a
"Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the RTC of Oriental Mindoro
alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor. The RTC
judge issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order ofsuspension
against Mayor Melgar. On appeal, petitioner contends that the trial judge erred in granting the preliminary injunction since
the Governor is empowered under Sec 63 LGC to place an elective municipal official under preventive suspension
pending decision of an administrative case against the elective municipal official. Also, under Sec 61 LGC, the
Sangguniang Panlalawigan has jurisdiction over the complaints against any municipal official, while Section 19(c) of the
Judiciary Reorganization Act of 1930 withdrew from RTCs jurisdictions over such cases. Also, the mayor has a remedy of
appeal under Sec66 LGC.

ISSUE: 1. WON the governor has the power to suspend the mayor.
2. WON the RTC has jurisdiction to stop the provincial governor from placing a municipalmayor under
preventive suspension pending the investigation of administrative charges against the latter

HELD:

1. YES, Under Section 63 LGC, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend
the municipal mayor of Naujan anytime after the issues had been joined and any of the following grounds were shown to
exist:1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of;2.
When the evidence of culpability is strong;3. When the gravity of the offense so warrants; or when the continuance in
office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other
evidence. There is nothing improper in suspending an officer before the charges against him are heard and before he is
given an opportunity to prove his innocence. Preventive suspension is allowed so that the respondent may not hamper the
normal course of the investigation through the use of his influence and authority over possible witnesses. Since the mayor
believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first from
the Secretary of DILG, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting
administrative remedies was premature.

2. NO. The RTC had no jurisdiction over Special Civil Action and gravely abused its discretion in refusing to dismiss the
case. There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they
warrant disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or
suspension should be the sole judge of the necessity and sufficiency of the cause. So, unless a flagrant abuse of the
exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand
that the action of said officer or body should be left undisturbed. However, in this particular case. since the 60-day
preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order which we issued on
August6, 1991, and therefore has already been served, he is deemed reinstated in office without prejudice to the
continuation of the administrative investigation of the charges against him.

3. AGUINALDO vs. SANTOS, G.R. No. 94115, August 21, 1992

Grounds for Disciplinary Actions


In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order,
petitioner Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990
in Adm. Case No. P-10437-89 dismissing him as Governor of Cagayan.

FACTS:
Petitioner was the duly elected Governor of the province of Cagayan, having been elected to said position during the local
elections held on January 17, 1988, to serve a term of four (4) years therefrom. On December 7, 1989, a sworn complaint
for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, Manuel Mamba
and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against
petitioner for acts the latter committed during the coup. Petitioner was required to file a verified answer to thecomplaint.
In his letter, petitioner denied being privy to the planning of the coup or actively participating in itsexecution, though
he admitted that he was sympathetic to the cause of the rebel soldiers. Respondent Secretary considered petitioner's
reply letter as his answer to the complaint of Mayor Veronico Agatep and others. On the basis thereof, respondent
Secretary suspended petitioner from office for sixty (60) days from notice, pending the outcome of the formal
investigation into the charges against him. During the hearing conducted on the charges against petitioner, complainants
presented testimonial and documentary evidence to prove the charges. Petitioner neither presented evidence nor even
cross-examined the complainant's witnesses, choosing instead to move that respondent Secretary inhibit himself from
deciding the case, which motion was denied. Thereafter, respondent Secretary rendered the questioned decision
finding petitioner guilty as charged and ordering his removal from office. While this case was pending before this
Court, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections.
As petitioner won by a landslide margin in the elections, the resolution pavedthe way for his eventual proclamation as
Governor of Cagayan.One of the three grounds petitioner relies on for this petition is that: the alleged act of disloyalty
committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of
evidence, because it is an act punishable as rebellion under the Revised Penal Code.

Issue:
Whether or not petitioner should be removed from office on the ground of disloyalty to the Republic.

Held:
NO.
Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before
the Court moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes
among the candidates for governor of Cagayan province. The rule is that a public official cannot be removed for
administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however,
finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup.
Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond
reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined
and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the
provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected
Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only
substantial evidence.

4. REYES V COMELEC, 254 SCRA 514 G.R. No. 120905, March 7, 1996 Mendoza, J.:

FACTS:

This is a consolidated case of Reyes and of Garcia which involved same resolutions of the COMELEC. The case of
Reyes is based on the resolution of the COMELEC declaring his disqualification from running for local office and on the
resolution dated July 3, 1995 which denied his petition for reconsideration. An administrative complaint was filed against
him for collecting money from each market stall holder and these were not reflected in the book of accounts of the
municipality; and that he also took 27 heads of cattle from beneficiaries of a cattle dispersal program. He was held guilty
as charged and was ordered to be removed from office. But before the Sanggunian rendered judgment, Reyes filed a
petition for certiorari, prohibition and injunction with the RTC of Oriental Mindoro which alleged that he was not given a
chance to be heard in the proceedings which was already terminated. After the expiration of the restraining order, an
attempt was made to serve the judgment to the petition but he refused to accept the decision. On March 20, 1995, Reyes
filed a certificate of candidacy. But even with a petition for disqualification as candidate for mayor on the basis of Art. 40
(b) of RA 7160, Reyes was still voted for in the May 1995 elections. Despite the resolution from the COMELEC which
affirms the disqualification of Reyes, the Municipal Board of Canvassers who are unaware of the disqualification,
proclaimed Reyes as the duly elected mayor. The July 3, 1995 Resolution of the COMELEC declared that Reyes is
disqualified as a candidate and to set aside his proclamation. On the other hand, Garcias case is for the annulment of the

July 3, 1995 resolution which denied his motion to be proclaimed as the elected mayor of Bongabong, Oriental Mindoro
since Reyes was already deemed disqualified. Garcia contends that he obtained the second highest number of votes in the
election and since Reyes was already disqualified, he should be proclaimed as the duly-elected mayor of Bongabong.

ISSUE: 1. Whether or not Reyes is disqualified from running for reelection.


2. Whether or not Garcia should be proclaimed the duly- elected mayor due to Reyess disqualification.

HELD:

1. Yes. Reyes is disqualified to run for reelection.

Article 40 (b) of RA 7160 provides that those removed from office as a result of an administrative case is disqualified
from running for any elective local position. And sinceReyes was held guilty of an administrative case, he is therefore
disqualified from running for office.

2. No. Although Garcia obtained the second highest number of votes in the election, it is a rule that thecandidate who
obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified.
And that Garcias contention that Reyess votes should be invalidated was also denied for it is held by the Court that the
finding that he is disqualified cannot retroact to the time of the elections.

5. Hagad vs gozo-dadole

Facts:

On July 22, 1992, criminal and administrative complaints were filed against Mayor Ouano, Vice Mayor Canete and
Councilor Mayol, all public officials of Mandaue City by Councilors Dionson, Baricede. There respondents were charged
with having violated R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), as amended,Articles 170 (falsification of
legislative documents) and 171 (falsification by public officers) of the Revised Penal Code; and R.A. No. 6713 (Code of
Conduct and Ethical Standards of Public Officers). The respondent officials were allegedly causing alteration of
Ordinance No. 018/92 by increasing the allotted appropriation from P3.5M to P7M without authority from Sangguniang
Panlungsod of Mandaue.

The respondent officials prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was
bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the Local
Government Code of 1991, the power to investigate and impose administrative sanctions against said local officials, as
well as to effect their preventive suspension, had now been vested with the Office of the President. On September 1992, a
TRO against Hagad was filed and granted to the petitioners by RTC Mandaue to restrain him from enforcing suspension.

ISSUE: Whether or not the Ombudsman under RA 6770 (Ombudsman Act of 1898) has been divested of his authority
to conduct administrative investigations over local elective official by virtue of subsequent enactment of RA 7160.

HELD:

No. The authority of the Ombudsman over local officials pursuant to RA 6770 is not removed by LG Code of 1991.
There is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the
pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let
alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of
laws by implication are not favored, 16 and that courts must generally assume their congruent application. The two laws
must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be
drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.

The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city
officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman
upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant.
The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the
modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the
President.

6. Salalima v. Guingona

GR No. 117589-92, May 22 1996

FACTS:

The Province of Albay imposed real property tax against the National Power Corporation. The latter, claiming
that it is tax exempt, refused to pay the said tax liability. Due to its refusal to pay, the Province of Albay took over the
properties of NPC and sold them in an auction sale. The Province was the sole bidder. Upon the failure of NPC to redeem
the property, the Province sought the issuance of a writ of possession from the Regional Trial Court. The NPC challenged
this in a petition filed with the Supreme Court. The Province, through its legal office Atty. Ricaforte, filed its comment on
the said petition on May 17, 1989.

On June 2, 1989, the Sangguniang Panlalawigan issued Resolution No. 129-89, authorizing Salalima to engage
the services of a Manila-based law firm to handle the case. As such, on August 25, 1989, Atty. Jesus Carnago entered his
appearance with the SC as a collaborating counsel. On November 14, 1989, Atty. Antonio Jose Cortes of Cortes and
Reyna Law Firm sent a letter to Salalima, informing him that Atty. Carnago had filed a memorandum in the SC. He then
proposed that his law firm and that of Atty. Carnago enter into a retainer agreement with the Province in connection with
the case. He charged 50, 000 as acceptance fee and a contingency fee of 18%. In response to this, the Sangguniang
Panlalawigan passed Resolution No. 01-90 authorizing Salalima to sign a retainer contract with Cortes and Reyna Law
Firm.

On June 4, 1990, the Supreme Court ruled in favor of the Province. The latter then paid the lawyers amounting to
around 7 million. However, on May 31, 1993, the Provincial Auditor informed the Province that COA had disallowed the
payments for lack of prior written conformity of the Solicitor General and a written concurrence of COA. An
administrative complaint was later on filed against the petitioners with the Office of the President.

The OP found that the petitioners incurred administrative liability in hiring private lawyers to defend it in the
NPC case.

OPs RATIO

1. Section 481 of the LGC states that the legal officer of the province has the duty to represent the LGU in all civil
actions and special proceedings wherein the LGU or any official thereof, in his official capacity, is a party.
2. In the case Municipality of Bocaue v. Manotok, the Supreme Court ruled that the LGU cannot be represented by
private lawyers and it is solely the Provincial legal officer or provincial fiscal who can represent it. A private
lawyer has no standing in such a case.
3. Sec. 481 and Municipality of Bocaue v. Manotok are applicable in this case. In hiring the private lawyers, the
petitioners violated the LGC and the doctrine laid down by the Supreme court.

ISSUE: WON the petitioners incurred administrative liabilities in hiring private lawyers to represent the Province

HELD: Whether or not they incurred liabilities, they can no longer be held to answer for these in view of the fact that they
have already been reelected. Their reelection operates as condonation of any misconduct committed in their prior term.

In Pascual v. Pascual, the SC ruled that offenses committed or acts done in a previous term are generally held not
to furnish a cause for removal in the current term of office. This is because each term is separate from other terms and that
the reelection operates as a condonation of the officers previous misconduct to the extent of cutting off the right to
remove him therefore. Such a rule is founded on the theory that an officials reelection expresses the sovereign will of the
electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was
committed during the previous term. Also, sound policy dictates such a rule. A contrary rule would open the floodgates to
exacerbating endless partisan contests between reelected officials and their political enemies who may not stop to hound
the former during his new term with administrative cases for acts alleged to have been committed during his previous
term.

7. Grego vs comelec

Facts:

On July 22, 1992, criminal and administrative complaints were filed against Mayor Ouano, Vice Mayor Canete and
Councilor Mayol, all public officials of Mandaue City by Councilors Dionson, Baricede. There respondents were charged
with having violated R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), as amended,Articles 170 (falsification of
legislative documents) and 171 (falsification by public officers) of the Revised Penal Code; and R.A. No. 6713 (Code of
Conduct and Ethical Standards of Public Officers). The respondent officials were allegedly causing alteration of
Ordinance No. 018/92 by increasing the allotted appropriation from P3.5M to P7M without authority from Sangguniang
Panlungsod of Mandaue.

The respondent officials prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was
bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the Local
Government Code of 1991, the power to investigate and impose administrative sanctions against said local officials, as
well as to effect their preventive suspension, had now been vested with the Office of the President. On September 1992, a
TRO against Hagad was filed and granted to the petitioners by RTC Mandaue to restrain him from enforcing suspension.

ISSUE: WON the Ombudsman under RA 6770 (Ombudsman Act of 1898) has been divested of his authority
to conduct administrative investigations over local elective official by virtue of subsequent enactment of RA 7160.

HELD:

No. The authority of the Ombudsman over local officials pursuant to RA 6770 is not removed by LG Code of 1991.

There is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the
pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let
alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of
laws by implication are not favored, 16 and that courts must generally assume their congruent application. The two laws
must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be
drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.

The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city
officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman
upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant.
The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the
modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the
President.

8. Jesus Conducto vs. Judge Iluminado C. Monzon

Facts: Respondent judge was charged with gross ignorance of the law. He refused to suspend the mayor due to criminal
charges against the latter for the crime of unlawful appointment. The judge opined that an official cannot be suspended for
something that has happened in a previous term. Settled jurisprudence says this only applies to administrative, not
criminal cases.

Held: Fined for P5000. While judges should not be disciplined for inefficiency on account merely of occasional mistakes
or errors of judgment, it is imperative that they be conversant with basic legal principles. A judge is called upon to exhibit
more than just cursory acquaintance with the statutes and procedural rules; it is imperative that he be conversant with the
basic legal principles and aware of well-settled and authoritative doctrines. Also, if he did the act deliberately, he violated
Canon 18 of the Canons of Judicial Ethics directs a judge to administer his office with due regard to the integrity of the
system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law.
An RTC judge cannot overturn a settled doctrine laid down by the Supreme Court, otherwise, litigation would be endless.

9. Joson v. Executive Secretary [G.R. No. 131255. May 20, 1998]

FACTS
Petitioner Governor Joson was filed a complaint before the Office of the President for barging violently into the session
hall of the Sangguniang Panlalawigan in the company of armed men. The case was endorsed to the DILG. For failure to
file an answer after three (3) extensions, petitioner was declared in default and ordered the petitioner 60-day preventive
suspension. Petitioner later Motion to Conduct Formal Investigation. DILG denied the motion declaring that the
submission of position papers substantially complies with the requirements of procedural due process in administrative
proceedings. Later, the Executive Secretary, by authority of the President, adopted the findings and recommendation of
the DILG Secretary. The former imposed on petitioner the penalty of suspension from office for six (6) months without
pay.

ISSUES:
Whether or not:

(a) Preventive suspension is proper;


(b) Procedural due process is violated;
(c) The resolution of DILG Secretary is invalid on the ground of undue delegation; that it is the President who is the
Disciplining Authority, not the Secretary of DILG;
HELD:
(a) Yes. Preventive suspension may be imposed by the Disciplining Authority at any time (a) after the issues are joined;
(b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the
respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence. The act of respondent in allegedly barging violently into the session hall of the Sangguniang
Panlalawigan in the company of armed men constitutes grave misconduct. The allegations of complainants are bolstered
by the joint-affidavit of two (2) employees of the Sangguniang Panlalawigan. Respondent who is the chief executive of
the province is in a position to influence the witnesses. Further, the history of violent confrontational politics in the
province dictates that extreme precautionary measures be taken.

(b) Yes. The rejection of petitioners right to a formal investigation denied him procedural due process. Section 5 of A.
O. No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider
whether they desire a formal investigation. This provision does not give the Investigating Authority the discretion to
determine whether a formal investigation would be conducted. The records show that petitioner filed a motion for formal
investigation. There is nothing in the Local Government Code and its Implementing Rules and Regulations nor in A.O.
No. 23 that provide that administrative cases against elective local officials can be decided on the basis of position
papers. A.O. No. 23 states that the Investigating Authority may require the parties to submit their respective memoranda
but this is only after formal investigation and hearing.

