G.R. No.

103702 December 6, 1994
MUNICIPALITY OF SAN NARCISO, QUEZON; MAYOR JUAN K. UY; COUNCILORS:
DEOGRACIAS R. ARGOSINO III, BENITO T. CAPIO, EMMANUEL R. CORTEZ,
NORMANDO MONTILLA, LEONARDO C. UY, FIDEL C. AURELLANA, PEDRO C.
CARABIT, LEONARDO D. AURELLANA, FABIAN M. MEDENILLA, TRINIDAD F.
CORTEZ, SALVADOR M. MEDENILLA, CERELITO B. AUREADA and FRANCISCA A.
BAMBA, petitioners,
vs.
HON. ANTONIO V. MENDEZ, SR., Presiding Judge, Regional Trial Court, Branch 62,
4th Judicial Region, Gumaca, Quezon; MUNICIPALITY OF SAN ANDRES, QUEZON;
MAYOR FRANCISCO DE LEON; COUNCILORS: FE LUPINAC, TOMAS AVERIA, MANUEL
O. OSAS, WILFREDO O. FONTANIL, ENRICO U. NADRES, RODELITO LUZOIR, LENAC,
JOSE L. CARABOT, DOMING AUSA, VIDAL BANQUELES and CORAZON M. MAXIMO,
respondents.
Manuel Laserna, Jr. for petitioners.
Florante Pamfilo for private respondents.
that the Municipality of San Andres was given life with the issuance of Executive Order No.
353, it (petitioner municipality) should be deemed estopped from questioning the creation
of the new municipality;5 that because the Municipality of San Andred had been in
existence since 1959, its corporate personality could no longer be assailed; and that,
considering the petition to be one for quo warranto, petitioner municipality was not the
proper party to bring the action, that prerogative being reserved to the State acting
through the Solicitor General.6
On 18 July 1991, after the parties had submitted their respective pre-trial briefs, the trial
court resolved to defer action on the motion to dismiss and to deny a judgment on the
pleadings.
On 27 November 1991, the Municipality of San Andres filed anew a motion to dismiss
alleging that the case had become moot and academic with the enactment of Republic Act
No. 7160, otherwise known as the Local Government Code of 1991, which took effect on
01 January 1991. The movant municipality cited Section 442(d) of the law, reading thusly:
Sec. 442. Requisites for Creation. — . . .

VITUG, J.:
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.
Executive Order 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, in its Resolution No. 8 of 24 May 1959.1
By virtue of Executive Order 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."
On 05 June 1989, the Municipality of San Narciso filed a petition for quo warranto with the
Regional Trial Court, Branch 62, in Gumaca, Quezon, against the officials of the
Municipality of San Andres. Docketed Special Civil Action No. 2014-G, the petition sought
the declaration of nullity of Executive Order No. 353 and prayed that the respondent local
officials of the Municipality of San Andres be permanently ordered to refrain from
performing the duties and functions of their respective offices.3 Invoking the ruling of this
Court in Pelaez v. Auditor General,4 the petitioning municipality contended that Executive
Order No. 353, a presidential act, was a clear usurpation of the inherent powers of the
legislature and in violation of the constitutional principle of separation of powers. Hence,
petitioner municipality argued, the officials of the Municipality or Municipal District of San
Andres had no right to exercise the duties and functions of their respective offices that
righfully belonged to the corresponding officials of the Municipality of San Narciso.
In their answer, respondents asked for the dismissal of the petition, averring, by way of
affirmative and special defenses, that since it was at the instance of petitioner municipality
(d) Municipalities existing as of the date of the effectivity of this Code shall continue
to exist and operate as such. Existing municipal districts organized pursuant to
presidential issuances or executive orders and which have their respective set of
elective municipal officials holding office at the time of the effectivity of this Code
shall henceforth be considered as regular municipalities.
The motion was opposed by petitioner municipality, contending that 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.7
In its Order of 02 December 1991, the lower court8 finally dismissed the petition9 for lack
of cause of action on what it felt was a matter that belonged to the State, adding that
"whatever defects (were) present in the creation of municipal districts by the President
pursuant to presidential issuances and executive orders, (were) cured by the enactment
of R.A. 7160, otherwise known as Local Government Code of 1991." In an order, dated 17
January 1992, the same court denied petitioner municipality's motion for reconsideration.
Hence, this petition "for review on certiorari." Petitioners 10 argue that in issuing the
orders of 02 December 1991 and 17 January 1992, the lower court has "acted with grave
abuse of discretion amounting to lack of or in excess of jurisdiction." Petitioners assert that
the existence of a municipality created by a null and void presidential order may be
attacked either directly or even collaterally by anyone whose interests or rights are
affected, and that an unconstitutional act is not a law, creates no office and is inoperative
such as though its has never been passed. 11
Petitioners consider the instant petition to be one for "review on certiorari" under Rules
42 and 45 of the Rules of Court; at the same time, however, they question the orders of the
lower court for having been issued with "grave abuse of discretion amounting to lack of or
in excess of jurisdiction, and that there is no other plain, speedy and adequate remedy in
the ordinary course of law available to petitioners to correct said Orders, to protect their
rights and to secure a final and definitive interpretation of the legal issues involved." 12
Evidently, then, the petitioners intend to submit their case in this instance under Rule 65.
We shall disregard the procedural incongruence.
The special civil action of quo warranto is a "prerogative writ by which the Government
can call upon any person to show by what warrant he holds a public office or exercises a
public franchise." 13 When the inquiry is focused on the legal existence of a body politic,
the action is reserved to the State in a proceeding for quo warranto or any other credit
proceeding. 14 It must be brought "in the name of the Republic of the Philippines" 15 and
commenced by the Solicitor General or the fiscal "when directed by the President of the
Philippines . . . ." 16 Such officers may, under certain circumstances, bring such an action
"at the request and upon the relation of another person" with the permission of the court.
17 The Rules of Court also allows an individual to commence an action for quo warranto
in his own name but this initiative can be done when he claims to be "entitled to a public
office or position usurped or unlawfully held or exercised by another." 18 While the quo
warranto proceedings filed below by petitioner municipality has so named only the
officials of the Municipality of San Andres as respondents, it is virtually, however, a
denunciation of the authority of the Municipality or Municipal District of San Andres to
exist and to act in that capacity.
At any rate, in the interest of resolving any further doubt on the legal status of the
Municipality of San Andres, the Court shall delve into the merits of the petition.
While petitioners would grant that the enactment of Republic Act
No. 7160 may have converted the Municipality of San Andres into a de facto municipality,
they, however, contend that since the petition for quo warranto had been filed prior to the
passage of said law, petitioner municipality had acquired a vested right to seek the
nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic
Act 7160 to the petition would perforce be violative of due process and the equal
protection clause of the Constitution.
Petitioners' theory might perhaps be a point to consider had the case been seasonably
brought. 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. In the same manner that the failure of a public officer to question his
ouster or the right of another to hold a position within a one-year period can abrogate an
action belatedly filed, 19 so also, if not indeed with greatest imperativeness, must a quo
warranto proceeding assailing the lawful authority of a political subdivision be timely
raised. 20 Public interest
demands it.
of San Andres as a fifth class municipality after having surpassed the income requirement
laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known
as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the
establishment of Municipal Circuit Trial Courts in the country, certain municipalities that
comprised the municipal circuits organized under Administrative Order No. 33, dated 13
June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this
administrative order, the Municipality of San Andres had been covered by the 10th
Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.
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." No pretension of unconstitutionality per se of
Section 442(d) of the Local Government Code is proferred. It is doubtful whether such a
pretext, even if made, would succeed. The power to create political subdivisions is a
function of the legislature. Congress did just that when it has incorporated Section 442(d)
in the Code. Curative laws, which in essence are retrospective, 21 and aimed at giving
"validity to acts done that would have been invalid under existing laws, as if existing laws
have been complied with," are validly accepted in this jurisdiction, subject to the usual
qualification against impairment of vested rights. 22
All considered, the de jure status of the Municipality of San Andres in the province of
Quezon must now be conceded.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Costs against
petitioners.
SO ORDERED.

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 State's
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
G.R. No. 116702 December 28, 1995
THE MUNICIPALITY OF CANDIJAY, BOHOL, acting through its Sanguniang Bayan
and Mayor, petitioner,
vs.
COURT OF APPEALS and THE MUNICIPALITY OF ALICIA, BOHOL, respondents.
RESOLUTION
PANGANIBAN, J.:
This is a petition for review on certiorari of the Decision of the Court of Appeals1
promulgated on June 28, 1994, reversing the judgment2 of the Regional Trial Court
(Branch I) of the City of Tagbilaran, Bohol.
The lower court's decision, among other things, declared "barrio/barangay Pagahat as
within the territorial jurisdiction of the plaintiff municipality of Candijay, Bohol, therefore,
said barrio forms part and parcel of its territory, therefore, belonging to said plaintiff
municipality", and further permanently enjoined defendant municipality of Alicia "to
respect plaintiff's control, possession and political supervision of barangay Pagahat and
never to molest, disturb, harass its possession and ownership over the same barrio" (RTC
decision, p. 4; Rollo, p. 86).
On appeal, the respondent Court stated that "(S)crutiny of the conflicting claims and the
respective evidence of the parties lead to the conclusion that the trial court committed an
error in declaring that Barrio Pagahat is within the territorial jurisdiction of plaintiff-
appellee (municipality of Candijay)." Said Court rejected the boundary line being claimed
by petitioner based on certain exhibits, since it would in effect place "practically all of
Barrio Pagahat . . . , part of Barrio Cagongcagong and portions of Barrio Putlongcam and
La Hacienda and all of Barrio Mahayag and Barrio del Monte within the territorial
jurisdiction of plaintiff-appellee Candijay." Added the respondent Court, "As aptly pointed
out by defendant-appellant in its appeal brief, 'the plaintiff municipality will not only
engulf the entire barrio of Pagahat, but also of the barrios of Putlongcam, Mahayag, Del
Monte, Cagongcagong, and a part of the Municipality of Mabini. Candijay will eat up a big
chunk of territories far exceeding her territorial jurisdiction under the law creating her.
Her claim opens the floodgate of controversies over boundaries, including with Mabini.'"
(Decision p. 4; rollo, p. 35.) The respondent Court concluded that "the trial court erred in
relying on Exh. X-Commissioner [exhibit for petitioner], because, in effect, it included
portions of Barrios Putlongcam and La Hacienda within the jurisdiction of appellee
Candijay when said barrios are undisputedly part of appellant's (Alicia) territory under
Executive Order No. 265 creating the latter" (Decision, p. 6, rollo, p. 37).
The respondent Court also found, after an examination of the respective survey plans of
petitioner and respondent submitted as exhibits, that "both plans are inadequate insofar
as identifying the monuments of the boundary line between [petitioner] and the
Municipality of Mabini (which is not a party to this case) as declared by the Provincial
Board of Bohol. Neither plan shows where Looc-Tabasan, Lomislis Island, Tagtang
Canlirong, mentioned in the aforequoted boundary line declared by the Provincial Board
of Bohol, are actually located." (Decision, p. 4; rollo, p. 35.) The respondent Court, after
weighing and considering the import of certain official acts, including Executive Order No.
265 dated September 16, 1949 (which created the municipality of Alicia from out of
certain barrios of the municipality of Mabini), and Act No. 968 of the Philippine
Commission dated October 31, 1903 (which set forth the respective component territories
of the municipalities of Mabini and Candijay), concluded that "Barrio Bulawan from where
barrio Pagahat originated is not mentioned as one of the barrios constituted as part of
defendant-appellant Municipality of Alicia. Neither do they show that Barrio Pagahat
forms part of plaintiff-appellant Municipality of Candijay."
On that basis, the respondent Court held that:
Clearly, from the foregoing, there is equiponderance of evidence. The Supreme Court
has ruled:
Equiponderance of evidence rule states:
When the scale shall stand upon an equipoise and there is nothing in the evidence
which shall incline it to one side or the other, the court will find for the defendant.
Under said principle, the plaintiff must rely on the strength of his evidence and not
on the weakness of defendant's claim. Even if the evidence of the plaintiff may be
stronger than that of the defendant, there is no preponderance of evidence on his
side if such evidence is insufficient in itself to establish his cause of action.
(Sapu-an, et al. v. Court of Appeals, Oct. 19, 1992, 214 SCRA 701, 705-706.)
WHEREFORE, the appealed judgment is reversed and set aside. Another judgment is
hereby entered dismissing the complaint in Civil Case No. 2402. No costs. (Decision, p.
6, rollo, p. 37.)
Petitioner's motion for reconsideration having been rejected by the respondent Court,
petitioner came to this Court, alleging (i) improper application by the respondent Court of
Appeals of the so-called principle of "equiponderance of evidence", for having based its
ruling against petitioner on documentary evidence which, petitioner claims, are void, (ii)
the respondent municipality's purported lack of juridical personality, as a result of having
been created under a void executive order, and (iii) that the challenged Decision "does not
solve the problem of both towns but throws them back again to their controversy."
(Petition, p. 6, rollo, p. 21.)
After deliberating on the petition, comment and reply, this Court is not persuaded to grant
due course to the petition.
With respect to the first and third grounds, we find that the issues of fact in this case had
been adequately passed upon by respondent Court in its Decision, which is well-supported
by the evidence on record. The determination of equiponderance of evidence by the
respondent Court involves the appreciation of evidence by the latter tribunal, which will
not be reviewed by this Court unless shown to be whimsical or capricious; here, there has
been no such showing.
