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G.R. No. L-20620 August 15, 1974

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates for
Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case No. 1623, an
expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred to as
the Republic) filed, on June 26, 1959, a complaint for eminent domain
against defendant-appellee, Carmen M. Vda. de Castellvi, judicial
administratrix of the estate of the late Alfonso de Castellvi (hereinafter
referred to as Castellvi), over a parcel of land situated in the barrio of San
Jose, Floridablanca, Pampanga, described as follows:
A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo 23666. Bounded
on the NE by Maria Nieves Toledo-Gozun; on the SE by national road; on
the SW by AFP reservation, and on the NW by AFP reservation. Containing
an area of 759,299 square meters, more or less, and registered in the name
of Alfonso Castellvi under TCT No. 13631 of the Register of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun (hereinafter
referred to as Toledo-Gozun over two parcels of land described as follows:
A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan Psd, 26254.
Bounded on the NE by Lot 3, on the SE by Lot 3; on the SW by Lot 1-B, Blk.
2 (equivalent to Lot 199-B Swo 23666; on the NW by AFP military
reservation. Containing an area of 450,273 square meters, more or less and
registered in the name of Maria Nieves Toledo-Gozun under TCT No. 8708
of the Register of Deeds of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan Psd 26254.
Bounded on the NE by Lot No. 3, on the SE by school lot and national road,
on the SW by Lot 1-B Blk 2 (equivalent to Lot 199-B Swo 23666), on the NW
by Lot 1-B, Blk-1. Containing an area of 88,772 square meters, more or less,
and registered in the name of Maria Nieves Toledo Gozun under TCT No.
8708 of the Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things, that the fair
market value of the above-mentioned lands, according to the Committee on
Appraisal for the Province of Pampanga, was not more than P2,000 per
hectare, or a total market value of P259,669.10; and prayed, that the
provisional value of the lands be fixed at P259.669.10, that the court
authorizes plaintiff to take immediate possession of the lands upon deposit
of that amount with the Provincial Treasurer of Pampanga; that the court
appoints three commissioners to ascertain and report to the court the just
compensation for the property sought to be expropriated, and that the court
issues thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the provisional value
of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged, among
other things, that the land under her administration, being a residential land,
had a fair market value of P15.00 per square meter, so it had a total market
value of P11,389,485.00; that the Republic, through the Armed Forces of the
Philippines, particularly the Philippine Air Force, had been, despite repeated
demands, illegally occupying her property since July 1, 1956, thereby
preventing her from using and disposing of it, thus causing her damages by
way of unrealized profits. This defendant prayed that the complaint be
dismissed, or that the Republic be ordered to pay her P15.00 per square
meter, or a total of P11,389,485.00, plus interest thereon at 6% per annum
from July 1, 1956; that the Republic be ordered to pay her P5,000,000.00 as
unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz, Dolores G.
viuda de Gil, Paloma Castellvi, Carmen Castellvi, Rafael Castellvi, Luis
Castellvi, Natividad Castellvi de Raquiza, Jose Castellvi and Consuelo
Castellvi were allowed to intervene as parties defendants. Subsequently,
Joaquin V. Gozun, Jr., husband of defendant Nieves Toledo Gozun, was
also allowed by the court to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer of Pampanga
the amount of P259,669.10, the trial court ordered that the Republic be
placed in possession of the lands. The Republic was actually placed in
possession of the lands on August 10,
In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun alleged,
among other things, that her two parcels of land were residential lands, in
fact a portion with an area of 343,303 square meters had already been
subdivided into different lots for sale to the general public, and the
remaining portion had already been set aside for expansion sites of the
already completed subdivisions; that the fair market value of said lands was
P15.00 per square meter, so they had a total market value of
P8,085,675.00; and she prayed that the complaint be dismissed, or that
she be paid the amount of P8,085,675.00, plus interest thereon at the rate
of 6% per annum from October 13, 1959, and attorney's fees in the amount
of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed on
February 11, 1960, and also intervenor Joaquin Gozun, Jr., husband of
defendant Maria Nieves Toledo-Gozun, in his motion to dismiss, dated May
27, 1960, all alleged that the value of the lands sought to be expropriated
was at the rate of P15.00 per square meter.
On November 4, 1959, the trial court authorized the Provincial Treasurer of
Pampanga to pay defendant Toledo-Gozun the sum of P107,609.00 as
provisional value of her lands.2 On May 16, 1960 the trial Court authorized
the Provincial Treasurer of Pampanga to pay defendant Castellvi the
amount of P151,859.80 as provisional value of the land under her
administration, and ordered said defendant to deposit the amount with the
Philippine National Bank under the supervision of the Deputy Clerk of
Court. In another order of May 16, 1960 the trial Court entered an order of
The trial Court appointed three commissioners: Atty. Amadeo Yuzon, Clerk
of Court, as commissioner for the court; Atty. Felicisimo G. Pamandanan,
counsel of the Philippine National Bank Branch at Floridablanca, for the
plaintiff; and Atty. Leonardo F. Lansangan, Filipino legal counsel at Clark
Air Base, for the defendants. The Commissioners, after having qualified
themselves, proceeded to the performance of their duties.
On March 15,1961 the Commissioners submitted their report and
recommendation, wherein, after having determined that the lands sought to
be expropriated were residential lands, they recommended unanimously
that the lowest price that should be paid was P10.00 per square meter, for
both the lands of Castellvi and Toledo-Gozun; that an additional P5,000.00
be paid to Toledo-Gozun for improvements found on her land; that legal
interest on the compensation, computed from August 10, 1959, be paid
after deducting the amounts already paid to the owners, and that no
consequential damages be awarded.4 The Commissioners' report was
objected to by all the parties in the case — by defendants Castellvi and
Toledo-Gozun, who insisted that the fair market value of their lands should
be fixed at P15.00 per square meter; and by the Republic, which insisted
that the price to be paid for the lands should be fixed at P0.20 per square
After the parties-defendants and intervenors had filed their respective
memoranda, and the Republic, after several extensions of time, had
adopted as its memorandum its objections to the report of the
Commissioners, the trial court, on May 26, 1961, rendered its decision6 the
dispositive portion of which reads as follows:
WHEREFORE, taking into account all the foregoing circumstances, and
that the lands are titled, ... the rising trend of land values ..., and the
lowered purchasing power of the Philippine peso, the court finds that the
unanimous recommendation of the commissioners of ten (P10.00) pesos
per square meter for the three lots of the defendants subject of this action
is fair and just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum on the total value of the lands
of defendant Toledo-Gozun since (sic) the amount deposited as provisional
value from August 10, 1959 until full payment is made to said defendant or
deposit therefor is made in court.
In respect to the defendant Castellvi, interest at 6% per annum will also be
paid by the plaintiff to defendant Castellvi from July 1, 1956 when plaintiff
commenced its illegal possession of the Castellvi land when the instant
action had not yet been commenced to July 10, 1959 when the provisional
value thereof was actually deposited in court, on the total value of the said
(Castellvi) land as herein adjudged. The same rate of interest shall be paid
from July 11, 1959 on the total value of the land herein adjudged minus the
amount deposited as provisional value, or P151,859.80, such interest to
run until full payment is made to said defendant or deposit therefor is made
in court. All the intervenors having failed to produce evidence in support of
their respective interventions, said interventions are ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial and/or
reconsideration, upon the grounds of newly-discovered evidence, that the
decision was not supported by the evidence, and that the decision was
against the law, against which motion defendants Castellvi and Toledo-
Gozun filed their respective oppositions. On July 8, 1961 when the motion
of the Republic for new trial and/or reconsideration was called for hearing,
the Republic filed a supplemental motion for new trial upon the ground of
additional newly-discovered evidence. This motion for new trial and/or
reconsideration was denied by the court on July 12, 1961.
On July 17, 1961 the Republic gave notice of its intention to appeal from
the decision of May 26, 1961 and the order of July 12, 1961. Defendant
Castellvi also filed, on July 17, 1961, her notice of appeal from the decision
of the trial court.
The Republic filed various ex-parte motions for extension of time within
which to file its record on appeal. The Republic's record on appeal was
finally submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint opposition to
the approval of the Republic's record on appeal, but also a joint
memorandum in support of their opposition. The Republic also filed a
memorandum in support of its prayer for the approval of its record on
appeal. On December 27, 1961 the trial court issued an order declaring
both the record on appeal filed by the Republic, and the record on appeal
filed by defendant Castellvi as having been filed out of time, thereby
dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike out the order of
December 27, 1961 and for reconsideration", and subsequently an
amended record on appeal, against which motion the defendants Castellvi
and Toledo-Gozun filed their opposition. On July 26, 1962 the trial court
issued an order, stating that "in the interest of expediency, the questions
raised may be properly and finally determined by the Supreme Court," and
at the same time it ordered the Solicitor General to submit a record on
appeal containing copies of orders and pleadings specified therein. In an
order dated November 19, 1962, the trial court approved the Republic's
record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant Toledo-Gozun
did not appeal.
The motion to dismiss the Republic's appeal was reiterated by appellees
Castellvi and Toledo-Gozun before this Court, but this Court denied the
In her motion of August 11, 1964, appellee Castellvi sought to increase the
provisional value of her land. The Republic, in its comment on Castellvi's
motion, opposed the same. This Court denied Castellvi's motion in a
resolution dated October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated October 6,
1969, praying that they be authorized to mortgage the lands subject of
expropriation, was denied by this Court or October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel for
the estate of the late Don Alfonso de Castellvi in the expropriation
proceedings, filed a notice of attorney's lien, stating that as per agreement
with the administrator of the estate of Don Alfonso de Castellvi they shall
receive by way of attorney's fees, "the sum equivalent to ten per centum of
whatever the court may finally decide as the expropriated price of the
property subject matter of the case."
Before this Court, the Republic contends that the lower court erred:
1. In finding the price of P10 per square meter of the lands subject of the
instant proceedings as just compensation;
2. In holding that the "taking" of the properties under expropriation
commenced with the filing of this action;
3. In ordering plaintiff-appellant to pay 6% interest on the adjudged value of
the Castellvi property to start from July of 1956;
4. In denying plaintiff-appellant's motion for new trial based on newly
discovered evidence.
In its brief, the Republic discusses the second error assigned as the first
issue to be considered. We shall follow the sequence of the Republic's
1. In support of the assigned error that the lower court erred in holding that
the "taking" of the properties under expropriation commenced with the filing
of the complaint in this case, the Republic argues that the "taking" should
be reckoned from the year 1947 when by virtue of a special lease
agreement between the Republic and appellee Castellvi, the former was
granted the "right and privilege" to buy the property should the lessor wish
to terminate the lease, and that in the event of such sale, it was stipulated
that the fair market value should be as of the time of occupancy; and that
the permanent improvements amounting to more that half a million pesos
constructed during a period of twelve years on the land, subject of
expropriation, were indicative of an agreed pattern of permanency and
stability of occupancy by the Philippine Air Force in the interest of national
Appellee Castellvi, on the other hand, maintains that the "taking" of
property under the power of eminent domain requires two essential
elements, to wit: (1) entrance and occupation by condemn or upon the
private property for more than a momentary or limited period, and (2)
devoting it to a public use in such a way as to oust the owner and deprive
him of all beneficial enjoyment of the property. This appellee argues that in
the instant case the first element is wanting, for the contract of lease relied
upon provides for a lease from year to year; that the second element is also
wanting, because the Republic was paying the lessor Castellvi a monthly
rental of P445.58; and that the contract of lease does not grant the
Republic the "right and privilege" to buy the premises "at the value at the
time of occupancy."8
Appellee Toledo-Gozun did not comment on the Republic's argument in
support of the second error assigned, because as far as she was
concerned the Republic had not taken possession of her lands prior to
August 10, 1959.9
In order to better comprehend the issues raised in the appeal, in so far as
the Castellvi property is concerned, it should be noted that the Castellvi
property had been occupied by the Philippine Air Force since 1947 under a
contract of lease, typified by the contract marked Exh. 4-Castellvi, the
pertinent portions of which read:
represented by CARMEN M. DE CASTELLVI, Judicial Administratrix ...
hereinafter called the LESSOR and THE REPUBLIC OF THE
PHILIPPINES represented by MAJ. GEN. CALIXTO DUQUE, Chief of Staff
of the ARMED FORCES OF THE PHILIPPINES, hereinafter called the
1. For and in consideration of the rentals hereinafter reserved and the
mutual terms, covenants and conditions of the parties, the LESSOR has,
and by these presents does, lease and let unto the LESSEE the following
described land together with the improvements thereon and appurtenances
thereof, viz:
Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752, parte de la
hacienda de Campauit, situado en el Barrio de San Jose, Municipio de
Floridablanca Pampanga. ... midiendo una extension superficial de cuatro
milliones once mil cuatro cientos trienta y cinco (4,001,435) [sic] metros
cuadrados, mas o menos.
Out of the above described property, 75.93 hectares thereof are actually
occupied and covered by this contract. .
Above lot is more particularly described in TCT No. 1016, province of
Pampanga ...
of which premises, the LESSOR warrants that he/she/they/is/are the
registered owner(s) and with full authority to execute a contract of this
2. The term of this lease shall be for the period beginning July 1, 1952 the
date the premises were occupied by the PHILIPPINE AIR FORCE, AFP
until June 30, 1953, subject to renewal for another year at the option of the
LESSEE or unless sooner terminated by the LESSEE as hereinafter
3. The LESSOR hereby warrants that the LESSEE shall have quiet,
peaceful and undisturbed possession of the demised premises throughout
the full term or period of this lease and the LESSOR undertakes without
cost to the LESSEE to eject all trespassers, but should the LESSOR fail to
do so, the LESSEE at its option may proceed to do so at the expense of
the LESSOR. The LESSOR further agrees that should he/she/they sell or
encumber all or any part of the herein described premises during the period
of this lease, any conveyance will be conditioned on the right of the
LESSEE hereunder.
4. The LESSEE shall pay to the LESSOR as monthly rentals under this
lease the sum of FOUR HUNDRED FIFTY-FIVE PESOS & 58/100
(P455.58) ...
5. The LESSEE may, at any time prior to the termination of this lease, use
the property for any purpose or purposes and, at its own costs and
expense make alteration, install facilities and fixtures and errect additions
... which facilities or fixtures ... so placed in, upon or attached to the said
premises shall be and remain property of the LESSEE and may be
removed therefrom by the LESSEE prior to the termination of this lease.
The LESSEE shall surrender possession of the premises upon the
expiration or termination of this lease and if so required by the LESSOR,
shall return the premises in substantially the same condition as that existing
at the time same were first occupied by the AFP, reasonable and ordinary
wear and tear and damages by the elements or by circumstances over
which the LESSEE has no control excepted: PROVIDED, that if the
LESSOR so requires the return of the premises in such condition, the
LESSOR shall give written notice thereof to the LESSEE at least twenty
(20) days before the termination of the lease and provided, further, that
should the LESSOR give notice within the time specified above, the
LESSEE shall have the right and privilege to compensate the LESSOR at
the fair value or the equivalent, in lieu of performance of its obligation, if
any, to restore the premises. Fair value is to be determined as the value at
the time of occupancy less fair wear and tear and depreciation during the
period of this lease.
6. The LESSEE may terminate this lease at any time during the term hereof
by giving written notice to the LESSOR at least thirty (30) days in advance
7. The LESSEE should not be responsible, except under special legislation
for any damages to the premises by reason of combat operations, acts of
GOD, the elements or other acts and deeds not due to the negligence on
the part of the LESSEE.
8. This LEASE AGREEMENT supersedes and voids any and all
agreements and undertakings, oral or written, previously entered into
between the parties covering the property herein leased, the same having
been merged herein. This AGREEMENT may not be modified or altered
except by instrument in writing only duly signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract of lease (Exh.
4, Castellvi) is 'similar in terms and conditions, including the date', with the
annual contracts entered into from year to year between defendant
Castellvi and the Republic of the Philippines (p. 17, t.s.n., Vol. III)". 11 It is
undisputed, therefore, that the Republic occupied Castellvi's land from July
1, 1947, by virtue of the above-mentioned contract, on a year to year basis
(from July 1 of each year to June 30 of the succeeding year) under the
terms and conditions therein stated.
Before the expiration of the contract of lease on June 30, 1956 the
Republic sought to renew the same but Castellvi refused. When the AFP
refused to vacate the leased premises after the termination of the contract,
on July 11, 1956, Castellvi wrote to the Chief of Staff, AFP, informing the
latter that the heirs of the property had decided not to continue leasing the
property in question because they had decided to subdivide the land for
sale to the general public, demanding that the property be vacated within
30 days from receipt of the letter, and that the premises be returned in
substantially the same condition as before occupancy (Exh. 5 — Castellvi).
A follow-up letter was sent on January 12, 1957, demanding the delivery
and return of the property within one month from said date (Exh. 6
Castellvi). On January 30, 1957, Lieutenant General Alfonso Arellano,
Chief of Staff, answered the letter of Castellvi, saying that it was difficult for
the army to vacate the premises in view of the permanent installations and
other facilities worth almost P500,000.00 that were erected and already
established on the property, and that, there being no other recourse, the
acquisition of the property by means of expropriation proceedings would be
recommended to the President (Exhibit "7" — Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance of
Pampanga, in Civil Case No. 1458, to eject the Philippine Air Force from
the land. While this ejectment case was pending, the Republic instituted
these expropriation proceedings, and, as stated earlier in this opinion, the
Republic was placed in possession of the lands on August 10, 1959, On
November 21, 1959, the Court of First Instance of Pampanga, dismissed
Civil Case No. 1458, upon petition of the parties, in an order which, in part,
reads as follows:
1. Plaintiff has agreed, as a matter of fact has already signed an agreement
with defendants, whereby she has agreed to receive the rent of the lands,
subject matter of the instant case from June 30, 1966 up to 1959 when the
Philippine Air Force was placed in possession by virtue of an order of the
Court upon depositing the provisional amount as fixed by the Provincial
Appraisal Committee with the Provincial Treasurer of Pampanga;
2. That because of the above-cited agreement wherein the administratrix
decided to get the rent corresponding to the rent from 1956 up to 1959 and
considering that this action is one of illegal detainer and/or to recover the
possession of said land by virtue of non-payment of rents, the instant case
now has become moot and academic and/or by virtue of the agreement
signed by plaintiff, she has waived her cause of action in the above-entitled
case. 12
The Republic urges that the "taking " of Castellvi's property should be
deemed as of the year 1947 by virtue of afore-quoted lease agreement. In
American Jurisprudence, Vol. 26, 2nd edition, Section 157, on the subject
of "Eminent Domain, we read the definition of "taking" (in eminent domain)
as follows:
Taking' under the power of eminent domain may be defined generally as
entering upon private property for more than a momentary period, and,
under the warrant or color of legal authority, devoting it to a public use, or
otherwise informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment
thereof. 13
Pursuant to the aforecited authority, a number of circumstances must be
present in the "taking" of property for purposes of eminent domain.
First, the expropriator must enter a private property. This circumstance is
present in the instant case, when by virtue of the lease agreement the
Republic, through the AFP, took possession of the property of Castellvi.
Second, the entrance into private property must be for more than a
momentary period. "Momentary" means, "lasting but a moment; of but a
moment's duration" (The Oxford English Dictionary, Volume VI, page 596);
"lasting a very short time; transitory; having a very brief life; operative or
recurring at every moment" (Webster's Third International Dictionary, 1963
edition.) The word "momentary" when applied to possession or occupancy
of (real) property should be construed to mean "a limited period" — not
indefinite or permanent. The aforecited lease contract was for a period of
one year, renewable from year to year. The entry on the property, under
the lease, is temporary, and considered transitory. The fact that the
Republic, through the AFP, constructed some installations of a permanent
nature does not alter the fact that the entry into the land was transitory, or
intended to last a year, although renewable from year to year by consent of
'The owner of the land. By express provision of the lease agreement the
Republic, as lessee, undertook to return the premises in substantially the
same condition as at the time the property was first occupied by the AFP. It
is claimed that the intention of the lessee was to occupy the land
permanently, as may be inferred from the construction of permanent
improvements. But this "intention" cannot prevail over the clear and
express terms of the lease contract. Intent is to be deduced from the
language employed by the parties, and the terms 'of the contract, when
unambiguous, as in the instant case, are conclusive in the absence of
averment and proof of mistake or fraud — the question being not what the
intention was, but what is expressed in the language used. (City of Manila
v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena Estate, Inc. v. Myrick,
71 Phil. 344, 348). Moreover, in order to judge the intention of the
contracting parties, their contemporaneous and subsequent acts shall be
principally considered (Art. 1371, Civil Code). If the intention of the lessee
(Republic) in 1947 was really to occupy permanently Castellvi's property,
why was the contract of lease entered into on year to year basis? Why was
the lease agreement renewed from year to year? Why did not the Republic
expropriate this land of Castellvi in 1949 when, according to the Republic
itself, it expropriated the other parcels of land that it occupied at the same
time as the Castellvi land, for the purpose of converting them into a jet air
base? 14 It might really have been the intention of the Republic to
expropriate the lands in question at some future time, but certainly mere
notice - much less an implied notice — of such intention on the part of the
Republic to expropriate the lands in the future did not, and could not, bind
the landowner, nor bind the land itself. The expropriation must be actually
commenced in court (Republic vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or color of legal
authority. This circumstance in the "taking" may be considered as present
in the instant case, because the Republic entered the Castellvi property as
Fourth, the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected. It may be conceded that the
circumstance of the property being devoted to public use is present
because the property was used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in such a way as
to oust the owner and deprive him of all beneficial enjoyment of the
property. In the instant case, the entry of the Republic into the property and
its utilization of the same for public use did not oust Castellvi and deprive
her of all beneficial enjoyment of the property. Castellvi remained as owner,
and was continuously recognized as owner by the Republic, as shown by
the renewal of the lease contract from year to year, and by the provision in
the lease contract whereby the Republic undertook to return the property to
Castellvi when the lease was terminated. Neither was Castellvi deprived of
all the beneficial enjoyment of the property, because the Republic was
bound to pay, and had been paying, Castellvi the agreed monthly rentals
until the time when it filed the complaint for eminent domain on June 26,
It is clear, therefore, that the "taking" of Catellvi's property for purposes of
eminent domain cannot be considered to have taken place in 1947 when
the Republic commenced to occupy the property as lessee thereof. We find
merit in the contention of Castellvi that two essential elements in the
"taking" of property under the power of eminent domain, namely: (1) that
the entrance and occupation by the condemnor must be for a permanent,
or indefinite period, and (2) that in devoting the property to public use the
owner was ousted from the property and deprived of its beneficial use,
were not present when the Republic entered and occupied the Castellvi
property in 1947.
Untenable also is the Republic's contention that although the contract
between the parties was one of lease on a year to year basis, it was "in
reality a more or less permanent right to occupy the premises under the
guise of lease with the 'right and privilege' to buy the property should the
lessor wish to terminate the lease," and "the right to buy the property is
merged as an integral part of the lease relationship ... so much so that the
fair market value has been agreed upon, not, as of the time of purchase,
but as of the time of occupancy" 15 We cannot accept the Republic's
contention that a lease on a year to year basis can give rise to a permanent
right to occupy, since by express legal provision a lease made for a
determinate time, as was the lease of Castellvi's land in the instant case,
ceases upon the day fixed, without need of a demand (Article 1669, Civil
Code). Neither can it be said that the right of eminent domain may be
exercised by simply leasing the premises to be expropriated (Rule 67,
Section 1, Rules of Court). Nor can it be accepted that the Republic would
enter into a contract of lease where its real intention was to buy, or why the
Republic should enter into a simulated contract of lease ("under the guise
of lease", as expressed by counsel for the Republic) when all the time the
Republic had the right of eminent domain, and could expropriate Castellvi's
land if it wanted to without resorting to any guise whatsoever. Neither can
we see how a right to buy could be merged in a contract of lease in the
absence of any agreement between the parties to that effect. To sustain
the contention of the Republic is to sanction a practice whereby in order to
secure a low price for a land which the government intends to expropriate
(or would eventually expropriate) it would first negotiate with the owner of
the land to lease the land (for say ten or twenty years) then expropriate the
same when the lease is about to terminate, then claim that the "taking" of
the property for the purposes of the expropriation be reckoned as of the
date when the Government started to occupy the property under the lease,
and then assert that the value of the property being expropriated be
reckoned as of the start of the lease, in spite of the fact that the value of the
property, for many good reasons, had in the meantime increased during the
period of the lease. This would be sanctioning what obviously is a
deceptive scheme, which would have the effect of depriving the owner of
the property of its true and fair market value at the time when the
expropriation proceedings were actually instituted in court. The Republic's
claim that it had the "right and privilege" to buy the property at the value
that it had at the time when it first occupied the property as lessee nowhere
appears in the lease contract. What was agreed expressly in paragraph No.
5 of the lease agreement was that, should the lessor require the lessee to
return the premises in the same condition as at the time the same was first
occupied by the AFP, the lessee would have the "right and privilege" (or
option) of paying the lessor what it would fairly cost to put the premises in
the same condition as it was at the commencement of the lease, in lieu of
the lessee's performance of the undertaking to put the land in said
condition. The "fair value" at the time of occupancy, mentioned in the lease
agreement, does not refer to the value of the property if bought by the
lessee, but refers to the cost of restoring the property in the same condition
as of the time when the lessee took possession of the property. Such fair
value cannot refer to the purchase price, for purchase was never intended
by the parties to the lease contract. It is a rule in the interpretation of
contracts that "However general the terms of a contract may be, they shall
not be understood to comprehend things that are distinct and cases that
are different from those upon which the parties intended to agree" (Art.
1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property should not be
reckoned as of the year 1947 when the Republic first occupied the same
pursuant to the contract of lease, and that the just compensation to be paid
for the Castellvi property should not be determined on the basis of the
value of the property as of that year. The lower court did not commit an