(c) No. The DILG resolution is valid. The President remains the Disciplining Authority. What is delegated is the power
to investigate, not the power to discipline. The power to discipline evidently includes the power to investigate. As the
Disciplining Authority, the President has the power derived from the Constitution itself to investigate complaints against
local government officials. A. O. No. 23, however, delegates the power to investigate to the DILG or a Special
Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue delegation, contrary to
petitioner Josons claim.

Under the doctrine of qualified political agency which recognizes the establishment of a single executive, all executive
and administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required
by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive.

This doctrine is corollary to the control power of the President provided in the Constitution. Control is said to be the very
heart of the power of the presidency. As head of the Executive Department, the President, however, may delegate some of
his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the
situation demand that he acts personally. The members of Cabinet may act for and in behalf of the President in certain
matters because the President cannot be expected to exercise his control (and supervisory) powers personally all the
time. Each head of a department is, and must be, the Presidents alter ego in the matters of that department where the
President is required by law to exercise authority.

10. Pablico vs Villapando

Facts:

An administrative complaint was filed with the Sangguniang Panlalawigan of Palawan against then Mayor of San Vicente,
Palawan Alejandro Villapando for abuse of authority and culpable violation of the Constitution because he entered into a
consultancy agreement with Orlando Tiape, a defeated mayoralty candidate. Complainants argue that this amounted to
appointment to a government position within the prohibited one-year period under Article IX-B, Sec. 6 of the 1987
Constitution.

In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired him. He invoked Opinion No.
106, s. 1992, of the Department of Justice dated August 21, 1992, stating that the appointment of a defeated candidate
within one year from the election as a consultant does not constitute an appointment to a government office or position as
prohibited by the Constitution.

The Sangguniang Panlalawigan found respondent guilty and imposed on him the penalty of dismissal from service, and
was affirmed by the Office of the President. Vice-mayor Pablico took his oath as municipal mayor in place of
Villapando.

The Court of Appeals declared the decisions of the SP and OP void, and ordered Pablico to vacate the Office of the Mayor
of San Vicente, Palawan.
ISSUE: May local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal
from service on erring elective local officials?

HELD:

Section 60. Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed
from office on any of the following grounds:

xxx xxx

An elective local official may be removed from office on the grounds enumerated above by order of the proper
court.

It is clear from the last paragraph of the aforecited provision that the penalty of dismissal from service upon an erring
elective local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al., we held that
[t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in
the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60.

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that
(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article
[The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining
authority whichever first acquires jurisdiction to the exclusion of the other. The disciplining authority referred to
pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.

As held in Salalima, this grant to the disciplining authority of the power to remove elective local officials is clearly
beyond the authority of the Oversight Committee that prepared the Rules and Regulations. No rule or regulation may
alter, amend, or contravene a provision of law, such as the Local Government Code. Implementing rules should conform,
not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the
statute is a nullity. (Pablico vs. Villapando, G.R. No. 147870. July 31, 2002)

11. Sangguniang Barangay of Don Mariano Marcos v. Punong Barangay Martinez


Facts:

1. Martinez, the incumbent Punong Barangay of Don Mariano Marcos, Bayambang, Nueva Vizcaya, was
administratively charged with Dishonesty and Graft and Corruption by the petitioner through the filing of a
complaint before the Sangguniang Bayan. Petitioner then filed with the Sangguniang Bayan an Amended
Administrative Complaint against Martinez for Dishonesty, Misconduct in Office and Violation of the Anti-Graft
and Corrupt Practices Act.
2. The SB placed Martinez under preventive suspension for 60 days. It then rendered its Decision which imposed
upon Martinez the penalty of removal from office.
3. The Decision was conveyed to Municipal Mayor Bagasao for its implementation. He issued a Memorandum,
stating that the Sanggunaing Bayan is not empowered to order Martinezs removal from service. However, the
Decision remains valid until reversed and must be executed by him. For the meantime, he ordered the indefinite
suspension of Martinez since the period of appeal had not yet lapsed.
4. Martinez filed a Special Civil Action for Certiorari with a prayer for a TRO and Preliminary Injunction before the
trial court against petitioner, questioning the validity of the Decision.
5. Petitioner claims that the courts are merely tasked with issuing the order of removal, after
the Sangguniang Panlungsod or Sangguniang Bayanfinds that a penalty of removal is warranted.
Issue: Whether or not the Sangguniang Bayan may remove Martinez, an elective local official, from office.
Decision: No, the Sanggunaing Bayan is not empowered to do so.
Ratio:
1. Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials
from office.
2. During the deliberations of the Senate on the Local Government Code, the intent to confine to the courts
jurisdiction over cases involving the removal of elective local officials was evident.
3. In Salalima v. Guingona, Jr., the Court en banc nullified Article 125, Rule XIX of the Rules and Regulations
Implementing the Local Government Code of 1991 which granted to the disciplining authority the power to
remove elective officials, a power which the law itself granted only to the proper courts.
4. The rule which confers to the proper courts the power to remove an elective local official from office is intended
as a check against partisan activity. Vesting the local legislative body with the power to remove from office a
local chief executive, and only relegating to the courts a mandatory duty to implement the decision, would still
not free the resolution of the case from partisanship.
5. Thus, if the acts allegedly committed by the barangay official would merit the penalty of removal from office, the
case should be filed with the RTC. Once the court assumes jurisdiction, it retains jurisdiction over the case even
if it would be subsequently apparent during the trial that a penalty less than removal from office is
appropriate. On the other hand, the most extreme penalty that
the Sangguniang Panlungsod or Sangguniang Bayan may impose on the elective official is suspension; if it deems
that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in
court.

12. OFFICE OF THE OMBUDSMAN vs. CA and BARRIGA


G.R. No. 172224. January 26, 2011

Facts:

Sometime in 2000, Sonia Q. Pua, a Municipal Councilor of Carmen, Cebu, filed a complaint with the Office of the Deputy
Ombudsman, alleging that MayorVirgilio E. Villamor, Municipal Treasurer Bontia, and respondent Municipal
AccountantBarriga, entered into several irregular and anomalous transactions in their official capacity.

In a Decision dated 28 August 2002, the Office of the Deputy Ombudsman found Barriga guilty of misconduct and
imposed on her the penalty of six months suspension from the service.

Upon review, petitioner modified the decision and found Barriga guilty of conduct prejudicial to the best interest of the
service and imposed on her the penalty of suspension for one year.Barriga filed a motion for reconsideration which
petitioner denied.

Later, in an Order dated 13 November 2002, petitioner directed the municipal mayor of Carmen, Cebu to implement the
decision dated 28 August 2002.

Barriga filed a petition for review with the CA which denied the petition for lack of merit.Barriga then elevated the case to
the Supreme Court which also denied the petition. MR and second MR was likewise denied.

After a month, petitioner, through the Office of the Deputy Ombudsman for Visayas, again directed the municipal mayor
of Carmen, Cebu to implement the Order dated 13 November 2002.

Barriga made a request that the implementation of the penalty of one-year suspension be held in abeyance pending the
issuance of the entry of judgment by this Supreme Court. The request was denied by petitioner.
However, Barriga, in order to delay the implementation of her suspension from service elevated the case once again to the
CA. The CA in rendering a favorable decision in favor of Barriga nullified the Ombudsmans orders from implementing
its decision. CA said that the immediate implementation of petitioners Order dated 13 November 2002 was premature
pending resolution of the appeal. Since Republic Act No. 6770 or the Ombudsman Act of 1989 gives parties the right to
appeal then such right also generally carries with it the right to stay these decisions pending appeal. Thus, the CA
concluded that the acts of petitioner cannot be permitted nor tolerated.

Pursuant to the CAs Resolution dated 16 June 2005, the municipal mayor of Carmen, Cebu reinstated Barriga as
municipal accountant.

Petitioner filed a Motion for Reconsideration and raised the issue of finality of the Ombudsmans Decision dated 28
August 2002. The motion was denied by the CA. Hence, this petition.

Issue:

Whether the Court of Appeals gravely abused its discretion in nullifying the orders of the Office of the Ombudsman to the
municipal mayor of Carmen, Cebu for the immediate implementation of the penalty of suspension from service of
respondent Barriga even though the case was pending on appeal.

Held:

Yes. Section 7, Rule III of Administrative Order No. 7, as amended by Administrative Order No. 17, states:

Section 7. Finality and execution of decision.- Where the respondent is absolved of the charge, and in case of conviction
where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to
one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed
to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the
Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion
for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the
respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the
salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The
Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal
or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend,
demote, fine, or censure shall be a ground for disciplinary action against said officer.

It is clear from the provision that when a public official has been found guilty of an administrative charge by the Office of
the Ombudsman and the penalty imposed is suspension for more than a month, an appeal may be made to the CA.
However, such appeal shall not stop the decision from being executory and the implementation of the decision follows as
a matter of course.

The CA is incorrect. The provision in the Rules of Procedure of the Office of the Ombudsman is clear that an appeal by a
public official from a decision meted out by the Ombudsman shall not stop the decision from being executory. In Office
of the Ombudsman v. Court of Appeals and Macabulos, we held that decisions of the Ombudsman are immediately
executory even pending appeal in the CA.

Thus, the Ombudsmans order imposing on Barriga the penalty of suspension from office for one year without pay is
immediately executory even pending appeal in the Court of Appeals.

13.
1. OFFICE OF THE OMBUDSMAN VS EVANGELISTA G.R. No. 177211

In an affidavit-complaint dated November 13, 2006, Priscilla Villanueva, the Co-Chair of the Local School Board
of Aguilar, accused the respondents of having misappropriated the Special Education Fund (SEF).[3] The complainant
alleged that the three respondents had used the SEF to purchase speech kit tapes and textbooks without the approval of the
Local School Board. She also alleged that the speech kit tapes and textbooks were not received by the recipients, as
evidenced by attached certifications of principals and head teachers of different public schools within Aguilar debunking
such receipt.[4] Villanueva specially pleaded that the respondents be preventively suspended.[5]

In an order dated January 9, 2007,[6] the Ombudsman placed respondents under preventive suspension for a period
of four (4) months.

The Ombudsman held that the proofs submitted by Villanueva showed strong evidence of guilt, that if duly
proven the acts imputed against the respondents would constitute grave misconduct and dishonesty and that their
continued stay in office would prejudice the fair and independent disposition of the case against them.

The suspension order was served on respondent Evangelista on January 13, 2007. Two (2) days later, the same
process was effected on respondent Limos.
On January 17, 2007, respondents filed a petition for certiorari with the Court of Appeals assailing the order of the
Ombudsman.[8] They claimed that they had been denied due process since they were never furnished with a copy of
Villanuevas complaint.
The Court of Appeals granted the petition and set aside the order of the Ombudsman. The appellate court
observed that even a cursory reading of the assailed order reveals that the requirements of R.A. No. 6770 were not
complied with. It pointed out that under Section 26(2) of R.A. No. 6770, the Ombudsman is required to inform the
accused of the charges; yet, the respondents learned of the charges against them only upon receipt of the suspension order.

ISSUE: WON prior notice or hearing is required for the issuance of preventive suspension order.

HELD:

As early as 1995, this Court ruled in Lastimosa v. Vasquez[14] and Hagad v. Gozo-Dadole,[15] that neither prior
notice nor a hearing is required for the issuance of a preventive suspension order. The well-settled doctrine is solidly
anchored on the explicit text of the governing law which is Section 24 of R.A. No. 6770. The provision defines
the authority of the Ombudsman to preventively suspend government officials and employees. It reads:

SEC. 24. Preventive Suspension.The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service;
or (c) the respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the disposition of the
case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of suspension herein provided.

Clearly, the plain language of the above-quoted provision debunks the appellate courts position that the order meting out
preventive suspension may not be issued without prior notice and hearing and before the issues are joined. Under Section
24, two requisites must concur to render the preventive suspension order valid. The first requisite is unique and can be
satisfied in only one way. It is that in the judgment of the Ombudsman or the Deputy Ombudsman, the evidence of guilt is
strong. The second requisite, however, may be met in three (3) different ways, to wit: (1) that the offense charged involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge would warrant removal
from the service; or (3) the respondents continued stay in office may prejudice the case filed against him.

2. Bien vs Bo

FACTS:

[Respondent Pedro B. Bo], since 1993, has applied with (DENR-CENRO) Legazpi City for the lease of a 10,000
square meter foreshore lot in Palale Beach, Bgy. San Isidro, Ilawod. Pending his application, he introduced
improvements in the area necessary in putting up and in running a beach resort.

But a month before the DENR released its approval in April 2003 for the bidding of the lease covering the public
land Col. Bo was applying for, his cottage and his coconut trees were destroyed. He named Bgy. Captain Bello
and Kgd. Bisona as those who led in the removal of his improvements to give way for the construction of twenty-
two cottages, and that this was done in defiance of the directive of the DENR representative not to push through
with this plan because they had no right to do so.

As regards Col. Bos complaint before the Ombudsman, he pinpointed not only the barangay officials of San
Isidro, Ilawod as the culprits responsible for the destruction of his cottage and plantation but also [petitioner]
Joephil Bien. Col. Bo stressed that all of them connived in doing this injustice to him in order that respondents
[including herein petitioner] may be able to construct their own private cottages for their own benefit.

As previously adverted to, the Deputy Ombudsman for Luzon found all respondents therein, including herein petitioner
Bien, administratively liable for Abuse of Authority, to wit:

ISSUE: WON he is liable for abuse of authority.

HELD:

Petitioners participation in the destruction of the improvements on the subject property introduced by the
respondent, as well as petitioners ownership of one of the cottages subsequently erected therein, were supported by
substantial evidence.

In administrative cases, the requisite proof is substantial evidence, i.e., that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion.[6] In the case at bar, substantial evidence consisted in the
findings of the DENR-PENRO identifying petitioner as one of the owners of the twenty-two (22) cottages illegally erected
on the subject property covered by a lease application of respondent. The Final Report of the DENR-PENRO narrates the
circumstances surrounding the conflict between respondent and the barangay officials of San Isidro Ilawod, concerning
respondents application for lease of the subject property.

Moreover, the DENR Regional Executive Director categorically found that the barangay officials, respondents in
the proceedings before the Deputy Ombudsman for Luzon, including herein petitioner Bien, illegally erected cottages on
the subject property:

The Sangguniang Barangay of San Isidro Ilawod, cannot, in the guise of resolutions assume the authority
and task that pertain solely to the DENR as regards the administration and management of the subject
foreshore land. The introduction of improvements on the premises without the necessary permit from the
DENR is illegal which we cannot countenance.[8]

Petitioner further makes capital of the fact that he is not a barangay official of San Isidro Ilawod; necessarily, for
him to be liable for abuse of authority, the exercise of power should have been done in the discharge of his office.
ELECTIVE OFFICIALS

DISQUALIFICATIONS

Caasi vs CA

Facts:

Merito Miguel is a green card holder. USA. This means he is a permanent resident of USA. He is from
Bolinao Pangasinan. He ran for mayor and won. The opponent filed a disqualification case alleging that
Miguel is not a resident of Bolinao and have not waive its green card and have not possess the
residency requirements. COMELEC and CA sustained Miguel.

Issue: WON Miguel is qualified to run for public office

Held:

NO. To be "qualified to run for elective office" in the Philippines, the law requires that the candidate
who is a green card holder must have "waived his status as a permanent resident or immigrant of a
foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the
Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the
United States. The waiver of his green card should be manifested by some act or acts independent of
and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he
was "disqualified to run for any elective office."

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a
green card attesting to such status are conclusive proof that he is a permanent resident of the U.S.
despite his occasional visits to the Philippines. The waiver of such immigrant status should be as
indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that
status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor
of Bolinao in the local elections on January 18, 1988, the conclusion is that he was disqualified to run for
said public office.