In connection with the foregoing, that the assailed Decision, in dismissing the complaint in
Civil Case No. 2402, may leave the parties where they are or may not resolve their problem
one way or the other, is of no moment. The fact remains that, as correctly evaluated by the
respondent Court, neither party was able to make out a case; neither side could establish
its cause of action and prevail with the evidence it had. They are thus no better off than
before they proceeded to litigate, and, as a consequence thereof, the courts can only leave
them as they are. In such cases, courts have no choice but to dismiss the
complaints/petitions.
On the second issue, we noted that petitioner commenced its collateral attack on the
juridical personality of respondent municipality on 19 January 1984 (or some thirty five
years after respondent municipality first came into existence in 1949) during the
proceedings in the court a quo. It appears that, after presentation of its evidence, herein
petitioner asked the trial court to bar respondent municipality from presenting its
evidence on the ground that it had no juridical personality. Petitioner contended that Exec.
Order No. 265 issued by President Quirino on September 16, 1949 creating respondent
municipality is null and void ab initio, inasmuch as Section 68 of the Revised
Administrative Code, on which said Executive Order was based, constituted an undue
delegation of legislative powers to the President of the Philippines, and was therefore
declared unconstitutional, per this Court's ruling in Pelaez vs. Auditor General.3
In this regard, we call to mind the ruling of this Court in Municipality of San Narciso, Quezon
vs. Mendez, Sr.4 , which will be found very instructive in the case at bench. Therein we
stated:
While petitioners would grant that the enactment of Republic Act No. 7160 [Local
Government Code of 1991] may have converted the Municipality of San Andres into a
de facto municipality, they, however, contend that since the petition for quo warranto
had been filed prior to the passage of said law, petitioner municipality had acquired a
vested right to seek the nullification of Executive Order No. 353, and any attempt to
apply Section 442 of Republic Act 7160 to the petition would perforce be violative of
due process and the equal protection clause of the Constitution.
Petitioner's theory might perhaps be a point to consider had the case been seasonably
brought. 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. In the same manner that the failure of a public officer
to question his ouster or the right of another to hold a position within a one-year
period can abrogate an action belatedly file, so also, if not indeed with greatest
imperativeness, must a quo warranto proceeding assailing the lawful authority of a
political subdivision be timely raised. Public interest demands it.
Granting that 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 vs. 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 State's 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. Section 31 of
Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of
1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial
Courts in the country, certain municipalities that comprised the municipal circuits
organized under Administrative Order No. 33, dated 13 June 1978, issued by this court
pursuant to Presidential Decree No. 537. Under this administrative order, the
Municipality of San Andres had been covered by the 10th Municipal Circuit Court of
San Francisco-San Andres for the province of Quezon.
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." No pretension of
unconstitutionality per se of Section 442 (d) of the Local Government Code is proffered.
It is doubtful whether such a pretext, even if made, would succeed. The power to create
political subdivisions is a function of the legislature. Congress did just that when it has
incorporated Section 442 (d) in the Code. Curative laws, which in essence are
retrospective, and aimed at giving "validity to acts done that would have been invalid
under existing laws, as if existing laws have been complied with," are validly accepted
in this jurisdiction, subject to the usual qualification against impairment of vested
rights.
All considered, the de jure status of the Municipality of San Andres in the province of
Quezon must now be conceded.
Respondent municipality's situation in the instant case is strikingly similar to that of the
municipality of San Andres. Respondent municipality of Alicia was created by virtue of
Executive Order No. 265 in 1949, or ten years ahead of the municipality of San Andres, and
therefore had been in existence for all of sixteen years when Pelaez vs. Auditor General was
promulgated. And various governmental acts throughout the years all indicate the State's
recognition and acknowledgment of the existence thereof. For instance, under
Administrative Order No. 33 above-mentioned, the Municipality of Alicia was covered by
the 7th Municipal Circuit Court of Alicia-Mabini for the province of Bohol. Likewise, under
the Ordinance appended to the 1987 Constitution, the Municipality of Alicia is one of
twenty municipalities comprising the Third District of Bohol.
Inasmuch as respondent municipality of Alicia is similarly situated as the municipality of
San Andres, it should likewise benefit from the effects of Section 442 (d) of the Local
Government Code, and should henceforth be considered as a regular, de jure municipality.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED, with costs
against petitioner.
SO ORDERED.
G.R. No. L-7012 March 26, 1913
THE ILOILO ICE AND COLD STORAGE COMPANY, plaintiff-appellee,
vs.
THE MUNICIPAL COUNCIL OF ILOILO, ET AL., defendants-appellants.
Juan de Leon, Quirico Abeto, and Crecenciano Lozano, for appellants.
Bruce, Lawrence, Ross and Block, for appellee.
TRENT, J.:
According to the pleadings, the plaintiff, upon authority granted by the defendant,
constructed an ice and cold storage plant in the city of Iloilo. Some time after the plant had
been completed and was in operation, nearby residents made complaints to the defendant
that the smoke from the plant was very injurious to their health and comfort. Thereupon
the defendant appointed a committee to investigate and report upon the matters
contained in said complaints. The committee reported that the complaints were well-
founded. The defendant counsel then passed a resolution which reads in part as follows:
That after the approval by the honorable provincial board of this resolution, a period
of one month will be granted to the said entity. The Iloilo Ice and Cold Storage
Company, in which to proceed with the elevation of said smokestacks, and if not done,
the municipal president will execute the order requiring the closing or suspension of
operations of said establishment.
Upon receipt of this resolution and order, the plaintiff commenced this action in the Court
of First Instance to enjoin the defendant from carrying into effect the said resolution. The
fifth paragraph of the complaint is as follows:
That the defendants intend and threaten to require compliance with said resolution
administratively and without the intervention of the court, and by force to compel the
closing and suspension of operations of the plaintiff's machinery and consequently of
the entire plant, should the plaintiff not proceed with the elevation of the smokestacks
to one hundred feet, which the plaintiff maintains it is not obliged to do and will not
do.
Upon notice and after hearing, a preliminary injunction was issued. Subsequently thereto
the defendant answered, admitting paragraphs 1 and 4 and denying all the other
allegations in the complaint, and as a special defense alleged:
1. xxx xxx xxx.
2. That the factory of the plaintiff company stands in a central and populated district
of the municipality;
3. That the quantity of smoke discharged from the smokestacks of said factory is so
great and so dense that it penetrates into the dwelling houses situated near it and
causes great annoyance to the residents and prejudice to their health;
4. That the municipal board of health of the city has reported that the smoke
discharged from the smokestacks of said factory is prejudicial and injurious to the
public health;
5. That the plaintiff company has no right to maintain and operate machinery in its
factory under the conditions which it is at present operating the same, without
complying with the regulations which were imposed upon it when the license for
its installation was granted, because it thereby violates the ordinances of the city
now in force upon the matter.
Wherefore, the defendant prays that it be absolved from the complaint and the plaintiff be
declared to have no right to the remedy asked, and that the preliminary injunction issued
in this case be set aside, with the costs against the plaintiff.
The plaintiff demurred to this answer upon the following grounds:
1. That the facts alleged in the answer do not constitute a defense; and
2. That the answer is vague and ambiguous and contains arguments and conclusions
of law instead of facts.
This demurrer was sustained, the court saying:
The defendant will amend his answer within five days or the injunction will be
permanently granted as prayed for, with costs to the defendant.
To this order the defendant excepted and, not desiring to amend its answer, appealed to
this court.
It is alleged in paragraph 1 that both the plaintiff and the defendants are corporations duly
organized under the laws of the Philippine Islands; and paragraph 4 sets forth the
resolution complained of, the dispositive part of which is inserted above. The allegations
in paragraph 2, 3, 5, 6, 7, and 8, which are specifically denied in the answer, all (except the
fifth) relate to the building of the plant under authority granted by the defendant, the cost
of its construction, the legality of the resolution in question, the power of the defendant to
pass such resolution, and the damages which will result if that resolution is carried into
effect. As before stated, the allegations in paragraph 5 to the effect that the defendants
intend and are threatening to close by force and without the intervention of the courts the
plaintiff's plant is specifically denied. The issue in this case, according to the pleadings,
relates to the power of the municipal council to declare the plant of the petitioner a
nuisance as operated, and the method of abating it.
The municipal council is, under section 39 (j) of the Municipal Code, specifically
empowered "to declare and abate nuisances." A nuisance is, according to Blackstone, "Any
thing that worketh hurt, inconvenience, or damages." (3 Black. Com., 216.) They arise from
pursuing particular trades or industries in populous neighborhoods; from acts of public
indecency, keeping disorderly houses, and houses of ill fame, gambling houses, etc. (2
Bouv., 248; Miller vs. Burch, 32 Tex., 208.) Nuisances have been divided into two classes:
Nuisances per se, and nuisances per accidens. To the first belong those which are
unquestionably and under all circumstances nuisances, such as gambling houses, houses
of ill fame, etc. The number of such nuisances is necessarily limited, and by far the greater
number of nuisances are such because of particular facts and circumstances surrounding
the otherwise harmless cause of the nuisance. For this reason, it will readily be seen that
whether a particular thing is a nuisance is generally a question of fact, to be determined in
the first instance before the term nuisance can be applied to it. This is certainly true of a
legitimate calling, trade, or business such as an ice plant. Does the power delegated to a
municipal council under section 39 (j) of the Municipal Code commit to the unrestrained
will of that body the absolute power of declaring anything to be a nuisance? Is the decision
of that body final despite the possibility that it may proceed from animosity or prejudice,
from partisan zeal or enmity, from favoritism and other improper influences and motives,
easy of concealment and difficult to be detected and exposed? Upon principle and
authority, we think it does not.
In Rutton vs. City of Camden, 39 N.J.L., 122, 129; 23 Am. Rep. 203, 209, the court said:
The authority to decide when a nuisance exists in an authority to find facts, to estimate
their force, and to apply rules of law to the case thus made. This is the judicial function,
and it is a function applicable to a numerous class of important interests. The use of
land and buildings, the enjoyment of water rights, the practice of many trades and
occupations, and the business of manufacturing in particular localities, all fall on some
occasions, in important respects, within its sphere. To say to a man that he shall not
use his property as he pleases, under certain conditions, is to deprive him pro tanto of
the enjoyment of such property. To find conclusively against him that a state of facts
exists with respect to the use of his property, or the pursuit of his business, which
subjects him to the condemnation of the law, is to affect his rights in a vital point. The
next thing to depriving a man of his property is to circumscribe him in its use, and the
right to use property is as much under the protection of the law as the property itself,
in any other aspect, is, and the one interest can no more be taken out of the hands of
the ordinary tribunal than the other can. If a man's property cannot be taken away
from him except upon trial by jury, or by the exercise of the right of eminent domain
upon compensation made, neither can be, in any other mode, be limited in the use of
it. The right to abate public nuisances, whether we regard it as existing in the
municipalities, or in the community, or in the land of the individual, is a common law
right, and is derived, in every instance of its exercise, from the same source — that of
necessity. It is akin to the right of destroying property for the public safety, in case of
the prevalence of a devastating fire or other controlling exigency. But the necessity
must be present to justify the exercise of the right, and whether present or not, must
be submitted to a jury under the guidance of a court. The finding of a sanitary
committee, or of a municipal council, or of any other body of a similar kind, can have
no effect whatever for any purpose, upon the ultimate disposition of the matter of this
kind. It cannot be used as evidence in any legal proceeding, for the end of establishing,
finally, the fact of nuisance, and if can be made testimony for any purpose, it would
seem that it can be such only to show that the persons acting in pursuance of it were
devoid of that malicious spirit which sometimes aggravates a trespass and swells the
damages. I repeat that the question of nuisance can conclusively be decided, for all
legal uses, by the established courts of law or equity alone, and that the resolutions of
officers, or of boards organized by force of municipal charters, cannot, to any degree,
control such decision.
The leading case upon this point is Yates vs. Milwaukee, (10 Wall., 497; 19 L. ed., 984). The
following quotation from this case has been cited or quoted with approval in a great
number of cases. (See Notes to this case in 19 L. ed., Notes, page 356.)
But the mere declaration by the city council of Milwaukee that a certain structure was
an encroachment or obstruction did not make structure was an encroachment or
obstruction did not make it so, nor could such declaration make it a nuisance unless it
in fact had that character. It is a doctrine not to be tolerated in this country, that a
municipal corporation, without any general laws either of the city or of the State,
within which a given structure can be shown to be a nuisance, can, by its mere
declaration that it is one, subject it to removal by any person supposed to be aggrieved,
or even by the city itself. This would place every house, every business, and all the
property of the city at the uncontrolled will of the temporary local authorities. Yet this
seems to have been the view taken by counsel who defended this case in the circuit
court; for that single ordinance of the city, declaring the wharf of Yates a nuisance, and
ordering its abatement, is the only evidence in the record that it is a nuisance or an
obstruction to navigation, or in any manner injurious to the public.
In Cole vs. Kegler (64 la., 59, 61) the court said:
We do not think the general assembly intended to confer on cities and towns the power
of finally and conclusively determine, without notice or a hearing, and without the
right of appeal, that any given thing constitutes a nuisance, unless, probably, in cases
of great emergency, so strong as to justify extraordinary measures upon the ground of
paramount necessity. The law does not contemplate such an exigency, and therefore
does not provide for it. If it did, it would no longer be the undefined law of necessity.
(Nelson, J., in The People vs. The Corporation of Albay, 11 Wend., 539.)