error when it held that the "taking" of the property under expropriation
commenced with the filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just
compensation" is to be determined as of the date of the filing of the
complaint. This Court has ruled that when the taking of the property sought
to be expropriated coincides with the commencement of the expropriation
proceedings, or takes place subsequent to the filing of the complaint for
eminent domain, the just compensation should be determined as of the
date of the filing of the complaint. (Republic vs. Philippine National Bank, L-
14158, April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it is
undisputed that the Republic was placed in possession of the Castellvi
property, by authority of the court, on August 10, 1959. The "taking" of the
Castellvi property for the purposes of determining the just compensation to
be paid must, therefore, be reckoned as of June 26, 1959 when the
complaint for eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to be
expropriated, which had never been under lease to the Republic, the
Republic was placed in possession of said lands, also by authority of the
court, on August 10, 1959, The taking of those lands, therefore, must also
be reckoned as of June 26, 1959, the date of the filing of the complaint for
eminent domain.
2. Regarding the first assigned error — discussed as the second issue —
the Republic maintains that, even assuming that the value of the
expropriated lands is to be determined as of June 26, 1959, the price of
P10.00 per square meter fixed by the lower court "is not only exhorbitant
but also unconscionable, and almost fantastic". On the other hand, both
Castellvi and Toledo-Gozun maintain that their lands are residential lands
with a fair market value of not less than P15.00 per square meter.
The lower court found, and declared, that the lands of Castellvi and Toledo-
Gozun are residential lands. The finding of the lower court is in consonance
with the unanimous opinion of the three commissioners who, in their report
to the court, declared that the lands are residential lands.
The Republic assails the finding that the lands are residential, contending
that the plans of the appellees to convert the lands into subdivision for
residential purposes were only on paper, there being no overt acts on the
part of the appellees which indicated that the subdivision project had been
commenced, so that any compensation to be awarded on the basis of the
plans would be speculative. The Republic's contention is not well taken.
We find evidence showing that the lands in question had ceased to be
devoted to the production of agricultural crops, that they had become
adaptable for residential purposes, and that the appellees had actually
taken steps to convert their lands into residential subdivisions even before
the Republic filed the complaint for eminent domain. In the case of City of
Manila vs. Corrales (32 Phil. 82, 98) this Court laid down basic guidelines in
determining the value of the property expropriated for public purposes. This
Court said:
In determining the value of land appropriated for public purposes, the same
consideration are to be regarded as in a sale of property between private
parties. The inquiry, in such cases, must be what is the property worth in
the market, viewed not merely with reference to the uses to which it is at
the time applied, but with reference to the uses to which it is plainly
adapted, that is to say, What is it worth from its availability for valuable
So many and varied are the circumstances to be taken into account in
determining the value of property condemned for public purposes, that it is
practically impossible to formulate a rule to govern its appraisement in all
cases. Exceptional circumstances will modify the most carefully guarded
rule, but, as a general thing, we should say that the compensation of the
owner is to be estimated by reference to the use for which the property is
suitable, having regard to the existing business or wants of the community,
or such as may be reasonably expected in the immediate future. (Miss. and
Rum River Boom Co. vs. Patterson, 98 U.S., 403).
In expropriation proceedings, therefore, the owner of the land has the right
to its value for the use for which it would bring the most in the market. 17
The owner may thus show every advantage that his property possesses,
present and prospective, in order that the price it could be sold for in the
market may be satisfactorily determined. 18 The owner may also show that
the property is suitable for division into village or town lots. 19
The trial court, therefore, correctly considered, among other circumstances,
the proposed subdivision plans of the lands sought to be expropriated in
finding that those lands are residential lots. This finding of the lower court is
supported not only by the unanimous opinion of the commissioners, as
embodied in their report, but also by the Provincial Appraisal Committee of
the province of Pampanga composed of the Provincial Treasurer, the
Provincial Auditor and the District Engineer. In the minutes of the meeting
of the Provincial Appraisal Committee, held on May 14, 1959 (Exh. 13-
Castellvi) We read in its Resolution No. 10 the following:
3. Since 1957 the land has been classified as residential in view of its
proximity to the air base and due to the fact that it was not being devoted to
agriculture. In fact, there is a plan to convert it into a subdivision for
residential purposes. The taxes due on the property have been paid based
on its classification as residential land;
The evidence shows that Castellvi broached the idea of subdividing her
land into residential lots as early as July 11, 1956 in her letter to the Chief
of Staff of the Armed Forces of the Philippines. (Exh. 5-Castellvi) As a
matter of fact, the layout of the subdivision plan was tentatively approved
by the National Planning Commission on September 7, 1956. (Exh. 8-
Castellvi). The land of Castellvi had not been devoted to agriculture since
1947 when it was leased to the Philippine Army. In 1957 said land was
classified as residential, and taxes based on its classification as residential
had been paid since then (Exh. 13-Castellvi). The location of the Castellvi
land justifies its suitability for a residential subdivision. As found by the trial
court, "It is at the left side of the entrance of the Basa Air Base and
bounded on two sides by roads (Exh. 13-Castellvi), paragraphs 1 and 2,
Exh. 12-Castellvi), the poblacion, (of Floridablanca) the municipal building,
and the Pampanga Sugar Mills are closed by. The barrio schoolhouse and
chapel are also near (T.S.N. November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same
condition as the land of Castellvi. The lands of Toledo-Gozun adjoin the
land of Castellvi. They are also contiguous to the Basa Air Base, and are
along the road. These lands are near the barrio schoolhouse, the barrio
chapel, the Pampanga Sugar Mills, and the poblacion of Floridablanca
(Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of fact, regarding lot 1-B it
had already been surveyed and subdivided, and its conversion into a
residential subdivision was tentatively approved by the National Planning
Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As early as
June, 1958, no less than 32 man connected with the Philippine Air Force
among them commissioned officers, non-commission officers, and enlisted
men had requested Mr. and Mrs. Joaquin D. Gozun to open a subdivision
on their lands in question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the lower court that the
lands that are the subject of expropriation in the present case, as of August
10, 1959 when the same were taken possession of by the Republic, were
residential lands and were adaptable for use as residential subdivisions.
Indeed, the owners of these lands have the right to their value for the use
for which they would bring the most in the market at the time the same
were taken from them. The most important issue to be resolved in the
present case relates to the question of what is the just compensation that
should be paid to the appellees.
The Republic asserts that the fair market value of the lands of the
appellees is P.20 per square meter. The Republic cites the case of
Republic vs. Narciso, et al., L-6594, which this Court decided on May 18,
1956. The Narciso case involved lands that belonged to Castellvi and
Toledo-Gozun, and to one Donata Montemayor, which were expropriated
by the Republic in 1949 and which are now the site of the Basa Air Base. In
the Narciso case this Court fixed the fair market value at P.20 per square
meter. The lands that are sought to be expropriated in the present case
being contiguous to the lands involved in the Narciso case, it is the stand of
the Republic that the price that should be fixed for the lands now in
question should also be at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the price of P.20
per square meter, as fixed by this Court in the Narciso case, was based on
the allegation of the defendants (owners) in their answer to the complaint
for eminent domain in that case that the price of their lands was P2,000.00
per hectare and that was the price that they asked the court to pay them.
This Court said, then, that the owners of the land could not be given more
than what they had asked, notwithstanding the recommendation of the
majority of the Commission on Appraisal — which was adopted by the trial
court — that the fair market value of the lands was P3,000.00 per hectare.
We also find that the price of P.20 per square meter in the Narciso case
was considered the fair market value of the lands as of the year 1949 when
the expropriation proceedings were instituted, and at that time the lands
were classified as sugar lands, and assessed for taxation purposes at
around P400.00 per hectare, or P.04 per square meter. 22 While the lands
involved in the present case, like the lands involved in the Narciso case,
might have a fair market value of P.20 per square meter in 1949, it can not
be denied that ten years later, in 1959, when the present proceedings were
instituted, the value of those lands had increased considerably. The
evidence shows that since 1949 those lands were no longer cultivated as
sugar lands, and in 1959 those lands were already classified, and
assessed for taxation purposes, as residential lands. In 1959 the land of
Castellvi was assessed at P1.00 per square meter. 23
The Republic also points out that the Provincial Appraisal Committee of
Pampanga, in its resolution No. 5 of February 15, 1957 (Exhibit D),
recommended the sum of P.20 per square meter as the fair valuation of the
Castellvi property. We find that this resolution was made by the Republic
the basis in asking the court to fix the provisional value of the lands sought
to be expropriated at P259,669.10, which was approved by the court. 24 It
must be considered, however, that the amount fixed as the provisional
value of the lands that are being expropriated does not necessarily
represent the true and correct value of the land. The value is only
"provisional" or "tentative", to serve as the basis for the immediate
occupancy of the property being expropriated by the condemnor. The
records show that this resolution No. 5 was repealed by the same
Provincial Committee on Appraisal in its resolution No. 10 of May 14, 1959
(Exhibit 13-Castellvi). In that resolution No. 10, the appraisal committee
stated that "The Committee has observed that the value of the land in this
locality has increased since 1957 ...", and recommended the price of P1.50
per square meter. It follows, therefore, that, contrary to the stand of the
Republic, that resolution No. 5 of the Provincial Appraisal Committee can
not be made the basis for fixing the fair market value of the lands of
Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting Assistant
Provincial Assessor of Pampanga, dated February 8, 1961 (Exhibit K), to
the effect that in 1950 the lands of Toledo-Gozun were classified partly as
sugar land and partly as urban land, and that the sugar land was assessed
at P.40 per square meter, while part of the urban land was assessed at
P.40 per square meter and part at P.20 per square meter; and that in 1956
the Castellvi land was classified as sugar land and was assessed at
P450.00 per hectare, or P.045 per square meter. We can not also consider
this certification of the Acting Assistant Provincial Assessor as a basis for
fixing the fair market value of the lands of Castellvi and Toledo-Gozun
because, as the evidence shows, the lands in question, in 1957, were
already classified and assessed for taxation purposes as residential lands.
The certification of the assessor refers to the year 1950 as far as the lands
of Toledo-Gozun are concerned, and to the year 1956 as far as the land of
Castellvi is concerned. Moreover, this Court has held that the valuation
fixed for the purposes of the assessment of the land for taxation purposes
can not bind the landowner where the latter did not intervene in fixing it. 25
On the other hand, the Commissioners, appointed by the court to appraise
the lands that were being expropriated, recommended to the court that the
price of P10.00 per square meter would be the fair market value of the
lands. The commissioners made their recommendation on the basis of their
observation after several ocular inspections of the lands, of their own
personal knowledge of land values in the province of Pampanga, of the
testimonies of the owners of the land, and other witnesses, and of
documentary evidence presented by the appellees. Both Castellvi and
Toledo-Gozun testified that the fair market value of their respective land
was at P15.00 per square meter. The documentary evidence considered by
the commissioners consisted of deeds of sale of residential lands in the
town of San Fernando and in Angeles City, in the province of Pampanga,
which were sold at prices ranging from P8.00 to P20.00 per square meter
(Exhibits 15, 16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The commissioners
also considered the decision in Civil Case No. 1531 of the Court of First
Instance of Pampanga, entitled Republic vs. Sabina Tablante, which was
expropriation case filed on January 13, 1959, involving a parcel of land
adjacent to the Clark Air Base in Angeles City, where the court fixed the
price at P18.00 per square meter (Exhibit 14-Castellvi). In their report, the
commissioners, among other things, said:
... This expropriation case is specially pointed out, because the
circumstances and factors involved therein are similar in many respects to
the defendants' lands in this case. The land in Civil Case No. 1531 of this
Court and the lands in the present case (Civil Case No. 1623) are both
near the air bases, the Clark Air Base and the Basa Air Base respectively.
There is a national road fronting them and are situated in a first-class
municipality. As added advantage it may be said that the Basa Air Base
land is very near the sugar mill at Del Carmen, Floridablanca, Pampanga,
owned by the Pampanga Sugar Mills. Also just stone's throw away from the
same lands is a beautiful vacation spot at Palacol, a sitio of the town of
Floridablanca, which counts with a natural swimming pool for vacationists
on weekends. These advantages are not found in the case of the Clark Air
Base. The defendants' lands are nearer to the poblacion of Floridablanca
then Clark Air Base is nearer (sic) to the poblacion of Angeles, Pampanga.
The deeds of absolute sale, according to the undersigned commissioners,
as well as the land in Civil Case No. 1531 are competent evidence,
because they were executed during the year 1959 and before August 10 of
the same year. More specifically so the land at Clark Air Base which
coincidentally is the subject matter in the complaint in said Civil Case No.
1531, it having been filed on January 13, 1959 and the taking of the land
involved therein was ordered by the Court of First Instance of Pampanga
on January 15, 1959, several months before the lands in this case were
taken by the plaintiffs ....
From the above and considering further that the lowest as well as the
highest price per square meter obtainable in the market of Pampanga
relative to subdivision lots within its jurisdiction in the year 1959 is very well
known by the Commissioners, the Commission finds that the lowest price
that can be awarded to the lands in question is P10.00 per square meter. 26
The lower court did not altogether accept the findings of the
Commissioners based on the documentary evidence, but it considered the
documentary evidence as basis for comparison in determining land values.
The lower court arrived at the conclusion that "the unanimous
recommendation of the commissioners of ten (P10.00) pesos per square
meter for the three lots of the defendants subject of this action is fair and
just". 27 In arriving at its conclusion, the lower court took into consideration,
among other circumstances, that the lands are titled, that there is a rising
trend of land values, and the lowered purchasing power of the Philippine
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328, this
Court said:
A court of first instance or, on appeal, the Supreme Court, may change or
modify the report of the commissioners by increasing or reducing the
amount of the award if the facts of the case so justify. While great weight is
attached to the report of the commissioners, yet a court may substitute
therefor its estimate of the value of the property as gathered from the
record in certain cases, as, where the commissioners have applied illegal
principles to the evidence submitted to them, or where they have
disregarded a clear preponderance of evidence, or where the amount
allowed is either palpably inadequate or excessive. 28
The report of the commissioners of appraisal in condemnation proceedings
are not binding, but merely advisory in character, as far as the court is
concerned. 29 In our analysis of the report of the commissioners, We find
points that merit serious consideration in the determination of the just
compensation that should be paid to Castellvi and Toledo-Gozun for their
lands. It should be noted that the commissioners had made ocular
inspections of the lands and had considered the nature and similarities of
said lands in relation to the lands in other places in the province of
Pampanga, like San Fernando and Angeles City. We cannot disregard the
observations of the commissioners regarding the circumstances that make
the lands in question suited for residential purposes — their location near
the Basa Air Base, just like the lands in Angeles City that are near the Clark
Air Base, and the facilities that obtain because of their nearness to the big
sugar central of the Pampanga Sugar mills, and to the flourishing first class
town of Floridablanca. It is true that the lands in question are not in the
territory of San Fernando and Angeles City, but, considering the facilities of
modern communications, the town of Floridablanca may be considered
practically adjacent to San Fernando and Angeles City. It is not out of
place, therefore, to compare the land values in Floridablanca to the land
values in San Fernando and Angeles City, and form an idea of the value of
the lands in Floridablanca with reference to the land values in those two
other communities.
The important factor in expropriation proceeding is that the owner is
awarded the just compensation for his property. We have carefully studied
the record, and the evidence, in this case, and after considering the
circumstances attending the lands in question We have arrived at the
conclusion that the price of P10.00 per square meter, as recommended by
the commissioners and adopted by the lower court, is quite high. It is Our
considered view that the price of P5.00 per square meter would be a fair
valuation of the lands in question and would constitute a just compensation
to the owners thereof. In arriving at this conclusion We have particularly
taken into consideration the resolution of the Provincial Committee on
Appraisal of the province of Pampanga informing, among others, that in the
year 1959 the land of Castellvi could be sold for from P3.00 to P4.00 per
square meter, while the land of Toledo-Gozun could be sold for from P2.50
to P3.00 per square meter. The Court has weighed all the circumstances
relating to this expropriations proceedings, and in fixing the price of the
lands that are being expropriated the Court arrived at a happy medium
between the price as recommended by the commissioners and approved
by the court, and the price advocated by the Republic. This Court has also
taken judicial notice of the fact that the value of the Philippine peso has
considerably gone down since the year 1959. 30 Considering that the lands
of Castellvi and Toledo-Gozun are adjoining each other, and are of the
same nature, the Court has deemed it proper to fix the same price for all
these lands.
3. The third issue raised by the Republic relates to the payment of interest.
The Republic maintains that the lower court erred when it ordered the
Republic to pay Castellvi interest at the rate of 6% per annum on the total
amount adjudged as the value of the land of Castellvi, from July 1, 1956 to
July 10, 1959. We find merit in this assignment of error.
In ordering the Republic to pay 6% interest on the total value of the land of
Castellvi from July 1, 1956 to July 10, 1959, the lower court held that the
Republic had illegally possessed the land of Castellvi from July 1, 1956,
after its lease of the land had expired on June 30, 1956, until August 10,
1959 when the Republic was placed in possession of the land pursuant to
the writ of possession issued by the court. What really happened was that
the Republic continued to occupy the land of Castellvi after the expiration of
its lease on June 30, 1956, so much so that Castellvi filed an ejectment
case against the Republic in the Court of First Instance of Pampanga. 31
However, while that ejectment case was pending, the Republic filed the
complaint for eminent domain in the present case and was placed in
possession of the land on August 10, 1959, and because of the institution
of the expropriation proceedings the ejectment case was later dismissed. In
the order dismissing the ejectment case, the Court of First Instance of
Pampanga said:
Plaintiff has agreed, as a matter of fact has already signed an agreement
with defendants, whereby she had agreed to receive the rent of the lands,
subject matter of the instant case from June 30, 1956 up to 1959 when the
Philippine Air Force was placed in possession by virtue of an order of the
Court upon depositing the provisional amount as fixed by the Provincial
Appraisal Committee with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30, 1956 to August
10, 1959, she should be considered as having allowed her land to be
leased to the Republic until August 10, 1959, and she could not at the
same time be entitled to the payment of interest during the same period on
the amount awarded her as the just compensation of her land. The
Republic, therefore, should pay Castellvi interest at the rate of 6% per
annum on the value of her land, minus the provisional value that was
deposited, only from July 10, 1959 when it deposited in court the
provisional value of the land.
4. The fourth error assigned by the Republic relates to the denial by the
lower court of its motion for a new trial based on nearly discovered
evidence. We do not find merit in this assignment of error.
After the lower court had decided this case on May 26, 1961, the Republic
filed a motion for a new trial, supplemented by another motion, both based
upon the ground of newly discovered evidence. The alleged newly
discovered evidence in the motion filed on June 21, 1961 was a deed of
absolute sale-executed on January 25, 1961, showing that a certain Serafin
Francisco had sold to Pablo L. Narciso a parcel of sugar land having an
area of 100,000 square meters with a sugar quota of 100 piculs, covered
by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for P14,000, or
P.14 per square meter.
In the supplemental motion, the alleged newly discovered evidence were:
(1) a deed of sale of some 35,000 square meters of land situated at
Floridablanca for P7,500.00 (or about P.21 per square meter) executed in
July, 1959, by the spouses Evelyn D. Laird and Cornelio G. Laird in favor of
spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a deed of
absolute sale of a parcel of land having an area of 4,120,101 square
meters, including the sugar quota covered by Plantation Audit No. 161
1345, situated at Floridablanca, Pampanga, for P860.00 per hectare (a little
less than P.09 per square meter) executed on October 22, 1957 by Jesus
Toledo y Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the motions for a
new trial.
To warrant the granting of a new trial based on the ground of newly
discovered evidence, it must appear that the evidence was discovered after
the trial; that even with the exercise of due diligence, the evidence could
not have been discovered and produced at the trial; and that the evidence
is of such a nature as to alter the result of the case if admitted. 32 The lower
court correctly ruled that these requisites were not complied with.
The lower court, in a well-reasoned order, found that the sales made by
Serafin Francisco to Pablo Narciso and that made by Jesus Toledo to the
Land Tenure Administration were immaterial and irrelevant, because those
sales covered sugarlands with sugar quotas, while the lands sought to be
expropriated in the instant case are residential lands. The lower court also
concluded that the land sold by the spouses Laird to the spouses Aguas
was a sugar land.
We agree with the trial court. In eminent domain proceedings, in order that
evidence as to the sale price of other lands may be admitted in evidence to
prove the fair market value of the land sought to be expropriated, the lands
must, among other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands mentioned in those
deeds of sale were residential, the evidence would still not warrant the
grant of a new trial, for said evidence could have been discovered and
produced at the trial, and they cannot be considered newly discovered
evidence as contemplated in Section 1(b) of Rule 37 of the Rules of Court.
Regarding this point, the trial court said:
The Court will now show that there was no reasonable diligence employed.
The land described in the deed of sale executed by Serafin Francisco, copy
of which is attached to the original motion, is covered by a Certificate of
Title issued by the Office of the Register of Deeds of Pampanga. There is
no question in the mind of the court but this document passed through the
Office of the Register of Deeds for the purpose of transferring the title or
annotating the sale on the certificate of title. It is true that Fiscal Lagman
went to the Office of the Register of Deeds to check conveyances which
may be presented in the evidence in this case as it is now sought to be
done by virtue of the motions at bar, Fiscal Lagman, one of the lawyers of
the plaintiff, did not exercise reasonable diligence as required by the rules.
The assertion that he only went to the office of the Register of Deeds 'now
and then' to check the records in that office only shows the half-hazard [sic]
manner by which the plaintiff looked for evidence to be presented during
the hearing before the Commissioners, if it is at all true that Fiscal Lagman
did what he is supposed to have done according to Solicitor Padua. It
would have been the easiest matter for plaintiff to move for the issuance of
a subpoena duces tecum directing the Register of Deeds of Pampanga to
come to testify and to bring with him all documents found in his office
pertaining to sales of land in Floridablanca adjacent to or near the lands in
question executed or recorded from 1958 to the present. Even this
elementary precaution was not done by plaintiff's numerous attorneys.
The same can be said of the deeds of sale attached to the supplementary
motion. They refer to lands covered by certificate of title issued by the
Register of Deeds of Pampanga. For the same reason they could have
been easily discovered if reasonable diligence has been exerted by the
numerous lawyers of the plaintiff in this case. It is noteworthy that all these
deeds of sale could be found in several government offices, namely, in the
Office of the Register of Deeds of Pampanga, the Office of the Provincial
Assessor of Pampanga, the Office of the Clerk of Court as a part of notarial
reports of notaries public that acknowledged these documents, or in the
archives of the National Library. In respect to Annex 'B' of the
supplementary motion copy of the document could also be found in the
Office of the Land Tenure Administration, another government entity. Any
lawyer with a modicum of ability handling this expropriation case would
have right away though [sic] of digging up documents diligently showing
conveyances of lands near or around the parcels of land sought to be
expropriated in this case in the offices that would have naturally come to
his mind such as the offices mentioned above, and had counsel for the
movant really exercised the reasonable diligence required by the Rule'
undoubtedly they would have been able to find these documents and/or
caused the issuance of subpoena duces tecum. ...
It is also recalled that during the hearing before the Court of the Report and
Recommendation of the Commissioners and objection thereto, Solicitor
Padua made the observation:
I understand, Your Honor, that there was a sale that took place in this place
of land recently where the land was sold for P0.20 which is contiguous to
this land.
The Court gave him permission to submit said document subject to the
approval of the Court. ... This was before the decision was rendered, and
later promulgated on May 26, 1961 or more than one month after Solicitor
Padua made the above observation. He could have, therefore, checked up
the alleged sale and moved for a reopening to adduce further evidence. He
did not do so. He forgot to present the evidence at a more propitious time.
Now, he seeks to introduce said evidence under the guise of newly-
discovered evidence. Unfortunately the Court cannot classify it as newly-
discovered evidence, because tinder the circumstances, the correct
qualification that can be given is 'forgotten evidence'. Forgotten however, is
not newly-discovered
evidence. 33
The granting or denial of a motion for new trial is, as a general rule,
discretionary with the trial court, whose judgment should not be disturbed
unless there is a clear showing of abuse of discretion. 34 We do not see any
abuse of discretion on the part of the lower court when it denied the
motions for a new trial.
WHEREFORE, the decision appealed from is modified, as follows:
(a) the lands of appellees Carmen Vda. de Castellvi and Maria Nieves
Toledo-Gozun, as described in the complaint, are declared expropriated for
public use;
(b) the fair market value of the lands of the appellees is fixed at P5.00 per
square meter;
(c) the Republic must pay appellee Castellvi the sum of P3,796,495.00 as
just compensation for her one parcel of land that has an area of 759,299
square meters, minus the sum of P151,859.80 that she withdrew out of the
amount that was deposited in court as the provisional value of the land,
with interest at the rate of 6% per annum from July 10, 1959 until the day
full payment is made or deposited in court;
(d) the Republic must pay appellee Toledo-Gozun the sum of
P2,695,225.00 as the just compensation for her two parcels of land that
have a total area of 539,045 square meters, minus the sum of P107,809.00
that she withdrew out of the amount that was deposited in court as the
provisional value of her lands, with interest at the rate of 6%, per annum
from July 10, 1959 until the day full payment is made or deposited in court;
(e) the attorney's lien of Atty. Alberto Cacnio is enforced; and
(f) the costs should be paid by appellant Republic of the Philippines, as
provided in Section 12, Rule 67, and in Section 13, Rule 141, of the Rules
of Court.
Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muñoz Palma and
Aquino, JJ., concur.
Castro, Fernando, Teehankee and Makasiar, JJ., took no part.
Republic of the Philippines
G.R. No. L-34915 June 24, 1983
QUEZON CITY, petitioners,
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First
Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO,
INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.