Marquez vs Comelec

Facts:

Marquez, a candidate for an elective position in Quezon Province during the 1998 elections, filed a
petition praying for the cancellation of the certificate of candidacy of Rodriguez on the ground of
disqualification under section 40 of the Local Government Code (Section 40. Disqualification. The
following persons are disqualified from running for any local elective position... (e) Fugitive from justice
in criminal or non-political cases here or abroad.)

Rodriguez is allegedly criminally charged with insurance fraud in the United States and that his arrest is
yet to be served because of his flight from the country.

The COMELEC dismissed Marquezs Petition.

Rodriguez was proclaimed the Governor-elect of Quezon.

Issues:

WON Rodriguez, at the time of filing his certificate of candidacy, is said to be a fugitive from justice as
provided for in section 40 of the Local Government Code.

Held:

Fugitive from justice does not mean a person convicted by final judgment. It includes those who after
being charged flee to avoid prosecution. The COMELEC is directed to proceed and settle the case in
conformity of the given clarification with the term fugitive from justice.

Rodriguez vs Comelec

Facts: Same as MARQUEZ VS COMELEC

Issue: Whether or not Rodriguez is a fugitive from justice.

Held:
No. The Supreme Court reiterated that a fugitive from justice includes not only those who flee after
conviction to avoid punishment but likewise who, being charged, flee to avoid prosecution. The
definition thus indicates that the intent to evade is the compelling factor that animates ones flight from
a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment
when there is knowledge by the fleeing subject of an already instituted indictment or of a promulgated
judgement of conviction. A certification from the Commission of Immigration showing that Rodriguez
left the US on June 25, 1985- roughly five (5) months prior to the institution of the criminal complaint
filed against him before the Los Angeles Court.

Dela Torre vs Comelec

Facts:

Petitioner Rolando dela Torre was disqualified from running as mayor of Cavinti Laguna on the ground
that he was convicted of violation the Anti-Fencing Law.

He argues that he should not be disqualified because he is serving probation of his sentence and hence,
the execution of his judgment was suspended together with all its legal consequences.
ISSUE:
WON Dela Torre is disqualified to run for public office.

HELD:
YES. Sec.40 of LGC provides: The following persons are disqualified from running for any elective local
position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence;

Moral turpitude is considered as an act of baseness, vileness, or depravity in the private duties which a
man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right
and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.

In this case of fencing, actual knowledge by the "fence" of the fact that property received is stolen
displays the same degree of malicious deprivation of one's rightful property as that which animated the
robbery or theft which, by their very nature, are crimes of moral turpitude. Hence Dela Torre is
disqualified from seeking public office.

With regard to his argument that he is under probation, the court ruled that the legal effect of probation
is only to suspend the execution of the sentence.

De la Torre's conviction subsists and remains totally unaffected notwithstanding the grant of probation.
In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies
for probation, although it is not executory pending resolution of the application for probation.

Magno vs. Comelec

Facts:

Carlos Montes filed a petition for the disqualification of Nestor Magno as mayoralty candidate of San
Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that the latter was previously
convicted by the Sandiganbayan of four counts of direct bribery. COMELEC granted the petition and
declared Magno disqualified from running for the position of mayor since direct bribery is a crime
involving moral turpitude. DISQUALIFICATION Omnibus Election Code: 5 years, LGC: 2 years.
Magno completed the service of his sentence on March 5, 1998 when he was discharged from
probation, his five-year disqualification will end only on March 5, 2003, according to COMELEC.
COMELEC denied the motion for reconsideration.

Issue: WON LGC or Omnibus Election Code will prevail

Held:
LGC will prevail. Although his crime of direct bribery involved moral turpitude, petitioner nonetheless
could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code
(BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioners disqualification
ceased as of March 2000.

Lingating vs. Comelec

Facts:
Atty Lingating is a contender for Mayor of Lapuyan zamboanga del Sur against Sulong. Respondent
Sulong was charged with administrative case with the Sangguniang Panlalawigan, found guilty but
Sulong filed a MR. This happened during his term as mayor on 1988. He was reelected on 1992 and
1995. The petitioner based its arguments in section 40 (b) of ra 7160. COMELEC first division
disqualified Sulong based on the said provision. COMELEC en banc reversed. Hence this petition

ISSUE: WON Sulong is disqualified to run for public office

Held:

NO. The filing of motion for reconsideration by Sulong prevented the decision of Sangguniang
Panlalawigan from becoming final. There is thus no decision finding Sulong guilty to speak of. Neither
can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, to the office of mayor be
considered proof that the decision in AC No. 12-91 had become final because it appears to have been
made pursuant to Sec 68 [16] of the Local Government Code, which makes decisions
in administrative cases immediately executory.

Flores vs Drilon

Facts:

Petitioners, taxpayers and employees of U.S facilities at Subic, challenge the constitutionality of Sec. 13
(d) of the Bases Conversion and Development Act of 1992 which directs the President to appoint a
professional manager as administrator of the SBMAprovided that for the 1st year of its operations,
the mayor of Olongapo City (Richard Gordon) shall be appointed as the chairman and the CEO of the
Subic Authority.

Issue: (1) Whether the proviso violates the constitutional proscription against appointment or
designation of elective officials to other government posts.

(2) Whether or not the SBMA posts are merely ex officio to the position of Mayor of Olongapo City and
thus an excepted circumstance.

Held:

(1) YES, Sec. 7 of Art. IX-B of the Constitution Provides: No elective official shall be eligible for
appointment or designation in any capacity to any public office or position during his tenure. Unless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any
other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. The subject proviso directs
the President to appoint an elective official i.e. the Mayor of Olongapo City, to other government post
(as Chairman and CEO of SBMA). This is precisely what the Constitution prohibits. It seeks to prevent a
situation where a local elective official will work for his appointment in an executive position in
government, and thus neglect his constituents.
(2) NO, Congress did not contemplate making the SBMA posts as automatically attached to the Office of
the Mayor without need of appointment. The phrase shall be appointed unquestionably shows the
intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo
City.
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.:

Facts:

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

Issue:

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.

HELD:

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

Section 153 of B.P. Blg. 337 provides:

(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.

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.

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. 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. SO ORDERED.
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.:
Facts:
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.
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.

Issue:

Whether or not 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.

HELD:
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.
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
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.

G.R. No. 138896 June 20, 2000


BARANGAY SAN ROQUE, TALISAY, CEBU, petitioner,
vs.
Heirs of FRANCISCO PASTOR namely: EUGENIO SYLIANCO, TEODORO
SYLIANCO, TEODORO SYLIANCO, ISABEL SYLIANCO, EUGENIA S. ONG,
LAWRENCE SYLIANCO, LAWSON SYLIANCO, LAWINA S. NOTARIO,
LEONARDO SYLIANCO JR. and LAWFORD SYLIANCO, respondents.
PANGANIBAN, J.:
An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within
the jurisdiction of the regional trial courts, regardless of the value of the subject
property.
The Facts
Petitioner filed before the Municipal Trial Court (MTC) of Talisay, Cebu (Branch 1) 3 a
Complaint to expropriate a property of the respondents. In an Order dated April 8,
1997, the MTC dismissed the Complaint on the ground of lack of jurisdiction. It
reasoned that "[e]minent domain is an exercise of the power to take private property
for public use after payment of just compensation. In an action for eminent domain,
therefore, the principal cause of action is the exercise of such power or right. The
fact that the action also involves real property is merely incidental. An action for
eminent domain is therefore within the exclusive original jurisdiction of the Regional
Trial Court and not with this Court."4
Issue
In its Memorandum, petitioner submits this sole issue for the consideration of this
Court:
Which court, MTC or RTC, has jurisdiction over cases for eminent domain or
expropriation where the assessed value of the subject property is below Twenty
Thousand (P20,000.00) Pesos?9
This Court's Ruling
The Petition is meritorious.
1 In the main, the subject of an expropriation suit is the government's exercise of
eminent domain, a matter that is incapable of pecuniary estimation.
True, the value of the property to be expropriated is estimated in monetary terms, for
the court is duty-bound to determine the just compensation for it.1avvphi1 This,
however, is merely incidental to the expropriation suit.
To emphasize, the question in the present suit is whether the government may
expropriate private property under the given set of circumstances. The government
does not dispute respondents' title to or possession of the same. Indeed, it is not a
question of who has a better title or right, for the government does not even claim
that it has a title to the property. It merely asserts its inherent sovereign power to
"appropriate and control individual property for the public benefit, as the public
necessity, convenience or welfare may demand." 17
WHEREFORE, the Petition is hereby GRANTED and the assailed Orders SET
ASIDE. The Regional Trial Court is directed to HEAR the case. No costs.
SO ORDERED.

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.
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
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.
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 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
the Sanggunian 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.
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. 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
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.
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
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.

G.R. No. 109173 July 5, 1996


CITY OF CEBU, petitioner,
vs.
THE HON. COURT OF APPEALS (SIXTEENTH DIVISION), HON. JUDGE
RODOLFO BELLAFLOR and MERLITA CARDENO, respondents.
RESOLUTION

FRANCISCO, R., J.:p


Facts :

Private respondent Merlita Cardeno is the owner of a parcel of land with an area of
2,019 square meters located at Sitio Sto. Nino, Alaska-Mambaling and covered by
Transfer Certificate of Title No. 116692. On February 25, 1992, the petitioner, City of
Cebu, filed a complaint for eminent domain against private respondent with Branch II
of the Regional Trial Court (RTC) of Cebu City seeking to expropriate the said parcel
of land. The complaint was initiated pursuant to Resolution No. 404 and Ordinance
No. 1418, dated February 17, 1992, of the Sangguniang Panlungsod of Cebu City
authorizing the City Mayor to expropriate the said parcel of land for the purpose of
providing a socialized housing project for the landless and low-income city
residents. 3
Private respondent filed a motion to dismiss the said complaint on the ground of lack
of cause of action. She asseverated that the allegations contained in paragraph VII
of the complaint, to wit:
That repeated negotiations had been made with the defendant to have
the aforementioned property purchased by the plaintiff through
negotiated sale without resorting to expropriation, but said negotiations
failed. 4
do not show compliance with one of the conditions precedent to the exercise
of the power of eminent domain by a local government unit as enunciated in
Section 19 of R.A. 7160 5 which provides in part that:
A local government unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of eminent domain . . .
; 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 . . . . [Emphasis provided.]

Issue: Whether or not the complaint states a cause of action.

Held: Yes it does.


An offshoot of the foregoing is the instant petition for review on certiorari which has
essentially become a battle of semantics being waged before this Court. While
petitioner reiterates that paragraph VII of the complaint sufficiently states compliance
with the requirement of "a valid and definite offer", private respondent insists that the
term "negotiations" is too broad to be equated with the said requirement. 12
The same liberality should be applied in the instant case where an examination of
petitioner's "Comment and Opposition" to private respondent's Motion to Dismiss
leaves no room for doubt that petitioner had indeed made "a valid and definite offer"
to private respondent as required by law.
The foregoing should now put to rest the long drawn argument over the alleged
failure of the complaint to state a cause of action. There is no longer any room for
doubt that as alleged in the complaint, and as admitted by private respondent, the
petitioner had in fact complied with the condition precedent of "a valid and definite
offer" set forth in Sec. 19 of R.A. 7160.
And as a fitting finale to this controversy, the principle enunciated in both
the Tan and Marcopper cases is here reiterated:
The rules of procedure are not to be applied in a very rigid, technical
sense; rules of procedure are used only to help secure substantial
justice. If a technical and rigid enforcement of the rules is made their
aim would be defeated. Where the rules are merely secondary in
importance are made to override the ends of justice; the technical rules
had been misapplied to the prejudice of the substantial right of a party,
said rigid application cannot be countenanced. 26
The aforequoted doctrine finds compelling application in the case at bench. For as
correctly averred by petitioner, nothing else was accomplished by the dismissal of
the complaint for eminent domain but a considerable delay in the proceedings. The
dismissal of the complaint did not bar petitioner from filing another eminent domain
case and from correcting its alleged error by the mere expedient of changing
paragraph VII thereof. Indeed, precious time has been wasted while the salutary
objectives of Ordinance No. 1418 of the City of Cebu have been put on hold by a
quarrel over technical matters.
WHEREFORE, the petition is hereby GRANTED and the decision appealed from is
REVERSED and SET ASIDE. The case is ordered remanded to the RTC which shall
proceed to the hearing and final determination thereof.
SO ORDERED.

G.R. No. 170432 March 24, 2008


AMOS P. FRANCIA, JR., CECILIA P. FRANCIA, and HEIRS OF BENJAMIN P.
FRANCIA, Petitioners,
vs.
MUNICIPALITY OF MEYCAUAYAN, Respondent.
RESOLUTION
CORONA, J.:
Facts:
On February 6, 2003, respondent Municipality of Meycauayan, Bulacan filed a
complaint for expropriation1 against petitioners Amos P. Francia, Jr., Cecilia P.
Francia and Benjamin P. Francia2 in the Regional Trial Court (RTC) of Malolos,
Bulacan, Branch 16. Respondent needed petitioners' 16,256 sq. m. idle property at
the junction of the North Expressway, Malhacan-Iba-Camalig main road artery and
the MacArthur Highway.3 It planned to use it to establish a common public terminal
for all types of public utility vehicles with a weighing scale for heavy trucks.
In their answer,4 petitioners denied that the property sought to be expropriated was
raw land. It was in fact developed5 and there were plans for further development. For
this reason, respondents offer price of P2,333,500 (or P111.99 per square meter)
was too low.

Issue:
Whether or not prior determination of the existence of a public purpose was
necessary for the issuance of a writ of possession

Held:
Section 19 of Republic Act 71609 provides:
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; Before a local government unit
may enter into the possession of the property sought to be expropriated, it must (1)
file a complaint for expropriation sufficient in form and substance in the proper court
and (2) deposit with the said court at least 15% of the property's fair market value
based on its current tax declaration.11 The law does not make the determination of a
public purpose a condition precedent to the issuance of a writ of possession. 12
WHEREFORE, the petition is hereby DENIED.
Costs against petitioners.
SO ORDERED.
G.R. Nos. L-60549, 60553 to 60555 October 26, 1983
HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona) ANASTACIO C.
CABILAO, HEIRS OF CIPRIANO CABILAO (represented by Jose Cabilao)
MODESTA CABILAO, HEIRS OF ROMAN CABUENAS (represented by Alberto
Cabuenas), AGRIPINO GABISAY and PRUDENCIA MABINI, ANTONIO
LABRADOR and LUCIA GABISAY, GERONIMO MABINI and MARCELINA
SABAL, INOCENCIO MABINI and ARSENIA REYES, PATRICIO MABINI and
GREGORIA BORRES, ANICETO GADAPAN and MAXIMA GABISAY,
BARTOLOME MAGNO and CALINECA E. MAGNO, ALBERTO CABUENAS,
NARCISO CABUENAS and VICTORIA CABUENAS, EUTIQUIOSENO, HEIRS OF
ESPERIDION CABUENAS (represented by Alberto Cabuenas), MAXIMINA
NAVARO, SULPICIO NAVARO, EDUARDO NAVARO, MARTINIANO ROMA (in
representation of Arcadio Mabini, deceased), MARTIN SENO, FAUSTO ARDA,
MAXIMA CABILAO, ESTRELLA SENO, EDUVEGIS S. CABILAO, ROSARIO
CABILAO, MINORS DANILO, SOCORRO, JOSEFINA and MARITES, all
surnamed Cabilao, JUAN BORRES (represented by Francisca Borres), RAMON
JABADAN, JESUS ALIPAR and LEONILA KABAHAR, ANTONIO LABRADOR,
HEIRS OF NICASIO GABISAY (represented by Arsenio Gabisay), PACIFICO
LABRADOR, DEMETRIO LABRADOR and FRUCTOSA TABURA, VENANCIO
DEL MAR, MARINO DEL MAR, HEIRS OF TEODORA ARCILLO (represented by
Brigida Arcillo) DIONISIA GABUNADA, HEIRS OF BUENAVENTURA
FRANCISCO (represented by Felicidad Sadaya Francisco), HEIRS OF
VICTORIA C. CABUENAS (represented by Alberto Cabuenas) HEIRS OF
CIPRIANO GABUNADA (represented by Claudio Gabunada), petitioners,
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of Branch I,
COURT OF FIRST instance OF CEBU, and the PHILIPPINE TOURISM
AUTHORITY, respondents.
George M. Baladjay, Mario G. dela Victoria, Olegario Sarmiento, Jr., and Democrito
Barcenas for petitioners.
The Solicitor General for respondent Judge.
F.A. Sugue & Elino B. Lingas for Philippine Tourism Authoirity

GUTIERREZ, JR., J.:


This is a petition for certiorari with preliminary injunction challenging the
constitutionality of Presidential Decree No. 564, the Revised Charter of the Philippine
Tourism Authority, and Proclamation No. 2052 declaring the barangays of Sibugay,
Malubog, Babag and Sirao including the proposed Lusaran Dam in the City of Cebu
and in the municipalities of Argao and Dalaguete in the province of Cebu as tourist
zones.