Nuisance may be abated by an individual, but they must in fact exist, The
determination of the individual that a nuisance exists does not make it so, and if he
destroys property on the that it is a nuisance, he is responsible, unless it is established
that the property destroyed constituted a nuisance. This precise power, and no more,
is conferred by the statute on cities and towns. In Wood on Nuisances, section 740, it
is said: "If the authorities of a city abate a nuisance under authority of an ordinance of
the city, they are subject to the same perils and liabilities as an individual, if the thing
in fact is not nuisance."
In Grossman vs. City of Oakland (30 Ore., 478, 483) the court said:
In our opinion this ordinance cannot be sustained as a legitimate exercise of municipal
power. The character of the city confers upon it the power to prevent and restrain
nuisances, and to "declare what shall constitute a nuisance;" but this does not
authorize it to declare a particular use of property a nuisance, unless such use comes
within the common law or statutory idea of a nuisance. (2 Wood on Nuisances (3d ed.),
977; Yates vs. Milwaukee, 77 U.S. (10 Wall.), 497; Village of Des Plaines vs. Poyer, 123
Ill., 348; 5 Am. St. Rep., 524; 14 N.E., 677; Quintini vs. City Board of Aldermen, 64 Miss.,
483; 60 Am. Rep., 62; 1 So., 625; Chicago & Rock Islands R.R. Co. vs. City of Joliet, 79 Ill.,
44; Hutton vs. City of Camden, 39 N.J. Law, 122; 23 Am. Rep., 203.) By this provision of
the charter the city is clothed with authority to declare by general ordinance under
what circumstances and conditions certain specified acts or things injurious to the
health or dangerous to the public are to constitute and be deemed nuisances, leaving
the question of fact open for judicial determination as to whether the particular act or
thing complained of comes within the prohibited class; but it cannot by ordinance
arbitrarily declare any particular thing a nuisance which has not heretofore been so
declared by law, or judicially determined to be such. (City of Dener vs. Mullen, 7 Colo.,
345).
In Western & Atlantic R. Co. vs. Atlanta (113 Ga., 537, 551), after an extensive review of the
authorities, the court, per Lumpkin, J., said:
It is our opinion that the provisions of our code require, when a municipal corporation
is seeking to abate a nuisance such as it was alleged the floor of the union passenger
station was in this case, that the parties interested be given reasonable notice of the
time and place of hearing at which the fact whether the property complained of is or is
not a nuisance shall be inquired into and determined; that, without such notice and a
 judgment on the facts by the body invested with power to abate the nuisance, it is
unlawful to enter thereon and remove or destroy it as a nuisance. If the thing, as we
said, is declared by law to be a nuisance, or if it is unquestionably a nuisance, such as a
rabid dog, infected clothing, the carcass of a dead animal on a private lot, the presence
of a smallpox patient on the street, it may be abated by the municipal authorities at
once, by order, from the necessity of the case, and to meet an emergency which exists,
to at once protect the health and lives of the people.
In Everett vs. City of Council Bluffs (46 Ia., 66, 67), where the council passed an ordinance
declaring trees on certain streets to be a nuisance and ordering the marshall to abate the
same, the court held:
The defendant is incorporated under a special charter, which provides that the city
council has power "to declare what shall be a nuisance, and to prevent, remove, or
abate the same." This general grant of power, however, will not authorize the council
to declare anything a nuisance which is not such at common law, or has been declared
such by statute.
In Frostburg vs. Wineland (98 Md., 239, 243) the court said:
The first question, then, in the case revolves itself to this, was the summary proceeding
of the appellants in declaring the two trees in front of the appellee's property to be a
nuisance and an obstruction to the paving and curbing of the street, and directing them
to be removed and destroyed, so far final as not to be reviewable by the Courts?
This question we think was in effect settled by this court in the recent cases of New
Windsor vs. Stocksdale (95 Md., 215) and King vs. Hamil (97 Md., 103). In the latter
case it is said that equity will not lend its aid to enforce by injunction the by-laws or
ordinances of a municipal corporation, restraining an act, unless the act is shown to be
a nuisance per se. . . .
It is clear, we think, both upon reason and authority, that when a municipality
undertakes to destroy private property which is not a nuisance per se, it then
transcends its powers and its acts are reviewable by a court of equity.
In C.R.I. & P.R. Co. vs. City of Joilet (79 Ill., 25, 44) the court said:
As to the ordinance of the common council of the city of Joilet, of September, 1872,
declaring the railroad a nuisance, we regard that as without effect upon the case,
although the charter of the city confers upon the common council the power to abate
and remove nuisances, and to punish the authors thereof, and to define and declare
what shall be deemed nuisances. We will, in this respect, but refer to the language of
the Supreme Court of the United State in Yates vs. Milwaukee (10 Wall., 505). (See
supra.)
In the leading case of Denver vs. Mullen (7 Colo., 345, 353) where an extended review of
the authorities is made, the court said:
The basis of authority for the action of the city in the premises is made to rest upon
certain provisions of the city charter, and certain ordinances, which are set out as
exhibits in the testimony; and the following, among other of the enumerated powers
conferred by the legislature upon the city, in said charter, is relied upon, viz: "To make
regulations to secure the general health of the inhabitants, to declare what shall be a
nuisance, and to prevent and remove the same."
The proper construction of this language is that the city is clothed with authority to
declare, by general ordinance, what shall constitute a nuisance. That is to say, the city
may, by such ordinance, define, classify and enact what things or classes of things, and
under what conditions and circumstances, such specified things are to constitute and
be deemed nuisances. For instance, the city might, under such authority, declare by
ordinance that slaughter-houses within the limits of the city, carcasses of dead animals
left lying within the city, goods, boxes, and the like, piled up or remaining for certain
length of time on the sidewalks, or other things injurious to health, or causing
obstruction or danger to the public in the use of the streets and sidewalks, should be
deemed nuisances; not that the city council may, by a mere resolution or motion,
declare any particular thing a nuisance which has not theretofore been pronounced to
be such by law, or so adjudged by judicial determination. (Everett vs. Council Bluffs, 40
Iowa, 66; Yates vs. Milwaukee, 10 Wall., 497.) No law or ordinance, under which the
city council assumed to act in respect to this ditch, has been cited which defines
nuisance, or within the meaning of which such ditch is comprehended.
xxx xxx xxx
It is only certain kinds of nuisances that may be removed or abated summarily by the
acts of individuals or by the public, such as those which affect the health, or interfere
with the safety of property or person, or are tangible obstructions to streets and
highways under circumstances presenting an emergency; such clear cases of nuisances
per se, are well understood, and need not to be further noticed here to distinguish them
from the case before us. If it were admitted that this ditch, by reason of its obstruction
to the use of the public streets, at the time of the acts complained of, was a nuisance, it
must also be admitted that it was not a nuisance per se. It was constructed for a
necessary, useful and lawful purpose, was used for such purpose, and therefore in its
nature was not a nuisance, as a matter of law. Nor as a matter of fact was it a nuisance
while it was no hurt, detriment, or offense to the public, or to any private citizen. If,
then, it has become a nuisance, it is by reason of a change of circumstances brought
about neither by the ditch itself, nor its use. Indeed, the sole matter complained of, to
warrant its being regarded as a nuisance, is the absence of bridges at street crossings.
The town has become populous; its growth has extended beyond the ditch and along
its line for a great distance; streets laid out across its course have come to be traveled
so much, that without bridges, the ditch, as appears by the testimony, has become
inconvenient, detrimental, and an obstruction to the full, safe and lawful use of such
streets as highways by the public. To this extent, and from these causes outside the
ditch and its use per se, has the ditch come to be a public nuisance, if, as a matter of
fact, it is such. But whether it is such or not is a fact which must first be ascertained by
judicial determination before it can be lawfully abated, either by the public or by a
private person.
In Joyce vs. Woods (78 Ky., 386, 388) the court said:
There was no judicial determination that there was a nuisance, and no opportunity
offered the owner of the lot to contest that matter. Under the exercise of the police
power, it may be conceded that municipalities can declare and abate nuisances in cases
of necessity, without citation and without adjudication as to whether there is in fact a
nuisance. But whenever the action of the municipality in declaring and abating a
 nuisance goes so far as to fix a burden upon the owner of the property, he is entitled to
be heard upon the question as to the existence of the nuisance. This right to a hearing
upon this question may come before or after the nuisance is abated, as circumstances
may require, but there must be an opportunity offered him to be heard upon that
matter before his property can be loaded with the cost of the removal of the nuisance.
To the extent that property is thus burdened by the action of the city council, when
there is no necessity to precipitate action without adjudication, the owner is deprived
of his property, regardless of "the law of the land." The meaning of that provision of
the constitution has generally been construed to be a law that hears before
condemning, and arrives at a judgment for the divestiture of the rights of property
through what is ordinarily understood to be judicial process — the general rules that
govern society in reference, to the rights of property; and it is only in extreme cases,
where the preservation and repose of society or the protection of the property rights
of a large class of the community absolutely require a departure, that the courts
recognize any exception. In this case there is no pretense of a necessity for precipitate
action. There is no reason why appellant should not have been permitted to test the
question as to the existence of the nuisance.
In Everett vs. Marquette (53 Mich., 450, 451) the court, per Cooley, J., said:
But it is not necessary in this case to determine whether the permission given by the
village council was in due form for the purposes of a permanent appropriation, or even
whether the council had the power to consent to such an appropriation. It is undoubted
that the council had general control of the streets under the village charter; and it was
a part of its duty to prevent the creation of any public nuisance within them. It is not
to be assumed that consent would have been given to such a nuisance, and when, by
formal resolution the council assumed to give permission to complainant to make the
openings and build the stairways complained of, it must have been done in the belief
that no public inconvenience would follow. If the permission was effectual for no other
purpose, it at least rebutted any presumption which might otherwise have existed, that
this partial appropriation of the street was per se a nuisance.
If the permission was a mere license, and the subsequent action of the city council is
to be regarded as a revocation of the license, it does not follow that the plaintiff has by
the revocation immediately been converted into a wrongdoer. The question will then
be whether the act of the complainant in maintaining his structures constitutes a
public nuisance; and while the city council is entitled, under its supervisory control of
the public streets, to consider and pass upon that question for the purpose of deciding
upon the institution of legal proceedings for abatement, it cannot make itself the judge.
Maintaining a nuisance is a public offense; and the fact, as in other cases of alleged
criminality, is to be tried on proper accusation and in the regular courts. The mere fact
that the party makes use of some part of a public street for his private purposes does
not make out the public offense. This was decided in People vs. Carpenter (1 Mich.,
273), and has never been doubted in this State.
The city in this case proceeding in an act of destruction on an assumption that the
structures were already condemned as illegal. This was unwarranted, and it was quite
right that the action should be restrained.
The above authorities are collated in Judge Dillon's work on Municipal Corporations, fifth
edition, section 684, with the following comment by the author:
It is to secure and promote the public health, safety, and convenience that municipal
corporations are so generally and so liberally endowed with power to prevent and
abate nuisances. This authority and its summary exercise may be constitutionally
conferred on the incorporated place, and it authorizes its council to act against that
which comes within the legal notion of a nuisance; but such power, conferred in
general terms, cannot be taken to authorize the extrajudicial condemnation and
destruction of that as a nuisance which, in its nature, situation, or use, is not such.
The questions discussed in this august array of authorities are exactly those of the present
case, and the controlling principles and the reasoning upon which they are founded are so
fully and lucidly set forth as to justify us in refraining from comment of our own. It is clear
that municipal councils have, under the code, the power to declare and abate nuisances,
but it is equally clear that they do not have the power to find as a fact that a particular
thing is a nuisance when such thing is not a nuisance per se; nor can they authorize the
extrajudicial condemnation and destruction of that as a nuisance which in its nature,
situation, or use is not such. These things must be determined in the ordinary courts of
law.
In the present case it is certain that the ice factory of the plaintiff is not a nuisance per se.
It is a legitimate industry, beneficial to the people, and conducive to their health and
comfort. If it be in fact a nuisance due to the manner of its operation, that question cannot
de determined by a mere resolution of the board. The petitioner is entitled to a fair and
impartial hearing before a judicial tribunal.
The respondent has, we think, joined issued by its answer denying that it was intending to
proceed with the abatement of the alleged nuisance by arbitrary administrative
proceedings. This is the issue of the present case, and upon its determination depends
whether the injunction should be made permanent (but limited in its scope to prohibiting
the closing of petitioner's factory by administrative action), or whether the injunction
should be dissolved, which will be done in case it be shown that the municipal officials
intend to proceed with the abatement of the alleged nuisance in an orderly and legal
manner.
It is said that the plaintiff cannot be compelled to build its smokestack higher if said stack
is in fact a nuisance, for the reason that the stack was built under authority granted by the
defendant, and in accordance with the prescribed requirements. If the charter or license
does not expressly subject the business or industry to the exercise of the police power by
the State, it is conceded by the great preponderance of authority that such a reservation is
implied to the extent that may be reasonably necessary for the public welfare. (Freud,
Police Power, § 361 et seq, and § 513 et seq.)
For the foregoing reasons, the order sustaining the plaintiff's demurrer to the defendant's
answer is reversed. The record will be returned to the court whence it came with
instructions to proceed with the trial of the cause in accordance with this opinion. No costs
will be allowed in this instance. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., dissents.
G.R. No. 161414 January 17, 2005
SULTAN OSOP B. CAMID, petitioner,
vs.
THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT of
FINANCE, DEPARTMENT of BUDGET AND MANAGEMENT, COMMISSION ON AUDIT,
and the CONGRESS OF THE PHILIPPINES (HOUSE of REPRESENTATIVES AND
SENATE), respondents.