This is a petition for review which seeks the reversal of the decision of the
Court of First Instance of Rizal, Branch XVIII declaring Section 9 of
Ordinance No. 6118, S-64, of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery
shall be set aside for charity burial of deceased persons who are paupers
and have been residents of Quezon City for at least 5 years prior to their
death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for operation
not later than six months from the date of approval of the application.
For several years, the aforequoted section of the Ordinance was not
enforced by city authorities but seven years after the enactment of the
ordinance, the Quezon City Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it does
hereby request the City Engineer, Quezon City, to stop any further selling
and/or transaction of memorial park lots in Quezon City where the owners
thereof have failed to donate the required 6% space intended for paupers
Pursuant to this petition, the Quezon City Engineer notified respondent
Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-
64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First
Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief,
prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-
16002) seeking to annul Section 9 of the Ordinance in question The
respondent alleged that the same is contrary to the Constitution, the Quezon
City Charter, the Local Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely legal both
petitioners and respondent agreed to the rendition of a judgment on the
pleadings. The respondent court, therefore, rendered the decision declaring
Section 9 of Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and
City Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid and
reasonable exercise of police power and that the land is taken for a public
use as it is intended for the burial ground of paupers. They further argue that
the Quezon City Council is authorized under its charter, in the exercise of
local police power, " to make such further ordinances and resolutions not
repugnant to law as may be necessary to carry into effect and discharge the
powers and duties conferred by this Act and such as it shall deem necessary
and proper to provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort and convenience of the city
and the inhabitants thereof, and for the protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the
taking or confiscation of property is obvious because the questioned
ordinance permanently restricts the use of the property such that it cannot
be used for any reasonable purpose and deprives the owner of all beneficial
use of his property.
The respondent also stresses that the general welfare clause is not available
as a source of power for the taking of the property in this case because it
refers to "the power of promoting the public welfare by restraining and
regulating the use of liberty and property." The respondent points out that if
an owner is deprived of his property outright under the State's police power,
the property is generally not taken for public use but is urgently and
summarily destroyed in order to promote the general welfare. The
respondent cites the case of a nuisance per se or the destruction of a house
to prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the
respondent Judge to be well-founded. We quote with approval the lower
court's ruling which declared null and void Section 9 of the questioned city
The issue is: Is Section 9 of the ordinance in question a valid exercise of the
police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not
reveal any provision that would justify the ordinance in question except the
provision granting police power to the City. Section 9 cannot be justified
under the power granted to Quezon City to tax, fix the license fee, and
regulate such other business, trades, and occupation as may be established
or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs.
Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12,
1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not
include the power to confiscate. The ordinance in question not only
confiscates but also prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation of the provision
thereof is punishable with a fine and/or imprisonment and that upon
conviction thereof the permit to operate and maintain a private cemetery shall
be revoked or cancelled.' The confiscatory clause and the penal provision in
effect deter one from operating a memorial park cemetery. Neither can the
ordinance in question be justified under sub- section "t", Section 12 of
Republic Act 537 which authorizes the City Council to-
'prohibit the burial of the dead within the center of population of the city and
provide for their burial in such proper place and in such manner as the
council may determine, subject to the provisions of the general law regulating
burial grounds and cemeteries and governing funerals and disposal of the
dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as
euphemistically termed by the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in
question is a valid exercise of police power. The police power of Quezon City
is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and regulations not repugnant to law
as may be necessary to carry into effect and discharge the powers and duties
conferred by this act and such as it shall deem necessary and proper to
provide for the health and safety, promote, the prosperity, improve the
morals, peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein; and enforce
obedience thereto with such lawful fines or penalties as the City Council may
prescribe under the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles.
Occupying the forefront in the bill of rights is the provision which states that
'no person shall be deprived of life, liberty or property without due process of
law' (Art. Ill, Section 1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which
the state interferes with the property rights, namely-. (1) police power, (2)
eminent domain, (3) taxation. These are said to exist independently of the
Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the public
welfare by restraining and regulating the use of liberty and property' (Quoted
in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in
order to merely regulate the use and enjoyment of property of the owner. If
he is deprived of his property outright, it is not taken for public use but rather
to destroy in order to promote the general welfare. In police power, the owner
does not recover from the government for injury sustained in consequence
thereof (12 C.J. 623). It has been said that police power is the most essential
of government powers, at times the most insistent, and always one of the
least limitable of the powers of government (Ruby vs. Provincial Board, 39
PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10
PhiL 104). The Supreme Court has said that police power is so far-reaching
in scope that it has almost become impossible to limit its sweep. As it derives
its existence from the very existence of the state itself, it does not need to be
expressed or defined in its scope. Being coextensive with self-preservation
and survival itself, it is the most positive and active of all governmental
processes, the most essential insistent and illimitable Especially it is so under
the modern democratic framework where the demands of society and
nations have multiplied to almost unimaginable proportions. The field and
scope of police power have become almost boundless, just as the fields of
public interest and public welfare have become almost all embracing and
have transcended human foresight. Since the Courts cannot foresee the
needs and demands of public interest and welfare, they cannot delimit
beforehand the extent or scope of the police power by which and through
which the state seeks to attain or achieve public interest and welfare. (Ichong
vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and the
due process clause being the broadest station on governmental power, the
conflict between this power of government and the due process clause of the
Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is usually
exercised in the form of mere regulation or restriction in the use of liberty or
property for the promotion of the general welfare. It does not involve the
taking or confiscation of property with the exception of a few cases where
there is a necessity to confiscate private property in order to destroy it for the
purpose of protecting the peace and order and of promoting the general
welfare as for instance, the confiscation of an illegally possessed article,
such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964
of Quezon City is not a mere police regulation but an outright confiscation. It
deprives a person of his private property without due process of law, nay,
even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of
the heavy burden shouldered by whoever challenges the validity of duly
enacted legislation whether national or local As early as 1913, this Court
ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
presumption in favor of validity and, more so, where the ma corporation
asserts that the ordinance was enacted to promote the common good and
general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association
Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the
then Associate Justice and now Chief Justice Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any evidence
to offset the presumption of validity that attaches to a statute or ordinance.
As was expressed categorically by Justice Malcolm 'The presumption is all
in favor of validity. ... The action of the elected representatives of the people
cannot be lightly set aside. The councilors must, in the very nature of things,
be familiar with the necessities of their particular ... municipality and with all
the facts and lances which surround the subject and necessitate action. The
local legislative body, by enacting the ordinance, has in effect given notice
that the regulations are essential to the well-being of the people. ... The
Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police
regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an
affirmation of the presumption of validity of municipal ordinance as
announced in the leading Salaveria decision in Ebona v. Daet, [1950]85 Phil.
We have likewise considered the principles earlier stated in Case v. Board
of Health supra :
... Under the provisions of municipal charters which are known as the general
welfare clauses, a city, by virtue of its police power, may adopt ordinances
to the peace, safety, health, morals and the best and highest interests of the
municipality. It is a well-settled principle, growing out of the nature of well-
ordered and society, that every holder of property, however absolute and
may be his title, holds it under the implied liability that his use of it shall not
be injurious to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights of the community. An
property in the state is held subject to its general regulations, which are
necessary to the common good and general welfare. Rights of property, like
all other social and conventional rights, are subject to such reasonable
limitations in their enjoyment as shall prevent them from being injurious, and
to such reasonable restraints and regulations, established by law, as the
legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient. The state, under the police
power, is possessed with plenary power to deal with all matters relating to
the general health, morals, and safety of the people, so long as it does not
contravene any positive inhibition of the organic law and providing that such
power is not exercised in such a manner as to justify the interference of the
courts to prevent positive wrong and oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6)
percent of the total area of an private cemeteries for charity burial grounds
of deceased paupers and the promotion of health, morals, good order,
safety, or the general welfare of the people. The ordinance is actually a
taking without compensation of a certain area from a private cemetery to
benefit paupers who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose, the city passes
the burden to private cemeteries.
The expropriation without compensation of a portion of private cemeteries is
not covered by Section 12(t) of Republic Act 537, the Revised Charter of
Quezon City which empowers the city council to prohibit the burial of the
dead within the center of population of the city and to provide for their burial
in a proper place subject to the provisions of general law regulating burial
grounds and cemeteries. When the Local Government Code, Batas
Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang
panlungsod may "provide for the burial of the dead in such place and in such
manner as prescribed by law or ordinance" it simply authorizes the city to
provide its own city owned land or to buy or expropriate private properties to
construct public cemeteries. This has been the law and practise in the past.
It continues to the present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws and
regulations requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the land they sell
to buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to
insure the development of communities with salubrious and wholesome
environments. The beneficiaries of the regulation, in turn, are made to pay
by the subdivision developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause
or on implied powers of the municipal corporation, not on any express
provision of law as statutory basis of their exercise of power. The clause has
always received broad and liberal interpretation but we cannot stretch it to
cover this particular taking. Moreover, the questioned ordinance was passed
after Himlayang Pilipino, Inc. had incorporated. received necessary licenses
and permits and commenced operating. The sequestration of six percent of
the cemetery cannot even be considered as having been impliedly
acknowledged by the private respondent when it accepted the permits to
commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision
of the respondent court is affirmed.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ.,

Republic of the Philippines

G.R. No. L-18841 January 27, 1969
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Antonio A. Torres and Solicitor Camilo D. Quiason for plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-appellant.
REYES, J.B.L., J.:
Direct appeals, upon a joint record on appeal, by both the plaintiff and the
defendant from the dismissal, after hearing, by the Court of First Instance
of Manila, in its Civil Case No. 35805, of their respective complaint and
counterclaims, but making permanent a preliminary mandatory injunction
theretofore issued against the defendant on the interconnection of
telephone facilities owned and operated by said parties.
The plaintiff, Republic of the Philippines, is a political entity exercising
governmental powers through its branches and instrumentalities, one of
which is the Bureau of Telecommunications. That office was created on 1
July 1947, under Executive Order No. 94, with the following powers and
duties, in addition to certain powers and duties formerly vested in the
Director of Posts: 1awphil.ñêt

SEC. 79. The Bureau of Telecommunications shall exercise the following

powers and duties:
(a) To operate and maintain existing wire-telegraph and radio-telegraph
offices, stations, and facilities, and those to be established to restore the
pre-war telecommunication service under the Bureau of Posts, as well as
such additional offices or stations as may hereafter be established to
provide telecommunication service in places requiring such service;
(b) To investigate, consolidate, negotiate for, operate and maintain wire-
telephone or radio telephone communication service throughout the
Philippines by utilizing such existing facilities in cities, towns, and provinces
as may be found feasible and under such terms and conditions or
arrangements with the present owners or operators thereof as may be
agreed upon to the satisfaction of all concerned;
(c) To prescribe, subject to approval by the Department Head, equitable
rates of charges for messages handled by the system and/or for time calls
and other services that may be rendered by said system;
(d) To establish and maintain coastal stations to serve ships at sea or
aircrafts and, when public interest so requires, to engage in the
international telecommunication service in agreement with other countries
desiring to establish such service with the Republic of the Philippines; and
(e) To abide by all existing rules and regulations prescribed by the
International Telecommunication Convention relative to the accounting,
disposition and exchange of messages handled in the international service,
and those that may hereafter be promulgated by said convention and
adhered to by the Government of the Republic of the Philippines. 1
The defendant, Philippine Long Distance Telephone Company (PLDT for
short), is a public service corporation holding a legislative franchise, Act
3426, as amended by Commonwealth Act 407, to install, operate and
maintain a telephone system throughout the Philippines and to carry on the
business of electrical transmission of messages within the Philippines and
between the Philippines and the telephone systems of other countries. 2
The RCA Communications, Inc., (which is not a party to the present case
but has contractual relations with the parties) is an American corporation
authorized to transact business in the Philippines and is the grantee, by
assignment, of a legislative franchise to operate a domestic station for the
reception and transmission of long distance wireless messages (Act 2178)
and to operate broadcasting and radio-telephone and radio-telegraphic
communications services (Act 3180). 3
Sometime in 1933, the defendant, PLDT, and the RCA Communications,
Inc., entered into an agreement whereby telephone messages, coming
from the United States and received by RCA's domestic station, could
automatically be transferred to the lines of PLDT; and vice-versa, for calls
collected by the PLDT for transmission from the Philippines to the United
States. The contracting parties agreed to divide the tolls, as follows: 25% to
PLDT and 75% to RCA. The sharing was amended in 1941 to 30% for
PLDT and 70% for RCA, and again amended in 1947 to a 50-50 basis. The
arrangement was later extended to radio-telephone messages to and from
European and Asiatic countries. Their contract contained a stipulation that
either party could terminate it on a 24-month notice to the other. 4 On 2
February 1956, PLDT gave notice to RCA to terminate their contract on 2
February 1958. 5
Soon after its creation in 1947, the Bureau of Telecommunications set up
its own Government Telephone System by utilizing its own appropriation
and equipment and by renting trunk lines of the PLDT to enable
government offices to call private parties. 6 Its application for the use of
these trunk lines was in the usual form of applications for telephone
service, containing a statement, above the signature of the applicant, that
the latter will abide by the rules and regulations of the PLDT which are on
file with the Public Service Commission. 7 One of the many rules prohibits
the public use of the service furnished the telephone subscriber for his
private use. 8 The Bureau has extended its services to the general public
since 1948, 9 using the same trunk lines owned by, and rented from, the
PLDT, and prescribing its (the Bureau's) own schedule of rates. 10 Through
these trunk lines, a Government Telephone System (GTS) subscriber could
make a call to a PLDT subscriber in the same way that the latter could
make a call to the former.
On 5 March 1958, the plaintiff, through the Director of
Telecommunications, entered into an agreement with RCA
Communications, Inc., for a joint overseas telephone service whereby the
Bureau would convey radio-telephone overseas calls received by RCA's
station to and from local residents. 11 Actually, they inaugurated this joint
operation on 2 February 1958, under a "provisional" agreement. 12
On 7 April 1958, the defendant Philippine Long Distance Telephone
Company, complained to the Bureau of Telecommunications that said
bureau was violating the conditions under which their Private Branch
Exchange (PBX) is inter-connected with the PLDT's facilities, referring to
the rented trunk lines, for the Bureau had used the trunk lines not only for
the use of government offices but even to serve private persons or the
general public, in competition with the business of the PLDT; and gave
notice that if said violations were not stopped by midnight of 12 April 1958,
the PLDT would sever the telephone connections. 13 When the PLDT
received no reply, it disconnected the trunk lines being rented by the
Bureau at midnight on 12 April 1958. 14 The result was the isolation of the
Philippines, on telephone services, from the rest of the world, except the
United States. 15
At that time, the Bureau was maintaining 5,000 telephones and had 5,000
pending applications for telephone connection. 16 The PLDT was also
maintaining 60,000 telephones and had also 20,000 pending applications.
17 Through the years, neither of them has been able to fill up the demand
for telephone service.
The Bureau of Telecommunications had proposed to the PLDT on 8
January 1958 that both enter into an interconnecting agreement, with the
government paying (on a call basis) for all calls passing through the
interconnecting facilities from the Government Telephone System to the
PLDT. 18 The PLDT replied that it was willing to enter into an agreement on
overseas telephone service to Europe and Asian countries provided that
the Bureau would submit to the jurisdiction and regulations of the Public
Service Commission and in consideration of 37 1/2% of the gross
revenues. 19 In its memorandum in lieu of oral argument in this Court dated
9 February 1964, on page 8, the defendant reduced its offer to 33 1/3 %
(1/3) as its share in the overseas telephone service. The proposals were
not accepted by either party.
On 12 April 1958, plaintiff Republic commenced suit against the
defendant, Philippine Long Distance Telephone Company, in the Court of
First Instance of Manila (Civil Case No. 35805), praying in its complaint for
judgment commanding the PLDT to execute a contract with plaintiff,
through the Bureau, for the use of the facilities of defendant's telephone
system throughout the Philippines under such terms and conditions as the
court might consider reasonable, and for a writ of preliminary injunction
against the defendant company to restrain the severance of the existing
telephone connections and/or restore those severed.
Acting on the application of the plaintiff, and on the ground that the
severance of telephone connections by the defendant company would
isolate the Philippines from other countries, the court a quo, on 14 April
1958, issued an order for the defendant:
(1) to forthwith reconnect and restore the seventy-eight (78) trunk lines that
it has disconnected between the facilities of the Government Telephone
System, including its overseas telephone services, and the facilities of
defendant; (2) to refrain from carrying into effect its threat to sever the
existing telephone communication between the Bureau of
Telecommunications and defendant, and not to make connection over its
telephone system of telephone calls coming to the Philippines from foreign
countries through the said Bureau's telephone facilities and the radio
facilities of RCA Communications, Inc.; and (3) to accept and connect
through its telephone system all such telephone calls coming to the
Philippines from foreign countries — until further order of this Court.
On 28 April 1958, the defendant company filed its answer, with
It denied any obligation on its part to execute a contrary of services with
the Bureau of Telecommunications; contested the jurisdiction of the Court
of First Instance to compel it to enter into interconnecting agreements, and
averred that it was justified to disconnect the trunk lines heretofore leased
to the Bureau of Telecommunications under the existing agreement
because its facilities were being used in fraud of its rights. PLDT further
claimed that the Bureau was engaging in commercial telephone operations
in excess of authority, in competition with, and to the prejudice of, the
PLDT, using defendants own telephone poles, without proper accounting of
After trial, the lower court rendered judgment that it could not compel the
PLDT to enter into an agreement with the Bureau because the parties were
not in agreement; that under Executive Order 94, establishing the Bureau
of Telecommunications, said Bureau was not limited to servicing
government offices alone, nor was there any in the contract of lease of the
trunk lines, since the PLDT knew, or ought to have known, at the time that
their use by the Bureau was to be public throughout the Islands, hence the
Bureau was neither guilty of fraud, abuse, or misuse of the poles of the
PLDT; and, in view of serious public prejudice that would result from the
disconnection of the trunk lines, declared the preliminary injunction
permanent, although it dismissed both the complaint and the
Both parties appealed.
Taking up first the appeal of the Republic, the latter complains of the
action of the trial court in dismissing the part of its complaint seeking to
compel the defendant to enter into an interconnecting contract with it,
because the parties could not agree on the terms and conditions of the
interconnection, and of its refusal to fix the terms and conditions therefor.
We agree with the court below that parties can not be coerced to enter
into a contract where no agreement is had between them as to the principal
terms and conditions of the contract. Freedom to stipulate such terms and
conditions is of the essence of our contractual system, and by express
provision of the statute, a contract may be annulled if tainted by violence,
intimidation, or undue influence (Articles 1306, 1336, 1337, Civil Code of
the Philippines). But the court a quo has apparently overlooked that while
the Republic may not compel the PLDT to celebrate a contract with it, the
Republic may, in the exercise of the sovereign power of eminent domain,
require the telephone company to permit interconnection of the government
telephone system and that of the PLDT, as the needs of the government
service may require, subject to the payment of just compensation to be
determined by the court. Nominally, of course, the power of eminent
domain results in the taking or appropriation of title to, and possession of,
the expropriated property; but no cogent reason appears why the said
power may not be availed of to impose only a burden upon the owner of
condemned property, without loss of title and possession. It is
unquestionable that real property may, through expropriation, be subjected
to an easement of right of way. The use of the PLDT's lines and services to
allow inter-service connection between both telephone systems is not much
different. In either case private property is subjected to a burden for public
use and benefit. If, under section 6, Article XIII, of the Constitution, the
State may, in the interest of national welfare, transfer utilities to public
ownership upon payment of just compensation, there is no reason why the
State may not require a public utility to render services in the general
interest, provided just compensation is paid therefor. Ultimately, the
beneficiary of the interconnecting service would be the users of both
telephone systems, so that the condemnation would be for public use.
The Bureau of Telecommunications, under section 78 (b) of Executive
Order No. 94, may operate and maintain wire telephone or radio telephone
communications throughout the Philippines by utilizing existing facilities in
cities, towns, and provinces under such terms and conditions or
arrangement with present owners or operators as may be agreed upon to
the satisfaction of all concerned; but there is nothing in this section that
would exclude resort to condemnation proceedings where unreasonable or
unjust terms and conditions are exacted, to the extent of crippling or
seriously hampering the operations of said Bureau.
A perusal of the complaint shows that the Republic's cause of action is
predicated upon the radio telephonic isolation of the Bureau's facilities from
the outside world if the severance of interconnection were to be carried out
by the PLDT, thereby preventing the Bureau of Telecommunications from
properly discharging its functions, to the prejudice of the general public.
Save for the prayer to compel the PLDT to enter into a contract (and the
prayer is no essential part of the pleading), the averments make out a case
for compulsory rendering of inter-connecting services by the telephone
company upon such terms and conditions as the court may determine to be
just. And since the lower court found that both parties "are practically at
one that defendant (PLDT) is entitled to reasonable compensation from
plaintiff for the reasonable use of the former's telephone facilities"
(Decision, Record on Appeal, page 224), the lower court should have
proceeded to treat the case as one of condemnation of such services
independently of contract and proceeded to determine the just and
reasonable compensation for the same, instead of dismissing the petition.
This view we have taken of the true nature of the Republic's petition
necessarily results in overruling the plea of defendant-appellant PLDT that
the court of first instance had no jurisdiction to entertain the petition and
that the proper forum for the action was the Public Service Commission.
That body, under the law, has no authority to pass upon actions for the
taking of private property under the sovereign right of eminent domain.
Furthermore, while the defendant telephone company is a public utility
corporation whose franchise, equipment and other properties are under the
jurisdiction, supervision and control of the Public Service Commission (Sec.
13, Public Service Act), yet the plaintiff's telecommunications network is a
public service owned by the Republic and operated by an instrumentality of
the National Government, hence exempt, under Section 14 of the Public
Service Act, from such jurisdiction, supervision and control. The Bureau of
Telecommunications was created in pursuance of a state policy
reorganizing the government offices —
to meet the exigencies attendant upon the establishment of the free and
independent Government of the Republic of the Philippines, and for the
purpose of promoting simplicity, economy and efficiency in its operation
(Section 1, Republic Act No. 51) —
and the determination of state policy is not vested in the Commission
(Utilities Com. vs. Bartonville Bus Line, 290 Ill. 574; 124 N.E. 373).
Defendant PLDT, as appellant, contends that the court below was in error
in not holding that the Bureau of Telecommunications was not empowered
to engage in commercial telephone business, and in ruling that said
defendant was not justified in disconnecting the telephone trunk lines it had
previously leased to the Bureau. We find that the court a quo ruled correctly
in rejecting both assertions.
Executive Order No. 94, Series of 1947, reorganizing the Bureau of
Telecommunications, expressly empowered the latter in its Section 79,
subsection (b), to "negotiate for, operate and maintain wire telephone or
radio telephone communication service throughout the Philippines", and, in
subsection (c), "to prescribe, subject to approval by the Department Head,
equitable rates of charges for messages handled by the system and/or for
time calls and other services that may be rendered by the system". Nothing
in these provisions limits the Bureau to non-commercial activities or
prevents it from serving the general public. It may be that in its original
prospectuses the Bureau officials had stated that the service would be
limited to government offices: but such limitations could not block future
expansion of the system, as authorized by the terms of the Executive
Order, nor could the officials of the Bureau bind the Government not to
engage in services that are authorized by law. It is a well-known rule that
erroneous application and enforcement of the law by public officers do not
block subsequent correct application of the statute (PLDT vs. Collector of
Internal Revenue, 90 Phil. 676), and that the Government is never
estopped by mistake or error on the part of its agents (Pineda vs. Court of
First Instance of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining
Co. vs. Pineda, 98 Phil. 711, 724).
The theses that the Bureau's commercial services constituted unfair
competition, and that the Bureau was guilty of fraud and abuse under its
contract, are, likewise, untenable.
First, the competition is merely hypothetical, the demand for telephone
service being very much more than the supposed competitors can supply.
As previously noted, the PLDT had 20,000 pending applications at the time,
and the Bureau had another 5,000. The telephone company's inability to
meet the demands for service are notorious even now. Second, the charter
of the defendant expressly provides:
SEC. 14. The rights herein granted shall not be exclusive, and the rights
and power to grant to any corporation, association or person other than the
grantee franchise for the telephone or electrical transmission of message or
signals shall not be impaired or affected by the granting of this franchise: —
(Act 3436)
And third, as the trial court correctly stated, "when the Bureau of
Telecommunications subscribed to the trunk lines, defendant knew or
should have known that their use by the subscriber was more or less public
and all embracing in nature, that is, throughout the Philippines, if not
abroad" (Decision, Record on Appeal, page 216).
The acceptance by the defendant of the payment of rentals, despite its
knowledge that the plaintiff had extended the use of the trunk lines to
commercial purposes, continuously since 1948, implies assent by the
defendant to such extended use. Since this relationship has been
maintained for a long time and the public has patronized both telephone
systems, and their interconnection is to the public convenience, it is too late
for the defendant to claim misuse of its facilities, and it is not now at liberty
to unilaterally sever the physical connection of the trunk lines.
..., but there is high authority for the position that, when such physical
connection has been voluntarily made, under a fair and workable
arrangement and guaranteed by contract and the continuous line has come
to be patronized and established as a great public convenience, such
connection shall not in breach of the agreement be severed by one of the
parties. In that case, the public is held to have such an interest in the
arrangement that its rights must receive due consideration. This position
finds approval in State ex rel. vs. Cadwaller, 172 Ind. 619, 636, 87 N.E.
650, and is stated in the elaborate and learned opinion of Chief Justice
Myers as follows: "Such physical connection cannot be required as of right,
but if such connection is voluntarily made by contract, as is here alleged to
be the case, so that the public acquires an interest in its continuance, the
act of the parties in making such connection is equivalent to a declaration
of a purpose to waive the primary right of independence, and it imposes
upon the property such a public status that it may not be disregarded" —
citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629, and the
reasons upon which it is in part made to rest are referred to in the same
opinion, as follows: "Where private property is by the consent of the owner
invested with a public interest or privilege for the benefit of the public, the
owner can no longer deal with it as private property only, but must hold it
subject to the right of the public in the exercise of that public interest or
privilege conferred for their benefit." Allnut v. Inglis (1810) 12 East, 527.
The doctrine of this early case is the acknowledged law. (Clinton-Dunn Tel.
Co. v. Carolina Tel. & Tel. Co., 74 S.E. 636, 638).
It is clear that the main reason for the objection of the PLDT lies in the fact
that said appellant did not expect that the Bureau's telephone system
would expand with such rapidity as it has done; but this expansion is no
ground for the discontinuance of the service agreed upon.
The last issue urged by the PLDT as appellant is its right to compensation
for the use of its poles for bearing telephone wires of the Bureau of
Telecommunications. Admitting that section 19 of the PLDT charter
reserves to the Government —
the privilege without compensation of using the poles of the grantee to
attach one ten-pin cross-arm, and to install, maintain and operate wires of
its telegraph system thereon; Provided, however, That the Bureau of Posts
shall have the right to place additional cross-arms and wires on the poles of
the grantee by paying a compensation, the rate of which is to be agreed
upon by the Director of Posts and the grantee; —
the defendant counterclaimed for P8,772.00 for the use of its poles by the
plaintiff, contending that what was allowed free use, under the aforequoted
provision, was one ten-pin cross-arm attachment and only for plaintiff's
telegraph system, not for its telephone system; that said section could not
refer to the plaintiff's telephone system, because it did not have such
telephone system when defendant acquired its franchise. The implication of
the argument is that plaintiff has to pay for the use of defendant's poles if
such use is for plaintiff's telephone system and has to pay also if it attaches
more than one (1) ten-pin cross-arm for telegraphic purposes.
As there is no proof that the telephone wires strain the poles of the PLDT
more than the telegraph wires, nor that they cause more damage than the
wires of the telegraph system, or that the Government has attached to the
poles more than one ten-pin cross-arm as permitted by the PLDT charter,
we see no point in this assignment of error. So long as the burden to be
borne by the PLDT poles is not increased, we see no reason why the
reservation in favor of the telegraph wires of the government should not be
extended to its telephone lines, any time that the government decided to
engage also in this kind of communication.
In the ultimate analysis, the true objection of the PLDT to continue the link
between its network and that of the Government is that the latter competes
"parasitically" (sic) with its own telephone services. Considering, however,
that the PLDT franchise is non-exclusive; that it is well-known that
defendant PLDT is unable to adequately cope with the current demands for
telephone service, as shown by the number of pending applications
therefor; and that the PLDT's right to just compensation for the services
rendered to the Government telephone system and its users is herein
recognized and preserved, the objections of defendant-appellant are
without merit. To uphold the PLDT's contention is to subordinate the needs
of the general public to the right of the PLDT to derive profit from the future
expansion of its services under its non-exclusive franchise.
WHEREFORE, the decision of the Court of First Instance, now under
appeal, is affirmed, except in so far as it dismisses the petition of the
Republic of the Philippines to compel the Philippine Long Distance
Telephone Company to continue servicing the Government telephone
system upon such terms, and for a compensation, that the trial court may
determine to be just, including the period elapsed from the filing of the
original complaint or petition. And for this purpose, the records are ordered
returned to the court of origin for further hearings and other proceedings
not inconsistent with this opinion. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando,
Capistrano, Teehankee and Barredo, JJ., concur.