Facts:

The petitioners ask that we restrain respondent Court of First Instance of Cebu and
the Philippine Tourism Authority (PTA) from enforcing and implementing the writs of
possession issued in four (4) expropriation cases filed by PTA against the
petitioners: Civil Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the Court
of First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4) Complaints with the Court of First
Instance of Cebu City for the expropriation of some 282 hectares of rolling land
situated in barangays Malubog and Babag, Cebu City, under PTA's express authority
"to acquire by purchase, by negotiation or by condemnation proceedings any private
land within and without the tourist zones" for the purposes indicated in Section 5,
paragraph B(2), of its Revised Charter (PD 564), more specifically, for the
development into integrated resort complexes of selected and well-defined
geographic areas with potential tourism value.
The defendants, now petitioners, had a common allegation in that the taking is
allegedly not impressed with public use under the Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the issue of public
use, that there is no specific constitutional provision authorizing the taking of private
property for tourism purposes; that assuming that PTA has such power, the intended
use cannot be paramount to the determination of the land as a land reform area; that
limiting the amount of compensation by Legislative fiat is constitutionally repugnant;
and that since the land is under the land reform program, it is the Court of Agrarian
Relations and not the Court of First Instance that has jurisdiction over the
expropriation cases.
The Philippine Tourism Authority having deposited with The Philippine National
Bank, Cebu City Branch, an amount equivalent to 10% of the value of the properties
pursuant to Presidential Decree No. 1533. the lower court issued separate orders
authorizing PTA to take immediate possession of the premises and directing the
issuance of writs of possession.

Issue:
The issues raised by the petitioners revolve around the proposition that the actions
to expropriate their properties are constitutionally infirm because nowhere in the
Constitution can a provision be found which allows the taking of private property for
the promotion of tourism.

Held: Petitioner is wrong.

In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized
that the power of eminent domain is inseparable from sovereignty being essential to
the existence of the State and inherent in government even in its most primitive
forms. The only purpose of the provision in the Bill of Rights is to provide some form
of restraint on the sovereign power.
The constitutional restraints are public use and just compensation.
The petitioners' contention that the promotion of tourism is not "public use" because
private concessioners would be allowed to maintain various facilities such as
restaurants, hotels, stores, etc. inside the tourist complex is impressed with even
less merit. Private bus firms, taxicab fleets, roadside restaurants, and other private
businesses using public streets end highways do not diminish in the least bit the
public character of expropriations for roads and streets.
The petitioners rely on the Land Reform Program of the government in raising their
second argument. According to them, assuming that PTA has the right to
expropriate, the properties subject of expropriation may not be taken for the
purposes intended since they are within the coverage of "operation land transfer"
under the land reform program.
The Petitioners, however, have failed to show that the area being developed is
indeed a land reform area and that the affected persons have emancipation patents
and certificates of land transfer.
The records show that the area being developed into a tourism complex consists of
more than 808 hectares, almost all of which is not affected by the land reform
program. The portion being expropriated is 282 hectares of hilly and unproductive
land where even subsistence farming of crops other than rice and corn can hardly
survive.
The issue of prematurity is also raised by the petitioners. They claim that since the
necessity for the taking has not been previously established, the issuance of the
orders authorizing the PTA to take immediate possession of the premises, as well as
the corresponding writs of possession was premature.
Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533,
the government, its agency or instrumentality, as plaintiff in an expropriation
proceedings is authorized to take immediate possession, control and disposition of
the property and the improvements, with power of demolition, notwithstanding the
pendency of the issues before the court, upon deposit with the Philippine National
Bank of an amount equivalent to 10% of the value of the property expropriated.
The right of the PTA to proceed with the expropriation of the 282 hectares already
Identified as fit for the establishment of a resort complex to promote tourism is,
therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of
merit.
SO ORDERED.

G.R. No. 125218 January 23, 1998


FILSTREAM INTERNATIONAL INCORPORATED, petitioner,
vs.
COURT OF APPEALS, JUDGE FELIPE S. TONGCO and THE CITY OF
MANILA, respondents.
G.R. No. 128077 January 23, 1998
FILSTREAM INTERNATIONAL INCORPORATED, petitioner,
vs.
COURT OF APPEALS, ORLANDO MALIT, ANTONIO CAGUIAT, ALICIA
CABRERA, ARMANDO LACHICA, JACINTO CAGUIAT, GLORIA ANTONIO,
ELIZALDE NAVARRA, DOLORES FUENTES, SUSANA ROY, ANTONIO IBANEZ,
BENIGNO BASILIO, LUCERIA DEMATULAC, FLORENCIA GOMEZ, LAZARO
GOMEZ, JOSE GOMEZ VENANCIO MANALOTO, CRISTINO UMALI, DEMETRIA
GATUS, PRISCILLA MALONG, DOMINGO AGUILA, RAMON SAN AGUSTIN,
JULIAN FERRER, JR., FRANCISCO GALANG, FLORENTINO MALIWAT,
SEVERINA VILLAR, TRINIDAD NAGUIT, JOSE NAGUIT, FORTUNATO AGUSTIN
CABRERA, GAUDENCIO INTAL, DANILO DAVID, ENRIQUE DAVID, VICENTE
DE GUZMAN, POLICARPIO LUMBA, BELEN PALMA, ELEN SOMVILLO,
LEONARDO MANICAD, OPRENG MICLAT, BENITA MATA, GREGORIO LOPEZ,
MARCELINA SAPNO, JESUS MERCADO and CALIXTO GOMEZ, respondents.

FRANCISCO, J.:
In resolving the instant petitions, the Court is tasked to strike a balance between the
contending interests when the state exercises its power of eminent domain. On one
side we have the owners of the property to be expropriated who must be duly
compensated for the loss of their property, while on the other is the State which must
take the property for public use.
Facts:
Petitioner, Filstream International, Inc., is the registered owner of the properties
subject of this dispute consisting of adjacent parcels of land situated in Antonio
Rivera Street, Tondo II, Manila, with a total area of 3,571.10 square meters and
covered by T.C.T. Nos. 203937, 203936, 169198, 169199, 169200 and 169202 of
the Register of Deeds of Manila.
On January 7, 1993, petitioner filed an ejectment suit before the Metropolitan Trial
Court of Manila (Branch 15) docketed as Civil Case No. 140817-CV against the
occupants of the abovementioned parcels of land (herein private respondents in G.
R. No. 128077) on the grounds of termination of the lease contract and non-payment
of rentals. Judgment was rendered by the MTC on September 14, 1993 ordering
private respondents to vacate the premises and pay back rentals to petitioner. 1
However, it appeared that during the pendency of the ejectment proceedings private
respondents filed on May 25, 1993, a complaint for Annulment of Deed of Exchange
against petitioner Filstream which was docketed in Civil Case No. 93-66059 before
the RTC of Manila, Branch 43. It was at this stage that respondent City of Manila
came into the picture when the city government approved Ordinance No. 7813 3 on
November 5, 1993, authorizing Mayor Alfredo S. Lim to initiate the acquisition by
negotiation, expropriation, purchase, or other legal means certain parcels of land
registered under T.C.T. Nos. 169193, 169198, 169190, 169200, 169202 and 169192
of the Registry of Deeds of Manila which formed part of the properties of petitioner
then occupied by private respondents.
The issue raised in G.R. No. 125218 is purely a procedural and technical matter.
Petitioner takes exception to the resolutions of respondent CA dated March 18, 1996
and May 20, 1996 which ordered the dismissal of its Petition for Certiorari for non-
compliance with Sec. 2(a) of Rule 6 of the Revised Internal Rules of the Court of
Appeals by failing to attach to its petition other pertinent documents and papers and
for attaching copies of pleadings which are blurred and unreadable. Petitioner
argues that respondent appellate court seriously erred in giving more premium to
form rather than substance.
We agree with the petitioner. A strict adherence to the technical and procedural rules
in this case would defeat rather than meet the ends of justice as it would result in the
violation of the substantial rights of petitioner. At stake in the appeal filed by
petitioner before the CA is the exercise of their property rights over the disputed
premises which have been expropriated and have in fact been ordered condemned
in favor of the City of Manila.
The judgment in the ejectment suit became final and executory after private
respondents failed to interpose any appeal from the adverse decision of the Court of
Appeals dated August 25, 1994 in CA-G.R. SP No. 33714. Thus, petitioner has
every right to assert the execution of this decision as it had already become final and
executory.
However, it must also be conceded that the City of Manila has an undeniable right to
exercise its power of eminent domain within its jurisdiction.
Private lands rank last in the order of priority for purposes of socialized housing. In
the same vein, expropriation proceedings are to be resorted to only when the other
modes of acquisition have been exhausted. Compliance with these conditions must
be deemed mandatory because these are the only safeguards in securing the right
of owners of private property to due process when their property is expropriated for
public use.
Issue: Did the City of Manila comply with the abovementioned conditions when it
expropriated petitioner Filstream's properties?

Held: No.
We have carefully scrutinized the records of this case and found nothing that would
indicate that respondent City of Manila complied with Sec. 9 and Sec. 10 of R.A.
7279. Petitioner Filstream's properties were expropriated and ordered condemned in
favor of the City of Manila sans any showing that resort to the acquisition of other
lands listed under Sec. 9 of RA 7279 have proved futile. Evidently, there was a
violation of petitioner Filstream's right to due process which must accordingly be
rectified.
Indeed, it must be emphasized that the State has a paramount interest in exercising
its power of eminent domain for the general good considering that the right of the
State to expropriate private property as long as it is for public use always takes
precedence over the interest of private property owners. However we must not lose
sight of the fact that the individual rights affected by the exercise of such right are
also entitled to protection, bearing in mind that the exercise of this superior right
cannot override the guarantee of due process extended by the law to owners of the
property to be expropriated. In this regard, vigilance over compliance with the due
process requirements is in order.
WHEREFORE, the petitions are hereby GRANTED. In G.R. 125218, the resolutions
of the Court of Appeals in CA-G. R. SP NO. 36904 dated March 18, 1996 and May
20, 1996 are hereby REVERSED and SET ASIDE. In G.R. No. 128077, the
resolution of the Court of Appeals in CA-G.R. SP No. 43101 dated January 28, 1997
and February 18, 1997 are REVERSED and SET ASIDE.
SO ORDERED.

G.R. No. 137621 February 6, 2002


HAGONOY MARKET VENDOR ASSOCIATION, petitioner,
vs.
MUNICIPALITY OF HAGONOY, BULACAN, respondent.
DECISION
PUNO, J.:
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.
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.
.
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.

Issue: Whether or not Kautusan Blg. 28 is constitutional?

Held: Yes, constitutional.

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.
Petitioners bold assertion that there was no public hearing conducted prior to
the passage of Kautusan Blg. 28 is belied by its own evidence
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.
IN VIEW WHEREOF, the petition is DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.

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.:
Facts:
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.
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.
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. 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.
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
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 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.

Issue: Whether or not the nature of utilization of the condemned property at present
which differs from the purpose originally intended is lawful?

Held: Yes, lawful.

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 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
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
.
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.
Land Reclassification

1. Fortich vs Corona 398 SCRA 685

The Office of the President modified its decision which had already become final and
executory.

FACTS:
On November 7, 1997, the Office of the President (OP) issued a win-win Resolution which
reopened case O.P. Case No. 96-C-6424. The said Resolution substantially modified its
March 29, 1996 Decision. The OP had long declared the said Decision final & executory
after the DARs Motion for Reconsideration was denied for having been filed beyond the 15-
day reglementary period.
The SC then struck down as void the OPs act, it being in gross disregard of the rules & basic
legal precept that accord finality to administrative determinations.
The respondents contended in their instant motion that the win-win Resolution of
November 7, 1997 is not void since it seeks to correct an erroneous ruling, hence, the
March 29, 1996 decisioncould not as yet become final and executory as to be beyond
modification. They further explained that the DARs failure to file their Motion for
Reconsideration on time was excusable.

ISSUE:
Was the OPs modification of the Decision void or a valid exercise of its powers and
prerogatives?
1. Whether the DARs late filing of the Motion for Reconsideration is excusable.
2. Whether the respondents have shown a justifiable reason for the relaxation of rules.
3. Whether the issue is a question of technicality.

HELD:
1.
No.
Sec.7 of Administrative Order No. 18, dated February 12, 1987, mandates that
decisions/resolutions/orders of the Office of the President shallbecome final after the lapse
of 15 days from receipt of a copy therof xxx unless a Motion for Reconsideration thereof is
filed within such period.
The respondents explanation that the DARs office procedure made it impossibleto file
its Motion for Reconsideration on time since the said decision had to be referred to its
different departments cannot be considered a valid justification. While there is nothing wrong
with such referral, the DAR must not disregard the reglementary period fixed by law, rule or
regulation.
The rules relating to reglementary period should not be made subservient to the internal
office procedure of an administrative body.

2.
No. The final & executory character of the OP Decision can no longer be disturbed or
substantially modified. Res judicata has set in and the adjudicated affair should forever be put
to rest.
Procedural rules should be treated with utmost respect and due regard since they are designed
to facilitate the adjudication of cases to remedy the worsening problem of delay in the
resolution of rival claims and in the administration of justice. The Constitution guarantees
that all persons shall have a right to the speedy disposition of their cases before all judicial,
quasi-judicial and administrative bodies.
While a litigation is not a game of technicalities, every case must be prosecuted in accordance
with the prescribed procedure to ensure an orderly & speedy administration of justice. The
flexibility in the relaxation of rules was never intended to forge a bastion for erring litigants
to violate the rules with impunity.
A liberal interpretation & application of the rules of procedure can only be resorted to in
proper cases and under justifiable causes and circumstances.

3.
No. It is a question of substance & merit.
A decision/resolution/order of an administrative body, court or tribunal which is declared
void on the ground that the same was rendered Without or in Excess of Jurisdiction, or with
Grave Abuse of Discretion, is a mere technicality of law or procedure. Jurisdiction is an
essential and mandatory requirement before a case or controversy can be acted on. Moreover,
an act is still invalid if done in excess of jurisdiction or with grave abuse of discretion.
In the instant case, several fatal violations of law were committed. These grave breaches of
law, rules & settled jurisprudence are clearly substantial, not of technical nature.

When the March 29, 1996 OP Decision was declared final and executory, vested rights were
acquired by the petitioners, and all others who should be benefited by the said Decision.
In the words of the learned Justice Artemio V. Panganiban in Videogram Regulatory Board
vs CA, et al., just as a losing party has the right to file an appeal within the prescribed
period, the winning party also has the correlative right to enjoy the finality of the resolution
of his/her case.

2. Roxas and Co., Inc. v. IAC

Puno, J.