DECISION
TINGA, J.:
This Petition for Certiorari presents this Court with the prospect of our own Brigadoon1 —
the municipality of Andong, Lanao del Sur―which like its counterpart in filmdom, is a town
that is not supposed to exist yet is anyway insisted by some as actually alive and thriving.
Yet unlike in the movies, there is nothing mystical, ghostly or anything even remotely
charming about the purported existence of Andong. The creation of the putative
municipality was declared void ab initio by this Court four decades ago, but the present
petition insists that in spite of this insurmountable obstacle Andong thrives on, and hence,
its legal personality should be given judicial affirmation. We disagree.
The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor
General2 in 1965. As discussed therein, then President Diosdado Macapagal issued several
Executive Orders3 creating thirty-three (33) municipalities in Mindanao. Among them was
Andong in Lanao del Sur which was created by virtue of Executive Order No. 107. 4
These executive orders were issued after legislative bills for the creation of municipalities
involved in that case had failed to pass Congress.5 President Diosdado Macapagal justified
the creation of these municipalities citing his powers under Section 68 of the Revised
Administrative Code. Then Vice-President Emmanuel Pelaez filed a special civil action for
a writ of prohibition, alleging in main that the Executive Orders were null and void, Section
68 having been repealed by Republic Act No. 2370,6 and said orders constituting an undue
delegation of legislative power.7
After due deliberation, the Court unanimously held that the challenged Executive Orders
were null and void. A majority of five justices, led by the ponente, Justice (later Chief
Justice) Roberto Concepcion, ruled that Section 68 of the Revised Administrative Code did
not meet the well-settled requirements for a valid delegation of legislative power to the
executive branch,8 while three justices opined that the nullity of the issuances was the
consequence of the enactment of the 1935 Constitution, which reduced the power of the
Chief Executive over local governments.9 Pelaez was disposed in this wise:
WHEREFORE, the Executive Orders in question are 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
above referred to. It is so ordered.10
Among the Executive Orders annulled was Executive Order No. 107 which created the
Municipality of Andong. Nevertheless, the core issue presented in the present petition is
the continued efficacy of the judicial annulment of the Municipality of Andong.
Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of
Andong,11 suing as a private citizen and taxpayer whose locus standi "is of public and
paramount interest especially to the people of the Municipality of Andong, Province of
Lanao del Sur."12 He alleges that Andong "has metamorphosed into a full-blown
municipality with a complete set of officials appointed to handle essential services for the
municipality and its constituents,"13 even though he concedes that since 1968, no person
has been appointed, elected or qualified to serve any of the elective local government
positions of Andong.14 Nonetheless, the municipality of Andong has its own high school,
Bureau of Posts, a Department of Education, Culture and Sports office, and at least
seventeen (17) "barangay units" with their own respective chairmen.15 From 1964 until
1972, according to Camid, the public officials of Andong "have been serving their
constituents through the minimal means and resources with least (sic) honorarium and
recognition from the Office of the then former President Diosdado Macapagal." Since the
time of Martial Law in 1972, Andong has allegedly been getting by despite the absence of
public funds, with the "Interim Officials" serving their constituents "in their own little
ways and means."16
In support of his claim that Andong remains in existence, Camid presents to this Court a
Certification issued by the Office of the Community Environment and Natural Resources
(CENRO) of the Department of Environment and Natural Resources (DENR) certifying the
total land area of the Municipality of Andong, "created under Executive Order No. 107
issued [last] October 1, 1964."17 He also submits a Certification issued by the Provincial
Statistics Office of Marawi City concerning the population of Andong, which is pegged at
fourteen thousand fifty nine (14,059) strong. Camid also enumerates a list of
governmental agencies and private groups that allegedly recognize Andong, and notes that
other municipalities have recommended to the Speaker of the Regional Legislative
Assembly for the immediate implementation of the revival or re-establishment of
Andong.18
The petition assails a Certification dated 21 November 2003, issued by the Bureau of Local
Government Supervision of the Department of Interior and Local Government (DILG). 19
The Certification enumerates eighteen (18) municipalities certified as "existing," per DILG
records. Notably, these eighteen (18) municipalities are among the thirty-three (33), along
with Andong, whose creations were voided by this Court in Pelaez. These municipalities
are Midaslip, Pitogo, Naga, and Bayog in Zamboanga del Sur; Siayan and Pres. Manuel A.
Roxas in Zamboanga del Norte; Magsaysay, Sta. Maria and New Corella in Davao;
Badiangan and Mina in Iloilo; Maguing in Lanao del Sur; Gloria in Oriental Mindoro;
Maasim in Sarangani; Kalilangan and Lantapan in Bukidnon; and Maco in Compostela
Valley.20
Camid imputes grave abuse of discretion on the part of the DILG "in not classifying
[Andong] as a regular existing municipality and in not including said municipality in its
records and official database as [an] existing regular municipality."21 He characterizes
such non-classification as unequal treatment to the detriment of Andong, especially in light
of the current recognition given to the eighteen (18) municipalities similarly annulled by
reason of Pelaez. As appropriate relief, Camid prays that the Court annul the DILG
Certification dated 21 November 2003; direct the DILG to classify Andong as a "regular
existing municipality;" all public respondents, to extend full recognition and support to
Andong; the Department of Finance and the Department of Budget and Management, to
immediately release the internal revenue allotments of Andong; and the public
respondents, particularly the DILG, to recognize the "Interim Local Officials" of Andong.22
Moreover, Camid insists on the continuing validity of Executive Order No. 107. He argues
that Pelaez has already been modified by supervening events consisting of subsequent
laws and jurisprudence. Particularly cited is our Decision in Municipality of San Narciso v.
Hon. Mendez,23 wherein the Court affirmed the unique status of the municipality of San
Andres in Quezon as a "de facto municipal corporation."24 Similar to Andong, the
municipality of San Andres was created by way of executive order, precisely the manner
which the Court in Pelaez had declared as unconstitutional. Moreover, San Narciso cited,
as Camid does, Section 442(d) of the Local Government Code of 1991 as basis for the
current recognition of the impugned municipality. The provision reads:
Section 442. Requisites for Creation. - xxx
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to
exist and operate as such. Existing 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.25
There are several reasons why the petition must be dismissed. These can be better
discerned upon examination of the proper scope and application of Section 442(d), which
does not sanction the recognition of just any municipality. This point shall be further
explained further on.
Notably, as pointed out by the public respondents, through the Office of the Solicitor
General (OSG), the case is not a fit subject for the special civil actions of certiorari and
mandamus, as it pertains to the de novo appreciation of factual questions. There is indeed
no way to confirm several of Camid’s astonishing factual allegations pertaining to the
purported continuing operation of Andong in the decades since it was annulled by this
Court. No trial court has had the opportunity to ascertain the validity of these factual
claims, the appreciation of which is beyond the function of this Court since it is not a trier
of facts.
The importance of proper factual ascertainment cannot be gainsaid, especially in light of
the legal principles governing the recognition of de facto municipal corporations. It has
been opined that municipal corporations may exist by prescription where it is shown that
the community has claimed and exercised corporate functions, with the knowledge and
acquiescence of the legislature, and without interruption or objection for period long
enough to afford title by prescription.26 These municipal corporations have exercised their
powers for a long period without objection on the part of the government that although
no charter is in existence, it is presumed that they were duly incorporated in the first place
and that their charters had been lost.27 They are especially common in England, which, as
well-worth noting, has existed as a state for over a thousand years. The reason for the
development of that rule in England is understandable, since that country was settled long
before the Roman conquest by nomadic Celtic tribes, which could have hardly been
expected to obtain a municipal charter in the absence of a national legal authority.
In the United States, municipal corporations by prescription are less common, but it has
been held that when no charter or act of incorporation of a town can be found, it may be
shown to have claimed and exercised the powers of a town with the knowledge and assent
of the legislature, and without objection or interruption for so long a period as to furnish
evidence of a prescriptive right.28
What is clearly essential is a factual demonstration of the continuous exercise by the
municipal corporation of its corporate powers, as well as the acquiescence thereto by the
other instrumentalities of the state. Camid does not have the opportunity to make an initial
factual demonstration of those circumstances before this Court. Indeed, the factual
deficiencies aside, Camid’s plaint should have undergone the usual administrative gauntlet
and, once that was done, should have been filed first with the Court of Appeals, which at
least would have had the power to make the necessary factual determinations. Camid’s
seeming ignorance of the principles of exhaustion of administrative remedies and
hierarchy of courts, as well as the concomitant prematurity of the present petition, cannot
be countenanced.
It is also difficult to capture the sense and viability of Camid’s present action. The assailed
issuance is the Certification issued by the DILG. But such Certification does not pretend to
bear the authority to create or revalidate a municipality. Certainly, the annulment of the
Certification will really do nothing to serve Camid’s ultimate cause- the recognition of
Andong. Neither does the Certification even expressly refute the claim that Andong still
exists, as there is nothing in the document that comments on the present status of Andong.
Perhaps the Certification is assailed before this Court if only to present an actual issuance,
rather than a long-standing habit or pattern of action that can be annulled through the
special civil action of certiorari. Still, the relation of the Certification to Camid’s central
argument is forlornly strained.
These disquisitions aside, the central issue remains whether a municipality whose
creation by executive fiat was previously voided by this Court may attain recognition in
the absence of any curative or reimplementing statute. Apparently, the question has never
been decided before, San Narciso and its kindred cases pertaining as they did to
municipalities whose bases of creation were dubious yet were never judicially nullified.
The effect of Section 442(d) of the Local Government Code on municipalities such as
Andong warrants explanation. Besides, the residents of Andong who belabor under the
impression that their town still exists, much less those who may comport themselves as
the municipality’s "Interim Government," would be well served by a rude awakening.
The Court can employ a simplistic approach in resolving the substantive aspect of the
petition, merely by pointing out that the Municipality of Andong never existed.29 Executive
Order No. 107, which established Andong, was declared "null and void ab initio" in 1965
by this Court in Pelaez, along with thirty-three (33) other executive orders. The phrase "ab
initio" means "from the beginning,"30 "at first,"31 "from the inception."32 Pelaez was never
reversed by this Court but rather it was expressly affirmed in the cases of Municipality of
San Joaquin v. Siva,33 Municipality of Malabang v. Benito,34 and Municipality of Kapalong v.
Moya.35 No subsequent ruling by this Court declared Pelaez as overturned or inoperative.
No subsequent legislation has been passed since 1965 creating a Municipality of Andong.
Given these facts, there is hardly any reason to elaborate why Andong does not exist as a
duly constituted municipality.
This ratiocination does not admit to patent legal errors and has the additional virtue of
blessed austerity. Still, its sweeping adoption may not be advisedly appropriate in light of
Section 442(d) of the Local Government Code and our ruling in Municipality of San Narciso,
both of which admit to the possibility of de facto municipal corporations.
To understand the applicability of Municipality of San Narciso and Section 442(b) of the
Local Government Code to the situation of Andong, it is necessary again to consider the
ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was then, and still
is, not empowered to create municipalities through executive issuances. The Court therein
recognized "that the President has, for many years, issued executive orders creating
municipal corporations, and that the same have been organized and in actual operation . .
. ."36 However, the Court ultimately nullified only those thirty-three (33) municipalities,
including Andong, created during the period from 4 September to 29 October 1964 whose
existence petitioner Vice-President Pelaez had specifically assailed before this Court. No
pronouncement was made as to the other municipalities which had been previously
created by the President in the exercise of power the Court deemed unlawful.
Two years after Pelaez was decided, the issue again came to fore in Municipality of San
Joaquin v. Siva.37 The Municipality of Lawigan was created by virtue of Executive Order No.
436 in 1961. Lawigan was not one of the municipalities ordered annulled in Pelaez. A
petition for prohibition was filed contesting the legality of the executive order, again on
the ground that Section 68 of the Revised Administrative Code was unconstitutional. The
trial court dismissed the petition, but the Supreme Court reversed the ruling and entered
a new decision declaring Executive Order No. 436 void ab initio. The Court reasoned
without elaboration that the issue had already been squarely taken up and settled in Pelaez
which agreed with the argument posed by the challengers to Lawigan’s validity.38
In the 1969 case of Municipality of Malabang v. Benito,39 what was challenged is the validity
of the constitution of the Municipality of Balabagan in Lanao del Sur, also created by an
executive order,40 and which, similar to Lawigan, was not one of the municipalities
annulled in Pelaez. This time, the officials of Balabagan invoked de facto status as a
municipal corporation in order to dissuade the Court from nullifying action. They alleged
that its status as a de facto corporation cannot be collaterally attacked but should be
inquired into directly in an action for quo warranto at the instance of the State, and not by
a private individual as it was in that case. In response, the Court conceded that an inquiry
into the legal existence of a municipality is reserved to the State in a proceeding for quo
warranto, but only if the municipal corporation is a de facto corporation.41
Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation, even
though it had been organized prior to the Court’s decision in Pelaez. The Court declared
void the executive order creating Balabagan and restrained its municipal officials from
performing their official duties and functions.42 It cited conflicting American authorities
on whether a de facto corporation can exist where the statute or charter creating it is
unconstitutional.43 But the Court’s final conclusion was unequivocal that Balabagan was
not a de facto corporation.1awphi1.nét
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.44
The Court did clarify in Malabang that the previous acts done by the municipality in the
exercise of its corporate powers were not necessarily a nullity.45 Camid devotes several
pages of his petition in citing this point,46 yet the relevance of the citation is unclear
considering that Camid does not assert the validity of any corporate act of Andong prior
to its judicial dissolution. Notwithstanding, the Court in Malabang retained an emphatic
attitude as to the unconstitutionality of the power of the President to create municipal
corporations by way of presidential promulgations, as authorized under Section 68 of the
Revised Administrative Code.