Republic of the Philippines

G.R. No. L-10572 December 21, 1915
FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees,
JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-
Attorney-General Avanceña for appellant.
Aitken and DeSelms for appellees.

The judgment appealed from in this case perpetually restrains and prohibits
the defendant and his deputies from collecting and enforcing against the
plaintiffs and their property the annual tax mentioned and described in
subsection (b) of section 100 of Act No. 2339, effective July 1, 1914, and
from destroying or removing any sign, signboard, or billboard, the property
of the plaintiffs, for the sole reason that such sign, signboard, or billboard is,
or may be, offensive to the sight; and decrees the cancellation of the bond
given by the plaintiffs to secure the issuance of the preliminary injunction
granted soon after the commencement of this action.
This case divides itself into two parts and gives rise to two main questions;
(1) that relating to the power of the court to restrain by injunction the
collection of the tax complained of, and (2) that relating to the validity of those
provisions of subsection (b) of section 100 of Act No. 2339, conferring power
upon the Collector of Internal Revenue to remove any sign, signboard, or
billboard upon the ground that the same is offensive to the sight or is
otherwise a nuisance.
The first question is one of the jurisdiction and is of vital importance to the
Government. The sections of Act No. 2339, which bear directly upon the
subject, are 139 and 140. The first expressly forbids the use of an injunction
to stay the collection of any internal revenue tax; the second provides a
remedy for any wrong in connection with such taxes, and this remedy was
intended to be exclusive, thereby precluding the remedy by injunction, which
remedy is claimed to be constitutional. The two sections, then, involve the
right of a dissatisfied taxpayers to use an exceptional remedy to test the
validity of any tax or to determine any other question connected therewith,
and the question whether the remedy by injunction is exceptional.
Preventive remedies of the courts are extraordinary and are not the usual
remedies. The origin and history of the writ of injunction show that it has
always been regarded as an extraordinary, preventive remedy, as
distinguished from the common course of the law to redress evils after they
have been consummated. No injunction issues as of course, but is granted
only upon the oath of a party and when there is no adequate remedy at law.
The Government does, by section 139 and 140, take away the preventive
remedy of injunction, if it ever existed, and leaves the taxpayer, in a contest
with it, the same ordinary remedial actions which prevail between citizen and
citizen. The Attorney-General, on behalf of the defendant, contends that
there is no provisions of the paramount law which prohibits such a course.
While, on the other hand, counsel for plaintiffs urge that the two sections are
unconstitutional because (a) they attempt to deprive aggrieved taxpayers of
all substantial remedy for the protection of their property, thereby, in effect,
depriving them of their property without due process of law, and (b) they
attempt to diminish the jurisdiction of the courts, as conferred upon them by
Acts Nos. 136 and 190, which jurisdiction was ratified and confirmed by the
Act of Congress of July 1, 1902.
In the first place, it has been suggested that section 139 does not apply to
the tax in question because the section, in speaking of a "tax," means only
legal taxes; and that an illegal tax (the one complained of) is not a tax, and,
therefore, does not fall within the inhibition of the section, and may be
restrained by injunction. There is no force in this suggestion. The inhibition
applies to all internal revenue taxes imposes, or authorized to be imposed,
by Act No. 2339. (Snyder vs. Marks, 109 U.S., 189.) And, furthermore, the
mere fact that a tax is illegal, or that the law, by virtue of which it is imposed,
is unconstitutional, does not authorize a court of equity to restrain its
collection by injunction. There must be a further showing that there are
special circumstances which bring the case under some well recognized
head of equity jurisprudence, such as that irreparable injury, multiplicity of
suits, or a cloud upon title to real estate will result, and also that there is, as
we have indicated, no adequate remedy at law. This is the settled law in the
United States, even in the absence of statutory enactments such as sections
139 and 140. (Hannewinkle vs. Mayor, etc., of Georgetown, 82 U.S., 547;
Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases, 232 U. S., 576,
587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S.,
32; Shelton vs. Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.)
Therefore, this branch of the case must be controlled by sections 139 and
140, unless the same be held unconstitutional, and consequently, null and
The right and power of judicial tribunals to declare whether enactments of
the legislature exceed the constitutional limitations and are invalid has
always been considered a grave responsibility, as well as a solemn duty. The
courts invariably give the most careful consideration to questions involving
the interpretation and application of the Constitution, and approach
constitutional questions with great deliberation, exercising their power in this
respect with the greatest possible caution and even reluctance; and they
should never declare a statute void, unless its invalidity is, in their judgment,
beyond reasonable doubt. To justify a court in pronouncing a legislative act
unconstitutional, or a provision of a state constitution to be in contravention
of the Constitution of the United States, the case must be so clear to be free
from doubt, and the conflict of the statute with the constitution must be
irreconcilable, because it is but a decent respect to the wisdom, the integrity,
and the patriotism of the legislative body by which any law is passed to
presume in favor of its validity until the contrary is shown beyond reasonable
doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative
act to be contrary to the constitution. To doubt the constitutionality of a law
is to resolve the doubt in favor of its validity. (6 Ruling Case Law, secs. 71,
72, and 73, and cases cited therein.)
It is also the settled law in the United States that "due process of law" does
not always require, in respect to the Government, the same process that is
required between citizens, though it generally implies and includes regular
allegations, opportunity to answer, and a trial according to some well settled
course of judicial proceedings. The case with which we are dealing is in point.
A citizen's property, both real and personal, may be taken, and usually is
taken, by the government in payment of its taxes without any judicial
proceedings whatever. In this country, as well as in the United States, the
officer charged with the collection of taxes is authorized to seize and sell the
property of delinquent taxpayers without applying to the courts for
assistance, and the constitutionality of the law authorizing this procedure
never has been seriously questioned. (City of Philadelphia vs. [Diehl] The
Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This
must necessarily be the course, because it is upon taxation that the
Government chiefly relies to obtain the means to carry on its operations, and
it is of the utmost importance that the modes adopted to enforce the
collection of the taxes levied should be summary and interfered with as little
as possible. No government could exist if every litigious man were permitted
to delay the collection of its taxes. This principle of public policy must be
constantly borne in mind in determining cases such as the one under
With these principles to guide us, we will proceed to inquire whether there is
any merit in the two propositions insisted upon by counsel for the plaintiffs.
Section 5 of the Philippine Bill provides: "That no law shall be enacted in said
Islands which shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of the law."
The origin and history of these provisions are well-known. They are found in
substance in the Constitution of the United States and in that of ever state in
the Union.
Section 3224 of the Revised Statutes of the United States, effective since
1867, provides that: "No suit for the purpose of restraining the assessment
or collection of any tax shall be maintained in any court."
Section 139, with which we have been dealing, reads: "No court shall have
authority to grant an injunction to restrain the collection of any internal-
revenue tax."
A comparison of these two sections show that they are essentially the same.
Both expressly prohibit the restraining of taxes by injunction. If the Supreme
Court of the United States has clearly and definitely held that the provisions
of section 3224 do not violate the "due process of law" and "equal protection
of the law" clauses in the Constitution, we would be going too far to hold that
section 139 violates those same provisions in the Philippine Bill. That the
Supreme Court of the United States has so held, cannot be doubted.
In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of
an income tax levied by an act of Congress prior to the one in issue in the
case of Pollock vs. Farmers' Loan & Trust Co. (157 U.S., 429) the court,
through Mr. Justice Miller, said: "If there existed in the courts, state or
National, any general power of impeding or controlling the collection of taxes,
or relieving the hardship incident to taxation, the very existence of the
government might be placed in the power of a hostile judiciary. (Dows vs.
The City of Chicago, 11 Wall., 108.) While a free course of remonstrance
and appeal is allowed within the departments before the money is finally
exacted, the General Government has wisely made the payment of the tax
claimed, whether of customs or of internal revenue, a condition precedent to
a resort to the courts by the party against whom the tax is assessed. In the
internal revenue branch it has further prescribed that no such suit shall be
brought until the remedy by appeal has been tried; and, if brought after this,
it must be within six months after the decision on the appeal. We regard this
as a condition on which alone the government consents to litigate the
lawfulness of the original tax. It is not a hard condition. Few governments
have conceded such a right on any condition. If the compliance with this
condition requires the party aggrieved to pay the money, he must do it."
Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: "That
there might be no misunderstanding of the universality of this principle, it was
expressly enacted, in 1867, that "no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any court." (Rev,
Stat., sec. 3224.) And though this was intended to apply alone to taxes levied
by the United States, it shows the sense of Congress of the evils to be feared
if courts of justice could, in any case, interfere with the process of collecting
taxes on which the government depends for its continued existence. It is a
wise policy. It is founded in the simple philosophy derived from the
experience of ages, that the payment of taxes has to be enforced by
summary and stringent means against a reluctant and often adverse
sentiment; and to do this successfully, other instrumentalities and other
modes of procedure are necessary, than those which belong to courts of
And again, in Snyder vs. Marks (109 U.S., 189), the court said: "The remedy
of a suit to recover back the tax after it is paid is provided by statute, and a
suit to restrain its collection is forbidden. The remedy so given is exclusive,
and no other remedy can be substituted for it. Such has been the current of
decisions in the Circuit Courts of the United States, and we are satisfied it is
a correct view of the law."itc-a1f

In the consideration of the plaintiffs' second proposition, we will attempt to

show (1) that the Philippine courts never have had, since the American
occupation, the power to restrain by injunction the collection of any tax
imposed by the Insular Government for its own purpose and benefit, and (2)
that assuming that our courts had or have such power, this power has not
been diminished or curtailed by sections 139 and 140.
We will first review briefly the former and present systems of taxation. Upon
the American occupation of the Philippine, there was found a fairly complete
system of taxation. This system was continued in force by the military
authorities, with but few changes, until the Civil Government assumed
charge of the subject. The principal sources of revenue under the Spanish
regime were derived from customs receipts, the so-called industrial taxes,
the urbana taxes, the stamp tax, the personal cedula tax, and the sale of the
public domain. The industrial and urbana taxes constituted practically an
income tax of some 5 per cent on the net income of persons engaged in
industrial and commercial pursuits and on the income of owners of improved
city property. The sale of stamped paper and adhesive stamp tax. The cedula
tax was a graduated tax, ranging from nothing up to P37.50. The revenue
derived from the sale of the public domain was not considered a tax. The
American authorities at once abolished the cedula tax, but later restored it in
a modified form, charging for each cedula twenty centavos, an amount which
was supposed to be just sufficient to cover the cost of issuance. The urbana
tax was abolished by Act No. 223, effective September 6, 1901.
The "Municipal Code" (Act No. 82) and the Provincial Government Act (No.
83), both enacted in 1901, authorize municipal councils and provincial
boards to impose an ad valorem tax on real estate. The Municipal Code did
not apply to the city of Manila. This city was given a special charter (Act No.
183), effective August 30, 1901; Under this charter the Municipal Board of
Manila is authorized and empowered to impose taxes upon real estate and,
like municipal councils, to license and regulate certain occupations. Customs
matters were completely reorganized by Act No. 355, effective at the port of
Manila on February 7, 1902, and at other ports in the Philippine Islands the
day after the receipt of a certified copy of the Act. The Internal Revenue Law
of 1904 (Act No. 1189), repealed all existing laws, ordinances, etc., imposing
taxes upon the persons, objects, or occupations taxed under that act, and all
industrial taxes and stamp taxes imposed under the Spanish regime were
eliminated, but the industrial tax was continued in force until January 1, 1905.
This Internal Revenue Law did not take away from municipal councils,
provincial boards, and the Municipal Board of the city of Manila the power to
impose taxes upon real estate. This Act (No. 1189), with its amendments,
was repealed by Act No. 2339, an act "revising and consolidating the laws
relative to internal revenue."
Section 84 of Act No. 82 provides that "No court shall entertain any suit
assailing the validity of a tax assessed under this act until the taxpayer shall
have paid, under protest, the taxes assessed against him, . . . ."
This inhibition was inserted in section 17 of Act No. 83 and applies to taxes
imposed by provincial boards. The inhibition was not inserted in the Manila
Charter until the passage of Act No. 1793, effective October 12, 1907. Act
No. 355 expressly makes the payment of the exactions claimed a condition
precedent to a resort to the courts by dissatisfied importers. Section 52 of
Act No. 1189 provides "That no courts shall have authority to grant an
injunction restraining the collection of any taxes imposed by virtue of the
provisions of this Act, but the remedy of the taxpayer who claims that he is
unjustly assessed or taxed shall be by payment under protest of the sum
claimed from him by the Collector of Internal Revenue and by action to
recover back the sum claimed to have been illegally collected."
Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the
same prohibition and remedy. The result is that the courts have been
expressly forbidden, in every act creating or imposing taxes or imposts
enacted by the legislative body of the Philippines since the American
occupation, to entertain any suit assailing the validity of any tax or impost
thus imposed until the tax shall have been paid under protest. The only taxes
which have not been brought within the express inhibition were those
included in that part of the old Spanish system which completely disappeared
on or before January 1, 1905, and possibly the old customs duties which
disappeared in February, 1902.
Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides
that "Courts of First Instance shall have original jurisdiction:
xxx xxx xxx
2. In all civil actions which involve the ... legality of any tax, impost, or
assessment, . . . .
xxx xxx xxx
7. Said courts and their judges, or any of them, shall have power to issue
writs of injunction, mandamus, certiorari, prohibition, quo warranto, and
habeas corpus in their respective provinces and districts, in the manner
provided in the Code of Civil Procedure.
The provisions of the Code of Civil Procedure (Act No. 190), effective
October 1, 1901, which deals with the subject of injunctions, are sections
162 to 172, inclusive. Injunctions, as here defined, are of two kinds;
preliminary and final. The former may be granted at any time after the
commencement of the action and before final judgment, and the latter at the
termination of the trial as the relief or part of the relief prayed for (sec. 162).
Any judge of the Supreme Court may grant a preliminary injunction in any
action pending in that court or in any Court of First Instance. A preliminary
injunction may also be granted by a judge of the Court of First Instance in
actions pending in his district in which he has original jurisdiction (sec. 163).
But such injunctions may be granted only when the complaint shows facts
entitling the plaintiff to the relief demanded (sec. 166), and before a final or
permanent injunction can be granted, it must appear upon the trial of the
action that the plaintiff is entitled to have commission or continuance of the
acts complained of perpetually restrained (sec. 171). These provisions
authorize the institution in Courts of First Instance of what are known as
"injunction suits," the sole object of which is to obtain the issuance of a final
injunction. They also authorize the granting of injunctions as aiders in
ordinary civil actions. We have defined in Davesa vs. Arbes (13 Phil. Rep.,
273), an injunction to be "A "special remedy" adopted in that code (Act 190)
from American practice, and originally borrowed from English legal
procedure, which was there issued by the authority and under the seal of a
court of equity, and limited, as in other cases where equitable relief is sought,
to those cases where there is no "plain, adequate, and complete remedy at
law,"which will not be granted while the rights between the parties are
undetermined, except in extraordinary cases where material and irreparable
injury will be done,"which cannot be compensated in damages . . .
By paragraph 2 of section 56 of Act No. 136, supra, and the provisions of the
various subsequent Acts heretofore mentioned, the Insular Government has
consented to litigate with aggrieved persons the validity of any original tax or
impost imposed by it on condition that this be done in ordinary civil actions
after the taxes or exactions shall have been paid. But it is said that paragraph
2 confers original jurisdiction upon Courts of First Instance to hear and
determine "all civil actions" which involve the validity of any tax, impost or
assessment, and that if the all-inclusive words "all" and "any" be given their
natural and unrestricted meaning, no action wherein that question is involved
can arise over which such courts do not have jurisdiction. (Barrameda vs.
Moir, 25 Phil. Rep., 44.) This is true. But the term "civil actions" had its well
defined meaning at the time the paragraph was enacted. The same
legislative body which enacted paragraph 2 on June 16, 1901, had, just a
few months prior to that time, defined the only kind of action in which the
legality of any tax imposed by it might be assailed. (Sec. 84, Act 82, enacted
January 31, 1901, and sec. 17, Act No. 83, enacted February 6, 1901.) That
kind of action being payment of the tax under protest and an ordinary suit to
recover and no other, there can be no doubt that Courts of First Instance
have jurisdiction over all such actions. The subsequent legislation on the
same subject shows clearly that the Commission, in enacting paragraph 2,
supra, did not intend to change or modify in any way section 84 of Act No.
82 and section 17 of Act No. 83, but, on the contrary, it was intended that
"civil actions," mentioned in said paragraph, should be understood to mean,
in so far as testing the legality of taxes were concerned, only those of the
kind and character provided for in the two sections above mentioned. It is
also urged that the power to restrain by injunction the collection of taxes or
imposts is conferred upon Courts of First Instance by paragraph 7 of section
56, supra. This paragraph does empower those courts to grant injunctions,
both preliminary and final, in any civil action pending in their districts,
provided always, that the complaint shows facts entitling the plaintiff to the
relief demanded. Injunction suits, such as the one at bar, are "civil actions,"
but of a special or extraordinary character. It cannot be said that the
Commission intended to give a broader or different meaning to the word
"action," used in Chapter 9 of the Code of Civil Procedure in connection with
injunctions, than it gave to the same word found in paragraph 2 of section 56
of the Organic Act. The Insular Government, in exercising the power
conferred upon it by the Congress of the United States, has declared that
the citizens and residents of this country shall pay certain specified taxes
and imposts. The power to tax necessarily carries with it the power to collect
the taxes. This being true, the weight of authority supports the proposition
that the Government may fix the conditions upon which it will consent to
litigate the validity of its original taxes. (Tennessee vs. Sneed, 96 U.S., 69.)
We must, therefore, conclude that paragraph 2 and 7 of section 56 of Act
No. 136, construed in the light of the prior and subsequent legislation to
which we have referred, and the legislative and judicial history of the same
subject in the United States with which the Commission was familiar, do not
empower Courts of firs Instance to interfere by injunction with the collection
of the taxes in question in this case.