Facts:

Petitioner Roxas and Co. Is a corporation that owns 3 haciendas in Batangas, which the
government wishes to acquire under the Comprehensive Agrarian Law (CARL). Before the
effectivity of the law, the petitioner filed with the Department of Agrarian Reform a
voluntary offer to sell (VOS) Hacienda Caylaway pursuant to EO 229, which served as
guidelines to the comprehensive agrarian program.
The two other haciendasBanilad and Palicowere placed under compulsory acquisition by
the DAR in accordance with the CARL.

Hacienda Banilad and Palico

DAR sent invitations to Roxas and Co in order to discuss the results of the DAR
investigation, finding both Banilad and Palico qualified under the CARP. For Hacienda
Palico, DAR sent a letter of acquisition to Roxas and Co at their offices in Manila, while for
Hacienda Banilad, DAR addressed the notices to Jaime Pimintel, caretaker of the said
hacienda. It was petitioner Pimintel who attended all the proceedings regarding the two
haciendas. Hence, during trial, Roxas and Co claimed that they were not informed of the
acquisition proceedings on their two haciendas.

DAR then opened a trust account in favor of petitioner Roxas and Co. These trust accounts
were replaced by DAR with cash and Land Bank of the Philippines (LBP) bonds. Meanwhile,
petitioner Roxas applied for the conversion of the haciendas from agricultural to non-
agricultural. Despite this, DAR proceeded with the acquisition of the two haciendas. It then
issued and distributed certificate of land ownership awards (CLOA) to farmer beneficiaries.

Hacianda Caylaway

Although Hacienda Caylaway was initially offered for sale to the government, Roxas and Co
sent a letter to DAR secretary withdrawing its offer. According to Roxas, the reclassification
of Caylaway from agricultural to non agricultural was authorized by the Sangguniang Bayan
of Nasugbu. Also, the municipality of Nasugbu where the haciendas are located had been
declared a tourist zone. Roxas also argued that the land is not suitable for agricultural
purposes.

DAR secretary denied Roxas withdrawal of his VOS. According to the secretary, the
withdrawal can only be based on specific grounds such as unsuitability of soil for agriculture,
slope of the lad is over 180 degrees and that the land is undeveloped.

Despite the denial of the withdrawal of the VOS, petitioner still filed an application for
conversion with the DAR Adjudication Board (DARAB), which submitted the case to the
Secretary of DAR for resolution. The DAR secretary dismissed the case.

Roxas and Co went to the CA on appeal. CA dismissed appeal claiming that petitioners failed
to exhaust administrative remedies.

Issues:

1. WON the court can take cognizance of petitioners petition despite failure to exhaust
administrative remedies

2. WON acquisition proceedings against the petitioners were valid

3. WON the court can rule on whether the haciendas may be reclassified from
agricultural to non agricultural
Held:

1. Yes. Petitioners action falls under the exception to the doctrine of exhaustion of
administrative remedies sine there is no other plain, speedy, and adequate remedy for
the petitioners at this point. The CLOAs were already issued despite the fact that there
was no just compensation.

2. Acquisition proceedings against petitioners violated their right to due process. First,
there was an improper service of the Notice of Acquisition. Notices to corporations
should be served through their president, manager, secretary, cashier, agent, or any of
its directors or partners. Jaime Pimintel, to whom the notice was served, was neither
of those. Second, there was no notice of coverage, meaning, the parcels of land were
not properly identified before they were taken by the DAR. Under the law, the land
owner has the right to choose 5 hectares of land he wishes to retain. Upon receiving
the Notice of Acquisition, petitioner corporation had no idea which portions of its
estate were subject to compulsory acquisiton. Third, The CLOAs were issued to
farmer beneficiaries without just compensation. The law provides that the deposit
must be made only in cash or LBP bonds. DARs opening of a trust account in
petitioners name does not constitute payment. Even if later, DAR substituted the trust
account with cash and LBP bonds, such does not cure the lack of notice, which still
amounts to a violation of the petitioners right to due process.

3. Despite all this, the court has not jurisdiction to rule on the reclassification of land
from agricultural to non agricultural. DARs failure to observe due process does not
give the court the power to adjudicate over petitioners application for land
conversion. DAR is charged with the mandate of approving applications for land
conversion. They have the tools and experience needed to evaluate such applications;
hence, they are the proper agency with which applications for land use conversion are
lodged. DAR should be given a chance to correct their defects with regard to
petitioners right to due process.

Petitioner dismissed.

Note: Pertinent section although not mentioned in the case is Sec. 20 of the LGC on power of
LGU to reclassify land. However, the code also provides that the CARL prevails over LGC
provisions.
Zoning Ordinance

1. Alfredo Patalinghug vs. Court of Appeals

Facts:
On November 17, 1982, the Sangguniang Panlungsod of Davao City enacted Ordinance No.
363, otherwise known as the Expanded Zoning Ordinance of Davao City, Sec.8 of which
states:
A C-2 District shall be dominantly for commercial and compatible industrial uses as
provided hereunder:

xxx

3.1. Funeral Parlors/Memorial Homes with adequate off street parking space and provided
that they shall be established not less than 50 meters from any residential structures,
churches and other institutional buildings.
Petitioner constructed a funeral parlor in the name and style of Metropolitan Funeral Parlor at
Cabaguio Avenue, Agdao, Davao City.
Acting on the complaint of several residents of Brgy. Agdao that the construction of
petitioners 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 Tepoot, is only 8 inches to the south.
Notwithstanding the findings of the Sangguniang Panlungsod, petitioner continued with the
construction of his funeral parlor until it was finished on November 3, 1987.

Issues:

Whether petitioners operation of a funeral home constitutes permissible use within a


particular district or zone in Davao City?

Held:

Petitioner did not violate Sec.8 of Davao City Ordinance No. 363. The question of whether
Mr. Tepoots building is residential or not is a factual determination which we should not
disturb. Although the general rule is that findings of the lower courts are conclusive upon the
Supreme Court, this admits of exceptions as when the findings and conclusions of the Court
of Appeals and of the trial court are contrary to each other. While the trial court ruled that
Tepoots building was commercial, the Appellate Court ruled otherwise.
Tax declaration is not conclusive of the nature of the property for zoning purposes. A
property may well be 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--vis the determination of a
property for zoning purposes.
A tax declaration only enables the assessor to identify the evidentiary value of a tax 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, appraisal and assessment are based on the actual use
irrespective of any previous assessment or taxpayers valuation thereon. A piece of land
declared by a taxpayer as residential may be assessed by the provincial/city assessor as
commercial because its actual use is commercial.
Even if Tepoots 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
through 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 as
commercial purposes as gleaned from Ordinance No. 363.
The declaration of said area as a commercial zone through 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 may interfere with personal liberty, with property, and
with business and occupations in order to promote the general welfare. 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 the 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.
Notes. The appraisal and assessment of real property for taxation purposes is that the
property must be appraised at its current and fair market value (Reyes vs. Almanzor, 196
SCRA 322).
The exercise by local government of the power to tax is ordained by the present constitution,
only guidelines and limitations that may be established by Congress can define and limit such
power of local governments (Philippine Petroleum Corporation vs. Municipality of Pililia,
Rizal, 198 SCRA 82).

2. Ortigas vs. FEATI (1979)

Facts:
Ortigas & Co., Limited Partnership engaged in real estate business developing and
selling lots to the public particularly Highway Hills subdivision along EDSA
March 4, 1952 Augusto Padilla y Angeles and Natividad Angeles entered into
separate agreements of sale on installments over Lots 5 and 6 Block 31, Highway Hills
July 19, 1962 Augusto and Natividad transferred their rights and interests in favor
of Emma Chavez
o Transfer contained the following restrictions and stipulations:
For residential purposes only
All buildings and improvements (except fences) should use strong building material,
have modern sanitary installations connected to the public sewer or own septic tank
and shall not be more than 2 meters from the boundary lines
Resolution 27 Feb 4, 1960 reclassified the western part of EDSA (Shaw boulevard
to Pasig River) as a commercial and industrial zone
Such restrictions were annotated on the TCTs
July 23, 1962 - Feati bank bought Lot 5 from Emma Chavez while lot 6 was
purchased by Republic Flour Mills

May 5, 1963 Feati Bank began laying foundation and construction of a building for
banking purposes on lots 5 and 6
Ortigas & Co. Demanded that they comply with the annotated restrictions
Feati Bank refused arguing that it was following the zoning regulations
Ortigas & Co. filed a case in the lower courts which held that Resolution No. 27 was a
valid exercise of police power of the municipality hence the zoning is binding and takes
precedence over the annotations in the TCTs because private interest should bow
down to general interest and welfare.
March 2, 1965 motion for reconsideration by Ortigas & Co. which was denied on
March 26, 1965
April 2, 1965 Ortigas filed notice of appeal which was given due course on April 14,
1965 hence this case.

Issues:
WON Resolution No. 27 is a valid exercise of police power
WON Resolution No. 27 can nullify or supersede contractual obligations by Feati Bank
and Trust Co.

Held:
YES it is a valid exercise police power.
YES it can nullify contractual obligations by Feati with Ortigas & Co.

Ratio:
The validity of the resolution was never assailed in the lower courts and can
therefore not be raised for the first time on appeal
o The rule against flip flopping issues and arguments prevents deception in courts
o Ortigas & Co. also did not dispute the factual findings of the lower court on the validity
of the resolution
Assuming arguendo it was properly raised the resolution is still valid
o RA 2264 (Local Autonomy Act) Sec 3 empowers municipalities to adopt zoning and
subdivision ordinances or regulations for the municipality
o The resolution is regulatory measure!
o RA 2264 Sec 12 any fair and reasonable doubt as to the existence of the power
should be interpreted in favor of the local government and it shall be presumed to
exist this gives more power to LGUs to promote general welfare, economic
conditions, social welfare and material progress in their locality
The non-impairment clause of contracts is not absolute since it must be reconciled
with the legitimate exercise of police power
o when general welfare and private property rights clash, the former must prevail
through police powers of the state
Lots 5 and 6 front EDSA and has become surrounded by industrial and commercial
complexes
o Development in the area has resulted in extreme noise and air pollution that is not
conducive to health, safety and welfare of the would-be residents justifies the usage
by Feati Bank of the land for more reasonable purposes

Decision: Affirmed

Dissenting: Abad Santos, J.


Resolution 27 is valid because it has not yet been struck down but it is not a
legitimate exercise of police power because its means (zoning) do not fit with its
purpose of general welfare
Zoning the area as industrial and commercial will contribute to chaos, frenzy,
pollution, noise which suffocate and cause the deterioration of the ecology Lowers
quality of life for residents in Metro Manila

Closure and Opening of Roads

1. BRUNO S. CABRERA, vs.CA

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.

Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

2 MMDA v Bel-Air Village Association, Inc.


GR 135962
March 27, 2000

FACTS:
On December 30, 1995, respondent received from petitioner a notice requesting the former to open
its private road, Neptune Street, to public vehicular traffic starting January 2, 1996. On the same day,
respondent was apprised that the perimeter separating the subdivision from Kalayaan Avenue
would be demolished.
Respondent instituted a petition for injunction against petitioner, praying for the issuance of a TRO
and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition
of the perimeter wall.

ISSUE:
WON MMDA has the authority to open Neptune Street to public traffic as an agent of the state
endowed with police power.

HELD:
A local government is a political subdivision of a nation or state which is constituted by law and
has substantial control of local affairs. It is a body politic and corporate one endowed with
powers as a political subdivision of the National Government and as a corporate entity representing
the inhabitants of its territory (LGC of 1991).

Our Congress delegated police power to the LGUs in Sec.16 of the LGC of 1991. It empowers the
sangguniang panlalawigan, panlungsod and bayan to enact ordinances, approve resolutions and
appropriate funds for the general welfare of the [province, city or municipality] and its inhabitants
pursuant to Sec.16 of the Code and in the proper exercise of the [LGU's corporate powers] provided
under the Code.

There is no syllable in RA 7924 that grants the MMDA police power, let alone legislative power.
Unlike the legislative bodies of the LGUs, there is no grant of authority in RA 7924 that allows the
MMDA to enact ordinances and regulations for the general welfare of the inhabitants of Metro
Manila. The MMDA is merely a development authority and not a political unit of government since
it is neither an LGU or a public corporation endowed with legislative power. The MMDA Chairman is
not an elective official, but is merely appointed by the President with the rank and privileges of a
cabinet member.

In sum, the MMDA has no power to enact ordinances for the welfare of the community. It is the
LGUs, acting through their respective legislative councils, that possess legislative power and police
power.

The Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the
opening of Neptune Street, hence, its proposed opening by the MMDA is illegal.
3. Sangalang v. IAC (G.R. No. 71169. December 22, 1988)

FACTS:

The Mayor of Makati directed Bel-Air Village Association (BAVA) to opening of several streets to the
general public, after a series of developments in zoning regulations. All but Jupiter St. was voluntarily
opened. The strong opposition later gave way when the municipal officials force-opened the gates of
said street for public use. The area ceased to be purely residential. Action for damages was brought
against Ayala Corporation and BAVA for alleged breach of contract, to maintain the purely
residential status of the area. Other similarly situated also filed their respective cases. All were
dismissed in the trial court. The Court of Appeals affirmed the said dismissals.

ISSUE:

Whether or not there is a contract between homeowners and Ayala Corporation violated in opening
the Jupiter street for public use.

HELD:

No. There was no contract to speak of in the case, hence nothing was violated.

RATIO:

Petitioners cannot successfully rely on the alleged promise by Ayala Corporation, to build a [f]ence
along Jupiter [street] with gate for entrance and/or exit as evidence of Ayalas alleged continuing
obligation to maintain a wall between the residential and commercial sections. Assuming there was
a contract violated, it was still overtaken by the passage of zoning ordinances which represent a
legitimate exercise of police power. The petitioners have not shown why Courts should hold
otherwise other than for the supposed non-impairment guaranty of the Constitution, which 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.

4. Macasiano vs Diokno GR 97764 (August 10, 1992)

G.R. No. 97764

August 10, 1992

Facts:
Respondent Municipality passed Ordinance No. 86 which authorized the closure of J.Gabriel, G.G.
Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets and the establishment of a flea market
thereon. This was passed pursuant to MMC Ordinance No.2 and was approved by the Metropolitan
Manila Authority on July 20, 1990.

On August 8, 1990, respondent municipality and Palanyag entered into a contract agreement
whereby the latter shall operate, maintain & manage the flea markets and/or vending areas in the
aforementioned streets with the obligation to remit dues to the treasury of the municipal
government of Paraaque.

On September 13, 1990 Brig. Gen. Macasiano ordered the destruction and confiscation of stalls
along G.G. Cruz & Gabriel Street in Baclaran. He also wrote a letter to Palanyag ordering the
destruction of the flea market.

Hence, respondent filed a joint petition praying for preliminary injunction. The trial court upheld the
assailed Ordinance and enjoined petitioner from enforcing his letter-order against Palanyag.

Issues:

WON an ordinance/resolution issued by the municipal council of Paraaque authorizing the lease &
use of public streets/thoroughfares as sites for the flea market is valid.

Held:

No.

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 devoted to public service are deemed public and are under the absolute
control of Congress. Hence, local governments have no authority to control/regulate the use of
public properties unless specific authority is vested upon them by Congress.

Sec. 10, Chapter II of the LGC should be read and interpreted in accordance with basic principles
already established by law.

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/necessary for public
use/service. Once withdrawn, the property then becomes patrimonial property of the LGU
concerned and only then can said LGU use the property as an object of an ordinary contract. Roads
and streets available to the public and ordinarily used for vehicular traffic are still considered public
property devoted to public use. The LGU has no power to use it for another purpose or to dispose of
or lease it to private persons.

Also, the disputed ordinance cannot be validly implemented because it cant be considered
approved by the Metropolitan Manila Authority due to non-compliance with the conditions it
imposed for the approval of said ordinance.