This principle was most recently affirmed in 1988, in Municipality of Kapalong v. Moya.47
The municipality of Santo Tomas, created by President Carlos P. Garcia, filed a complaint
against another municipality, who challenged Santo Tomas’s legal personality to institute
suit. Again, Santo Tomas had not been expressly nullified by prior judicial action, yet the
Court refused to recognize its legal existence. The blunt but simple ruling: "Now then, as
ruled in the Pelaez case supra, the President has no power to create a municipality. Since
[Santo Tomas] has no legal personality, it can not be a party to any civil action…."48
Nevertheless, when the Court decided Municipality of San Narciso49 in 1995, it indicated a
shift in the jurisprudential treatment of municipalities created through presidential
issuances. The questioned municipality of San Andres, Quezon was created on 20 August
1959 by Executive Order No. 353 issued by President Carlos P. Garcia. Executive Order No.
353 was not one of the thirty-three issuances annulled by Pelaez in 1965. The legal status
of the Municipality of San Andres was first challenged only in 1989, through a petition for
quo warranto filed with the Regional Trial Court of Gumaca, Quezon, which did cite Pelaez
as authority.50 The RTC dismissed the petition for lack of cause of action, and the
petitioners therein elevated the matter to this Court.
In dismissing the petition, the Court delved in the merits of the petition, if only to resolve
further doubt on the legal status of San Andres. It noted a circumstance which is not
present in the case at bar—that San Andres was in existence for nearly thirty (30) years
before its legality was challenged. The Court did not declare the executive order creating
San Andres null and void. Still, acting on the premise that the said executive order was a
complete nullity, the Court noted "peculiar circumstances" that led to the conclusion that
San Andres had attained the unique status of a "de facto municipal corporation."51 It noted
that Pelaez limited its nullificatory effect only to those executive orders specifically
challenged therein, despite the fact that the Court then could have very well extended the
decision to invalidate San Andres as well.52 This statement squarely contradicts Camid’s
reading of San Narciso that the creation of San Andres, just like Andong, had been declared
a complete nullity on the same ground of unconstitutional delegation of legislative power
found in Pelaez.53
The Court also considered the applicability of Section 442(d) 54 of the Local Government
Code of 1991. It clarified the implication of the provision as follows:
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." No
pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is
preferred. It is doubtful whether such a pretext, even if made, would succeed. The power
to create political subdivisions is a function of the legislature. Congress did just that
when it has incorporated Section 442(d) in the Code. Curative laws, which in essence
are retrospective, and aimed at giving "validity to acts done that would have been invalid
under existing laws, as if existing laws have been complied with," are validly accepted in
this jurisdiction, subject to the usual qualification against impairment of vested rights.
(Emphasis supplied)55
The holding in San Narciso was subsequently affirmed in Municipality of Candijay v. Court
of Appeals56 and Municipality of Jimenez v. Baz57 In Candijay, the juridical personality of the
Municipality of Alicia, created in a 1949 executive order, was attacked only beginning in
1984. Pelaez was again invoked in support of the challenge, but the Court refused to
invalidate the municipality, citing San Narciso at length. The Court noted that the situation
of the Municipality of Alicia was strikingly similar to that in San Narciso; hence, the town
should likewise "benefit from the effects of Section 442(d) of the Local Government Code,
and should [be] considered as a regular, de jure municipality." 58
The valid existence of Municipality of Sinacaban, created in a 1949 executive order, was
among the issues raised in Jimenez. The Court, through Justice Mendoza, provided an
expert summation of the evolution of the rule.
The principal basis for the view that Sinacaban was not validly created as a municipal
corporation is the ruling in Pelaez v. Auditor General that the creation of municipal
corporations is essentially a legislative matter and therefore the President was without
power to create by executive order the Municipality of Sinacaban. The ruling in this case
has been reiterated in a number of cases later decided. However, we have since held that
where a municipality created as such by executive order is later impliedly recognized and
its acts are accorded legal validity, its creation can no longer be questioned. In Municipality
of San Narciso, Quezon v. Mendez, Sr., this Court considered the following factors as having
validated the creation of a municipal corporation, which, like the Municipality of
Sinacaban, was created by executive order of the President before the ruling in Pelaez v.
Auditor General: (1) the fact that for nearly 30 years the validity of the creation of the
municipality had never been challenged; (2) the fact that following the ruling in Pelaez no
quo warranto suit was filed to question the validity of the executive order creating such
municipality; and (3) the fact that the municipality was later classified as a fifth class
municipality, organized as part of a municipal circuit court and considered part of a
legislative district in the Constitution apportioning the seats in the House of
Representatives. Above all, it was held that whatever doubt there might be as to the de jure
character of the municipality must be deemed to have been put to rest by the Local
Government Code of 1991 (R. A. No. 7160), §442(d) of which provides that "municipal
districts organized pursuant to presidential issuances or executive orders and which have
their respective sets of elective officials holding office at the time of the effectivity of this
Code shall henceforth be considered as regular municipalities."
Here, the same factors are present so as to confer on Sinacaban the status of at least a de
facto municipal corporation in the sense that its legal existence has been recognized and
acquiesced publicly and officially. Sinacaban had been in existence for sixteen years when
Pelaez v. Auditor General was decided on December 24, 1965. Yet the validity of E.O. No.
258 creating it had never been questioned. Created in 1949, it was only 40 years later that
its existence was questioned and only because it had laid claim to an area that apparently
is desired for its revenue. This fact must be underscored because under Rule 66, §16 of the
Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must
be commenced within five (5) years from the time the act complained of was done or
committed. On the contrary, the State and even the Municipality of Jimenez itself have
recognized Sinacaban's corporate existence. Under Administrative Order No. 33 dated
June 13, 1978 of this Court, as reiterated by §31 of the Judiciary Reorganization Act of 1980
(B. P. Blg. 129), Sinacaban is constituted part of a municipal circuit for purposes of the
establishment of Municipal Circuit Trial Courts in the country. For its part, Jimenez had
earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their
common boundary. The agreement was embodied in Resolution No. 77 of the Provincial
Board of Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the
1987 Constitution, apportioning legislative districts throughout the country, which
considered Sinacaban part of the Second District of Misamis Occidental. Moreover,
following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., 442(d) of the
Local Government Code of 1991 must be deemed to have cured any defect in the creation
of Sinacaban….591awphi1.nét
From this survey of relevant jurisprudence, we can gather the applicable rules. Pelaez and
its offspring cases ruled that the President has no power to create municipalities, yet
limited its nullificatory effects to the particular municipalities challenged in actual cases
before this Court. However, with the promulgation of the Local Government Code in 1991,
the legal cloud was lifted over the municipalities similarly created by executive order but
not judicially annulled. The de facto status of such municipalities as San Andres, Alicia and
Sinacaban was recognized by this Court, and Section 442(b) of the Local Government Code
deemed curative whatever legal defects to title these municipalities had labored under.
Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not.
There are eminent differences between Andong and municipalities such as San Andres,
Alicia and Sinacaban. Most prominent is the fact that the executive order creating Andong
was expressly annulled by order of this Court in 1965. If we were to affirm Andong’s de
facto status by reason of its alleged continued existence despite its nullification, we would
in effect be condoning defiance of a valid order of this Court.l^vvphi1.net Court decisions
cannot obviously lose their efficacy due to the sheer defiance by the parties aggrieved.
It bears noting that based on Camid’s own admissions, Andong does not meet the
requisites set forth by Section 442(d) of the Local Government Code. Section 442(d)
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." Camid admits that
Andong has never elected its municipal officers at all.60 This incapacity ties in with the fact
that Andong was judicially annulled in 1965. Out of obeisance to our ruling in Pelaez, the
national government ceased to recognize the existence of Andong, depriving it of its share
of the public funds, and refusing to conduct municipal elections for the void municipality.
The failure to appropriate funds for Andong and the absence of elections in the
municipality in the last four decades are eloquent indicia of the non-recognition by the
State of the existence of the town. The certifications relied upon by Camid, issued by the
DENR-CENRO and the National Statistics Office, can hardly serve the purpose of attesting
to Andong’s legal efficacy. In fact, both these certifications qualify that they were issued
upon the request of Camid, "to support the restoration or re-operation of the Municipality
of Andong, Lanao del Sur,"61 thus obviously conceding that the municipality is at present
inoperative.1awphi1.nét
We may likewise pay attention to the Ordinance appended to the 1987 Constitution, which
had also been relied upon in Jimenez and San Narciso. This Ordinance, which apportioned
the seats of the House of Representatives to the different legislative districts in the
Philippines, enumerates the various municipalities that are encompassed by the various
legislative districts. Andong is not listed therein as among the municipalities of Lanao del
Sur, or of any other province for that matter.62 On the other hand, the municipalities of San
Andres, Alicia and Sinacaban are mentioned in the Ordinance as part of Quezon,63 Bohol,64
and Misamis Occidental65 respectively.
municipalities, namely the municipalities of Lumbatan, Butig and Tubaran.67 These three
municipalities subsist to this day as part of Lanao del Sur,68 and presumably continue to
exercise corporate powers over the barrios which once belonged to Andong.
If there is truly a strong impulse calling for the reconstitution of Andong, the solution is
through the legislature and not judicial confirmation of void title. If indeed the residents
of Andong have, all these years, been governed not by their proper municipal governments
but by a ragtag "Interim Government," then an expedient political and legislative solution
is perhaps necessary. Yet we can hardly sanction the retention of Andong’s legal
personality solely on the basis of collective amnesia that may have allowed Andong to
somehow pretend itself into existence despite its judicial dissolution. Maybe those who
insist Andong still exists prefer to remain unperturbed in their blissful ignorance, like the
inhabitants of the cave in Plato’s famed allegory. But the time has come for the light to seep
in, and for the petitioner and like-minded persons to awaken to legal reality.
WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.

How about the eighteen (18) municipalities similarly nullified in Pelaez but certified as
existing in the DILG Certification presented by Camid? The petition fails to mention that
subsequent to the ruling in Pelaez, legislation was enacted to reconstitute these
municipalities.66 It is thus not surprising that the DILG certified the existence of these
eighteen (18) municipalities, or that these towns are among the municipalities
enumerated in the Ordinance appended to the Constitution. Andong has not been similarly
reestablished through statute. Clearly then, the fact that there are valid organic statutes
passed by legislation recreating these eighteen (18) municipalities is sufficient legal basis
to accord a different legal treatment to Andong as against these eighteen (18) other
municipalities.

We thus assert the proper purview to Section 442(d) of the Local Government Code—that
it does not serve to affirm or reconstitute the judicially dissolved municipalities such as
Andong, which had been previously created by presidential issuances or executive orders.
The provision affirms the legal personalities only of those municipalities such as San
Narciso, Alicia, and Sinacaban, which may have been created using the same infirm legal
basis, yet were fortunate enough not to have been judicially annulled. On the other hand,
the municipalities judicially dissolved in cases such as Pelaez, San Joaquin, and Malabang,
remain inexistent, unless recreated through specific legislative enactments, as done with
the eighteen (18) municipalities certified by the DILG. Those municipalities derive their
legal personality not from the presidential issuances or executive orders which originally
created them or from Section 442(d), but from the respective legislative statutes which
were enacted to revive them.1a\^/phi1.net

And what now of Andong and its residents? Certainly, neither Pelaez or this decision has
obliterated Andong into a hole on the ground. The legal effect of the nullification of Andong
in Pelaez was to revert the constituent barrios of the voided town back into their original
G.R. No. 176951 November 18, 2008
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP
National President JERRY P. TREÑAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR MEL
SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as
taxpayer, petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF
LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF
CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF
TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN,
PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS,
PROVINCE OF QUEZON, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY
OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN,
CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF
GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN,
CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, petitioners-in-intervention.
x-----------------------------x
G.R. No. 177499 November 18, 2008
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP
National President JERRY P. TREÑAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR MEL
SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as
taxpayer, petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF
BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA;
MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR;
MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY
OF MATI, PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF
GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY
OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN,
CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF
GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN,
CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, petitioners-in-intervention.
x - - - - - - - - - - - - - - - - - - - - - - - - - - --x
G.R. No. 178056 November 18, 2008
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP
National President JERRY P. TREÑAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR MEL
SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as
taxpayer, petitioners
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE
OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU;
and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY
OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN,
CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF
GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN,
CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, petitioners-in-intervention.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions for prohibition1 with prayer for the issuance of
a writ of preliminary injunction or temporary restraining order filed by the
League of Cities of the Philippines, City of Iloilo, City of Calbayog, and Jerry P.
Treñas2 assailing the constitutionality of the subject Cityhood Laws and enjoining
the Commission on Elections (COMELEC) and respondent municipalities from
conducting plebiscites pursuant to the Cityhood Laws.
The Facts
During the 11th Congress,3 Congress enacted into law 33 bills converting 33
municipalities into cities. However, Congress did not act on bills converting 24
other municipalities into cities.
During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA
9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the
Local Government Code by increasing the annual income requirement for
conversion of a municipality into a city from P20 million to P100 million. The
rationale for the amendment was to restrain, in the words of Senator Aquilino
Pimentel, "the mad rush" of municipalities to convert into cities solely to secure
a larger share in the Internal Revenue Allotment despite the fact that they are
incapable of fiscal independence.6
After the effectivity of RA 9009, the House of Representatives of the 12 th
Congress7 adopted Joint Resolution No. 29,8 which sought to exempt from the
P100 million income requirement in RA 9009 the 24 municipalities whose
cityhood bills were not approved in the 11 th Congress. However, the 12th
Congress ended without the Senate approving Joint Resolution No. 29.