If we are in error as to the scope of paragraph 2 and 7, supra, and the

Commission did intend to confer the power upon the courts to restrain the
collection of taxes, it does not necessarily follow that this power or jurisdiction
has been taken away by section 139 of Act No. 2339, for the reason that all
agree that an injunction will not issue in any case if there is an adequate
remedy at law. The very nature of the writ itself prevents its issuance under
such circumstances. Legislation forbidding the issuing of injunctions in such
cases is unnecessary. So the only question to be here determined is whether
the remedy provided for in section 140 of Act No. 2339 is adequate. If it is,
the writs which form the basis of this appeal should not have been issued. If
this is the correct view, the authority to issue injunctions will not have been
taken away by section 139, but rendered inoperative only by reason of an
adequate remedy having been made available.
The legislative body of the Philippine Islands has declared from the
beginning (Act No. 82) that payment under protest and suit to recover is an
adequate remedy to test the legality of any tax or impost, and that this
remedy is exclusive. Can we say that the remedy is not adequate or that it is
not exclusive, or both? The plaintiffs in the case at bar are the first, in so far
as we are aware, to question either the adequacy or exclusiveness of this
remedy. We will refer to a few cases in the United States where statutes
similar to sections 139 and 140 have been construed and applied.
In May, 1874, one Bloomstein presented a petition to the circuit court sitting
in Nashville, Tennessee, stating that his real and personal property had been
assessed for state taxes in the year 1872 to the amount of $132.60; that he
tendered to the collector this amount in "funds receivable by law for such
purposes;" and that the collector refused to receive the same. He prayed for
an alternative writ of mandamus to compel the collector to receive the bills in
payment for such taxes, or to show cause to the contrary. To this petition the
collector, in his answer, set up the defense that the petitioner's suit was
expressly prohibited by the Act of the General Assembly of the State of
Tennessee, passed in 1873. The petition was dismissed and the relief
prayed for refused. An appeal to the supreme court of the State resulted in
the affirmance of the judgment of the lower court. The case was then carried
to the Supreme Court of the United States (Tennessee vs. Sneed, 96 U. S.,
69), where the judgment was again affirmed.
The two sections of the Act of [March 21,] 1873, drawn in question in that
cases, read as follows:
1. That in all cases in which an officer, charged by law with the collection of
revenue due the State, shall institute any proceeding, or take any steps for
the collection of the same, alleged or claimed to be due by said officer from
any citizen, the party against whom the proceeding or step is taken shall, if
he conceives the same to be unjust or illegal, or against any statute or clause
of the Constitution of the State, pay the same under protest; and, upon his
making said payment, the officer or collector shall pay such revenue into the
State Treasury, giving notice at the time of payment to the Comptroller that
the same was paid under protest; and the party paying said revenue may, at
any time within thirty days after making said payment, and not longer
thereafter, sue the said officer having collected said sum, for the recovery
thereof. And the same may be tried in any court having the jurisdiction of the
amount and parties; and, if it be determined that the same was wrongfully
collected, as not being due from said party to the State, for any reason going
to the merits of the same, then the court trying the case may certify of record
that the same was wrongfully paid and ought to be refunded; and thereupon
the Comptroller shall issue his warrant for the same, which shall be paid in
preference to other claims on the Treasury.
2. That there shall be no other remedy, in any case of the collection of
revenue, or attempt to collect revenue illegally, or attempt to collect revenue
in funds only receivable by said officer under the law, the same being other
or different funds than such as the tax payer may tender, or claim the right
to pay, than that above provided; and no writ for the prevention of the
collection of any revenue claimed, or to hinder or delay the collection of the
same, shall in anywise issue, either injunction, supersedeas, prohibition, or
any other writ or process whatever; but in all cases in which, for any reason,
any person shall claim that the tax so collected was wrongfully or illegally
collected, the remedy for said party shall be as above provided, and in no
other manner."
In discussing the adequacy of the remedy provided by the Tennessee
Legislature, as above set forth, the Supreme Court of the United States, in
the case just cited, said: "This remedy is simple and effective. A suit at law
to recover money unlawfully exacted is as speedy, as easily tried, and less
complicated than a proceeding by mandamus. ... In revenue cases, whether
arising upon its (United States) Internal Revenue Laws or those providing for
the collection of duties upon foreign imports, it (United States) adopts the
rule prescribed by the State of Tennessee. It requires the contestant to pay
the amount as fixed by the Government, and gives him power to sue the
collector, and in such suit to test the legality of the tax. There is nothing illegal
or even harsh in this. It is a wise and reasonable precaution for the security
of the Government."
Thomas C. Platt commenced an action in the Circuit Court of the United
States for the Eastern District of Tennessee to restrain the collection of a
license tax from the company which he represented. The defense was that
sections 1 and 2 of the Act of 1873, supra, prohibited the bringing of that suit.
This case also reached the Supreme Court of the United States. (Shelton vs.
Platt, 139 U. 591.) In speaking of the inhibitory provisions of sections 1 and
2 of the Act of 1873, the court said: "This Act has been sanctioned and
applied by the Courts of Tennessee. (Nashville vs. Smith, 86 Tenn., 213;
Louisville & N. R. Co. vs. State, 8 Heisk., 663, 804.) It is, as counsel observe,
similar to the Act of Congress forbidding suit for the purpose of restraining
the assessment or collection of taxes under the Internal Revenue Laws, in
respect to which this court held that the remedy by suit to recover back the
tax after payment, provided for by the Statute, was exclusive. (Snyder vs.
Marks, of this character has been called for by the embarrassments resulting
from the improvident employment of the writ of injunction in arresting the
collection of the public revenue; and, even in its absence, the strong arm of
the court of chancery ought not to be interposed in that direction except
where resort to that court is grounded upon the settled principles which
govern its jurisdiction."
In Louisville & N.R. Co. vs. State (8 Heisk. [64 Tenn.], 663, 804), cited by the
Supreme Court of the United States in Shelton vs. Platt, supra, the court
said: "It was urged that this statute (sections 1 and 2 of the Act of 1873,
supra) is unconstitutional and void, as it deprives the citizen of the remedy
by certiorari, guaranteed by the organic law."
By the 10th section of the sixth article of the Constitution, [Tennessee] it is
provided that: "The judges or justices of inferior courts of law and equity shall
have power in all civil cases to issue writs of certiorari, to remove any cause,
or the transcript of the record thereof, from any inferior jurisdiction into such
court of law, on sufficient cause, supported by oath or affirmation."
The court held the act valid as not being in conflict with these provisions of
the State constitution.
In Eddy vs. The Township of Lee (73 Mich., 123), the complainants sought
to enjoin the collection of certain taxes for the year 1886. The defendants, in
support of their demurrer, insisted that the remedy by injunction had been
taken away by section 107 of the Act of 1885, which section reads as follows:
"No injunction shall issue to stay proceedings for the assessment or
collection of taxes under this Act."
It was claimed by the complainants that the above quoted provisions of the
Act of 1885 were unconstitutional and void as being in conflict with article 6,
sec. 8, of the Constitution, which provides that: "The circuit courts shall have
original jurisdiction in all matters, civil and criminal, not excepted in this
Constitution, and not prohibited by law. ... They shall also have power to
issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari,
and other writs necessary to carry into effect their orders, judgments, and
Mr. Justice Champlin, speaking for the court, said: "I have no doubt that the
Legislature has the constitutional authority, where it has provided a plain,
adequate, and complete remedy at law to recover back taxes illegally
assessed and collected, to take away the remedy by injunction to restrain
their collection."
Section 9 of the Philippine Bill reads in part as follows: "That the Supreme
Court and the Courts of First Instance of the Philippine Islands shall possess
and exercise jurisdiction as heretofore provided and such additional
jurisdiction as shall hereafter be prescribed by the Government of said
Islands, subject to the power of said Government to change the practice and
method of procedure."
It will be seen that this section has not taken away from the Philippine
Government the power to change the practice and method of procedure. If
sections 139 and 140, considered together, and this must always be done,
are nothing more than a mode of procedure, then it would seem that the
Legislature did not exceed its constitutional authority in enacting them.
Conceding for the moment that the duly authorized procedure for the
determination of the validity of any tax, impost, or assessment was by
injunction suits and that this method was available to aggrieved taxpayers
prior to the passage of Act No. 2339, may the Legislature change this method
of procedure? That the Legislature has the power to do this, there can be no
doubt, provided some other adequate remedy is substituted in lieu thereof.
In speaking of the modes of enforcing rights created by contracts, the
Supreme Court of the United States, in Tennessee vs. Sneed, supra, said:
"The rule seems to be that in modes of proceedings and of forms to enforce
the contract the Legislature has the control, and may enlarge, limit or alter
them, provided that it does not deny a remedy, or so embarrass it with
conditions and restrictions as seriously to impair the value of the right."
In that case the petitioner urged that the Acts of 1873 were laws impairing
the obligation of the contract contained in the charter of the Bank of
Tennessee, which contract was entered into with the State in 1838. It was
claimed that this was done by placing such impediments and obstructions in
the way of its enforcement, thereby so impairing the remedies as practically
to render the obligation of no value. In disposing of this contention, the court
said: "If we assume that prior to 1873 the relator had authority to prosecute
his claim against the State by mandamus, and that by the statutes of that
year the further use of that form was prohibited to him, the question remains.
whether an effectual remedy was left to him or provided for him. We think
the regulation of the statute gave him an abundant means of enforcing such
right as he possessed. It provided that he might pay his claim to the collector
under protest, giving notice thereof to the Comptroller of the Treasury; that
at any time within thirty days thereafter he might sue the officer making the
collection; that the case should be tried by any court having jurisdiction and,
if found in favor of the plaintiff on the merits, the court should certify that the
same was wrongfully paid and ought to be refunded and the Comptroller
should thereupon issue his warrant therefor, which should be paid in
preference to other claim on the Treasury."
But great stress is laid upon the fact that the plaintiffs in the case under
consideration are unable to pay the taxes assessed against them and that if
the law is enforced, they will be compelled to suspend business. This point
may be best answered by quoting from the case of Youngblood vs. Sexton
(32 Mich., 406), wherein Judge Cooley, speaking for the court, said: "But if
this consideration is sufficient to justify the transfer of a controversy from a
court of law to a court of equity, then every controversy where money is
demanded may be made the subject of equitable cognizance. To enforce
against a dealer a promissory note may in some cases as effectually break
up his business as to collect from him a tax of equal amount. This is not what
is known to the law as irreparable injury. The courts have never recognized
the consequences of the mere enforcement of a money demand as falling
within that category."
Certain specified sections of Act No. 2339 were amended by Act No. 2432,
enacted December 23, 1914, effective January 1, 1915, by imposing
increased and additional taxes. Act No. 2432 was amended, were ratified by
the Congress of the United States on March 4, 1915. The opposition
manifested against the taxes imposed by Acts Nos. 2339 and 2432 is a
matter of local history. A great many business men thought the taxes thus
imposed were too high. If the collection of the new taxes on signs,
signboards, and billboards may be restrained, we see no well-founded
reason why injunctions cannot be granted restraining the collection of all or
at least a number of the other increased taxes. The fact that this may be
done, shows the wisdom of the Legislature in denying the use of the writ of
injunction to restrain the collection of any tax imposed by the Acts. When this
was done, an equitable remedy was made available to all dissatisfied
The question now arises whether, the case being one of which the court
below had no jurisdiction, this court, on appeal, shall proceed to express an
opinion upon the validity of provisions of subsection (b) of section 100 of Act
No. 2339, imposing the taxes complained of. As a general rule, an opinion
on the merits of a controversy ought to be declined when the court is
powerless to give the relief demanded. But it is claimed that this case is, in
many particulars, exceptional. It is true that it has been argued on the merits,
and there is no reason for any suggestion or suspicion that it is not a bona
fide controversy. The legal points involved in the merits have been presented
with force, clearness, and great ability by the learned counsel of both sides.
If the law assailed were still in force, we would feel that an opinion on its
validity would be justifiable, but, as the amendment became effective on
January 1, 1915, we think it advisable to proceed no further with this branch
of the case.
The next question arises in connection with the supplementary complaint,
the object of which is to enjoin the Collector of Internal Revenue from
removing certain billboards, the property of the plaintiffs located upon private
lands in the Province of Rizal. The plaintiffs allege that the billboards here in
question "in no sense constitute a nuisance and are not deleterious to the
health, morals, or general welfare of the community, or of any persons." The
defendant denies these allegations in his answer and claims that after due
investigation made upon the complaints of the British and German Consuls,
he "decided that the billboard complained of was and still is offensive to the
sight, and is otherwise a nuisance." The plaintiffs proved by Mr. Churchill that
the "billboards were quite a distance from the road and that they were
strongly built, not dangerous to the safety of the people, and contained no
advertising matter which is filthy, indecent, or deleterious to the morals of the
community." The defendant presented no testimony upon this point. In the
agreed statement of facts submitted by the parties, the plaintiffs "admit that
the billboards mentioned were and still are offensive to the sight."
The pertinent provisions of subsection (b) of section 100 of Act No. 2339
read: "If after due investigation the Collector of Internal Revenue shall decide
that any sign, signboard, or billboard displayed or exposed to public view is
offensive to the sight or is otherwise a nuisance, he may by summary order
direct the removal of such sign, signboard, or billboard, and if same is not
removed within ten days after he has issued such order he my himself cause
its removal, and the sign, signboard, or billboard shall thereupon be forfeited
to the Government, and the owner thereof charged with the expenses of the
removal so effected. When the sign, signboard, or billboard ordered to be
removed as herein provided shall not comply with the provisions of the
general regulations of the Collector of Internal Revenue, no rebate or refund
shall be allowed for any portion of a year for which the tax may have been
paid. Otherwise, the Collector of Internal Revenue may in his discretion make
a proportionate refund of the tax for the portion of the year remaining for
which the taxes were paid. An appeal may be had from the order of the
Collector of Internal Revenue to the Secretary of Finance and Justice whose
decision thereon shall be final."
The Attorney-General, on behalf of the defendant, says: "The question which
the case presents under this head for determination, resolves itself into this
inquiry: Is the suppression of advertising signs displayed or exposed to public
view, which are admittedly offensive to the sight, conducive to the public
And cunsel for the plaintiffs states the question thus: "We contend that that
portion of section 100 of Act No. 2339, empowering the Collector of Internal
Revenue to remove billboards as nuisances, if objectionable to the sight, is
unconstitutional, as constituting a deprivation of property without due
process of law."
From the position taken by counsel for both sides, it is clear that our inquiry
is limited to the question whether the enactment assailed by the plaintiffs was
a legitimate exercise of the police power of the Government; for all property
is held subject to that power.
As a consequence of the foregoing, all discussion and authorities cited,
which go to the power of the state to authorize administrative officers to find,
as a fact, that legitimate trades, callings, and businesses are, under certain
circumstances, statutory nuisances, and whether the procedure prescribed
for this purpose is due process of law, are foreign to the issue here
There can be no doubt that the exercise of the police power of the Philippine
Government belongs to the Legislature and that this power is limited only by
the Acts of Congress and those fundamentals principles which lie at the
foundation of all republican forms of government. An Act of the Legislature
which is obviously and undoubtedly foreign to any of the purposes of the
police power and interferes with the ordinary enjoyment of property would,
without doubt, be held to be invalid. But where the Act is reasonably within a
proper consideration of and care for the public health, safety, or comfort, it
should not be disturbed by the courts. The courts cannot substitute their own
views for what is proper in the premises for those of the Legislature. In Munn
vs. Illinois (94 U.S., 113), the United States Supreme Court states the rule
thus: "If no state of circumstances could exist to justify such statute, then we
may declare this one void because in excess of the legislative power of this
state; but if it could, we must presume it did. Of the propriety of legislative
interference, within the scope of the legislative power, a legislature is the
exclusive judge."
This rule very fully discussed and declared in Powell vs. Pennsylvania (127
U.S., 678) — "oleo-margarine" case. (See also Crowley vs. Christensen, 137
U.S., 86, 87; Camfield vs. U.S., 167 U.S., 518.) While the state may interfere
wherever the public interests demand it, and in this particular a large
discretion is necessarily vested in the legislature to determine, not only what
the interest of the public require, but what measures are necessary for the
protection of such interests; yet, its determination in these matters is not final
or conclusive, but is subject to the supervision of the courts. (Lawton vs.
Steele, 152 U.S., 133.) Can it be said judicially that signs, signboards, and
billboards, which are admittedly offensive to the sight, are not with the
category of things which interfere with the public safety, welfare, and comfort,
and therefore beyond the reach of the police power of the Philippine
The numerous attempts which have been made to limit by definition the
scope of the police power are only interesting as illustrating its rapid
extension within comparatively recent years to points heretofore deemed
entirely within the field of private liberty and property rights. Blackstone's
definition of the police power was as follows: "The due regulation and
domestic order of the kingdom, whereby the individuals of the state, like
members of a well governed family, are bound to conform their general
behavior to the rules of propriety, good neigborhood, and good manners, to
be decent, industrious, and inoffensive in their respective stations."
(Commentaries, vol. 4, p. 162.)
Chanceller Kent considered the police power the authority of the state "to
regulate unwholesome trades, slaughter houses, operations offensive to the
senses." Chief Justice Shaw of Massachusetts defined it as follows: "The
power vested in the legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution,
as they shall judge to be for the good and welfare of the commonwealth, and
of the subjects of the same." (Com. vs. Alger, 7 Cush., 53.)
In the case of Butchers' Union Slaughter-house, etc. Co. vs. Crescent City
Live Stock Landing, etc. Co. (111 U.S., 746), it was suggested that the public
health and public morals are matters of legislative concern of which the
legislature cannot divest itself. (See State vs. Mountain Timber Co. [1913],
75 Wash., 581, where these definitions are collated.)
In Champer vs. Greencastle (138 Ind., 339), it was said: "The police power
of the State, so far, has not received a full and complete definition. It may be
said, however, to be the right of the State, or state functionary, to prescribe
regulations for the good order, peace, health, protection, comfort,
convenience and morals of the community, which do not ... violate any of the
provisions of the organic law." (Quoted with approval in Hopkins vs.
Richmond [Va., 1915], 86 S.E., 139.)
In Com. vs. Plymouth Coal Co. ([1911] 232 Pa., 141), it was said: "The police
power of the state is difficult of definition, but it has been held by the courts
to be the right to prescribe regulations for the good order, peace, health,
protection, comfort, convenience and morals of the community, which does
not encroach on a like power vested in congress or state legislatures by the
federal constitution, or does not violate the provisions of the organic law; and
it has been expressly held that the fourteenth amendment to the federal
constitution was not designed to interfere with the exercise of that power by
the state."
In People vs. Brazee ([Mich., 1914], 149 N.W., 1053), it was said: "It [the
police power] has for its object the improvement of social and economic
conditioned affecting the community at large and collectively with a view to
bring about "he greatest good of the greatest number."Courts have
consistently and wisely declined to set any fixed limitations upon subjects
calling for the exercise of this power. It is elastic and is exercised from time
to time as varying social conditions demand correction."
In 8 Cyc., 863, it is said: "Police power is the name given to that inherent
sovereignty which it is the right and duty of the government or its agents to
exercise whenever public policy, in a broad sense, demands, for the benefit
of society at large, regulations to guard its morals, safety, health, order or to
insure in any respect such economic conditions as an advancing civilization
of a high complex character requires." (As quoted with approval in Stettler
vs. O'Hara [1914], 69 Ore, 519.)
Finally, the Supreme Court of the United States has said in Noble State Bank
vs. Haskell (219 U.S. [1911], 575: "It may be said in a general way that the
police power extends to all the great public needs. It may be put forth in aid
of what is sanctioned by usage, or held by the prevailing morality or strong
and preponderant opinion to be greatly and immediately necessary to the
public welfare."
This statement, recent as it is, has been quoted with approval by several
courts. (Cunningham vs. Northwestern Imp. Co. [1911], 44 Mont., 180; State
vs. Mountain Timber Co. [1913], 75 Wash., 581; McDavid vs. Bank of Bay
Minette [Ala., 1915], 69 Sou., 452; Hopkins vs. City of Richmond [Va., 1915],
86 S.E., 139; State vs. Philipps [Miss. 1915], 67 Sou., 651.)
It was said in Com. vs. Alger (7 Cush., 53, 85), per Shaw, C.J., that: "It is
much easier to perceive and realize the existence and sources of this police
power than to mark its boundaries, or to prescribe limits to its exercise." In
Stone vs. Mississippi (101 U.S., 814), it was said: "Many attempts have been
made in this court and elsewhere to define the police power, but never with
entire success. It is always easier to determine whether a particular case
comes within the general scope of the power, than to give an abstract
definition of the power itself, which will be in all respects accurate."
Other courts have held the same vow of efforts to evolve a satisfactory
definition of the police power. Manifestly, definitions which fail to anticipate
cases properly within the scope of the police power are deficient. It is
necessary, therefore, to confine our discussion to the principle involved and
determine whether the cases as they come up are within that principle. The
basic idea of civil polity in the United States is that government should
interfere with individual effort only to the extent necessary to preserve a
healthy social and economic condition of the country. State interference with
the use of private property may be exercised in three ways. First, through
the power of taxation, second, through the power of eminent domain, and
third, through the police power. Buy the first method it is assumed that the
individual receives the equivalent of the tax in the form of protection and
benefit he receives from the government as such. By the second method he
receives the market value of the property taken from him. But under the third
method the benefits he derived are only such as may arise from the
maintenance of a healthy economic standard of society and is often referred
to as damnum absque injuria. (Com. vs. Plymouth Coal Co. 232 Pa., 141;
Bemis vs. Guirl Drainage Co., 182 Ind., 36.) There was a time when state
interference with the use of private property under the guise of the police
power was practically confined to the suppression of common nuisances. At
the present day, however, industry is organized along lines which make it
possible for large combinations of capital to profit at the expense of the socio-
economic progress of the nation by controlling prices and dictating to
industrial workers wages and conditions of labor. Not only this but the
universal use of mechanical contrivances by producers and common carriers
has enormously increased the toll of human life and limb in the production
and distribution of consumption goods. To the extent that these businesses
affect not only the public health, safety, and morals, but also the general
social and economic life of the nation, it has been and will continue to be
necessary for the state to interfere by regulation. By so doing, it is true that
the enjoyment of private property is interfered with in no small degree and in
ways that would have been considered entirely unnecessary in years gone
by. The regulation of rates charged by common carriers, for instance, or the
limitation of hours of work in industrial establishments have only a very
indirect bearing upon the public health, safety, and morals, but do bear
directly upon social and economic conditions. To permit each individual unit
of society to feel that his industry will bring a fair return; to see that his work
shall be done under conditions that will not either immediately or eventually
ruin his health; to prevent the artificial inflation of prices of the things which
are necessary for his physical well being are matters which the individual is
no longer capable of attending to himself. It is within the province of the police
power to render assistance to the people to the extent that may be necessary
to safeguard these rights. Hence, laws providing for the regulation of wages
and hours of labor of coal miners (Rail & River Coal Co. vs. Taylor, 234 U.S.,
224); requiring payment of employees of railroads and other industrial
concerns in legal tender and requiring salaries to be paid semimonthly (Erie
R.R. Co. vs. Williams, 233 U.S., 685); providing a maximum number of hours
of labor for women (Miller vs. Wilson, U.S. Sup. Ct. [Feb. 23, 1915], Adv.
Opns., p. 342); prohibiting child labor (Sturges & Burn vs. Beauchamp, 231
U.S., 320); restricting the hours of labor in public laundries (In re Wong Wing,
167 Cal., 109); limiting hours of labor in industrial establishment generally
(State vs. Bunting, 71 Ore., 259); Sunday Closing Laws (State vs. Nicholls
[Ore., 1915], 151 Pac., 473; People vs. C. Klinck Packing Co. [N.Y., 1915],
108 N. E., 278; Hiller vs. State [Md., 1914], 92 Atl., 842; State vs. Penny, 42
Mont., 118; City of Springfield vs. Richter, 257 Ill., 578, 580; State vs.
Hondros [S.C., 1915], 84 S.E., 781); have all been upheld as a valid exercise
of the police power. Again, workmen's compensation laws have been quite
generally upheld. These statutes discard the common law theory that
employers are not liable for industrial accidents and make them responsible
for all accidents resulting from trade risks, it being considered that such
accidents are a legitimate charge against production and that the employer
by controlling the prices of his product may shift the burden to the community.
Laws requiring state banks to join in establishing a depositors' guarantee
fund have also been upheld by the Federal Supreme Court in Noble State
Bank vs. Haskell (219 U. S., 104), and Assaria State Bank vs. Dolley (219
U.S., 121).
Offensive noises and smells have been for a long time considered
susceptible of suppression in thickly populated districts. Barring livery
stables from such locations was approved of in Reinman vs. Little Rock (U.S.
Sup. Ct. [Apr. 5, 1915], U.S. Adv. Opns., p. 511). And a municipal ordinance
was recently upheld (People vs. Ericsson, 263 Ill., 368), which prohibited the
location of garages within two hundred feet of any hospital, church, or school,
or in any block used exclusively for residential purposes, unless the consent
of the majority of the property owners be obtained. Such statutes as these
are usually upheld on the theory of safeguarding the public health. But we
apprehend that in point of fact they have little bearing upon the health of the
normal person, but a great deal to do with his physical comfort and
convenience and not a little to do with his peace of mind. Without entering
into the realm of psychology, we think it quite demonstrable that sight is as
valuable to a human being as any of his other senses, and that the proper
ministration to this sense conduces as much to his contentment as the care
bestowed upon the senses of hearing or smell, and probably as much as
both together. Objects may be offensive to the eye as well as to the nose or
ear. Man's esthetic feelings are constantly being appealed to through his
sense of sight. Large investments have been made in theaters and other
forms of amusement, in paintings and spectacular displays, the success of
which depends in great part upon the appeal made through the sense of
sight. Moving picture shows could not possible without the sense of sight.
Governments have spent millions on parks and boulevards and other forms
of civic beauty, the first aim of which is to appeal to the sense of sight. Why,
then, should the Government not interpose to protect from annoyance this
most valuable of man's senses as readily as to protect him from offensive
noises and smells?
The advertising industry is a legitimate one. It is at the same time a cause
and an effect of the great industrial age through which the world is now
passing. Millions are spent each year in this manner to guide the consumer
to the articles which he needs. The sense of sight is the primary essential to
advertising success. Billboard advertising, as it is now conducted, is a
comparatively recent form of advertising. It is conducted out of doors and
along the arteries of travel, and compels attention by the strategic locations
of the boards, which obstruct the range of vision at points where travelers
are most likely to direct their eyes. Beautiful landscapes are marred or may
not be seen at all by the traveler because of the gaudy array of posters
announcing a particular kind of breakfast food, or underwear, the coming of
a circus, an incomparable soap, nostrums or medicines for the curing of all
the ills to which the flesh is heir, etc. It is quite natural for people to protest
against this indiscriminate and wholesale use of the landscape by
advertisers and the intrusion of tradesmen upon their hours of leisure and
relaxation from work. Outdoor life must lose much of its charm and pleasure
if this form of advertising is permitted to continue unhampered until it
converts the streets and highways into veritable canyons through which the
world must travel in going to work or in search of outdoor pleasure.
The success of billboard advertising depends not so much upon the use of
private property as it does upon the use of the channels of travel used by the
general public. Suppose that the owner of private property, who so vigorously
objects to the restriction of this form of advertising, should require the
advertiser to paste his posters upon the billboards so that they would face
the interior of the property instead of the exterior. Billboard advertising would
die a natural death if this were done, and its real dependency not upon the
unrestricted use of private property but upon the unrestricted use of the
public highways is at once apparent. Ostensibly located on private property,
the real and sole value of the billboard is its proximity to the public
thoroughfares. Hence, we conceive that the regulation of billboards and their
restriction is not so much a regulation of private property as it is a regulation
of the use of the streets and other public thoroughfares.
We would not be understood as saying that billboard advertising is not a
legitimate business any more than we would say that a livery stable or an
automobile garage is not. Even a billboard is more sightly than piles of
rubbish or an open sewer. But all these businesses are offensive to the
senses under certain conditions.
It has been urged against ministering to the sense of sight that tastes are so
diversified that there is no safe standard of legislation in this direction. We
answer in the language of the Supreme Court in Noble State Bank vs.
Haskell (219 U.S., 104), and which has already been adopted by several
state courts (see supra), that "the prevailing morality or strong and
preponderating opinion" demands such legislation. The agitation against the
unrestrained development of the billboard business has produced results in
nearly all the countries of Europe. (Ency. Britannica, vol. 1, pp. 237-240.)
Many drastic ordinances and state laws have been passed in the United
States seeking to make the business amenable to regulation. But their
regulation in the United states is hampered by what we conceive an
unwarranted restriction upon the scope of the police power by the courts. If
the police power may be exercised to encourage a healthy social and
economic condition in the country, and if the comfort and convenience of the
people are included within those subjects, everything which encroaches
upon such territory is amenable to the police power. A source of annoyance
and irritation to the public does not minister to the comfort and convenience
of the public. And we are of the opinion that the prevailing sentiment is
manifestly against the erection of billboards which are offensive to the sight.
We do not consider that we are in conflict with the decision in Eubank vs.
Richmond (226 U.S., 137), where a municipal ordinance establishing a
building line to which property owners must conform was held
unconstitutional. As we have pointed out, billboard advertising is not so much
a use of private property as it is a use of the public thoroughfares. It derives
its value to the power solely because the posters are exposed to the public
gaze. It may well be that the state may not require private property owners
to conform to a building line, but may prescribe the conditions under which
they shall make use of the adjoining streets and highways. Nor is the law in
question to be held invalid as denying equal protection of the laws. In Keokee
Coke Co. vs. Taylor (234 U.S., 224), it was said: "It is more pressed that the
act discriminates unconstitutionally against certain classes. But while there
are differences of opinion as to the degree and kind of discrimination
permitted by the Fourteenth Amendment, it is established by repeated
decisions that a statute aimed at what is deemed an evil, and hitting it
presumably where experience shows it to be most felt, is not to be upset by
thinking up and enumerating other instances to which it might have been
applied equally well, so far as the court can see. That is for the legislature to
judge unless the case is very clear."
But we have not overlooked the fact that we are not in harmony with the
highest courts of a number of the states in the American Union upon this
point. Those courts being of the opinion that statutes which are prompted
and inspired by esthetic considerations merely, having for their sole purpose
the promotion and gratification of the esthetic sense, and not the promotion
or protection of the public safety, the public peace and good order of society,
must be held invalid and contrary to constitutional provisions holding
inviolate the rights of private property. Or, in other words, the police power
cannot interfere with private property rights for purely esthetic purposes. The
courts, taking this view, rest their decisions upon the proposition that the
esthetic sense is disassociated entirely from any relation to the public health,
morals, comfort, or general welfare and is, therefore, beyond the police
power of the state. But we are of the opinion, as above indicated, that
unsightly advertisements or signs, signboards, or billboards which are
offensive to the sight, are not disassociated from the general welfare of the
public. This is not establishing a new principle, but carrying a well recognized
principle to further application. (Fruend on Police Power, p. 166.)
For the foregoing reasons the judgment appealed from is hereby reversed
and the action dismissed upon the merits, with costs. So ordered.
Arellano, C.J., Torres, Carson, and Araullo, JJ., concur.
Counsel for the plaintiffs call our attention to the case of Ex parte Young (209
U.S., 123); and say that they are of the opinion that this case "is the
absolutely determinative of the question of jurisdiction in injunctions of this
kind." We did not refer to this case in our former opinion because we were
satisfied that the reasoning of the case is not applicable to section 100 (b),
139 and 140 of Act No. 2339. The principles announced in the Young case
are stated as follows: "It may therefore be said that when the penalties for
disobedience are by fines so enormous and imprisonment so severe as to
intimidate the company and its officers from resorting to the courts to test the
validity of the legislation, the result is the same as if the law in terms
prohibited the company from seeking judicial construction of laws which
deeply affect its rights.
It is urged that there is no principle upon which to base the claim that a
person is entitled to disobey a statute at least once, for the purpose of testing
its validity without subjecting himself to the penalties for disobedience
provided by the statute in case it is valid. This is not an accurate statement
of the case. Ordinarily a law creating offenses in the nature of misdemeanors
or felonies relates to a subject over which the jurisdiction of the legislature is
complete in any event. In these case, however, of the establishment of
certain rates without any hearing, the validity of such rates necessarily
depends upon whether they are high enough to permit at least some return
upon the investment (how much it is not now necessary to state), and an
inquiry as to that fact is a proper subject of judicial investigation. If it turns
out that the rates are too low for that purpose, then they are illegal. Now, to
impose upon a party interested the burden of obtaining a judicial decision of
such a question (no prior hearing having ever been given) only upon the
condition that, if unsuccessful, he must suffer imprisonment and pay fines as
provided in these acts, is, in effect, to close up all approaches to the courts,
and thus prevent any hearing upon the question whether the rates as
provided by the acts are not too low, and therefore invalid. The distinction is
obvious between a case where the validity of the acts depends upon the
existence of a fact which can be determined only after investigation of a very
complicated and technical character, and the ordinary case of a statute upon
a subject requiring no such investigation and over which the jurisdiction of
the legislature is complete in any event.
An examination of the sections of our Internal Revenue Law and of the
circumstances under which and the purposes for which they were enacted,
will show that, unlike the statutes under consideration in the above cited
case, their enactment involved no attempt on the part of the Legislature to
prevent dissatisfied taxpayers "from resorting to the courts to test the validity
of the legislation;" no effort to prevent any inquiry as to their validity. While
section 139 does prevent the testing of the validity of subsection (b) of
section 100 in injunction suits instituted for the purpose of restraining the
collection of internal revenue taxes, section 140 provides a complete remedy
for that purpose. And furthermore, the validity of subsection (b) does not
depend upon "the existence of a fact which can be determined only after
investigation of a very complicated and technical character," but the
jurisdiction of the Legislature over the subject with which the subsection
deals "is complete in any event." The judgment of the court in the Young
case rests upon the proposition that the aggrieved parties had no adequate
remedy at law.
Neither did we overlook the case of General Oil Co. vs. Crain (209 U.S.,
211), decided the same day and citing Ex parte Young, supra. In that case
the plaintiff was a Tennessee corporation, with its principal place of business
in Memphis, Tennessee. It was engaged in the manufacture and sale of coal
oil, etc. Its wells and plant were located in Pennsylvania and Ohio. Memphis
was not only its place of business, at which place it sold oil to the residents
of Tennessee, but also a distributing point to which oils were shipped from
Pennsylvania and Ohio and unloaded into various tanks for the purpose of
being forwarded to the Arkansas, Louisiana, and Mississippi customers.
Notwithstanding the fact that the company separated its oils, which were
designated to meet the requirements of the orders from those States, from
the oils for sale in Tennessee, the defendant insisted that he had a right,
under the Act of the Tennessee Legislature, approved April 21, 1899, to
inspect all the oils unlocated in Memphis, whether for sale in that State or
not, and charge and collect for such inspection a regular fee of twenty-five
cents per barrel. The company, being advised that the defendant had no
such right, instituted this action in the inferior States court for the purpose of
enjoining the defendant, upon the grounds stated in the bill, from inspecting
or attempting to inspect its oils. Upon trial, the preliminary injunction which
had been granted at the commencement of the action, was continued in
force. Upon appeal, the supreme court of the State of Tennessee decided
that the suit was one against the State and reversed the judgment of the
Chancellor. In the Supreme Court of the United States, where the case was
reviewed upon a writ of error, the contentions of the parties were stated by
the court as follows: "It is contended by defendant in error that this court is
without jurisdiction because no matter sought to be litigated by plaintiff in
error was determined by the Supreme Court of Tennessee. The court simply
held, it is paid, that, under the laws of the State, it had no jurisdiction to
entertain the suit for any purpose. And it is insisted "hat this holding involved
no Federal question, but only the powers and jurisdiction of the courts of the
State of Tennessee, in respect to which the Supreme Court of Tennessee is
the final arbiter."
Opposing these contentions, plaintiff in error urges that whether a suit is one
against a State cannot depend upon the declaration of a statute, but depends
upon the essential nature ofthe suit, and that the Supreme Court recognized
that the statute "aded nothing to the axiomatic principle that the State, as a
sovereign, is not subject to suit save by its own consent."And it is hence
insisted that the court by dismissing the bill gave effect to the law which was
attacked. It is further insisted that the bill undoubtedly present rights under
the Constitution of the United States and conditions which entitle plaintiff in
error to an injunction for the protection of such rights, and that a statute of
the State which operates to deny such rights, or such relief, `is itself in conflict
with the Constitution of the United States."
That statute of Tennessee, which the supreme court of that State construed
and held to be prohibitory of the suit, was an act passed February 28, 1873,
which provides: "That no court in the State of Tennessee has, nor shall
hereafter have, any power, jurisdiction, or authority to entertain any suit
against the State, or any officer acting by the authority of the State, with a
view to reach the State, its treasury, funds or property; and all such suits now
pending, or hereafter brought, shall be dismissed as to the State, or such
officer, on motion, plea or demurrer of the law officer of the State, or counsel
employed by the State."
The Supreme Court of the United States, after reviewing many cases, said:
"Necessarily, to give adequate protection to constitutional rights a distinction
must be made between valid and invalid state laws, as determining the
character of the suit against state officers. And the suit at bar illustrates the
necessity. If a suit against state officer is precluded in the national courts by
the Eleventh Amendment to the Constitution, and may be forbidden by a
State to its courts, as it is contended in the case at bar that it may be, without
power of review by this court, it must be evident that an easy way is open to
prevent the enforcement of many provisions of the Constitution; and the
Fourteenth Amendment, which is directed at state action, could be nullified
as to much of its operation. ... It being then the right of a party to be protected
against a law which violates a constitutional right, whether by its terms or the
manner of its enforcement, it is manifest that a decision which denies such
protection gives effect to the law, and the decision is reviewable by this
The court then proceeded to consider whether the law of 1899 would, if
administered against the oils in question, violate any constitutional right of
the plaintiff and after finding and adjudging that the oils were not in
movement through the States, that they had reached the destination of their
first shipment, and were held there, not in necessary delay at means of
transportation but for the business purposes and profit of the company, and
resting its judgment upon the taxing power of the State, affirmed the decree
of the supreme court of the State of Tennessee.
From the foregoing it will be seen that the Supreme Court of Tennessee
dismissed the case for want of jurisdiction because the suit was one against
the State, which was prohibited by the Tennessee Legislature. The Supreme
Court of the United States took jurisdiction of the controversy for the reasons
above quoted and sustained the Act of 1899 as a revenue law.
The case of Tennessee vs. Sneed (96 U.S., 69), and Shelton vs. Platt (139
U.S., 591), relied upon in our former opinion, were not cited in General Oil
Co. vs. Crain, supra, because the questions presented and the statutes
under consideration were entirely different. The Act approved March 31,
1873, expressly prohibits the courts from restraining the collection of any tax,
leaving the dissatisfied taxpayer to his exclusive remedy — payment under
protest and suit to recover — while the Act approved February 28, 1873,
prohibits suits against the State.
In upholding the statute which authorizes the removal of signboards or
billboards upon the sole ground that they are offensive to the sight, we
recognized the fact that we are not in harmony with various state courts in
the American Union. We have just examined the decision of the Supreme
Court of the State of Illinois in the recent case (October [December], 1914)
of Thomas Cusack Co. vs. City of Chicago (267 Ill., 344), wherein the court
upheld the validity of a municipal ordinances, which reads as follows: "707.
Frontage consents required. It shall be unlawful for any person, firm or
corporation to erect or construct any bill-board or sign-board in any block on
any public street in which one-half of the buildings on both sides of the street
are used exclusively for residence purposes, without first obtaining the
consent, in writing, of the owners or duly authorized agents of said owners
owning a majority of the frontage of the property, on both sides of the street,
in the block in which such bill-board or sign-board is to be erected,
constructed or located. Such written consent shall be filed with the
commissioner of buildings before a permit shall be issued for the erection,
construction or location of such bill-board or sign-board."
The evidence which the Illinois court relied upon was the danger of fires, the
fact that billboards promote the commission of various immoral and filthy acts
by disorderly persons, and the inadequate police protection furnished to
residential districts. The last objection has no virtue unless one or the other
of the other objections are valid. If the billboard industry does, in fact,
promote such municipal evils to noticeable extent, it seems a curious
inconsistency that a majority of the property owners on a given block may
legalize the business. However, the decision is undoubtedly a considerable
advance over the views taken by other high courts in the United States and
distinguishes several Illinois decisions. It is an advance because it permits
the suppression of billboards where they are undesirable. The ordinance
which the court approved will no doubt cause the virtual suppression of the
business in the residential districts. Hence, it is recognized that under certain
circumstances billboards may be suppressed as an unlawful use of private
property. Logically, it would seem that the premise of fact relied upon is not
very solid. Objections to the billboard upon police, sanitary, and moral
grounds have been, as pointed out by counsel for Churchill and Tait, duly
considered by numerous high courts in the United States, and, with one
exception, have been rejected as without foundation. The exception is the
Supreme Court of Missouri, which advances practically the same line of
reasoning as has the Illinois court in this recent case. (St. Louis Gunning
Advt. Co. vs. City of St. Louis, 137 S. W., 929.) In fact, the Illinois court, in
Haller Sign Works vs. Physical Culture Training School (249 Ill., 436),
"distinguished" in the recent case, said: "There is nothing inherently
dangerous to the health or safety of the public in structures that are properly
erected for advertising purposes."
If a billboard is so constructed as to offer no room for objections on sanitary
or moral grounds, it would seem that the ordinance above quoted would have
to be sustained upon the very grounds which we have advanced in
sustaining our own statute.
It might be well to note that billboard legislation in the United States is
attempting to eradicate a business which has already been firmly
established. This business was allowed to expand unchecked until its very
extent called attention to its objectionable features. In the Philippine Islands
such legislation has almost anticipated the business, which is not yet of such
proportions that it can be said to be fairly established. It may be that the
courts in the United States have committed themselves to a course of
decisions with respect to billboard advertising, the full consequences of
which were not perceived for the reason that the development of the
business has been so recent that the objectionable features of it did not
present themselves clearly to the courts nor to the people. We, in this
country, have the benefit of the experience of the people of the United States
and may make our legislation preventive rather than corrective. There are in
this country, moreover, on every hand in those districts where Spanish
civilization has held sway for so many centuries, examples of architecture
now belonging to a past age, and which are attractive not only to the
residents of the country but to visitors. If the billboard industry is permitted
without constraint or control to hide these historic sites from the passerby,
the country will be less attractive to the tourist and the people will suffer a
district economic loss.
The motion for a rehearing is therefore denied.
Arellano, C.J., Torres, and Carson, JJ., concur.