The powers of an LGU are not absolute, but subject to the limitations laid down by the Constitution
and laws such as the Civil Code. Every LGU has the sworn obligation to enact measures that will
enhance the public health, safety & convenience, maintain peace & order and promiote the general
prosperity of the inhanbitants pf the local units.

As in the Dacanay case, the general public have the right to demand the demolition of the illegally
constructed stalls in public roads & streets. The officials of the respondent municipality have the
corresponding duty arising from public office to clear the city streets and restore them to their
specific public purpose.

The ordinance is void and illegal for lack of basis in authority in laws applicable during its time.
CHUAT HUAT VS. CA
FACTS:

Manuel Uy and Sons, Inc. requested Manila City Engineer and Building Official Manuel delRosario to
condemn the dilapidated structures located in Paco, Manila, all occupied by petitioners. The said
official issued notices of condemnation to petitioners based onInspection Reports showing that the
buildings suffered from structural deterioration of as much as 80%. 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 was stated that the notice was not an order to demolish as the findings of the City
Engineer are still subject to the approval of the Mayor. The Mayor confirmed the condemnation orders.

More than 3 months after the issuance of the condemnation order, petitioners protested against the
notices of condemnation on the ground that the buildings are still in good physical condition and are
structurally sound.

Later, the City Engineer issued a demolition order. The petitioners filed a Petition for Prohibition, with
PI or TRO against the City Mayor, City Engineer, Building Officer and Manuel Uy and Sons Inc.

The Court issued the TRO and required respondents to comment. Respondents prayed that the
petition be dismissed claiming that: (1) 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); and (2) 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.

ISSUE:

(1) WON 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 Official;

(2) WON the City Mayor and City Engineer committed grave abuse of discretion in the exercise of such
powers.

HELD:

(1) YES. 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. The Compilation of
Ordinances of the City of Manila and the National Building Code, also provide the authority of the
Building Officials, with respect to dangerous buildings. Respondent City Engineer and Building Official
can, therefore, validly issue the questioned condemnation and demolition orders. This is also true with
the Mayor who can approve or deny the condemnation orders as provided in Section 276 of the
Compilation of Ordinances of the City of Manila.
(2) NO. 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%. The respondent Mayor's act of approving the
condemnation orders was likewise done in accordance with law. Petitioners were given the opportunity
to protest the condemnation but only did so long after the lapse of the period (7 days) allowed them
under Section 276 of the Compilation of Ordinances of the City of Manila.

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."

Tatel vs Municipality of Virac

Facts: Petitioner Celestino Tatel owns a warehouse in barrio Sta. Elena, Municipality of
Virac. Complaints were received by the municipality concerning the disturbance caused by
the operation of the abaca bailing machine inside petitioner's warehouse. A committee was
then appointed by the municipal council, and it noted from its investigation on the matter
that an accidental fire within the warehouse of the petitioner created a danger to the lives
and properties of the people in the neighborhood. Resolution No. 29 was then passed by the
Municipal council declaring said warehouse as a public nuisance within a purview of Article
694 of the New Civil Code. According to respondent municipal officials,
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 Ordinance No. 13 is unconstitutional.

Issues:

(1) Whether or not petitioner's warehouse is a nuisance within the meaning Article 694 of
the Civil Code

(2) Whether or not Ordinance No. 13, series of 1952 of the Municipality of Virac is
unconstitutional and void.

Held: The storage of abaca and copra in petitioner's warehouse is a nuisance under the
provisions of Article 694 of the Civil Code. At the same time, Ordinance No. 13 was passed
by the Municipal Council of Virac in the exercise of its police power. It is valid because it
meets the criteria for a valid 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. The purpose of the said
ordinance is to avoid the loss of property and life in case of fire which is one of the
primordial obligation of government. The lower court did not err in its decision.
Bayan, et al., Vs. Eduardo Ermita, et al.,
G.R. No. 169838
April 25, 2006

Facts: The petitioners, Bayan, et al., alleged that they are citizens and taxpayers of the Philippines and
that their right as organizations and individuals were violated when the rally they participated in on
October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa No. 880.

Petitioners contended that Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of which the
Philippines is a signatory. They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice
of venue and is thus repugnant to the freedom of expression clause as the time and place of a public
assembly form part of the message which the expression is sought. Furthermore, it is not content-neutral
as it does not apply to mass actions in support of the government. The words lawful cause, opinion,
protesting or influencing suggest the exposition of some cause not espoused by the government. Also,
the phrase maximum tolerance shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
This petition and two other petitions were ordered to be consolidated on February 14, 2006. During the
course of oral arguments, the petitioners, in the interest of a speedy resolution of the petitions, withdrew
the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

Issue: Whether the Calibrated Pre-emptive response and the Batas Pambansa No. 880, specifically
Sections 4, 5, 6, 12, 13(a) and 14(a) violates Art. III Sec. 4 of the Philippine Constitution as it causes a
disturbing effect on the exercise by the people of the right to peaceably assemble.

Held: Section 4 of Article III of the Philippine Constitution provides that no law shall be passed abridging
the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances. The right to peaceably assemble and petition for
redress of grievances, together with freedom of speech, of expression, and of the press, is a right that
enjoys dominance in the sphere of constitutional protection. For this rights represent the very basis of a
functional democratic polity, without which all the other rights would be meaningless and unprotected.

However, it must be remembered that the right, while sacrosanct, is not absolute. It may be regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of
the community or society. The power to regulate the exercise of such and other constitutional rights is
termed the sovereign police power, which is the power to prescribe regulations, to promote the health,
morals, peace, education, good order or safety, and general welfare of the people.

B.P. No 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies that would use public places. The reference to lawful cause does not make it content-based
because assemblies really have to be for lawful causes, otherwise they would not be peaceable and
entitled to protection. Neither the words opinion, protesting, and influencing in of grievances come
from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the
protection and benefit of all rallyist and is independent of the content of the expression in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order,
public safety, public convenience, public morals or public health. This is a recognized exception to the
exercise of the rights even under the Universal Declaration of Human Rights and The International
Covenant on Civil and Political Rights.

Wherefore, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the
Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance
with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one
suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the
finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to
exercise the right to peaceably assemble and petition in the public parks or plaza in every city or
municipality that has not yet complied with section 15 of the law. Furthermore, Calibrated pre-emptive
response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and
VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the
requirements of maximum tolerance, The petitions are DISMISSED in all other respects, and the
constitutionality of Batas Pambansa No. 880 is SUSTAINED

G.R. No. 175241 February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose Anselmo I.
Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,

vs.

HONORABLE MANILA MAYOR JOSE LITO ATIENZA, Respondent.

Petitioners Integrated Bar of the Philippines 1 (IBP) and lawyers H. Harry L. Roque and Joel R. Butuyan
appeal the June 28, 2006 Decision 2 and the October 26, 2006 Resolution 3 of the Court of Appeals that
found no grave abuse of discretion on the part of respondent Jose Lito Atienza, the then mayor of
Manila, in granting a permit to rally in a venue other than the one applied for by the IBP.

On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed with the
Office of the City Mayor of Manila a letter application 4 for a permit to rally at the foot of Mendiola Bridge
on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members, law
students and multi-sectoral organizations.

Respondent issued a permit 5 dated June 16, 2006 allowing the IBP to stage a rally on given date but
indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received
on June 19, 2006.

Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari docketed
as CA-G.R. SP No. 94949.6 The petition having been unresolved within 24 hours from its filing, petitioners
filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which
assailed the appellate courts inaction or refusal to resolve the petition within the period provided under
the Public Assembly Act of 1985.7

The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively,
denied the petition for being moot and academic, denied the relief that the petition be heard on the
merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Arturo
Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners from
proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the peaceful conduct
of the program.

The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as I.S. No. 06I-12501,
against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the permit,
to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance, that
the petition became moot and lacked merit. The appellate court also denied petitioners motion for
reconsideration by the second assailed issuance.

Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment of
November 18, 2008 which merited petitioners Reply of October 2, 2009.

The main issue is whether the appellate court erred in holding that the modification of the venue in IBPs
rally permit does not constitute grave abuse of discretion.

Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act and
violates their constitutional right to freedom of expression and public assembly.

The Court shall first resolve the preliminary issue of mootness.

Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the passing
of the date of the rally on June 22, 2006.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts
decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the bench, bar and public.
Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is
capable of repetition, yet evading review.9

In the present case, the question of the legality of a modification of a permit to rally will arise each time
the terms of an intended rally are altered by the concerned official, yet it evades review, owing to the
limited time in processing the application where the shortest allowable period is five days prior to the
assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue at hand.

Respecting petitioners argument that the issues presented in CA-G.R. SP No. 94949 pose a prejudicial
question to the criminal case against Cadiz, the Court finds it improper to resolve the same in the present
case.

Under the Rules,10 the existence of a prejudicial question is a ground in a petition to suspend proceedings
in a criminal action. Since suspension of the proceedings in the criminal action may be made only upon
petition and not at the instance of the judge or the investigating prosecutor,11 the latter cannot take
cognizance of a claim of prejudicial question without a petition to suspend being filed. Since a petition to
suspend can be filed only in the criminal action,12 the determination of the pendency of a prejudicial
question should be made at the first instance in the criminal action, and not before this Court in an appeal
from the civil action.

In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of discretion
on the part of respondent because the Public Assembly Act does not categorically require respondent to
specify in writing the imminent and grave danger of a substantive evil which warrants the denial or
modification of the permit and merely mandates that the action taken shall be in writing and shall be
served on respondent within 24 hours. The appellate court went on to hold that respondent is authorized
to regulate the exercise of the freedom of expression and of public assembly which are not absolute, and
that the challenged permit is consistent with Plaza Mirandas designation as a freedom park where
protest rallies are allowed without permit.

The Court finds for petitioners.

Section 6 of the Public Assembly Act reads:

Section 6. Action to be taken on the application

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the public assembly will create a clear and present danger to
public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days
from the date the application was filed, failing which, the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of the mayor and shall be
deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the applicant who must be heard on the
matter.

(d) The action on the permit shall be in writing and served on the application [sic] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in
his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond
and record on appeal shall be required. A decision granting such permit or modifying it in terms
satisfactory to the applicant shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of
filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring supplied)

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and
discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It
is not to be limited, much less denied, except on a showing, as is the case with freedom of
expression, of a clear and present danger of a substantive evil that the state has a right to prevent.
Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free speech. To paraphrase the
opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v.
Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were
coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to
examine the effects of the challenged governmental actuation. The sole justification for a limitation on
the exercise of this right, so fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest.14 (emphasis supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the
1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public Assembly Act with the
pertinent portion of the Reyes case, the Court elucidated as follows:

x x x [The public official concerned shall] appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable condition to such refusal
or modification that the clear and present danger test be the standard for the decision reached. If he is of
the view that there is such an imminent and grave danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them
at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial
authority.16 (italics and underscoring supplied)

In modifying the permit outright, respondent gravely abused his discretion when he did not immediately
inform the IBP who should have been heard first on the matter of his perceived imminent and grave
danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard
precedes the action on the permit, since the applicant may directly go to court after an unfavorable action
on the permit.

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the
standard of a clear and present danger test which, it bears repeating, is an indispensable condition to
such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive
evil, which blank denial or modification would, when granted imprimatur as the appellate court would
have it, render illusory any judicial scrutiny thereof.

It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur,
given all the relevant circumstances, still the assumption especially so where the assembly is scheduled
for a specific public place is that the permit must be for the assembly being held there. The exercise of
such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not
to be abridged on the plea that it may be exercised in some other place.17 (emphasis and
underscoring supplied)

Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of
whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a
specific public place. It is thus reversible error for the appellate court not to have found such grave abuse
of discretion and, under specific statutory provision, not to have modified the permit in terms satisfactory
to the applicant.18

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 94949
are REVERSED. The Court DECLARES that respondent committed grave abuse of discretion in
modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge to
Plaza Miranda.
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

Facts:

On December 3, 1992, City Mayor Alfredo S. Lim signed into law Manila City Ordinance No. 7774 entitled
An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate
Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the
City of Manila (the Ordinance). The ordinance sanctions any person or corporation who will allow the
admission and charging of room rates for less than 12 hours or the renting of rooms more than twice a
day.

The petitioners White Light Corporation (WLC), Titanium Corporation (TC), and Sta. Mesa Tourist and
Development Corporation (STDC), who own and operate several hotels and motels in Metro Manila, filed
a motion to intervene and to admit attached complaint-in-intervention on the ground that the ordinance
will affect their business interests as operators. The respondents, in turn, alleged that the ordinance is a
legitimate exercise of police power.

RTC declared Ordinance No. 7774 null and void as it strikes at the personal liberty of the individual
guaranteed and jealously guarded by the Constitution. Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to needed investment, as well as the right
to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance
sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay,
When elevated to CA, the respondents asserted that the ordinance is a valid exercise of police power
pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities the power to
regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses and other similar establishments, including tourist guides and
transports. Also, they contended that under Art III Sec 18 of Revised Manila Charter, they have the power
to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of
the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general
welfare of the city and its inhabitants and to fix penalties for the violation of ordinances.

Petitioners argued that the ordinance is unconstitutional and void since it violates the right to privacy and
freedom of movement; it is an invalid exercise of police power; and it is unreasonable and oppressive
interference in their business.
CA, in turn, reversed the decision of RTC and affirmed the constitutionality of the ordinance. First, it held
that the ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the
owners or operators of establishments that admit individuals for short time stays. Second, the virtually
limitless reach of police power is only constrained by having a lawful object obtained through a lawful
method. The lawful objective of the ordinance is satisfied since it aims to curb immoral activities. There is
a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the
establishments is justified by the well-being of its constituents in general.

Hence, the petitioners appeared before the SC.

Issue:

Whether Ordinance No. 7774 is a valid exercise of police power of the State.

Held:

No. Ordinance No. 7774 cannot be considered as a valid exercise of police power, and as such, it is
unconstitutional.

The facts of this case will recall to mind not only the recent City of Manila v Laguio Jr ruling, but the 1967
decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. The
common thread that runs through those decisions and the case at bar goes beyond the singularity of the
localities covered under the respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient lodging establishments. This could
be described as the middle case, wherein there is no wholesale ban on motels and hotels but the
services offered by these establishments have been severely restricted. At its core, this is another case
about the extent to which the State can intrude into and regulate the lives of its citizens

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held
that for an ordinance to be valid, it must not only be within the corporate powers of the local government
unit to enact and pass according to the procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair
or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be unreasonable.
The ordinance in this case prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the
police power as conferred on local government units by the Local Government Code through such
implements as the general welfare clause.

Police power is based upon the concept of necessity of the State and its corresponding right to protect
itself and its people. Police power has been used as justification for numerous and varied actions by the
State.

The apparent goal of the ordinance is to minimize if not eliminate the use of the covered establishments
for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and
certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not
sanctify any and all means for their achievement. Those means must align with the Constitution.

SC contended that if they were to take the myopic view that an ordinance should be analyzed strictly as
to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law
that they were capacitated to act upon is the injury to property sustained by the petitioners. Yet, they also
recognized the capacity of the petitioners to invoke as well the constitutional rights of their patrons
those persons who would be deprived of availing short time access or wash-up rates to the lodging
establishments in question. The rights at stake herein fell within the same fundamental rights to liberty.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right to exist and
the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom
from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the
facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary
for the common welfare,

Indeed, the right to privacy as a constitutional right must be recognized and the invasion of it should be
justified by a compelling state interest. Jurisprudence accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.

An ordinance which prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the means
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of
private rights. It must also be evident that no other alternative for the accomplishment of the purpose less
intrusive of private rights can work. More importantly, a reasonable relation must exist between the
purposes of the measure and the means employed for its accomplishment, for even under the guise of
protecting the public interest, personal rights and those pertaining to private property will not be permitted
to be arbitrarily invaded.
Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights.
The behavior which the ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of
prostitutes and drug dealers through active police work would be more effective in easing the situation.
So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use.
These measures would have minimal intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the ordinance can easily be circumvented by merely paying the
whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and
prostitutes can in fact collect wash rates from their clientele by charging their customers a portion of the
rent for motel rooms and even apartments.