During the 13th Congress,9 the House of Representatives re-adopted Joint
Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for
approval. However, the Senate again failed to approve the Joint Resolution.
Following the advice of Senator Aquilino Pimentel, 16 municipalities filed,
through their respective sponsors, individual cityhood bills. The 16 cityhood bills
contained a common provision exempting all the 16 municipalities from the P100
million income requirement in RA 9009.
On 22 December 2006, the House of Representatives approved the cityhood bills.
The Senate also approved the cityhood bills in February 2007, except that of
Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law
(Cityhood Laws10) on various dates from March to July 2007 without the
President's signature.11
The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether
the voters in each respondent municipality approve of the conversion of their
municipality into a city.
Petitioners filed the present petitions to declare the Cityhood Laws
unconstitutional for violation of Section 10, Article X of the Constitution, as well
as for violation of the equal protection clause.12 Petitioners also lament that the
wholesale conversion of municipalities into cities will reduce the share of existing
cities in the Internal Revenue Allotment because more cities will share the same
amount of internal revenue set aside for all cities under Section 285 of the Local
Government Code.13
The Issues
The petitions raise the following fundamental issues:
1. Whether the Cityhood Laws violate Section 10, Article X of the
Constitution; and
2. Whether the Cityhood Laws violate the equal protection clause.
The Ruling of the Court
We grant the petitions.
The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and
are thus unconstitutional.
First, applying the P100 million income requirement in RA 9009 to the present
case is a prospective, not a retroactive application, because RA 9009 took effect
in 2001 while the cityhood bills became law more than five years later.
Second, the Constitution requires that Congress shall prescribe all the criteria for
the creation of a city in the Local Government Code and not in any other law,
including the Cityhood Laws.
Third, the Cityhood Laws violate Section 6, Article X of the Constitution because
they prevent a fair and just distribution of the national taxes to local government
units.
Fourth, the criteria prescribed in Section 450 of the Local Government Code, as
amended by RA 9009, for converting a municipality into a city are clear, plain and
unambiguous, needing no resort to any statutory construction.
Fifth, the intent of members of the 11th Congress to exempt certain municipalities
from the coverage of RA 9009 remained an intent and was never written into
Section 450 of the Local Government Code.
Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or
resolutions are not extrinsic aids in interpreting a law passed in the 13th
Congress.
Seventh, even if the exemption in the Cityhood Laws were written in Section 450
of the Local Government Code, the exemption would still be unconstitutional for
violation of the equal protection clause.
Preliminary Matters
Prohibition is the proper action for testing the constitutionality of laws
administered by the COMELEC,14 like the Cityhood Laws, which direct the
COMELEC to hold plebiscites in implementation of the Cityhood Laws. Petitioner
League of Cities of the Philippines has legal standing because Section 499 of the
Local Government Code tasks the League with the "primary purpose of
ventilating, articulating and crystallizing issues affecting city government
administration and securing, through proper and legal means, solutions
thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal
standing because their Internal Revenue Allotment will be reduced if the
Cityhood Laws are declared constitutional. Mayor Jerry P. Treñas has legal
standing because as Mayor of Iloilo City and as a taxpayer he has sufficient
interest to prevent the unlawful expenditure of public funds, like the release of
more Internal Revenue Allotment to political units than what the law allows.
Applying RA 9009 is a Prospective Application of the Law
RA 9009 became effective on 30 June 2001 during the 11 th Congress. This law
specifically amended Section 450 of the Local Government Code, which now
provides:
Section 450. Requisites for Creation. – (a) A municipality or a cluster of
barangays may be converted into a component city if it has a locally generated
average annual income, as certified by the Department of Finance, of at
least One hundred million pesos (P100,000,000.00) for the last two (2)
consecutive years based on 2000 constant prices, and if it has either of the
following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers,
as certified by the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office.
The creation thereof shall not reduce the land area, population and income of
the original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall not apply
where the city proposed to be created is composed of one (1) or more islands.
The territory need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring income.
(Emphasis supplied)
Thus, RA 9009 increased the income requirement for conversion of a
municipality into a city from P20 million to P100 million. Section 450 of the Local
Government Code, as amended by RA 9009, does not provide any exemption from
the increased income requirement.
Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills
pending in Congress. Thirty-three cityhood bills became law before the
enactment of RA 9009. Congress did not act on 24 cityhood bills during the
11th Congress.
During the 12th Congress, the House of Representatives adopted Joint Resolution
No. 29, exempting from the income requirement of P100 million in RA 9009 the
24 municipalities whose cityhood bills were not acted upon during the 11 th
Congress. This Resolution reached the Senate. However, the 12th Congress
adjourned without the Senate approving Joint Resolution No. 29.
During the 13th Congress, 16 of the 24 municipalities mentioned in the
unapproved Joint Resolution No. 29 filed between November and December of
2006, through their respective sponsors in Congress, individual cityhood bills
containing a common provision, as follows:
Exemption from Republic Act No. 9009. - The City of x x x shall be exempted
from the income requirement prescribed under Republic Act No. 9009.
This common provision exempted each of the 16 municipalities from the
income requirement of P100 million prescribed in Section 450 of the Local
Government Code, as amended by RA 9009. These cityhood bills lapsed into
law on various dates from March to July 2007 after President Gloria Macapagal-
Arroyo failed to sign them.
Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA
9009. RA 9009 became effective on 30 June 2001 or during the 11 th
Congress. The 13th Congress passed in December 2006 the cityhood bills
which became law only in 2007. Thus, respondent municipalities cannot invoke
the principle of non-retroactivity of laws.17 This basic rule has no application
because RA 9009, an earlier law to the Cityhood Laws, is not being applied
retroactively but prospectively.
Congress Must Prescribe in the Local Government Code All Criteria
Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay shall 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. (Emphasis supplied)
The Constitution is clear. The creation of local government units must follow the
criteria established in the Local Government Code and not in any other law.
There is only one Local Government Code.18 The Constitution requires Congress
to stipulate in the Local Government Code all the criteria necessary for the
creation of a city, including the conversion of a municipality into a city. Congress
cannot write such criteria in any other law, like the Cityhood Laws.
The criteria prescribed in the Local Government Code govern exclusively the
creation of a city. No other law, not even the charter of the city, can govern such
creation. The clear intent of the Constitution is to insure that the creation of cities
and other political units must follow the same uniform, non-discriminatory
criteria found solely in the Local Government Code. Any derogation or
deviation from the criteria prescribed in the Local Government Code violates
Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to increase the
income requirement from P20 million to P100 million for the creation of a city.
This took effect on 30 June 2001. Hence, from that moment the Local
Government Code required that any municipality desiring to become a city
must satisfy the P100 million income requirement. Section 450 of the Local
Government Code, as amended by RA 9009, does not contain any exemption from
this income requirement.
In enacting RA 9009, Congress did not grant any exemption to respondent
municipalities, even though their cityhood bills were pending in Congress when
Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of
RA 9009, explicitly exempt respondent municipalities from the increased income
requirement in Section 450 of the Local Government Code, as amended by RA
9009. Such exemption clearly violates Section 10, Article X of the
Constitution and is thus patently unconstitutional. To be valid, such
exemption must be written in the Local Government Code and not in any
other law, including the Cityhood Laws.
Cityhood Laws Violate Section 6, Article X of the Constitution
Uniform and non-discriminatory criteria as prescribed in the Local Government
Code are essential to implement a fair and equitable distribution of national taxes
to all local government units. Section 6, Article X of the Constitution provides:
Local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them. (Emphasis
supplied)
If the criteria in creating local government units are not uniform and
discriminatory, there can be no fair and just distribution of the national taxes to
local government units.
A city with an annual income of only P20 million, all other criteria being equal,
should not receive the same share in national taxes as a city with an annual
income of P100 million or more. The criteria of land area, population and income,
as prescribed in Section 450 of the Local Government Code, must be strictly
followed because such criteria, prescribed by law, are material in determining the
"just share" of local government units in national taxes. Since the Cityhood Laws
do not follow the income criterion in Section 450 of the Local Government Code,
they prevent the fair and just distribution of the Internal Revenue Allotment in
violation of Section 6, Article X of the Constitution.
Section 450 of the Local Government Code is Clear,
Plain and Unambiguous
There can be no resort to extrinsic aids – like deliberations of Congress – if the
language of the law is plain, clear and unambiguous. Courts determine the intent
of the law from the literal language of the law, within the law's four corners. 19 If
the language of the law is plain, clear and unambiguous, courts simply apply the
law according to its express terms. If a literal application of the law results in
absurdity, impossibility or injustice, then courts may resort to extrinsic aids of
statutory construction like the legislative history of the law.20
Congress, in enacting RA 9009 to amend Section 450 of the Local Government
Code, did not provide any exemption from the increased income requirement, not
even to respondent municipalities whose cityhood bills were then pending when
Congress passed RA 9009. Section 450 of the Local Government Code, as
amended by RA 9009, contains no exemption whatsoever. Since the law is clear,
plain and unambiguous that any municipality desiring to convert into a city must
meet the increased income requirement, there is no reason to go beyond the
letter of the law in applying Section 450 of the Local Government Code, as
amended by RA 9009.
The 11th Congress' Intent was not Written into the Local Government Code
True, members of Congress discussed exempting respondent municipalities from
RA 9009, as shown by the various deliberations on the matter during the 11 th
Congress. However, Congress did not write this intended exemption into law.
Congress could have easily included such exemption in RA 9009 but Congress did
not. This is fatal to the cause of respondent municipalities because such
exemption must appear in RA 9009 as an amendment to Section 450 of the Local
Government Code. The Constitution requires that the criteria for the conversion
of a municipality into a city, including any exemption from such criteria, must all
be written in the Local Government Code. Congress cannot prescribe such criteria
or exemption from such criteria in any other law. In short, Congress cannot
create a city through a law that does not comply with the criteria or
exemption found in the Local Government Code.
Section 10 of Article X is similar to Section 16, Article XII of the Constitution
prohibiting Congress from creating private corporations except by a general law.
Section 16 of Article XII provides:
The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned
or controlled corporations may be created or established by special charters
in the interest of the common good and subject to the test of economic
viability. (Emphasis supplied)
Thus, Congress must prescribe all the criteria for the "formation, organization, or
regulation" of private corporations in a general law applicable to all without
discrimination.21 Congress cannot create a private corporation through a special
law or charter.
Deliberations of the 11th Congress on Unapproved Bills Inapplicable
Congress is not a continuing body.22 The unapproved cityhood bills filed during
the 11th Congress became mere scraps of paper upon the adjournment of the 11th
Congress. All the hearings and deliberations conducted during the 11th Congress
on unapproved bills also became worthless upon the adjournment of the 11 th
Congress. These hearings and deliberations cannot be used to interpret bills
enacted into law in the 13th or subsequent Congresses.
The members and officers of each Congress are different. All unapproved bills
filed in one Congress become functus officio upon adjournment of that Congress
and must be re-filed anew in order to be taken up in the next Congress. When
their respective authors re-filed the cityhood bills in 2006 during the 13th
Congress, the bills had to start from square one again, going through the
legislative mill just like bills taken up for the first time, from the filing to the
approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished
Business, provides:
Sec. 123. x x x
All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the succeeding
Congress as if presented for the first time. (Emphasis supplied)
Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished
Business, states:
Section 78. Calendar of Business. The Calendar of Business shall consist of the
following:
a. Unfinished Business. This is business being considered by the House at
the time of its last adjournment. Its consideration shall be resumed until it
is disposed of. The Unfinished Business at the end of a session shall be
resumed at the commencement of the next session as if no adjournment
has taken place. At the end of the term of a Congress, all Unfinished
Business are deemed terminated. (Emphasis supplied)
Thus, the deliberations during the 11th Congress on the unapproved cityhood
bills, as well as the deliberations during the 12 th and 13th Congresses on the
unapproved resolution exempting from RA 9009 certain municipalities, have no
legal significance. They do not qualify as extrinsic aids in construing laws passed
by subsequent Congresses.
Applicability of Equal Protection Clause
If Section 450 of the Local Government Code, as amended by RA 9009, contained
an exemption to the P100 million annual income requirement, the criteria for
such exemption could be scrutinized for possible violation of the equal protection
clause. Thus, the criteria for the exemption, if found in the Local Government
Code, could be assailed on the ground of absence of a valid classification.
However, Section 450 of the Local Government Code, as amended by RA 9009,
does not contain any exemption. The exemption is contained in the Cityhood
Laws, which are unconstitutional because such exemption must be prescribed in
the Local Government Code as mandated in Section 10, Article X of the
Constitution.
Even if the exemption provision in the Cityhood Laws were written in Section 450
of the Local Government Code, as amended by RA 9009, such exemption would
still be unconstitutional for violation of the equal protection clause. The
exemption provision merely states, "Exemption from Republic Act No. 9009 ─
The City of x x x shall be exempted from the income requirement prescribed
under Republic Act No. 9009." This one sentence exemption provision contains
no classification standards or guidelines differentiating the exempted
municipalities from those that are not exempted.
Even if we take into account the deliberations in the 11 th Congress that
municipalities with pending cityhood bills should be exempt from the P100
million income requirement, there is still no valid classification to satisfy the
equal protection clause. The exemption will be based solely on the fact that
the 16 municipalities had cityhood bills pending in the 11th Congress when
RA 9009 was enacted. This is not a valid classification between those entitled
and those not entitled to exemption from the P100 million income requirement.