Republic of the Philippines

G.R. No. L-59234 September 30, 1982
This Petition for "Certiorari, Prohibition and mandamus with Preliminary
Injunction and Temporary Restraining Order" filed by the Taxicab Operators
of Metro Manila, Inc., Felicisimo Cabigao and Ace Transportation, seeks to
declare the nullity of Memorandum Circular No. 77-42, dated October 10,
1977, of the Board of Transportation, and Memorandum Circular No. 52,
dated August 15, 1980, of the Bureau of Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic
corporation composed of taxicab operators, who are grantees of Certificates
of Public Convenience to operate taxicabs within the City of Manila and to
any other place in Luzon accessible to vehicular traffic. Petitioners Ace
Transportation Corporation and Felicisimo Cabigao are two of the members
of TOMMI, each being an operator and grantee of such certificate of public
On October 10, 1977, respondent Board of Transportation (BOT) issued
Memorandum Circular No. 77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure that only safe and
comfortable units are used as public conveyances;
WHEREAS, the riding public, particularly in Metro-Manila, has, time and
again, complained against, and condemned, the continued operation of old
and dilapidated taxis;
WHEREAS, in order that the commuting public may be assured of comfort,
convenience, and safety, a program of phasing out of old and dilapidated
taxis should be adopted;
WHEREAS, after studies and inquiries made by the Board of Transportation,
the latter believes that in six years of operation, a taxi operator has not only
covered the cost of his taxis, but has made reasonable profit for his
NOW, THEREFORE, pursuant to this policy, the Board hereby declares that
no car beyond six years shall be operated as taxi, and in implementation of
the same hereby promulgates the following rules and regulations:
1. As of December 31, 1977, all taxis of Model 1971 and earlier are ordered
withdrawn from public service and thereafter may no longer be registered
and operated as taxis. In the registration of cards for 1978, only taxis of
Model 1972 and later shall be accepted for registration and allowed for
2. As of December 31, 1978, all taxis of Model 1972 are ordered withdrawn
from public service and thereafter may no longer be registered and operated
as taxis. In the registration of cars for 1979, only taxis of Model 1973 and
later shall be accepted for registration and allowed for operation; and every
year thereafter, there shall be a six-year lifetime of taxi, to wit:
1980 — Model 1974
1981 — Model 1975, etc.
All taxis of earlier models than those provided above are hereby ordered
withdrawn from public service as of the last day of registration of each
particular year and their respective plates shall be surrendered directly to the
Board of Transportation for subsequent turnover to the Land Transportation
For an orderly implementation of this Memorandum Circular, the rules herein
shall immediately be effective in Metro-Manila. Its implementation outside
Metro- Manila shall be carried out only after the project has been
implemented in Metro-Manila and only after the date has been determined
by the Board. 1
Pursuant to the above BOT circular, respondent Director of the Bureau of Land
Transportation (BLT) issued Implementing Circular No. 52, dated August 15, 1980,
instructing the Regional Director, the MV Registrars and other personnel of BLT,
all within the National Capitol Region, to implement said Circular, and formulating
a schedule of phase-out of vehicles to be allowed and accepted for registration as
public conveyances. To quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with year models over
six (6) years old are now banned from operating as public utilities in Metro
Manila. As such the units involved should be considered as automatically
dropped as public utilities and, therefore, do not require any further dropping
order from the BOT.
Henceforth, taxi units within the National Capitol Region having year models
over 6 years old shall be refused registration. The following schedule of
phase-out is herewith prescribed for the guidance of all concerned:
Year Model
Automatic Phase-Out Year

Strict compliance here is desired. 2
In accordance therewith, cabs of model 1971 were phase-out in registration year
1978; those of model 1972, in 1979; those of model 1973, in 1980; and those of
model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as
Case No. 80-7553, seeking to nullify MC No. 77-42 or to stop its
implementation; to allow the registration and operation in 1981 and
subsequent years of taxicabs of model 1974, as well as those of earlier
models which were phased-out, provided that, at the time of registration, they
are roadworthy and fit for operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation and
Urgent Motion", praying for an early hearing of their petition. The case was
heard on February 20, 1981. Petitioners presented testimonial and
documentary evidence, offered the same, and manifested that they would
submit additional documentary proofs. Said proofs were submitted on March
27, 1981 attached to petitioners' pleading entitled, "Manifestation,
Presentation of Additional Evidence and Submission of the Case for
Resolution." 3
On November 28, 1981, petitioners filed before the same Board a "Manifestation
and Urgent Motion to Resolve or Decide Main Petition" praying that the case be
resolved or decided not later than December 10, 1981 to enable them, in case of
denial, to avail of whatever remedy they may have under the law for the protection
of their interests before their 1975 model cabs are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the
case, but was later informed that the records of the case could not be
On December 29, 1981, the present Petition was instituted wherein the
following queries were posed for consideration by this Court:
A. Did BOT and BLT promulgate the questioned memorandum circulars in
accord with the manner required by Presidential Decree No. 101, thereby
safeguarding the petitioners' constitutional right to procedural due process?
B. Granting, arguendo, that respondents did comply with the procedural
requirements imposed by Presidential Decree No. 101, would the
implementation and enforcement of the assailed memorandum circulars
violate the petitioners' constitutional rights to.
(1) Equal protection of the law;
(2) Substantive due process; and
(3) Protection against arbitrary and unreasonable classification and
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of Transportation the
4. To fix just and reasonable standards, classification, regulations,
practices, measurements, or service to be furnished, imposed, observed,
and followed by operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to
follow in the exercise of its powers:
Sec. 2. Exercise of powers. — In the exercise of the powers granted in the
preceding section, the Board shag proceed promptly along the method of
legislative inquiry.
Apart from its own investigation and studies, the Board, in its discretion,
may require the cooperation and assistance of the Bureau of
Transportation, the Philippine Constabulary, particularly the Highway Patrol
Group, the support agencies within the Department of Public Works,
Transportation and Communications, or any other government office or
agency that may be able to furnish useful information or data in the
formulation of the Board of any policy, plan or program in the
implementation of this Decree.
The Board may also can conferences, require the submission of position
papers or other documents, information, or data by operators or other
persons that may be affected by the implementation of this Decree, or
employ any other suitable means of inquiry.
In support of their submission that they were denied procedural due
process, petitioners contend that they were not caged upon to submit their
position papers, nor were they ever summoned to attend any conference
prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway
accorded the Board gives it a wide range of choice in gathering necessary
information or data in the formulation of any policy, plan or program. It is
not mandatory that it should first call a conference or require the
submission of position papers or other documents from operators or
persons who may be affected, this being only one of the options open to
the Board, which is given wide discretionary authority. Petitioners cannot
justifiably claim, therefore, that they were deprived of procedural due
process. Neither can they state with certainty that public respondents had
not availed of other sources of inquiry prior to issuing the challenged
Circulars. operators of public conveyances are not the only primary sources
of the data and information that may be desired by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is
neither violative of procedural due process. As held in Central Bank vs.
Hon. Cloribel and Banco Filipino, 44 SCRA 307 (1972):
Pevious notice and hearing as elements of due process, are constitutionally
required for the protection of life or vested property rights, as well as of
liberty, when its limitation or loss takes place in consequence of a judicial or
quasi-judicial proceeding, generally dependent upon a past act or event
which has to be established or ascertained. It is not essential to the validity
of general rules or regulations promulgated to govern future conduct of a
class or persons or enterprises, unless the law provides otherwise.
(Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is
arbitrary and oppressive because the roadworthiness of taxicabs depends
upon their kind of maintenance and the use to which they are subjected,
and, therefore, their actual physical condition should be taken into
consideration at the time of registration. As public contend, however, it is
impractical to subject every taxicab to constant and recurring evaluation,
not to speak of the fact that it can open the door to the adoption of multiple
standards, possible collusion, and even graft and corruption. A reasonable
standard must be adopted to apply to an vehicles affected uniformly, fairly,
and justly. The span of six years supplies that reasonable standard. The
product of experience shows that by that time taxis have fully depreciated,
their cost recovered, and a fair return on investment obtained. They are
also generally dilapidated and no longer fit for safe and comfortable service
to the public specially considering that they are in continuous operation
practically 24 hours everyday in three shifts of eight hours per shift. With
that standard of reasonableness and absence of arbitrariness, the
requirement of due process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal
protection of the law because the same is being enforced in Metro Manila
only and is directed solely towards the taxi industry. At the outset it should
be pointed out that implementation outside Metro Manila is also envisioned
in Memorandum Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum Circular, the rules herein
shall immediately be effective in Metro Manila. Its implementation outside
Metro Manila shall be carried out only after the project has been implemented
in Metro Manila and only after the date has been determined by the Board.
In fact, it is the understanding of the Court that implementation of the Circulars in
Cebu City is already being effected, with the BOT in the process of conducting
studies regarding the operation of taxicabs in other cities.
The Board's reason for enforcing the Circular initially in Metro Manila is that
taxicabs in this city, compared to those of other places, are subjected to
heavier traffic pressure and more constant use. This is of common
knowledge. Considering that traffic conditions are not the same in every city,
a substantial distinction exists so that infringement of the equal protection
clause can hardly be successfully claimed.
As enunciated in the preambular clauses of the challenged BOT Circular, the
overriding consideration is the safety and comfort of the riding public from
the dangers posed by old and dilapidated taxis. The State, in the exercise,
of its police power, can prescribe regulations to promote the health, morals,
peace, good order, safety and general welfare of the people. It can prohibit
all things hurtful to comfort, safety and welfare of society. 5 It may also regulate
property rights. 6 In the language of Chief Justice Enrique M. Fernando "the
necessities imposed by public welfare may justify the exercise of governmental
authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded". 7
In so far as the non-application of the assailed Circulars to other transportation
services is concerned, it need only be recalled that the equal protection clause
does not imply that the same treatment be accorded all and sundry. It applies to
things or persons Identically or similarly situated. It permits of classification of the
object or subject of the law provided classification is reasonable or based on
substantial distinction, which make for real differences, and that it must apply
equally to each member of the class. 8 What is required under the equal protection
clause is the uniform operation by legal means so that all persons under Identical
or similar circumstance would be accorded the same treatment both in privilege
conferred and the liabilities imposed. 9 The challenged Circulars satisfy the
foregoing criteria.
Evident then is the conclusion that the questioned Circulars do not suffer
from any constitutional infirmity. To declare a law unconstitutional, the
infringement of constitutional right must be clear, categorical and undeniable.
WHEREFORE, the Writs prayed for are denied and this Petition is hereby
dismissed. No costs.
Fernando, CJ., Barredo, Makasiar, Concepcion, Jr., Guerrero, Abad Santos,
De Castro, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee and Aquino, JJ., concur in the result.