SC reiterated that individual rights may be adversely affected only to the extent that may fairly be required
by the legitimate demands of public interest or public welfare. The State is a leviathan that must be
restrained from needlessly intruding into the lives of its citizens. However well-intentioned the ordinance
may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as
their patrons. The ordinance needlessly restrains the operation of the businesses of the petitioners as
well as restricting the rights of their patrons without sufficient justification. The ordinance rashly equates
wash rates and renting out a room more than twice a day with immorality without accommodating
innocuous intentions.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the
Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.

Dela Cruz v Paras

G.R. No. L-42571-72 July 25, 1983

Facts:

Assailed was the validity of an ordinance which prohibit the operation of night clubs. Petitioners contended that the
ordinance is invalid, 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.

RA 938, as amended, was originally enacted on June 20, 1953. It is entitled: "An Act Granting Municipal or City Boards
and Councils the Power to Regulate the Establishments, Maintenance and Operation of Certain Places of
Amusement within Their Respective Territorial Jurisdictions.'

The first section 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:
On May 21, 1954, the first section was amended to include not merely "the power to regulate, but likewise
"Prohibit ... " The title, however, remained the same. It is worded exactly as RA 938.

As thus amended, if only the said portion of the Act was considered, a municipal council may go as far as to prohibit
the operation of night clubs. The title was not in any way altered. It was not changed one bit. The exact wording
was followed. The power granted remains that of regulation, not prohibition

Petitioners contended that RA 938 which prohibits the operation of night clubs would give rise to a constitutional
question. The lower court upheld the constitutionality and validity of Ordinance No. 84 and dismissed the cases.
Hence this petition forcertiorari by way of appeal.

ISSUE: Whether or not the ordinance is valid

NO. It is unconstitutional. It undoubtly involves a measure not embraced within the regulatory power but an
exercise of an assumed power to prohibit. The Constitution mandates: "Every bill shall embrace only one subject
which shall be expressed in the title thereof. "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, and improve the morals, in the language of the
Administrative Code, such competence extending to all "the great public needs.

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.

Under the Local Govt Code, 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.

Herein what was involved is a measure not embraced within the regulatory power but an exercise of an assumed
power to prohibit.

CITY OF MANILA VS. LAGUIO

MARCH 30, 2013 ~ VBDIAZ

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L.

ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of

Manila, et.al vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE
TOURIST DEVELOPMENT CORPORATION

G.R. No. 118127, April 12, 2005

FACTS: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged

in the business of operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court

in Malate which was licensed as a motel although duly accredited with the DOT as a hotel. On 28 June

1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or

Temporary Restraining Order7 with the lower court impleading as defendants, herein petitioners City of

Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of

Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among

its prohibited establishments, be declared invalid and unconstitutional.

Enacted by the City Council and approved by petitioner City Mayor, the said Ordinance is entitled

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES

PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES

IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR

OTHER PURPOSES.

Judge Laguio rendered the assailed Decision (in favour of respondent).

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were

committed by the lower court in its ruling:

(1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and

oppressive exercise of police power;

(2) It erred in holding that the questioned Ordinance contravenes P.D. 499 which allows operators of all

kinds of commercial establishments, except those specified therein; and

(3) It erred in declaring the Ordinance void and unconstitutional.

ISSUE: WON the ordinance is unconstitutional.

HELD: The Court is of the opinion, and so holds, that the lower court did not err in declaring the

Ordinance, as it did, ultra vires and therefore null and void.


The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance

to be valid, it must not only be within the corporate powers of the local government unit to enact and must

be passed according to the procedure prescribed by law, it must also conform to the following substantive

requirements:

(1) must not contravene the Constitution or any statute;

(2) must not be unfair or oppressive;

(3) must not be partial or discriminatory;

(4) must not prohibit but may regulate trade;

(5) must be general and consistent with public policy; and

(6) must not be unreasonable.

The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City

Council acting as agent of Congress. This delegated police power is found in Section 16 of the LGC, known

as the general welfare clause.

The inquiry in this Petition is concerned with the validity of the exercise of such delegated power.

A. The Ordinance contravenes

the Constitution

The enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and

repugnant to general laws.

The police power granted to LGUs must always be exercised with utmost observance of the rights of the

people to due process and equal protection of the law. Due process requires the intrinsic validity of the

law in interfering with the rights of the person to his life, liberty and property.

Requisites for the valid exercise

of Police Power are not met

To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance,

and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of

the public generally, as distinguished from those of a particular class, require an interference with private

rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals.60 It must be evident that no other alternative for the

accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist

between the purposes of the police measure and the means employed for its accomplishment, for even

under the guise of protecting the public interest, personal rights and those pertaining to private property

will not be permitted to be arbitrarily invaded.

a violation of the due process clause.Lacking a concurrence of these two requisites, the police measure

shall be struck down as an arbitrary intrusion into private rights

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values

of the community. Granting for the sake of argument that the objectives of the Ordinance are within the

scope of the City Councils police powers, the means employed for the accomplishment thereof were

unreasonable and unduly oppressive.

The worthy aim of fostering public morals and the eradication of the communitys social ills can be

achieved through means less restrictive of private rights; it can be attained by reasonable restrictions

rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion

into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its

purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se protect and

promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills

of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.

The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of

the community. While a motel may be used as a venue for immoral sexual activity, it cannot for that

reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere

likelihood or a naked assumption.

If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead

impose reasonable regulations such as daily inspections of the establishments for any violation of the

conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for

these violations; and it may even impose increased license fees. In other words, there are other means to

reasonably accomplish the desired end.


It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the

governmental interference itself, infringes on the constitutional guarantees of a persons fundamental

right to liberty and property.

Modality employed is

unlawful taking

It is an ordinance which permanently restricts the use of property that it can not be used for any

reasonable purpose goes beyond regulation and must be recognized as a taking of the property without

just compensation.78 It is intrusive and violative of the private property rights of individuals.

There are two different types of taking that can be identified. A possessory taking occurs when the

government confiscates or physically occupies property. A regulatory taking occurs when the

governments regulation leaves no reasonable economically viable use of the property.

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it

leaves no reasonable economically viable use of property in a manner that interferes with reasonable

expectations for use. When the owner of real property has been called upon to sacrifice all economically

beneficial uses in the name of the common good, that is, to leave his property economically idle, he has

suffered a taking.

The Ordinance gives the owners and operators of the prohibited establishments three (3) months from

its approval within which to wind up business operations or to transfer to any place outside of the

Ermita-Malate area or convert said businesses to other kinds of business allowable within the area. The

directive to wind up business operations amounts to a closure of the establishment, a permanent

deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to

accommodate an allowed business, the structure which housed the previous business will be left empty

and gathering dust. It is apparent that the Ordinance leaves no reasonable economically viable use of

property in a manner that interferes with reasonable expectations for use.

are confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in

Section 4 of the Ordinance is also equivalent to a taking of private property. to transfer to any place

outside of the Ermita-Malate area or to convert into allowed businessesThe second and third options
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance,

although a valid exercise of police power, which limits a wholesome property to a use which can not

reasonably be made of it constitutes the taking of such property without just compensation. Private

property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed

without compensation. Such principle finds no support in the principles of justice as we know them. The

police powers of local government units which have always received broad and liberal interpretation

cannot be stretched to cover this particular taking.

Further, The Ordinance confers upon the mayor arbitrary and unrestricted power to close down

establishments. Ordinances such as this, which make possible abuses in its execution, depending upon no

conditions or qualifications whatsoever other than the unregulated arbitrary will of the city authorities as

the touchstone by which its validity is to be tested, are unreasonable and invalid. The Ordinance should

have established a rule by which its impartial enforcement could be secured. Similarly, the Ordinance

does not specify the standards to ascertain which establishments tend to disturb the community, annoy

the inhabitants, and adversely affect the social and moral welfare of the community.

The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide

the law enforcers in carrying out its provisions.

Petitioners cannot therefore order the closure of the enumerated establishments without infringing the

due process clause. These lawful establishments may be regulated, but not prevented from carrying on

their business.

B. The Ordinance violates Equal

Protection Clause

In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels,

lodging houses or other similar establishments. By definition, all are commercial establishments

providing lodging and usually meals and other services for the public. No reason exists for prohibiting

motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The

classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights
conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a

just and fair relation to the purpose of the Ordinance.

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-

Malate area but not outside of this area. A noxious establishment does not become any less noxious if

located outside the area.

is not a profession exclusive to women. Both men and women have an equal propensity to engage in

prostitution. Thus, the discrimination is invalid.one of the hinted ills the Ordinance aims to

banishThe standard where women are used as tools for entertainment is also discriminatory as

prostitution

C. The Ordinance is repugnant

to general laws; it is ultra vires

The Ordinance is in contravention of the Code (Sec 458) as the latter merely empowers local government

units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof.

With respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and

other similar establishments, the only power of the City Council to legislate relative thereto is to regulate

them to promote the general welfare. The Code still withholds from cities the power to suppress and

prohibit altogether the establishment, operation and maintenance of such establishments.

It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing

the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one

which affects the immediate safety of persons and property and may be summarily abated under the

undefined law of necessity. It can not be said that motels are injurious to the rights of property, health or

comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven

in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary

abatement without judicial intervention.


Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499.

As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a

commercial area. The decree allowed the establishment and operation of all kinds of commercial

establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline

service station, light industry with any machinery or funeral establishment. The rule is that for an

ordinance to be valid and to have force and effect, it must not only be within the powers of the council to

enact but the same must not be in conflict with or repugnant to the general law.

Conclusion

All considered, the Ordinance invades fundamental personal and property rights and impairs personal

privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and

unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the

enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to

enact the Ordinance and is therefore ultra vires, null and void.

Petition Denied.

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,


vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

DECISION

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades Strike but
hear me first! It is this cry that the petitioner in effect repeats here as he challenges the constitutionality
of Executive Order No. 626-A.

The said executive order reads in full as follows:


WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the
slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with
respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the
prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the
prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive
Order and provide for the disposition of the carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby promulgate the following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of
age, sex, physical condition or purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this Executive Order as amended shall be
subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in
the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may
see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty.

(SGD.) FERDINAND E. MARCOS

President

Republic of the Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984,
when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the
above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case,
the court sustained the confiscation of the carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the
executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial
court, ** and he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that
the penalty is invalid because it is imposed without according the owner a right to be heard before a
competent and impartial court as guaranteed by due process. He complains that the measure should not
have been presumed, and so sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment No. 6 of the 1973
Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here.
The question raised there was the necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly
affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6We have jurisdiction under the Constitution to
review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide,
final judgments and orders of lower courts in, among others, all cases involving the constitutionality of
certain measures. 7 This simply means that the resolution of such cases may be made in the first instance
by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the
need to declare them so, then will be the time to make the hammer fall, and heavily, 8 to recall Justice
Laurels trenchant warning. Stated otherwise, courts should not follow the path of least resistance by
simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe
the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the
wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the
task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of
the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment
there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or
was unable to act adequately on any matter that in his judgment required immediate action, he could, in
order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and
effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power
then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since
the determination of the grounds was supposed to have been made by the President in his judgment, a
phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of
this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is the
Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also conveniently resilient. This
was felt necessary because due process is not, like some provisions of the fundamental law, an iron rule
laying down an implacable and immutable command for all seasons and all persons. Flexibility must be
the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt
easily to every situation, enlarging or constricting its protection as the changing times and circumstances
may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process lest
they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to
vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be gradually ascertained by the process of inclusion and
exclusion in the course of the decision of cases as they arise. 11 Thus, Justice Felix Frankfurter of the U.S.
Supreme Court, for example, would go no farther than to define due process and in so doing sums it
all up as nothing more and nothing less than the embodiment of the sporting Idea of fair play. 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown
would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful
judgment of his peers or the law of the land, they thereby won for themselves and their progeny that
splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all
rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled
to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear the
other side before an opinion is formed or a decision is made by those who sit in judgment. Obviously,
one side is only one-half of the question; the other half must also be considered if an impartial verdict is to
be reached based on an informed appreciation of the issues in contention. It is indispensable that the two
sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination
of the problem not from one or the other perspective only but in its totality. A judgment based on less that
this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias
or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not
be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying
commentary on our judicial system that the jurisprudence of this country is rich with applications of this
guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have
consistently declared that every person, faced by the awesome power of the State, is entitled to the law
of the land, which Daniel Webster described almost two hundred years ago in the famous Dartmouth
College Case, 14 as the law which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial. It has to be so if the rights of every person are to be secured beyond the reach
of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a
worn and empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number
of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the
need for expeditions action will justify omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate
danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and
narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has
fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy
houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without
violation of due process in view of the nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both restraints
and is restrained by due process. The police power is simply defined as the power inherent in the State to
regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it
extends to all the great public needs and is described as the most pervasive, the least limitable and the
most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain.
The individual, as a member of society, is hemmed in by the police power, which affects him even before
he is born and follows him still after he is dead from the womb to beyond the tomb in practically
everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion.
Even so, as long as the activity or the property has some relevance to the public welfare, its regulation
under the police power is not only proper but necessary. And the justification is found in the venerable
Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the
subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the
basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain
conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that
present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small
farmers who rely on them for energy needs. We affirm at the outset the need for such a measure. In the
face of the worsening energy crisis and the increased dependence of our farms on these traditional
beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect
and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration,
branding and slaughter of large cattle was claimed to be a deprivation of property without due process of
law. The defendant had been convicted thereunder for having slaughtered his own carabao without the
required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was
sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then
badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their
number had resulted in an acute decline in agricultural output, which in turn had caused an incipient
famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price,
cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and
branding of these animals. The Court held that the questioned statute was a valid exercise of the police
power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals.

From what has been said, we think it is clear that the enactment of the provisions of the statute under
consideration was required by the interests of the public generally, as distinguished from those of a
particular class and that the prohibition of the slaughter of carabaos for human consumption, so long as
these animals are fit for agricultural work or draft purposes was a reasonably necessary limitation on
private ownership, to protect the community from the loss of the services of such animals by their
slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the
luxury of animal food, even when by so doing the productive power of the community may be measurably
and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor
mans tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-
cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at
least seven years old if male and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and preventing their improvident
depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive
order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be
a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an
absolute ban not on the slaughter of the carabaos but on their movement, providing that no carabao
regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one
province to another. The object of the prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter
there, any more than moving them to another province will make it easier to kill them there. As for the
carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily
circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for
the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason
either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still have to
reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright
confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities,
usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed
was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under
the challenged measure, significantly, no such trial is prescribed, and the property being transported is
immediately impounded by the police and declared, by the measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were
returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of
P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by
the trial court. The executive order defined the prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The measure struck at once and pounced upon
the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of
elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed
with notwithstanding the usual requirement for these minimum guarantees of due process. It is also
conceded that summary action may be validly taken in administrative proceedings as procedural due
process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a
justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought
to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioners peremptory
treatment. The properties involved were not even inimical per se as to require their instant destruction.
There certainly was no reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is
penal in nature, the violation thereof should have been pronounced not by the police only but by a court of
justice, which alone would have had the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as
prescribed in the questioned executive order. It is there authorized that the seized property shall be
distributed to charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos. (Emphasis supplied.) The
phrase may see fit is an extremely generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations that the said officers must observe
when they make their distribution. There is none. Their options are apparently boundless. Who shall be
the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers
named can supply the answer, they and they alone may choose the grantee as they see fit, and in their
own exclusive discretion. Definitely, there is here a roving commission, a wide and sweeping authority
that is not canalized within banks that keep it from overflowing, in short, a clearly profligate and
therefore invalid delegation of legislative powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because
the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law
and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated
is denied the right to be heard in his defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is
a clear encroachment on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are
granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we
hereby declare Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated the
petitioners carabaos is not liable in damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to
declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all
their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this
case would never have reached us and the taking of his property under the challenged measure would
have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present
challenge, the matter would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They
become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright
and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above,
the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount
thereof is ordered rest
CITY OF MANILA VS TEOTICO

[22 SCRA 267]It is not necessary for liability to attach to the City of Manila that thedefective road
or street belong to it. It is sufficient that it has eithercontrol or supervision over the street or
road.Under Article 2189 of the Civil Code, it is not necessary for theliability therein established to
attach that the defective roads orstreets belong to the province, city or municipality from
whichresponsibility is exacted. What said article requires is that theprovince, city or municipality
have either "control or supervision"over said street or road. Even if P. Burgos Avenue were,
therefore, anational highway, this circumstance would not necessarily detractfrom its "control or
supervision" by the City of Manila, underRepublic Act 409. The City of Manila is therefore liable
for damagesto Teotico

MUNICIPALITY OF SAN FERNANDO VS FIRME

[195SCRA692]

FACTS:

Laurence Banino, Sr., along with several other passengers in a jeepney they were riding in, died
after collision involving said jeepney, a privately owned graved and sand trucks and a dump
truckowned by the Municipality of San Fernando, La Union, driven byAlfredo Bislig, a regular
employee of said municipality. The heirsincluded in its complaint the municipality and the dump
trucksdriver. The municipality invokes non-suability of the State. Is itcorrect?