To be valid, the classification in the present case must be based on substantial
distinctions, rationally related to a legitimate government objective which is the
purpose of the law,23 not limited to existing conditions only, and applicable to all
similarly situated. Thus, this Court has ruled:
The equal protection clause of the 1987 Constitution permits a valid
classification under the following conditions:
1. The classification must rest on substantial distinctions;
2. The classification must be germane to the purpose of the law;
3. The classification must not be limited to existing conditions only; and
4. The classification must apply equally to all members of the same class. 24
There is no substantial distinction between municipalities with pending cityhood
bills in the 11th Congress and municipalities that did not have pending bills. The
mere pendency of a cityhood bill in the 11th Congress is not a material difference
to distinguish one municipality from another for the purpose of the income
requirement. The pendency of a cityhood bill in the 11th Congress does not affect
or determine the level of income of a municipality. Municipalities with pending
cityhood bills in the 11th Congress might even have lower annual income than
municipalities that did not have pending cityhood bills. In short, the classification
criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally
related to the purpose of the law which is to prevent fiscally non-viable
municipalities from converting into cities.
Municipalities that did not have pending cityhood bills were not informed that a
pending cityhood bill in the 11th Congress would be a condition for exemption
from the increased P100 million income requirement. Had they been informed,
many municipalities would have caused the filing of their own cityhood bills.
These municipalities, even if they have bigger annual income than the 16
respondent municipalities, cannot now convert into cities if their income is less
than P100 million.
The fact of pendency of a cityhood bill in the 11 th Congress limits the exemption
to a specific condition existing at the time of passage of RA 9009. That specific
condition will never happen again. This violates the requirement that a valid
classification must not be limited to existing conditions only. This requirement is
illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law
allowed milk dealers engaged in business prior to a fixed date to sell at a price
lower than that allowed to newcomers in the same business. In Mayflower, the
U.S. Supreme Court held:
We are referred to a host of decisions to the effect that a regulatory law may
be prospective in operation and may except from its sweep those presently
engaged in the calling or activity to which it is directed. Examples are statutes
licensing physicians and dentists, which apply only to those entering the
profession subsequent to the passage of the act and exempt those then in
practice, or zoning laws which exempt existing buildings, or laws forbidding
slaughterhouses within certain areas, but excepting existing establishments.
The challenged provision is unlike such laws, since, on its face, it is not a
regulation of a business or an activity in the interest of, or for the
protection of, the public, but an attempt to give an economic advantage
to those engaged in a given business at an arbitrary date as against all
those who enter the industry after that date. The appellees do not intimate
that the classification bears any relation to the public health or welfare
generally; that the provision will discourage monopoly; or that it was aimed
at any abuse, cognizable by law, in the milk business. In the absence of any
such showing, we have no right to conjure up possible situations which might
justify the discrimination. The classification is arbitrary and unreasonable and
denies the appellant the equal protection of the law. (Emphasis supplied)
In the same vein, the exemption provision in the Cityhood Laws gives the 16
municipalities a unique advantage based on an arbitrary date − the filing of their
cityhood bills before the end of the 11th Congress - as against all other
municipalities that want to convert into cities after the effectivity of RA 9009.
Furthermore, 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.
WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the
Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394,
9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.
SO ORDERED.
G.R. No. 198860 July 23, 2012
ABRAHAM RIMANDO, Petitioner,
vs.
NAGUILIAN EMISSION TESTING CENTER, INC., represented by its President,
ROSEMARIE LLARENAS and HON. COURT OF APPEALS, Respondents.
RESOLUTION
REYES, J.:
Before us is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking
to annul and set aside Decision2 dated March 30, 2011 of the Court of Appeals (CA) in CA-
G.R. SP NO. 112152.
The Facts
The present controversy stemmed from a petition for mandamus and damages filed before
Branch 67 of the Regional Trial Court (RTC) of Bauang, La Union, by Naguilian Emission
Testing Center, Inc., represented by its President, Rosemarie Llarenas (respondent)
against Abraham P. Rimando (petitioner), who, at the time material to the case, was the
sitting mayor of the Municipality of Naguilian, La Union.
The petition prayed for the issuance of a writ of mandamus to compel the petitioner to
issue a business permit in favor of the respondent.
In support of its plea, the respondent claimed that its business is being conducted on a
parcel of land which formerly belonged to the national government but later on certified
by the Department of Environment and Natural Resources (DENR) as an alienable and
disposable land of the public domain. The respondent had operated its business of
emission testing on the land from 2005 to 2007. On January 18, 2008, the respondent filed
an application for the renewal of its business permit and paid the corresponding fees
therefor.
The petitioner, however, refused to issue a business permit unless and until the
respondent executes a contract of lease with the Municipality of Naguilian. The respondent
was amenable to signing such contract subject to some proposed revisions, which,
however, were not acceptable to the petitioner. The parties did not reach a common
ground hence, the petition for mandamus.
The Ruling of the RTC
On May 26, 2009, the RTC denied the petition3 for lack of merit based on the ratiocinations
that: (a) the Municipality of Naguilian is the declared owner of the subject parcel of land
by virtue of Tax Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code
of the Municipality of Naguilian, the municipality has the right to require the petitioner to
sign a contract of lease because its business operation is being conducted on a real
property owned by the municipality; and (c) a mayor’s duty to issue business permits is
discretionary in nature which may not be enforced by a mandamus writ. The decretal
portion of the decision reads:
WHEREFORE, premises considered, the petition is DENIED for lack of merit.
SO ORDERED.4
The Ruling of the CA
Unwaivering, the respondent appealed to the CA. In its Decision5 dated March 30, 2011,
the CA held that the appeal was dismissible on the ground of mootness considering that
the period for which the business period was being sought had already lapsed. As such,
any ruling on the matter would bring no practical relief. Nonetheless, the CA proceeded to
resolve the issues involved in the appeal for academic purposes.
The CA disagreed with the RTC and found that the factual milieu of the case justifies the
issuance of a writ of mandamus. The CA reasoned that the tax declaration in the name of
the municipality was insufficient basis to require the execution of a contract of lease as a
condition sine qua non for the renewal of a business permit. The CA further observed that
Sangguniang Bayan Resolution No. 2007-81, upon which the municipality anchored its
imposition of rental fees, was void because it failed to comply with the requirements of the
Local Government Code and its Implementing Rules and Regulations.
The CA held that the petitioner may not be held liable for damages since his action or
inaction, for that matter, was done in the performance of official duties that are legally
protected by the presumption of good faith. The CA likewise stressed that the civil action
filed against the petitioner had already become moot and academic upon the expiration of
his term as the mayor of Naguilian, La Union.
Despite its incessant declarations on the mootness of the case, the CA disposed of the
appeal in this wise:
WHEREFORE, the Decision dated 26 May 2009 of the Regional Trial Court, First Judicial
Region, Bauang, La Union, Branch 67, in Special Civil Action Case No. 72-BG, is hereby
REVERSED and SET ASIDE.
SO ORDERED.6
The petitioner moved for reconsideration7 questioning the pronouncement of the CA that
Sangguniang Bayan Resolution No. 2007-81 was void and arguing that a petition for
mandamus is not the proper vehicle to determine the issue on the ownership of the subject
land. The motion was denied in the CA Resolution8 dated September 30, 2011.
The petitioner is now before this Court reiterating the arguments raised in his motion for
reconsideration.
Our Ruling
We agree with the CA that the petition for mandamus has already become moot and
academic owing to the expiration of the period intended to be covered by the business
permit.
An issue or a case becomes moot and academic when it ceases to present a justiciable
controversy so that a determination thereof would be without practical use and value9 or
in the nature of things, cannot be enforced.10 In such cases, there is no actual substantial
relief to which the applicant would be entitled to and which would be negated by the
dismissal of the petition.11 As a rule, courts decline jurisdiction over such case, or dismiss
it on ground of mootness.12
The objective of the petition for mandamus to compel the petitioner to grant a business
permit in favor of respondent corporation for the period 2008 to 2009 has already been
superseded by the passage of time and the expiration of the petitioner’s term as mayor.
Verily then, the issue as to whether or not the petitioner, in his capacity as mayor, may be
compelled by a writ of mandamus to release the respondent’s business permit ceased to
present a justiciable controversy such that any ruling thereon would serve no practical
value. Should the writ be issued, the petitioner can no longer abide thereby; also, the
effectivity date of the business permit no longer subsists.
While the CA is not precluded from proceeding to resolve the otherwise moot appeal of
the respondent, we find that the decretal portion of its decision was erroneously couched.
The CA’s conclusions on the issue of ownership over the subject land and the invalidity of
Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by
convincing evidence, can no longer be practically utilized in favor of the petitioner. Thus,
the overriding and decisive factor in the final disposition of the appeal was its mootness
and the CA should have dismissed the same along with the petition for mandamus that
spawned it.
More importantly, a mayor cannot be compelled by mandamus to issue a business permit
since the exercise of the same is a delegated police power hence, discretionary in nature.
This was the pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor13 where
a determination was made on the nature of the power of a mayor to grant business permits
under the Local Government Code,14 viz:
Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local
Government Code of 1991, which provides, thus:
SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this
Code, the municipal mayor shall:
xxxx
3) Initiate and maximize the generation of resources and revenues, and apply the same
to the implementation of development plans, program objectives and priorities as
provided for under Section 18 of this Code, particularly those resources and revenues
programmed for agro-industrial development and country-wide growth and progress,
and relative thereto, shall:
xxxx
(iv) Issue licenses and permits and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued, pursuant to law or
ordinance.
As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is
pursuant to Section 16 of the Local Government Code of 1991, which declares:
SEC. 16. General Welfare. – Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.
Section 16, known as the general welfare clause, encapsulates the delegated police power
to local governments.1âwphi1 Local government units exercise police power through their
respective legislative bodies. Evidently, the Local Government Code of 1991 is unequivocal
that the municipal mayor has the power to issue licenses and permits and suspend or
revoke the same for any violation of the conditions upon which said licenses or permits
had been issued, pursuant to law or ordinance. x x x
xxxx
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the
respondent mayor to issue license and permits is circumscribed, is a manifestation of the
delegated police power of a municipal corporation. Necessarily, the exercise thereof
cannot be deemed ministerial. As to the question of whether the power is validly exercised,
the matter is within the province of a writ of certiorari, but certainly, not of mandamus.15
(Citations omitted)
Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent
is incompetent to compel the exercise of a mayor’s discretionary duty to issue business
permits.
WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of
Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009
of the Regional Trial Court of Bauang, La Union is REINSTATED.
SO ORDERED.
G.R. No. 131512 January 20, 2000
LAND TRANSPORTATION OFFICE [LTO], represented by Assistant Secretary
Manuel F. Bruan, LTO Regional Office, Region X represented by its Regional
Director, Timoteo A. Garcia; and LTO Butuan represented by Rosita G. Sadiaga,
its Registrar, petitioners,
vs.
CITY OF BUTUAN, represented in this case by Democrito D. Plaza II, City
Mayor, respondents.
VITUG, J.:
The 1987 Constitution enunciates the policy that the territorial and political
subdivisions shall enjoy local autonomy.1 In obedience to that mandate of the
fundamental law, Republic Act ("R.A.") No. 7160, otherwise known as the Local
Government Code,2 expresses that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy in order to enable them to
attain their fullest development as self-reliant communities and make them more
effective partners in the attainment of national goals, and that it is a basic aim of the
State to 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.
While the Constitution seeks to strengthen local units and ensure their viability,
clearly, however, it has never been the intention of that organic law to create an
imperuim in imperio and install an infra sovereign political subdivision independent
of a single sovereign state.
The Court is asked in this instance to resolve the issue of whether under the present
set up the power of the Land Registration Office ("LTO") to register, tricycles in
particular, as well as to issue licenses for the driving thereof, has likewise devolved to
local government units.
The Regional Trial Court (Branch 2) of Butuan City held3 that the authority to register
tricycles, the grant of the corresponding franchise, the issuance of tricycle drivers'
license, and the collection of fees therefor had all been vested in the Local Government
Units ("LGUs"). Accordingly, it decreed the issuance of a permanent writ of injunction
against LTO, prohibiting and enjoining LTO, as well as its employees and other
persons acting in its behalf, from (a) registering tricycles and (b) issuing licenses to
drivers of tricycles. The Court of Appeals, on appeal to it, sustained the trial
court.1âwphi1.nêt
The adverse rulings of both the court a quo and the appellate court prompted the LTO
to file the instant petition for review on certiorari to annul and set aside the decision,4
dated 17 November 1997, of the Court of Appeals affirming the permanent injunctive
writ order of the Regional Trial Court (Branch 2) of Butuan City.
Respondent City of Butuan asserts that one of the salient provisions introduced by
the Local Government Code is in the area of local taxation which allows LGUs to collect
registration fees or charges along with, in its view, the corresponding issuance of all
kinds of licenses or permits for the driving of tricycles.
The 1987 Constitution provides:
Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.5
Sec. 129 and Section 133 of the Local Government Code read:
Sec. 129. Power to Create Sources or Revenue. — Each local government unit shall
exercise its power to create its own sources of revenue and to levy taxes, fees, and
charges subject to the provisions herein, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
government units.
Sec. 133. Common Limitations on the Taxing Powers of Local Government Units. —
Unless otherwise provided herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to the levy of the following:
xxx xxx xxx
(l) Taxes, fees or charges for the registration of motor vehicles and for the issuance
of all kinds of licenses or permits for the driving thereof, except tricycles.