Republic of the Philippines

G.R. No. L-7012 March 26, 1913
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.
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
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
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
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., dissents.
Republic of the Philippines
G.R. No. 28491 September 29, 1928
TOMAS MONTEVERDE, plaintiff-appellant,
SEBASTIAN T. GENEROSO, Provincial Governor of Davao, ET AL.,
Jose Poblete, Rafael S. Castillo, Leon A. Garcia, Jose V. Diaz and Abad
Santos, Camus, Delgado and Recto for appellant.
Attorney-General Jaranilla for appellees.
This is a case the determination of which could easily be made difficult by
the injection of numerous controversial questions of fact and law, but which
as we view it can readily be decided on a basic legal point arising from the
undisputed facts and on a concession without decision of all disputed facts
in favor of the Government. On this basis, the ultimate and decisive question
is this: Is a provincial governor, a district engineer, or a district health officer
authorized to destroy private property consisting of dams and fishponds
summarily and without any judicial proceedings whatever under the pretense
that such private property constitutes a nuisance?
The undisputed facts are these: Tomas Monteverde is the owner of a parcel
of land situated in the barrio of Santa Ana, municipality of Davao, Province
of Davao. He possesses a Torrens title to the land obtained in 1921. The
parcel of land is bounded on the northwest by the Agdao River. The
Tambongon Creek is a branch of the Agdao River and Runs through
Monteverde's land. For fishpond purposes, Monteverde constructed two
dams across the Agdao River and five dams across the Tambongon Creek.
The two dams in the Agdao River were destroyed by order of the district
engineer of Davao. The Provincial governor of Davao also threatened to
destroy the other dams in the Tambongon Creek. The motive behind the
destruction of the dams in the Agdao River and the proposed destruction of
the dams in the Tambongon Creek was to safeguard the public health. To
prevent the contemplated action with reference to the Tambongon Creek,
Monteverde sought in the Court of First Instance of Davao to obtain an order
of injunction in restraint of the provincial governor, the district engineer, and
the district health officer, but in this attempt Monteverde was unsuccessful in
the lower court.
To the undisputed facts, there may be added for the purposes of the decision
without necessarily having to resolve them the following: The fishponds were
constructed in 1921 and 1922 and did not exist as the result of a concession
in Spanish times. The Tambongon Creek running through Monteverde's
property is navigable and as much is of public ownership. (See in this
connection the cases of Samson vs. Dionisio and Fabian [1908], 11 Phil.,
538, and Bautista vs. Alarcon [1912], 23 Phil., 631.)
The reason for the contemplated action by the provincial governor and the
legal authority on which he relied are disclosed by the communication from
the provincial governor to the plaintiff reading as follows:
Sta. Ana, Davao
SIR: There have been referred to this office several complaints against you
for having closed some of the branches of the Agdao River for fishpond
purposes without previous authorization from competent authorities, thus
obstructing the flow of water and causing the development of stagnant water
which serves as suitable breeding places for mosquitoes.
For the good of public sanitation, and by virtue of the authority conferred me
by section 24 of the Water Law, you are hereby ordered, upon receipt hereof,
to open all the ditches by destroying the dams so constructed therein as
obstruction of the water flow, the construction of same not being in
accordance with the law.
Prompt compliance to this order is enjoined, otherwise, the district engineer
will be ordered to effect the work at your costs.
Very respectfully,
Provincial Governor
Again emphasizing that the facts for the purposes of the appeal may be
conceded to be as contended by the Government, we then must determine
if any existing law authorizes the provincial governor and the other
provincial officials to remove without a hearing or legal process any private
construction on a navigable stream.
The law is found in many places. There have been cited sections 938, 941,
978, 980, 995, 2592, 2594, 2604, and 2625 of the Administrative Code;
section 39 of the Land Registration Act; articles 339, 344, 407, 412, and
490 of the Civil Code; and article 24 of the Spanish Law of Waters of 1866.
With reference to this varied assortment of law, the flat statement is
advanced without fear of contradiction that with the possible exception of
article 24 of the Law of Waters no law expressly empowers the provincial
governor to order the removal of obstructions and the destruction of
nuisances in a navigable stream. On the contrary, the law specifically
grants to the municipal council the power by ordinance or resolution "to
declare, prevent, and abate nuisances." (Sec. 2625 [aa], Administrative
Code; Bernardino and Zaplan vs. Governor and Provincial Board of Cavite
[1910], 17 Phil., 176.) As to article 24 of the Spanish Law of Waters of
1866, it provides:
"Any person may, upon his own private property, construct artificial ponds
of sea water, having communication with the sea, for use as bathing places
or vivaries, or for any other commercial or recreative purpose, notice
thereof being given to the governor of the province. During two months, the
governor shall have power to order the suspension of the work if, after
consultation with the naval officer in command and the provincial engineer,
it appear that the work might be substantially prejudicial to the public
interests. In such an event the interested party may appeal to the
Government." But as to the applicability of this article, it necessarily would
have to conform to the principles of the existing public law.
Nuisances are of two classes: Nuisances per se and per accidens. As to
the first, since they affect the immediate safety of persons and property,
they may be summarily abated under the undefined law of necessity. But if
the nuisance be of the second class, even the municipal authorities, under
their power to declare and abate nuisances, would not have the right to
compel the abatement of a particular thing or act as a nuisance without
reasonable notice to the person alleged to be maintaining or doing the
same of the time and place of hearing before a tribunal authorized to
decide whether such a thing or act does in law constitute a nuisance. Such
in effect was the holding in Iloilo Ice and Cold Storage Co. vs. Municipal
Council of Iloilo ([1913], 24 Phil., 471), applied here, it is self-evident that a
dam or a fishery constructed in a navigable stream is not a nuisance per
se. Of course, a dam or a fishpond may be found to be a nuisance where it
endangers or impairs the health or depreciates property by causing water
to become stagnant. The public health may be conserved but conserved
only in a legal manner. Due process of law must be observed before the
citizens' property or personal rights or liberty can be interfered with.
Conceding without deciding that article 24 of the Law of Waters is in force,
we reiterate that it can only be made use of by conforming to the provisions
of the organic law.
The case of Lawton vs. Steele, originally decided in the Court of Appeals of
New York and then taken to the United States Supreme Court, is the
leading case on the subject. This was an action brought to recover the
value of sixteen nets belonging to the plaintiffs which were destroyed by
defendant. He, as a state fish and game protector, justified himself by citing
the section of the law authorizing the seizure and removal of nets. The
court recognized the legislative power to regulate fishing in public waters,
and the right of summary abatement of nuisances without judicial process
or proceeding for the protection of the health; but said the court: "In the
process of abating a nuisance there are limitations both in respect of the
agencies which may be employed, and as to what may be done in
execution of the remedy." In the United States Supreme Court, it was in
part said:
It is not easy to draw the line between cases where the property illegally
used may be destroyed summarily and where judicial proceedings are for
its condemnation. If the property were of great value, as, for instance, if it
were a vessel employed for smuggling or other illegal purposes, it would be
putting a dangerous power in the hands of a custom officer to permit him to
sell or destroy it as a public nuisance, and the owner would have good
reason to complain of such act, as depriving him of his property without due
process of law. But where the property is of trifling value, and its
destruction is necessary to effect the object of a certain statue, we think it is
within the power of the legislature to order its summary abatement. For
instance, if the legislature should prohibit the killing of fish by explosive
shells, and should order the cartridges so used to be destroyed, it would
seem like belittling the dignity of the judiciary to require such destruction to
be preceded by a solemn condemnation in a court of justice. The same
remarks might be made of the cards, chips, and dice of a gambling room.
xxx xxx xxx
Upon the whole we agree with the Court of Appeals in holding this act to be
constitutional, and the judgment of the Supreme Court is, therefore,
affirmed. (119 N.Y., 226; 152 U. S., 133.)
In contrast with Lawton vs. Steele, supra, (1) there is no law authorizing the
summary abatement of nuisances by the provincial governor; and (2) the
dams and fishponds are not of trifling value. The question at issue is
answered in the negative.
In accordance with the foregoing, the judgment appealed from must be as it
is hereby reversed, and instead the injunction prayed for shall issue
prohibiting the defendants from destroying the dams and fishponds in
question. It is so ordered without express finding as to cost in either
John, Street, Ostrand, Romualdez, and Villa-Real, JJ., concur.
Republic of the Philippines
G.R. No. L-3422 June 13, 1952
APPEALS, respondents.
Quisumbing, Sycip, Quisumbing and Salazar for petitioner.
Antonio M. Moncado for respondents.
This is an appeal by certiorari, from a decision of the Court of Appeals
requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife,
damages in the sum of P2,000 for the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an
ice-plant factory in the City of San Pablo, Laguna, in whose premises were
installed two tanks full of water, nine feet deep, for cooling purposes of its
engine. While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The
edges of the tanks were barely a foot high from the surface of the ground.
Through the wide gate entrance, which is continually open, motor vehicles
hauling ice and persons buying said commodity passed, and any one could
easily enter the said factory, as he pleased. There was no guard assigned
on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan,
a boy barely 8 years old, while playing with and in company of other boys of
his age entered the factory premises through the gate, to take a bath in one
of said tanks; and while thus bathing, Mario sank to the bottom of the tank,
only to be fished out later, already a cadaver, having been died of "asphyxia
secondary to drowning."
The Court of Appeals, and the Court of First Instance of Laguna, took the
view that the petitioner maintained an attractive nuisance (the tanks), and
neglected to adopt the necessary precautions to avoid accidents to persons
entering its premises. It applied the doctrine of attractive nuisance, of
American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric
16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his
premises dangerous instrumentalities or appliances of a character likely to
attract children in play, and who fails to exercise ordinary care to prevent
children from playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is technically a
trespasser in the premises. (See 65 C.J.S., p. 455.)
The principle reason for the doctrine is that the condition or appliance in
question although its danger is apparent to those of age, is so enticing or
alluring to children of tender years as to induce them to approach, get on or
use it, and this attractiveness is an implied invitation to such children (65
C.J.S., p. 458).
Now, is a swimming pool or water tank an instrumentality or appliance likely
to attract the little children in play? In other words is the body of water an
attractive nuisance?
The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to bodies of
water, artificial as well as natural, in the absence of some unusual condition
or artificial feature other than the mere water and its location.
There are numerous cases in which the attractive nuisance doctrine has not
been held not to be applicable to ponds or reservoirs, pools of water,
streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, .
. . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho,
Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma,
Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume
of Corpus Juris Secundum was published in 1950, whereas its decision was
promulgated on September 30, 1949.
The reason why a swimming pool or pond or reservoir of water is not
considered an attractive nuisance was lucidly explained by the Indiana
Appellate Court as follows:
Nature has created streams, lakes and pools which attract children. Lurking
in their waters is always the danger of drowning. Against this danger children
are early instructed so that they are sufficiently presumed to know the
danger; and if the owner of private property creates an artificial pool on his
own property, merely duplicating the work of nature without adding any new
danger, . . . (he) is not liable because of having created an "attractive
nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112
Ind. App., 170.
Therefore, as petitioner's tanks are not classified as attractive nuisance, the
question whether the petitioner had taken reasonable precautions becomes
immaterial. And the other issue submitted by petitioner — that the parents of
the boy were guilty of contributory negligence precluding recovery, because
they left for Manila on that unlucky day leaving their son under the care of no
responsible individual — needs no further discussion.
The appealed decision is reversed and the Hidalgo Enterprises, Inc. is
absolved from liability. No costs.
Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.

Separate Opinions
PABLO, J., disidente:
La recurrente tiene dos estanques de agua, de nueve pies de profundidad,
como anexos indispensables a su fabrica de hielo; estan constuidos dentro
de un solar que esta cercado pero con una puerta de entrada siempre
abierta en donde pasan libremente los coches que distribuyen hielo y las
personas que lo compran de la fabrica; cualquiera puede entrar sin distincion
alguna, no hay ningun guardia en la puerta que impida la entrada de
cualquiera persona. A dichos dos entanques tiene libre acceso el publico.
Es evidente que la recurrente debio haber cercado dichos estanques como
medida ordinaria de precaucion para que los ninos de corta edad no pueden
entrar, tanto mas cuanto que los bordes de esos estanques solo tienen un
pie de altura la superficie del terreno. El cerco puesto en el perimento del
solar, con puerta continuamente abierta, no es suficiente medida para
impedir que los ninos puedan meterse en los entanques. Ese cerco con su
puerta abierta es como un velo transparente con que se cubre una mujer
semidesnuda en un teatro, pica la curiosidad y atrae la atencion del publico.
Los niños son curiosos por naturaleza y los de ocho años no tienen perfecto
conocimiento de las cosas. Alucinados por la natural atraccion de las aguas,
se meteran en ellas con peligro de sus vidas, a menos que exista algo que
les impida.
Voto con la confirmacion de la decision apelada.

[G.R. No. L-8191. February 27, 1956.]
DIOSDADO A. SITCHON, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
[G.R. No. L-8397. February 27, 1956]
RICARDO DE LA CRUZ, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
[G.R. No. L-8500. February 27, 1956]
FELINO PEÑA, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in
his capacity as City Engineer of the City of Manila, Respondent-Appellee.
[G.R. No. L-8513. February 27, 1956]
SANTIAGO BROTAMONTE, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
[G.R. No. L-8516. February 27, 1956]
ERNESTO NAVARRO, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as the City Engineer of the City of Manila,
[G.R. No. L-8620. February 27, 1956]
AMADO SAYO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in
his capacity as City Engineer of the City of Manila, Respondent-Appellee.

These are six (6) class suits against the City Engineer of Manila to enjoin him
from carrying out his threat to demolish the houses of Petitioners herein, upon
the ground that said houses constitute public nuisances. In due course, the Court
of First Instance of Manila rendered separate, but substantially identical,
decisions adverse to the Petitioners, who have appealed therefrom directly to this
Court. Inasmuch as the fact are not disputed and the same issues have been raised
in all these cases, which were jointly heard before this Court, we deem it fit to
dispose of the appeals in one decision.
1. Case No. L-8191 (Case No. 21530 of the Court of First Instance of Manila)
was instituted by Diosdado A. Sitchon, Luis Gavino and Ponciano Adoremos, in
their own behalf and in representation of twenty-two (22) persons, named in an
annex to the petition. In 1947 and 1948, said Petitioners occupied portions of the
public street known as Calabash Road, City of Manila, and constructed houses
thereon, without the consent of the authorities. Later on, some of them paid
“concession fees or damages, for the use” of said portions of the street, to a
collector of the city treasurer, who issued receipts with an annotation reading:chanroblesvirtuallawlibrary

“without prejudice to the order to vacate.” On or about July 5, 1952, Respondent

City Engineer advised and ordered them to vacate the place and remove their
houses therefrom before August 5, 1952, with the warning that otherwise he
would effect the demolition of said houses at their expense. This notice having
been unheeded, a demolition team of the office of the City Engineer informed the
Petitioners in December, 1953, that their houses would be removed, whereupon
the case was instituted for the purpose already stated. At the instance of
Petitioners herein, the lower court issued a writ of preliminary injunction.
2. Case No. L-8397 (Case No. 21755 of the Court of First Instance of Manila)
was brought by Ricardo de la Cruz, Isidro Perez and Fernando Figuerroa, in their
behalf and in representation of two hundred sixty-seven (267) persons, who,
sometime after the liberation of Manila, occupied portions of Antipolo and
Algeciras Streets, of said city, and constructed houses thereon, without any
authority therefor. Several Petitioners later paid “concession fees or damages” to
a collector of the city treasurer, and were given receipts with the annotation: chanroblesvirtuallawlibrary

“without prejudice to the order to vacate.” The constructions were such that the
roads and drainage on both sides thereof were obstructed. In some places, the
ditches used for drainage purposes were completely obliterated. What is more,
said ditches cannot be opened, repaired or placed in proper condition because of
said houses. On or about May 15, 1952, Respondent City Engineer advised them
to vacate the place and remove their houses within a stated period, with the
warning already referred to. Hence, the institution of the case, upon the filing of
which a writ of preliminary injunction was issued.
3. Felino Peña, Francisco Morales and Jose Villanueva filed case No. L-8500
(Case No. 21535 of the Court of First Instance of Manila), on their own behalf
and in representation of about thirty (30) persons, who, without the
aforementioned authority, occupied portions of the street area of R. Papa
Extension, City of Manila, sometime after its liberation. As in the preceding
cases, several Petitioners paid “concession fees or damages” to a collector of the
city treasurer, “without prejudice to the order to vacate”, which was given on May
10, 1952, with the warning that should they fail to remove said houses,
Respondent would do so, at their expense. Upon being advised, later on, of the
intention of Respondent’s agents to carry out said threat, the corresponding
petition was filed and a writ of preliminary injunction secured.
4. Santiago Brotamonte, Godofredo Blanquiso and Salvador Justiniano
commenced case No. L-8513 (Case No. 21531 of the Court of First Instance of
Manila), on their behalf and in representation of forty-two (42) other persons,
who, without any authority, occupied portions of the bed of a branch of the Estero
de San Miguel, City of Manila, and constructed houses thereon, sometime in 1947
and 1948. As in the cases already mentioned, some of them paid concession fees
or damages, “without prejudice to the order to vacate”, which was given, with the
usual warning, in December, 1953. The institution of the case and a writ of
preliminary injunction soon followed.
5. In case No. L-8516 (Case No. 21580 of the Court of First Instance of Manila),
Ernesto Navarro, Pablo Salas and Herminigildo Digap are Petitioners, on their
own behalf and in that of fifteen (15) persons, who, sometime after the liberation
of Manila, occupied portions of the bed of the Pasig River, at about the end of
Rio Vista Street, San Miguel, Manila, which are covered and uncovered by the
tide, and erected houses there on without any authority therefor. “Concession fees
or damages” were paid by some of them, “without prejudice to the order to
vacate”. After giving, on or about June 20, 1952, the corresponding notice and
warning, which were not heeded, Respondent threatened to demolish said houses
at Petitioners’ expense, whereupon the case was instituted and a writ of
preliminary injunction secured.
6. Case No. L-8620 (Case No. 22143 of the Court of First Instance of Manila)
was filed by Amado Sayo, Marciano Lamco and Victor Bernardo, on their behalf
and in that of twenty-two (22) other persons, who, in 1946 and 1947, occupied
portions of Torres Bugallon, Cavite, Misericordia and Antipolo Streets, in the
City of Manila, and constructed houses thereon, without any authority therefor.
Some paid “monthly rentals and/or damages, and/or concession fees” from 1946
to 1951, “without prejudice to the order to vacate”, which was given on May 1,
1952, with the usual warning, followed, about two (2) years later, by a threat to
demolish said houses. Hence, the case, upon the filing of which writ of
preliminary injunction was issued.
After appropriate proceedings, the Court of First Instance of Manila rendered
separate decisions, the dispositive part of which, except in case No. L-8620, is of
the following tenor:chanroblesvirtuallawlibrary

“Por tanto, el Juzgado sobresee esta causa por falta de meritos y ordena al
ingeniero de la ciudad de Maniia que haga la demolicion o la remocion de las
citadas casas, dentro de quince dias despues de haber avisado al efecto a los aqui
recurrentes, y a costa de los mismos.”
In said case No. L-8620, the lower court rendered judgment as follows: chanroblesvirtuallawlibrary

“In view of the foregoing considerations the Court hereby declares: chanroblesvirtuallawlibrary
“(a) that the houses of all Petitioners in this case erected on the land which forms
part of Torres Bugallon, Cavite, Misericordia and Antipolo Streets constitute
public nuisance as defined by section 1112 of Ordinance No. 1600 of the City of
Manila and by Article 694 paragraphs 4 and 5 of the Civil Code and
“(b) that the City Engineer of the City of Manila is the official authorized by
Article 1112 of Ordinance No. 1600 of the City of Manila and Article 699,
paragraph 3 of the Civil Code to abate said public nuisance and charge the
expenses thereof to Petitioners.”
Petitioners contend that said decisions should be reversed upon the ground that,
in trying to demolish their respective houses without notice and hearing, the city
engineer sought to deprive them of their property without due process of law,
apart from the fact that, under Articles 701 and 702 of the new Civil Code, the
power to remove public nuisances is vested in the district health officer, not in
Respondent city engineer. It should be noted, however, that, before expressing
his intent to demolish the houses in question, Respondent had advised and
ordered the Petitioners to remove said houses, within the periods stated in the
corresponding notices; that Petitioners do not question, and have not
chan roblesvirtualawlibrary

questioned, the reasonableness or sufficiency of said periods; and that they chan roblesvirtualawlibrary

have never asked Respondent herein to give them an opportunity to show that
their houses do not constitute public nuisances. Besides, it is not disputed that
said houses are standing on public streets, with the exception of the houses
involved in cases Nos. 8513 and 8516, which are built on portions of river beds.
It is clear, therefore, that said houses are public nuisances, pursuant to Articles
694 and 695 of the Civil Code of the Philippines, which is Republic Act No.
386, reading:chanroblesvirtuallawlibrary

ART. 694. — “A nuisance is any act, omission, establishment, business,

condition of property, or anything else which: chanroblesvirtuallawlibrary

“(1) Injures or endangers the health or safety of others; or chan roblesvirtualawlibrary

“(2) Annoys or offends the senses; or chan roblesvirtualawlibrary

“(3) Shocks, defies or disregards decency or morality; or chan roblesvirtualawlibrary

“(4) Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or chan roblesvirtualawlibrary

“(5) Hinders or impairs the use of property.”

ART. 695. — “Nuisance is either public or private. A public nuisance affects a
community or neighborhood or any considerable number of persons, although the
extent of the annoyance, danger or damage upon individuals may be unequal. A
private nuisance is one that is not included in the foregoing definition.” (Italics
It is true that Articles 700 and 702 of the same Code provide: chanroblesvirtuallawlibrary

ART. 700. — “The district health officer shall take care that one or all of the
remedies against a public nuisance are availed of.”
ART. 702. — “The district health officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a public
However, section 31 of Republic Act No. 409, the Revised Charter of the City of
Manila, specifically places upon the city engineer the duty, among others, “to
have charge of the care of streets, canals and esteros ”; to “prevent the
cralaw cralaw cralaw chan roblesvirtualawlibrary

encroachment of private buildings on the streets and public places ”; to “have cralaw cralaw chan roblesvirtualawlibrary

supervision of all private docks, wharves, piers and other property bordering
cralaw cralaw

on the harbor, rivers, esteros and waterways and issue permits for the cralaw cralaw

construction, repair and removal of the same and enforce all ordinances relating
to the same”; to “have the care and custody of all sources of water supply ”;
chan roblesvirtualawlibrary cralaw chan

to “cause buildings dangerous to the public to be ”; torn down”; and to

roblesvirtualawlibrary cralaw chan roblesvirtualawlibrary chan roblesvirtualawlibrary

“order the removal of buildings and structures erected in violation of the

ordinances ”. Obviously, articles 700 and 702 of Republic Act No. 386, should

yield to said section 31 of Republic Act No. 409, not only because the former
preceded the latter, but, also, because said section 31 of Republic Act No. 409 is
a special provision specifically designed for the City of Manila, whereas said
Articles 700 and 702 of the Civil Code are general provisions applicable
throughout the Philippines. Moreover, section 1122 of the Revised Ordinance of
the City of Manila (No. 1600) explicitly authorizes the action sought to be taken
by Respondent herein, by providing: chanroblesvirtuallawlibrary

“Whenever the owner or person responsible for any unauthorized obstruction

shall, after official notice from the proper department, refuse or neglect to remove
the same within a reasonable time, such obstruction shall be deemed a public
nuisance, and the city engineer is authorized to remove the same at the owner’s
Again, houses constructed, without governmental authority, on public streets and
waterways, obstruct at all times the free use by the public of said streets and
waterways, and, accordingly, constitute nuisances per se, aside from public
nuisances. As such, the summary removal thereof, without judicial process or
proceedings may be authorized by the statute or municipal ordinance, despite the
due process clause. (66 C.J.S. 733-734.)
“The police power of the state justifies the abatement or destruction, by summary
proceedings, of whatever may be regarded as a public nuisance; and the chan roblesvirtualawlibrary
legislature may authorize the summary abatement of a nuisance without judicial
process or proceeding.
“ The remedy of summary abatement for violation of a municipal ordinance may

be used against a public nuisance.” (66 C.J.S. 855, 856.)