HELD:

YES,1. The general rule is that the State may not be sued except when itgives consent to be sued.
Consent takes the form of express of implied consent.Express consent may be embodied in a
general law or a special law.The standing consent of the State to be sued in case of moneyclaims
involving liability arising from contracts is found in Act No.3083. A special law may be passed to
enable a person to sue thegovernment for an alleged quasi-delict.Consent is implied when the
government enters into businesscontracts, thereby descending to the level of the other
contractingparty, and also when the State files a complaint thus opening itself to a
counterclaim.Municipal corporations for example, like provinces and cities, areagencies of the
State when they are engaged in governmentalfunctions and therefore should enjoy the sovereign
immunity fromsuit. Nevertheless, they are subject to suit even in the performanceof such
functions because their charter provided that they can sueand be sued.2. A distinction should
first be made between suability and liability.

Suability depends on t

he consent of the state to be sued, liabilityon the applicable law and the established facts. The
circumstancethat a State is suable does not necessarily mean that it is liable; onthe other hand, it
can never be held allowing itself to be sued. Whenthe state does waive its sovereign immunity, it
is only giving the

plaintiff the chance to prove, if it can, that the defendant is liable.

3. About the issue of whether or not the municipality is liable for thetorts committed by its
employee, the test of liability of themunicipality depends on whether or not the driver, acting in
behalf of the municipality is performing governmental of proprietyfunctions. As emphasized in
the case of Torio vs. Fontanilla, thedistinction of powers becomes important for purposes
of determining the liability of the municipality for the acts of its agentswhich result in an injury to
third persons.It has already been remarked that municipal corporations are suablebecause their
charters grant them the competence to sue and besued. Nevertheless, they are generally not
liable for torts committedby them in the discharge of governmental functions and can be
heldanswerable only if it can be shown that they were acting in apropriety capacity. In
permitting such entities to be sued, the Statemerely gives the claimant the right to show that the
defendant is notacting in its governmental capacity when the injury was committedor that the
case comes under exceptions recognized by law. Failingthis, the claimant cannot recover.4. In the
case at bar, the driver of the dump truck of the municipality
insists that he was on his way to Naguilian River to get a load of sand and gravel for the repair of
San Fernandos municipal streets.

TORIO VS FONTANILLA

[85 SCRA 599]Since the holding of a town fiesta is an exercise of a proprietaryfunction, the
Municipality of Malasiqui is liable for any injurysustained on the occasion thereof.

FACTS:

The Municipal Council of Malasiqui, Pangasinan passed a resolutioncelebrating a town fiesta for 3
days on January, 1959. The resolutioncreated on Executive Committee which would oversee
theoperations of the town fiesta. The Executive Committee in turn hada sub-committee in charge
of building 2 stages, one of which was fora zarzuela program.Vicente Fontanilla was one of the
actors of the zarzuela. While thezarzuela was going on the stage where the play was set
collapsed.Fontanilla, who has at the rear of the stage, was pinned underneathand died the
following day.The family and heirs of Fontanilla filed a complaint against theMunicipality of
Malasiqui, the Municipal Council and the individualmembers of the Municipal Council. Can they
be held liable?

HELD:

The Municipality of Malasiqui is liable and the individual members of the Municipal Council are
not liable.

REASONS:

1) The basic rule to be first followed is that a municipal corporationcannot be held liable for an
injury caused in the course of performance of a governmental function. With respect
toproprietary functions, the settled rule is that a municipal corporationcan be held liable upon
contracts and in torts.2) The next question to be answered is that whether the fiestaabove-quota
was performed by the municipality in the exercise of itsgovernmental or proprietary function.
According to 2282 of therevised Administrative Code, municipalities are authorized to holdfiesta,
but it is not their duty to conduct such.Thus, the fiesta is proprietary in nature. The same analogy
can beapplied to the maintenance of parks, which is a private undertaking,as opposed to the
maintenance of public schools and jails, which arefor the public service. (The key word then is
duty.)3) Under the doctrine of respondent superior (see first paragraph of Art. 2180), the
municipality can be held liable for the death of Fontanilla if a) the municipality was performing a
proprietaryfunction at that time and b) negligence can be attributed to the

municipalitys officers, employees or agents performing the

proprietary function. The evidence proved that the committeeoverseeing the construction of the
stage failed to build a strongenough to insure the safety of zarzuela participants. Fontanilla
wasentitled to ensure that he would be exposed to danger on thatoccasion.4) Finally, the
municipal council is not responsible. The Municipalitystands on the same footing as an ordinary
private corporation withthe municipal council acting as its board of directors. It is anelementary
principle that a corporation has a personality, separateand distinct from its officers, directors, or
persons composing it andthe latter are not as a rule co-responsible in an action for damagesfor
tort or negligence culpa aquillana committed by the

corporations employees of agents unless there is a showing of bad

faith or gross or wanton negligence on their part. To make an officerof a corporation liable for the
negligence of the corporation theremust have been upon his part such a breach of duty as
contributedto or helped to bring about, the injury; that is to say, he must be aparticipant in the
wrongful act.

SAN DIEGO VS MUNICIPALITY OF NAUJAN


FACTS:

ollowing a public bidding conducted by the municipality of Naujan,Oriental Mindoro for the lease
of its municipal waters, Resolution 46was passed awarding the concession of the Butas River and
theNaujan Lake to Bartolome San Diego. A contract was entered intobetween the said San Diego
and the municipality, for a period of lease for 5 years.The lessee then requested for a five year
extension of the originallease period, this was granted by the municipal council. After
theresolution had been approved by the Provincial Board of OrientalMindoro, the lessor and the
lessee, contracted for the extension of the period of the lease. The contract was approved and
confirmedon December 29, 1951 by Resolution 229 of the municipal council of Naujan whose
term was then about to expire. Pursuant to the saidcontract, the lessee filed a surety bond of
P52,000 and thenreconstructed his fish corrals and stocked the Naujan Lake withbangus
fingerlings.On January 2, 1952, the municipal council of Naujan, this timecomposed of a new set
of members, adopted Resolution 3, series of 1952, revoking Resolution 222, series of 1951. On
the same date, thenew council also passed Resolution 11, revoking Resolution 229 of the old
council which confirmed the extension of the lease period.The lessee requested for
reconsideration and recall of Resolution 3,on the ground, among others, that it violated the
contract executedbetween him and the municipality on December 23, 1951, and,therefore,
contrary to Article III, section 1, clause 10 of theConstitution. The request, however, was not
granted.The lessee instituted proceedings to annul the Resolution. Thedefendant asserted that
the original lease contract, reducing thelease rentals and renewing the lease are null and void for
not havingbeen passed in accordance with law. The trial court upheld thevalidity of the lease
contract.

ISSUE:

WON Resolution No. 3, series of 1952, revoking Resolution 222,series of 1951, of the municipal
council of Naujan is valid

HELD:

YesThe law (Sec. 2323 of the Revised Administrative Code) requires thatwhen the exclusive
privilege of fishery or the right to conduct a fish-breeding ground is granted to a private party,
the same shall be letto the highest bidder in the same manner as is being done inexploiting a
ferry, a market or a slaughterhouse belonging to themunicipality. The requirement of
competitive bidding is for thepurpose of inviting competition and to guard against
favoritism,fraud and corruption in the letting of fishery privileges. There is nodoubt that the
original lease contract in this case was awarded tothe highest bidder, but the reduction of the
rental and the extensionof the term of the lease appear to have been granted withoutprevious
public bidding.Furthermore, it has been ruled that statutes requiring public biddingapply to
amendments of any contract already executed incompliance with the law where such
amendments alter the originalcontract in some vital and essential particular. Inasmuch as
theperiod in a lease is a vital and essential particular to the contract, webelieve that the extension
of the lease period in this case, which wasgranted without the essential requisite of public
bidding, is not inaccordance with law. And it follows the Resolution 222, series of 1951, and the
contract authorized thereby, extending the originalfive-year lease to another five years are null
and void as contrary tolaw and public policy.We agree with the defendant in that the question
Resolution 3 is notan impairment of the obligation of contract, because theconstitutional
provision on impairment refers only to contract legallyexecuted. While, apparently, Resolution 3
tended to abrogate thecontract extending the lease, legally speaking, there was no
contractabrogated because, as we have said, the extension contract is voidand inexistent.The
lower court, in holding that the defendant-appellantmunicipality has been estopped from
assailing the validity of thecontract into which it entered on December 23, 1951, seems to
haveoverlooked the general rule that the doctrine of estoppel cannot beapplied as against a
municipal corporation to validate a contractwhich it has no power to make or which it is
authorized to make onlyunder prescribed conditions, within prescribed limitations, or in
aprescribed mode or manner, although the corporation has acceptedthe benefits thereof and the
other party has fully performed his partof the agreement, or has expended large sums in
preparation forperformance. A reason frequently assigned for this rule is that toapply the
doctrine of estoppel against a municipality in such casewould be to enable it to do indirectly what
it cannot do directly.Also, where a contract is violative of public policy, the municipalityexecuting
it cannot be estopped to assert the invalidity of a contractwhich has ceded away, controlled, or
embarrassed its legislative orgovernment powers.As pointed out above, "public biddings are held
for the bestprotection of the public and to give the public the best possibleadvantages by means
of open competition between the bidders."Thus, contracts requiring public bidding affect public
interest, and tochange them without complying with that requirement wouldindeed be against
public policy. There is, therefore, nothing toplaintiff-appellee's contention that the parties in this
case being inpari delicto should be left in the situation where they are found, for"although the
parties are in pari delicto, yet the court may interfereand grant relief at the suit of one of them,
where public policyrequires its intervention, even though the result may be that abenefit will be
derived by a plaintiff who is in equal guilt withdefendant. But here the guilt of the parties is not
considered asequal to the higher right of the public, and the guilty party to whomthe relief is
granted is simply the instrument by which the public isserved."In consonance with the principles
enunciated above, Resolution 59,series of 1947, reducing the rentals by 20% of the original
price,which was also passed without public bidding, should likewise beheld void, since a
reduction of the rental to be paid by the lessee is asubstantial alternation in the contract, making
it a distinct anddifferent lease contract which requires the prescribed formality of public bidding.

Rivera vs Municipality of Malolos

Facts:

1. 1. In August 1949, the municipality of Malolos called for bids for the supply of road
construction materials.
2. 2. Pedro P. Rivera, having the lowest bid, was awarded by the municipal treasurer
with the contract. The contract was signed by the mayor where it was stipulated that in
consideration of P19, 235.00, Rivera will supply the municipality with 2,700 cubic
meters of crushed stone and 1,400 cubic meters of gravel.
3. 3. Rivera delivered said construction materials but he wasnt paid immediately. He
demanded from the treasurer the amount due and the treasurer replied thru the
principal clerk that the municipal treasurer will pay as soon as the funds are available.
4. 4. Municipal council ratified the public bidding and the contract.
5. 5. Rivera filed a complaint against the municipality and sought the intervention of the
Presidential Complaints and Actions Committee which endorsed the case to the Office of
the Auditor General. Auditor General denied Riveras claim on the ground that there was
no sum of money appropriated to meet the obligation incurred before the execution of
the contract, as required by the Admin Code, thus it was a void contract.
6. 6. Thus this petition for review before the SC
Issue: WON Rivera can demand the payment due for the delivery of stone and gravel even if there
was no funds appropriated for such purpose before the execution of the contract?
Held: No
Ratio:
-Municipal Mayor cannot enter into a contract with a private contractor for furnishing the
municipality with public work materials. Sec. 1920 of Admin Code requires that such contracts
should be entered by the district engineer and not the mayor.
-The law requires that before a contract involving Php 2,000.00 or more is entered, the municipal
treasurer must certify to the officer entering into such contract that funds have been duly
appropriated for such purpose and the amount is available.
-The law requires that provincial auditor or his representatives must check up the deliveries. No
such check-up occurred in this case.
-Motor Vehicle Law, which Rivera uses as reason to say that funds have been appropriated for
the project merely states that 10% of the money collected will be allocated for the repair of roads
and bridges and proportional to the population of the municipality. This does not constitute the
sufficient appropriation required by law.

RIVERA v. MACLANG
Facts: The municipality of Malolos called for bids for furnishing and delivering
materials to be used in the maintenance and repair of barrio roads. Pedro Rivera
won in the bidding and was asked by the Municipal Treasurer to come to his
office for execution of the corresponding contract. The contract was signed by
him and by Carlo P. Maclang in his capacity as Municipal Mayor of Malolos.
Pursuant to the contract, Rivera subsequently delivered to the municipality
gravel and adobe stones valued at P19,235.00. The Municipal Council of Malolos
passed a resolution approving the contract, but in spite of repeated demands by
Rivera the price of the materials was not paid.

In 1954, Rivera sought the intervention of the Presidential Complaint and Action
Commission, which referred the matter to the General Auditing Office. That
Office turned down the claim for payment, whereupon Rivera filed in this Court a
petition for review. The Court sustained the action of the General Auditing Office
and held that the contract in question was void as far as Malolos was concerned
on the ground that no money had been appropriated to meet the obligation prior
to the execution of the contract, as required by Section 607 of the Revised
Administrative Code.

However, in the same decision, the Supreme Court indicated that Section 608 of
the same Code afforded Rivera a remedy. Consequently, he filed the present
action against Maclang in his personal capacity pursuant to the said provision.

The trial court dismissed the complaint since the contract had been declared null
and void by the Court saying that "it cannot produce any legal effect for which
thereafter no recovery can be made."

Issue: WON the dismissal was proper

Held: No

Ratio: The ruling in the previous case is that the contract was null and void visa-
vis Malolos, by reason of non-compliance with the requirement of Section 607 of
the Revised Administrative Code, which states that:

"except in the case of a contract for supplies to be carried in stock, no


contract involving the expenditure by any province, municipality,
chartered city, or municipal district of two thousand pesos or more
shall be entered into or authorized until the treasurer of the political
division concerned shall have certified to the officer entering into
such contract that funds have been duly appropriated for such
purpose and that the amount necessary to cover the proposed
contract is available for expenditure on account thereof."

It should be noted however that the present action is against Maclang in his
personal capacity on the strength of Section 608 of the same Code, which
provides as follows:

SEC. 608. Void Contract - Liability of Officer - A purported