Relying on the foregoing provisions of the law, the Sangguniang Panglungsod ("SP")
of Butuan, on 16 August 1992, passed SP Ordinance No. 916-92 entitled "An
Ordinance Regulating the Operation of Tricycles-for-Hire, providing mechanism for
the issuance of Franchise, Registration and Permit, and imposing Penalties for
Violations thereof and for other Purposes." The ordinance provided for, among other
things, the payment of franchise fees for the grant of the franchise of tricycles-for-
hire, fees for the registration of the vehicle, and fees for the issuance of a permit for
the driving thereof.
Petitioner LTO explains that one of the functions of the national government that,
indeed, has been transferred to local government units is the franchising authority
over tricycles-for-hire of the Land Transportation Franchising and Regulatory Board
("LTFRB") but not, it asseverates, the authority of LTO to register all motor vehicles
and to issue to qualified persons of licenses to drive such vehicles.
In order to settle the variant positions of the parties, the City of Butuan, represented
by its City Mayor Democrito D. Plaza, filed on 28 June 1994 with the trial court a
petition for "prohibition, mandamus, injunction with a prayer for preliminary
restraining order ex-parte" seeking the declaration of the validity of SP Ordinance No.
962-93 and the prohibition of the registration of tricycles-for-hire and the issuance of
licenses for the driving thereof by the LTO.
LTO opposed the prayer in the petition.
On 20 March 1995, the trial court rendered a resolution; the dispositive portion read:
In view of the foregoing, let a permanent injunctive writ be issued against the
respondent Land Transportation Office and the other respondents, prohibiting
and enjoining them, their employees, officers, attorney's or other persons acting
in their behalf from forcing or compelling Tricycles to be registered with, and
drivers to secure their licenses from respondent LTO or secure franchise from
LTFRB and from collecting fees thereon. It should be understood that the
registration, franchise of tricycles and driver's license/permit granted or issued
by the City of Butuan are valid only within the territorial limits of Butuan City.
No pronouncement as to costs.6
Petitioners timely moved for a reconsideration of the above resolution but it was to
no avail. Petitioners then appealed to the Court of Appeals. In its now assailed
decision, the appellate court, on 17 November 1997, sustained the trial court. It ruled:
WHEREFORE, the petition is hereby DISMISSED and the questioned permanent
injunctive writ issued by the court a quo dated March 20, 1995 AFFIRMED.7
Coming up to this Court, petitioners raise this sole assignment of error, to wit:
The Court of Appeals [has] erred in sustaining the validity of the writ of injunction
issued by the trial court which enjoined LTO from (1) registering tricycles-for-hire
and (2) issuing licenses for the driving thereof since the Local Government Code
devolved only the franchising authority of the LTFRB. Functions of the LTO were
not devolved to the LGU's.8
The petition is impressed with merit.
The Department of Transportation and Communications9 ("DOTC"), through the LTO
and the LTFRB, has since been tasked with implementing laws pertaining to land
transportation. The LTO is a line agency under the DOTC whose powers and functions,
pursuant to Article III, Section 4 (d) [1],10 of R.A. No. 4136, otherwise known as Land
Transportation and Traffic Code, as amended, deal primarily with the registration of
all motor vehicles and the licensing of drivers thereof. The LTFRB, upon the other
hand, is the governing body tasked by E.O. No. 202, dated 19 June 1987, to regulate
the operation of public utility or "for hire" vehicles and to grant franchises or
certificates of public convenience ("CPC").11 Finely put, registration and licensing
functions are vested in the LTO while franchising and regulatory responsibilities had
been vested in the LTFRB.
Under the Local Government Code, certain functions of the DOTC were transferred to
the LGUs, thusly:
Sec. 458. Powers, Duties, Functions and Compensation. —
xxx xxx xxx
(3) Subject to the provisions of Book II of this Code, enact ordinances granting
franchises and authorizing the issuance of permits or licenses, upon such
conditions and for such purposes intended to promote the general welfare of the
inhabitants of the city and pursuant to this legislative authority shall:
xxx xxx xxx
(VI) Subject to the guidelines prescribed by the Department of Transportation and
Communications, regulate the operation of tricycles and grant franchises for the
operation thereof within the territorial jurisdiction of the city. (Emphasis
supplied).
LGUs indubitably now have the power to regulate the operation of tricycles-for-hire
and to grant franchises for the operation thereof. "To regulate" means to fix, establish,
or control; to adjust by rule, method, or established mode; to direct by rule or
restriction; or to subject to governing principles or laws.12 A franchise is defined to
be a special privilege to do certain things conferred by government on an individual
or corporation, and which does not belong to citizens generally of common right.13
On the other hand, "to register" means to record formally and exactly, to enroll, or to
enter precisely in a list or the like,14 and a "driver's license" is the certificate or
license issued by the government which authorizes a person to operate a motor
vehicle.15 The devolution of the functions of the DOTC, performed by the LTFRB, to
the LGUs, as so aptly observed by the Solicitor General, is aimed at curbing the
alarming increase of accidents in national highways involving tricycles. It has been
the perception that local governments are in good position to achieve the end desired
by the law-making body because of their proximity to the situation that can enable
them to address that serious concern better than the national government.
It may not be amiss to state, nevertheless, that under Article 458 (a)[3-VI] of the Local
Government Code, the power of LGUs to regulate the operation of tricycles and to
grant franchises for the operation thereof is still subject to the guidelines prescribed
by the DOTC. In compliance therewith, the Department of Transportation and
Communications ("DOTC") issued "Guidelines to Implement the Devolution of
LTFRBs Franchising Authority over Tricycles-For-Hire to Local Government units
pursuant to the Local Government Code." Pertinent provisions of the guidelines state:
 In lieu of the Land Transportation Franchising and Regulatory Board (LTFRB) in
the DOTC, the Sangguniang Bayan/Sangguniang Panglungsod (SB/SP) shall
perform the following:
(a) Issue, amend, revise, renew, suspend, or cancel MTOP and prescribe the
appropriate terms and conditions therefor;
xxx xxx xxx
Operating Conditions:
1. For safety reasons, no tricycles should operate on national highways utilized
by 4 wheel vehicles greater than 4 tons and where normal speed exceed 40
KPH. However, the SB/SP may provide exceptions if there is no alternative
route.
2. Zones must be within the boundaries of the municipality/city. However,
existing zones within more than one municipality/city shall be maintained,
provided that operators serving said zone shall secure MTOP's from each of
the municipalities/cities having jurisdiction over the areas covered by the
zone.
3. A common color for tricycles-for-hire operating in the same zone may be
imposed. Each unit shall be assigned and bear an identification number,
aside from its LTO license plate number.
4. An operator wishing to stop service completely, or to suspend service for
more than one month, should report in writing such termination or
suspension to the SB/SP which originally granted the MTOP prior thereto.
Transfer to another zone may be permitted upon application.
5. The MTOP shall be valid for three (3) years, renewable for the same period.
Transfer to another zone, change of ownership of unit or transfer of MTOP
shall be construed as an amendment to an MTOP and shall require
appropriate approval of the SB/SP.
6. Operators shall employ only drivers duly licensed by LTO for tricycles-for-
hire.
7. No tricycle-for-hire shall be allowed to carry more passengers and/or goods
than it is designed for.
8. A tricycle-for-hire shall be allowed to operate like a taxi service, i.e., service
is rendered upon demand and without a fixed route within a zone.16
Such as can be gleaned from the explicit language of the statute, as well as the
corresponding guidelines issued by DOTC, the newly delegated powers pertain to the
franchising and regulatory powers theretofore exercised by the LTFRB and not to the
functions of the LTO relative to the registration of motor vehicles and issuance of
licenses for the driving thereof. Clearly unaffected by the Local Government Code are
the powers of LTO under R.A. No. 4136 requiring the registration of all kinds of motor
vehicles "used or operated on or upon any public highway" in the country. Thus —
Sec. 5. All motor vehicles and other vehicles must be registered. — (a) No motor
vehicle shall be used or operated on or upon any public highway of the Philippines
unless the same is properly registered for the current year in accordance with the
provisions of this Act (Article 1, Chapter II, R.A. No. 4136).
The Commissioner of Land Transportation and his deputies are empowered at
anytime to examine and inspect such motor vehicles to determine whether said
vehicles are registered, or are unsightly, unsafe, improperly marked or equipped,
or otherwise unfit to be operated on because of possible excessive damage to
highways, bridges and other infrastructures.17 The LTO is additionally charged
with being the central repository and custodian of all records of all motor
vehicles.18
The Court shares the apprehension of the Solicitor General if the above functions
were to likewise devolve to local government units; he states:
If the tricycle registration function of respondent LTO is decentralized, the
incidence of theft of tricycles will most certainly go up, and stolen tricycles
registered in one local government could be registered in another with ease.
The determination of ownership thereof will also become very difficult.
Fake driver's licenses will likewise proliferate. This likely scenario unfolds
where a tricycle driver, not qualified by petitioner LTO's testing, could secure
a license from one municipality, and when the same is confiscated, could just
go another municipality to secure another license.
Devolution will entail the hiring of additional personnel charged with
inspecting tricycles for road worthiness, testing drivers, and documentation.
Revenues raised from tricycle registration may not be enough to meet salaries
of additional personnel and incidental costs for tools and equipment.19
The reliance made by respondents on the broad taxing power of local government
units, specifically under Section 133 of the Local Government Code, is tangential.
Police power and taxation, along with eminent domain, are inherent powers of
sovereignty which the State might share with local government units by delegation
given under a constitutional or a statutory fiat. All these inherent powers are for a
public purpose and legislative in nature but the similarities just about end there. The
basic aim of police power is public good and welfare. Taxation, in its case, focuses an
the power of government to raise revenue in order to support its existence and carry
out its legitimate objectives. Although correlative to each other in many respects, the
grant of one does not necessarily carry with it the grant of the other. The two powers
are, by tradition and jurisprudence, separate and distinct powers, varying in their
respective concepts, character, scopes and limitations. To construe the tax provisions
of Section 133(1) indistinctively would result in the repeal to that extent of LTO's
regulatory power which evidently has not been intended. If it were otherwise, the law
could have just said so in Section 447 and 458 of Book III of the Local Government
Code in the same manner that the specific devolution of LTFRB's power on franchising
of tricycles has been provided. Repeal by implication is not favored.20 The power
over tricycles granted under Section 458(8)(3)(VI) of the Local Government Code to
LGUs is the power to regulate their operation and to grant franchises for the operation
thereof. The exclusionary clause contained in the tax provisions of Section 133(1) of
the Local Government Code must not be held to have had the effect of withdrawing
the express power of LTO to cause the registration of all motor vehicles and the
issuance of licenses for the driving thereof. These functions of the LTO are essentially
regulatory in nature, exercised pursuant to the police power of the State, whose basic
objectives are to achieve road safety by insuring the road worthiness of these motor
vehicles and the competence of drivers prescribed by R.A. 4136. Not insignificant is
the rule that a statute must not be construed in isolation but must be taken in
harmony with the extant body of laws.21
The Court cannot end this decision without expressing its own serious concern over
the seeming laxity in the grant of franchises for the operation of tricycles-for-hire and
in allowing the indiscriminate use by such vehicles on public highways and principal
thoroughfares. Senator Aquilino C. Pimentel, Jr., the principal author and sponsor of
the bill that eventually has become to be known as the Local Government Code, has
aptly remarked:
Art. 34. When a member of a city or municipal police force refuses or fails to
render aid or protection to any person in case of danger to life or property, such
peace officer shall be primarily liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The civil action herein recognized shall
be independent of any criminal proceedings, and a preponderance of evidence
shall suffice to support such action.
Art. 2189. Provinces, cities and municipalities shall be liable for damages for the
death of, or injuries suffered by, any person by reason of the defective condition
of roads, streets, bridges, public buildings, and other public works under their
control or supervision.
The Local Government Code —
Sec. 24. Liability for Damages. — Local government units and their officials are not
exempt from liability for death or injury to persons or damage to property.

Tricycles are a popular means of transportation, specially in the countryside. They
are, unfortunately, being allowed to drive along highways and principal
thoroughfares where they pose hazards to their passengers arising from potential
collisions with buses, cars and jeepneys.
The operation of tricycles within a municipality may be regulated by the
Sangguniang Bayan. In this connection, the Sangguniang concerned would do well
to consider prohibiting the operation of tricycles along or across highways invite
collisions with faster and bigger vehicles and impede the flow of traffic.22
WHEREFORE, the assailed decision which enjoins the Land Transportation Office
from requiring the due registration of tricycles and a license for the driving thereof is
REVERSED and SET ASIDE.
No pronouncements on costs.
Let copies of this decision be likewise furnished the Department of Interior and Local
Governments, the Department of Public Works and Highways and the Department of
Transportation and Communication.

The need for ensuring public safety and convenience to commuters and SO ORDERED.
pedestrians alike is paramount. It might be well, indeed, for public officials
concerned to pay heed to a number of provisions in our laws that can warrant in
appropriate cases an incurrence of criminal and civil liabilities. Thus —

The Revised Penal Code —

Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of prision
correccional in its minimum period and suspension shall be imposed upon any
public officer, or officer of the law, who, in dereliction of the duties of his office,
shall maliciously refrain from instituting prosecution for the punishment of
violators of the law, or shall tolerate the commission of offenses.

The Civil Code —

Art. 27. Any person suffering material or moral loss because a public servant or
employee refuses or neglects, without just cause, to perform his official duty may
file an action for damages and other relief against the latter, without prejudice to
any disciplinary administrative action that may be taken.