“When necessary to insure the public safety, the legislature may under its police
power authorize municipal authorities summarily to destroy property without
legal process or previous notice to the owner.
“ It is not an objection to the validity of a police regulation that it does not provide

for a hearing or for notice to the owner before his property is subjected to restraint
or destruction.” (12 Am. Jur. 356, 357.)
“In the exercise of the police power the state may authorize its officers summarily
to abate public nuisances without resort to legal proceedings and without notice
or a hearing.
Municipal Corporations generally have power to cause the abatement of public
nuisances summarily without resort to legal proceedings.” (39 Am. Jur. 455, 456,
Being in conformity with the facts and the law, the decisions appealed from are
hereby affirmed in toto, and the writs of preliminary injunction issued by the
lower court dissolved, with costs against Petitioners-Appellants. It is SO
Paras, C.J., Padilla, Montemayor, Reyes, A. Jugo, Bautista Angelo,
Labrador, Reyes, J. B. L. and Endencia., JJ., concur.

Republic of the Philippines


G.R. No. L-18390 December 20, 1971

PEDRO J. VELASCO, plaintiff-appellant,
MANILA ELECTRIC CO., ET AL., defendants-appellees.
REYES, J.B.L., J.:
Both appellant Velasco and appellee Manila Electric have filed their
respective motions to reconsider the decision of this Court dated 6 August
1971. For the sake of clarity, the two motions will be here dealt with
The thrust of this motion is that the decision has incorrectly assessed
appellant's damages and unreasonably reduced their amount. It is first
argued that the decision erred in not taking into account, in computing
appellant's loss of income, the appellant's undeclared income of P8,338.20,
assessed by the Bureau of Internal Revenue for the year 1954, in addition to
his declared income for that year (P10,975), it being argued that appellant
never claim any other source of income besides his professional earnings.
Several circumstances of record disprove this claim. (1) That the amount of
P8,338.20 was kept apart from ordinary earnings of appellant for the year
1954 (P10,975), and not declared with it, is in itself circumstantial evidence
that it was not of comparable character. (2) If it was part of his ordinary
professional income, appellant was guilty of fraud in not declaring it and he
should not be allowed to derive advantage from his own wrongdoing. (3) The
decision pointed out that by including the undeclared amount in appellant's
disclosed professional earning for 1954, to a grand total of P19,313.20, the
income for said year becomes abnormally high (in fact, more that double),
as compared to appellant's earnings for the preceding years, 1951-1953, that
averaged not more that P7,000 per annum. Such abnormality justifies the
Court's refusal to consider the undisclosed P8,338.20 as part of appellant's
regular income for the purpose of computing the reduction in his earnings as
a result of the complained acts of appellee. (4) Finally, the true source of the
undeclared amount lay in appellant's own knowledge, but he chose not to
disclose it; neither did he call upon the assessing revenue officer to reveal
its character.
Appellant Velasco urges that the damages awarded him are inadequate
considering the present high cost of living, and calls attention to Article 1250
of the present Civil Code, and to the doctrines laid down in People vs.
Pantoja G.R. No. L-18793, 11 October 1968, 25 SCRA 468. We do not deem
the rules invoked to be applicable. Article 1250 of the Civil Code is to the
effect that:
ART. 1250. In case an extraordinary inflation or deflation of the currency
stipulated should supervene, the value of the currency at the time of the
establishment of the obligation shall be the basis of payment, unless there is
an agreement to the contrary.
It can be seen from the employment of the words "extraordinary inflation or
deflation of the currency stipulated" that the legal rule envisages contractual
obligations where a specific currency is selected by the parties as the
medium of payment; hence it is inapplicable to obligations arising from tort
and not from contract, as in the case at bar, besides there being no showing
that the factual assumption of the article has come into existence. As to the
Pantoja ruling, the regard paid to the decreasing purchase of the peso was
considered a factor in estimating the indemnity due for loss of life, which in
itself is not susceptible of accurate estimation. It should not be forgotten that
the damages awarded to herein appellant were by no means full
compensatory damages, since the decision makes clear that appellant, by
his failure to minimize his damages by means easily within his reach, was
declared entitled only to a reduced award for the nuisance sued upon (Steel
vs. Rail & River Coal Co., 43 Ohio App. 228,182 N.E. 552); and the amount
granted him had already taken into account the changed economic
Nor is the fact that appellant lost a chance to sell his house for P95,000 to
Jose Valencia constitute a ground for an award of damages in that amount.
As remarked in the main decision, there is no adequate proof of loss, since
there is no evidence of the depreciation in the market value of the house in
question caused by the acts of defendant Meralco The house, after all, has
remained with appellant and he admits in his motion for reconsideration
(page 48) that properties have increased in value by 200% since then.
For the foregoing reasons, the motion for reconsideration is denied.
Appellee Manila Electric Company argues that in case the noise emitted by
its substation can not be brought down to the 50 decibel level imposed by
our decision in chief, the remedy of the appellant would be to compel
appellee Company to acquire and pay for the value of the house, under the
so-called doctrine of "inverse condemnation and cites in support our
doctrines in Bengzon vs. Province of Pangasinan, 62 Phil. 816, and Republic
vs. Philippine Long Distance Telephone Co., L-18841, 27 January 1969, 26
SCRA 620-634. But as pointed out by appellant in his opposition, this issue
was not raised, nor was the inverse condemnation doctrine invoked in the
trial court, so that it would be improper to consider it on appeal, and worse
still, on a motion for reconsideration of the decision on the merits.
Furthermore, there is no showing that it is impossible to reduce the
substation noise to the level decreed by this Court in the main decision. On
the contrary, appellee's own evidence is that the noise can be reduced by
erecting a wall barrier on the line separating the substation lot and the
property of appellant.
The version that appellee did not erect the wall because of the objections of
appellant's wife was denied by her, and there is no preponderance of
evidence in favor of appellee on this point. Moreover, since it was appellant
Dr. Velasco who complained, his wife's objection would not suffice to
constitute a waiver of his claim.
As to the petition to increase the sound level prescribed by his Court from 50
to 55 decibels on the ground that present "ambient sound already ranges
from 44 to 55 decibels in the mornings", the same can not be granted. As
shown by the evidence at the trial, the intensity of the noise emitted by
appellee's transformers are most objectionable at night, when people are
endeavoring to rest and sleep in compensation for the fatigue and tensions
accumulated during daytime.
WHEREFORE, appellee's motion to reconsider is likewise denied.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo, Villamor and Makasiar., JJ., concur.

Republic of the Philippines


G.R. No. L-24245 April 11, 1972

LEONOR FARRALES, assisted by her husband, EMILIO FARRALES,
Ernesto C. Hidalgo and Pedro O. Trinidad for plaintiff-appellants.
The City Attorney for defendants-appellees.
This appeal by the plaintiffs from the decision of the Court of First Instance of Baguio in its Civil Case No.
622 was taken to the Court of Appeals and subsequently certified by the latter to this Court for the reason
that only questions of law are involved.
The decision appealed from states the facts and conclusions arrived at by
the court a quo, as follows:
This is an action for damages. Plaintiff was the holder of a municipal license
to sell liquor and sari-sari goods. When the temporary building where she
had her stall was demolished in order that the city might construct a
permanent building, Plaintiff was ordered to move her goods to another
temporary place until the permanent building was completed. She did not
like the location pointed out by city officials where she could install her
temporary stall. Instead, taking the law into her own hands, Plaintiff built a
temporary shack at one end of the Rice Section, Baguio City Market (see
Exhibits 3, 4, and 6), without seeking prior permit or permission from any city
official. When the police threatened to demolish this shack, which was built
on the cement passageway at the end of the Rice Section building, Plaintiff
came to this Court seeking an injunction. Before this Court would issue an
injunction, a hearing was held where this Court refused to issue the same
unless Plaintiff could show proper permit. Plaintiff could not do so, so the
police demolished the shack, brought the materials and goods to the City
Hall and subsequently delivered both materials and goods to Plaintiff.
Plaintiff cited the police for contempt but this Court, in an order dated
September 19, 1956, denied Plaintiff's petition. That order was final in
character — not interlocutory — and no appeal having been made would
operate as res judicata to his present suit which is based on the same act of
demolition. To evade the effects of res judicata, Plaintiff amended her
complaint so as to include as Defendants the policemen whom she claims
did the demolishing. The only question to be determined by this Court is
whether the demolition of the shack was in order or not. There is no doubt
Plaintiff had not permit to build the shack and this shack was built in the
passageway where people pass when going to the hangar market building.
Plaintiff insists that the proper procedure should have been for either the City
Engineer or the City Health Officer to commence legal proceedings for the
abatement of this "nuisance". This Court believes that the police officers
properly demolished the shack for it had been built in defiance of orders from
City Hall officials. Plaintiff had been assigned a place where to install her
shack — she did not like this and, following her own desires, built the shack
in the middle of a passage. Should the police wait for the City Engineer or
City Health Officer to act in order to clear the passageway of this illegal
construction? This Court believes that they could clear the passageway on
their own responsibility, just like they can push a car that is parked in the
wrong place without waiting for court proceedings. In fact in the case of
Verzosa v. City of Baguio, G.R. No. L-13546, Sept. 30, 1960, our Supreme
Court permitted the removal of a building built under temporary permit on
Session Road without court proceedings simply because the temporary
permit had expired. In this present case, with greater reason — the removal
of Plaintiff's building is justified.
The complaint of Plaintiff is therefore, dismissed with costs against Plaintiff.
The first error assigned by the appellant refers to the order of the trial court
refusing to declare the defendants in default and allowing them to file their
answer to the complaint after the expiration of the reglementary period for
that purpose. Such action of the court was justified and indeed explained by
it in an order dated September 29, 1956, denying the plaintiff's motion for
reconsideration of the permission granted on August 24, 1956 to the
defendants to file their answer. The Court said:
The stenographic notes of that day show that Atty. Baclit appeared in this
case on behalf of the Plaintiffs and when the issue of the sufficiency of
Plaintiffs' complaint was raised by the City Attorney, and Atty. Baclit said he
had no knowledge of the same, this Court suspended hearing to wait for Atty.
Benjamin Rillera, attorney of record of Plaintiffs and who was the one who
filed the Motion to Declare Defendant in Default. Subsequently that morning,
Atty. Rillera came and manifested to this Court his willingness to withdraw
his motion and, to allow Defendants to file their answer. This was the reason
for the order of this Court dated August 24, 1956. Plaintiffs are bound by the
actuations of their Counsel. The fact that he refused to file a motion for
reconsideration and instead insisted in withdrawing as counsel for Plaintiffs
would be no justification of revoking the order of August 24, 1956. The motion
for reconsideration filed by Plaintiffs personally is, therefore, denied for lack
of merit.
The other errors assigned by the appellant have to do with the merits of the
case. The appellant's contention is that the shack or temporary stall put up
by her inside the premises of the Baguio City Market was not a nuisance or
if it was a nuisance at all it was one per accidens and not per se and therefore
could be abated only after the corresponding judicial proceeding. The
uncontradicted evidence does not support the appellant's contention. In the
first place she had no permit to put up the temporary stall in question in the
precise place where she did so. In the second place, its location on the
cement passageway at the end of the Rice Section building was such that it
constituted an obstruction to the free movement of people. As the court a
quo correctly observed, this fact is shown clearly on the photographs marked
Exhibits 3, 4 and 6. Judging by these photographs it cannot even be said
that what the appellant constructed was a temporary stall. It was nothing
more than a lean-to, improvised with pieces of used scrap iron roofing
sheets. It was obviously not a "building" within the meaning of the Charter of
the City of Baguio (Art. V, Section 2557 [d] Adm. Code) relied upon by the
appellant and under which the power "to cause buildings, dangerous to the
public, to be made secure or torn down, is vested in the City Engineer,
subject to the approval of the City Mayor.
It is true that under Article 702 of the Civil Code "the District Officer shall
determine whether or not abatement, without judicial proceedings, is the best
remedy against public nuisance;" but in this case the failure to observe this
provision is not in itself a ground for the award of damages in favor of the
appellant and against the appellees. According to Article 707 of the same
Code, a public official extrajudicially abating a nuisance shall be liable for
damages in only two cases: (1) if he causes unnecessary injury, or (2) if an
alleged nuisance is later declared by the courts to be not a real nuisance.
Here no unnecessary injury was caused to the appellant, and not only was
there no judicial declaration that the alleged nuisance was not really so but
the trial court found that it was in fact a nuisance. Indeed it may be said that
the abatement thereof was not summary, but through a judicial proceeding.
The appellant, after having been warned by the city police of Baguio that the
lean-to she had put up without a permit would be demolished, went to court
and asked for an injunction. A hearing was then held and the court refused
to issue the writ unless she showed the proper permit. The denial of her
petition for injunction upon her failure to produce such a permit was in effect
an authority for the police to carry out the act which was sought to be
enjoined. And it was an authority which was later confirmed by the same
court in its decision. Under the circumstances there is absolutely no ground
to award damages in favor of the appellant.
WHEREFORE, the judgment appealed from is affirmed, without
pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee,
Barredo and Antonio, JJ., concur.
Makasiar, J., concurs in the result.

Republic of the Philippines

G.R. No. L-14116 June 30, 1960
LAUREANA A. CID, petitioner,
CRISOLOGO, respondents.
Antonio V. Raquiza for petitioner.
Cesar D. Javier for respondents.
The legal issue presented in this petition to review by certiorari a decision of
the Court of appeals, is whether the respondents Irene P. Javier, et al.,
owners of a building standing on their lot with windows overlooking the
adjacent lot, had acquired by prescription an enforceable easement of light
and view arising from a verbal prohibition to obstruct such view and light,
alleged to have been made upon petitioner's
predecessor-in-interest as owner of the adjoining lot, both of which lots
being covered by Torrens titles. Both the trial court and the Court of
Appeals are of the view and so declared that respondents Javier et al., did
acquire such easement and gave judgment accordingly. Hence, petitioner
has come to us seeking review, alleging that both courts are in error.
The windows in question are admittedly in respondents' own building
erected on their own lot. The easement, if there is any, is therefore a
negative one.1 The alleged prohibition having been avowedly made in 1913
or 1914, before the present Civil Code took effect, the applicable legal
provision is Article 538 of the Spanish Civil Code which provides:
Art. 538. In order to acquire by prescription the easements referred to in the
next preceding article, the time of the possession shall be computed, ... in
negative easements, from the day on which the owner of the dominant
estate has, by a formal act, forbidden the owner of the servient estate to
perform any act which would be lawful without the easement. (Emphasis
As may be seen, the only question hinges on the interpretation of the
phrase "a formal act". The lower court and the Court of Appeals considered
any prohibition made by the owner of the dominant estate, be it oral or
written, sufficient compliance with the law. The Court of Appeals declared:
In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26 and
the decisions of the Supreme Court of Spain therein cited), we agree with
the trial court that the "formal act" of prohibition contemplated by Art. 538 of
the old Civil Code may be either a written or verbal act. The decisions of
the Supreme Court of Spain above-quoted do not at all mention written but
merely some act of prohibition. . . . .
We are inclined to take the contrary view. The law is explicit. It requires not
any form of prohibition, but exacts, in a parenthetical expression, for
emphasis, the doing not only of a specific, particular act, but a formal act.
The following definitions are pertinent:
Formal—or pertaining to form, characterized by one due form or order,
done in due form with a solemnity regular; relating to matters of form. (C. J.
S. vol. 37, p. 115.)
Act—In civil law, a writing which states in legal form that a thing has been
done, said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing Marlin
From these definitions, it would appear that the phrase "formal act" would
require not merely any writing, but one executed in due form and/or with
solemnity. That this is the intendment of the law although not expressed in
exact language is the reason for the clarification2 made in Article 621 of the
new Civil Code which specifically requires the prohibition to be in "an
instrument acknowledged before a notary public". This is as it should be.
Easements are in the nature of an encumbrance on the servient estate.
They constitute a limitation of the dominical right of the owner of the
subjected property. Hence, they can be acquired only by title and by
prescription, in the case of positive easement, only as a result of some sort
of invasion, apparent and continuous, of the servient estate. By the same
token, negative easements can not be acquired by less formal means.
Hence, the requirement that the prohibition (the equivalent of the act of
invasion) should be by "a formal act", "an instrument acknowledged before
a notary public."
The Court of Appeals found as undisputed the fact 'that plaintiffs' lot
(dominant) as well as defendant's lot (servient) are covered by Original
Certificates of Title Nos. 7225 and 7545, respectively", both issued by the
Register of Deeds of Ilocos Norte, in pursuance of the decrees of
registration issued on December 27, 1937, in Cadastral Case No. 51,
G.L.R.O. Cadastral Record No. 1212 of Laoag, Ilocos Norte. Certified
copies of these certificates of title are found as Annexes "A" and "B", pages
77 to 80 inclusive of the Record on Appeal. In both of them, it does not
appear any annotation in respect to the easement supposedly acquired by
prescription which, counting the twenty (20) years from 1913 or 1914,
would have already ripened by 1937, date of the decrees of registration.
Consequently, even conceding arguendo that such an easement has been
acquired, it had been cut off or extinguished by the registration of the
servient estate under the Torrens System without the easement being
annotated on the corresponding certificate of title, pursuant to Section 39 of
the Land Registration Act.3
Wherefore, the decision of the Court of Appeals appealed from is hereby
reversed; the injunction issued herein dissolved; and the case remanded to
the court of origin for adjudication of the damages, if any, occasioned by
the issuance of the injunction. Without pronouncement as to costs. So
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador,
Concepcion, Reyes, J. B. L., and Gutierrez David, JJ., concur.

January 20, 1961
The Decision in this case, promulgated on June 30, 1960, provided, among
others, for the lifting of the preliminary injunction issued by the lower court
directed against petitioner's construction of a building allegedly being made
in violation of Municipal Ordinance No. 3, series of 1909 of the municipality
of Laoag, and in disregard of respondents' right to light and view.
In their motion for reconsideration timely presented, respondents claim that
the findings of the lower court, affirmed by the Court of Appeals, that the
building under construction violated the aforementioned ordinance (from
which no appeal was interposed) having become final, justify the issuance
of and making permanent the injunction already issued.
There is no question that respondents' house, as well as that of petitioner,
are within their respective properties; that respondents' wall stands only 50
centimeters from the boundary of the 2 lots, whereas, the wall of the
petitioner's building was constructed 1 meter from the boundary or 1 meter
and 50 centimeters from the wall of the house of respondents. As a result,
the lower court found that the eaves of the two houses overlap each other
by 24 centimeters. This, the Court of Appeals declared to be violative of
Ordinance No. 3, series of 1903, amending Sections 1, 5, 6, and 13 of the
Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters,
measured from eaves to eaves of adjoining buildings of strong materials.
It must be noted, however, that the Ordinance in question was adopted since
1909 and was, therefore, already in force at the time the house of
respondents was reconstructed in 1946 after the building originally erected
thereon was burned in 1942. If respondents constructed their house at least
one meter from the boundary line, as petitioner has constructed hers, there
would be no overlapping of the eaves and there would not be any violation
of the ordinance. As things now stand, in view of such construction by the
respondents, the overlapping of the eaves and the consequential violation of
the ordinance can not entirely be attributed to petitioner, as to require her
alone to make the adjustments necessary for the observance of the 2-meter
eaves-to-eaves distance from her neighbors. If any compliance with the
ordinance would be made not only by petitioner, but also by the respondents.
There is, therefore, no reason for the continuation of the injunction.
In view of the foregoing, and as the other grounds respondents' motion for
reconsideration had been already duly considered in the Decision, the said
motion is hereby denied, for lack of merit. So ordered.
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Gutierrez David, Paredes, and Dizon, JJ., concur.
Republic of the Philippines
G.R. No. L-31118 January 14, 1930
MARCELO FRANCISCO, plaintiff-appellant,
TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.
Gregorio Perfecto for appellant.
Prudencio A. Remigio for appellee Paez.
No appearance for other appellees.
In the complaint the plaintiff claims a right of way, upon payment of
indemnity, across defendant Paez's land; that the latter recognize the
plaintiff's ownership of a piece of land of 23.46 square meters, that he
vacate it, and that the defendant indemnify him for the damages arising
from said occupation.
Defendant Paez answered with a general denial and set up the special
defense of prescription. Defendant Jabson, in turn, also answered with a
general denial, and by way of special defense denied that the plaintiff has
any right of way over his land, because outside of it there is another
possible way to the street, which is shorter and less prejudicial.
After the judicial commissioner appointed for the purpose had taken the
evidence and inspected the land, the Court of First Instance of Manila
decided the case as follows:
In view of the foregoing considerations, the complaint is dismissed with
respect to the first cause of action. It is held that the plaintiff is the absolute
owner of the piece of land mentioned in the second cause of action, with an
area of 23.46 square meters and included within lot No. 13, block No. 2718
of the certificate of title issued in his favor, and he is entitled to the
ownership of the small house built of strong materials by defendant Paez
thereon, upon payment of its value, or to compel the defendant to purchase
said land at twenty pesos (P20) per square meter. Should the plaintiff
choose the first alternative, he shall pay the price to be agreed upon by and
between himself and said defendant, and in default thereof, the value to be
later determined by the court after hearing the evidence that might be
presented in connection therewith. Defendant Paez shall pay the costs of
this action. So ordered. (Pages 40 and 41, bill of exceptions.)
The plaintiff appealed from this judgment, and makes the following
assignments of error:
1. In holding that the plaintiff's action to enforce his right of way over
defendant Paez's land is barred by the statute of limitations.
2. In not holding that the action to enforce a right of way is imprescriptible.
3. In denying the relief sought in the complaint, respecting the right of way
through Timoteo Paez's land.
The question raised in this appeal, then, is whether the plaintiff's right of
way over defendant Paez's land has prescribed or is imprescriptible.
The trial court held the plaintiff's right to have been barred on the following
It has been proved that the parcels of land now belonging to defendant
Ricardo Jabson originally belonged to a certain Paulino Castañeda y
Francisco, married to Teodora del Mundo, who, on December 20, 1908
obtained decree No. 3138 in proceeding No. 4865, and subsequently,
certificate of title No. 1449. On October 20, 1909, the parcel of land thus
held by Paulino Castañeda y Francisco was subdivided by the latter into
two parts, one containing 193.66 square meters, situated in the inner
portion of the space between Padre Rada and Ilaya Streets, and the other
containing 173.71 square meters, conterminous with said streets. The first
of these parcels, that is, the interior portion, after successive transfers
became the property of the plaintiff herein, and the second portion, after
several transfers, also, became the property of defendant Jabson.
Therefore, from October 20, 1909, when the property was subdivided into
the two aforesaid portions, there arose the right of the original owners of
the interior parcel to claim a right of way over the adjacent land which was
then the land abutting upon P. Rada and Ilaya Streets, through which was
the nearest and shortest way to said streets. Notwithstanding the fact that
from that date said right arose, none of the previous owners exercised said
right until the plaintiff attempted to enforce it through the complaint filed on
September 1, 1927, that is, after almost eighteen years had elapsed.
Section 40 of the Code of Civil Procedure provides that the action to
recover ownership or possession of real property, or an interest therein,
may only be exercised within ten years after the cause of said action
arises. Applying this legal provision to the facts established in this case, it is
evident that the plaintiff cannot obtain the relief he seeks in his complaint
because his action is barred by the statute of limitations, inasmuch as
neither he nor his predecessors demanded the right of way within said
limitations. (Pages 36, 37, and 38, bill of exceptions.)
The facts related by the court below are based upon the result of these
proceedings. But we should not lose sight of the fact that although it is true
that easements are extinguished by non-user for twenty years (article 546,
No. 1, Civil Code), nevertheless, the case at bar does not deal with an
easement which has been used, while the legal provisio cited is only
applicable to easements which being in use are later abandoned. Here is
what Manresa says on this point:
Prescription affects all easements lawfully arisen although they may not
have been used. Nevertheless, the second paragraph of article 546,
number 2, refers to an easement in use, for one cannot discontinue using
what one has never used, and there can be no act, at least in all the cases,
adverse to an inchoate easement. (4 Commentaries on the Civil Code,
fourth edition, page 662.) And in speaking of legal easements, such as the
one in question, the same author observes.
(c) Others, finally, may be extinguished by non-user, but only with respect
to the actual form or manner in which they had been exercised, and the
right or the power to claim the exercise of legal easement does not
prescribe, as occurs especially in the case of the right of way and
easement of aqueduct. (Emphasis ours.) (Ditto, pages 662 and 663).
The appellee also cites in support of his appeal No. 5 of said article 546
which refers to extinction of easements by waiver. It should be noted that in
the case of intermittent easements, such as the right of way, the waiver
must be, if not formal and solemn, at least such as may be obviously
gathered from positive acts, and the mere refraining from claiming the right
is not, to our mind, sufficient for the purpose. This seems to be the drift of
the following commentaries made by Manresa:
There has also been some discussion as to whether the waiver should be
express or implied. It may be that the act of walling up a window by the
owner of the dominant estate is a plain act of implied waiver, and yet, this
act does not of itself extinguish the easement, but only serves to mark the
beginning of the prescription. In intermittent easements (like the one in
question) the mere fact of leaving them seems to indicate a waiver, and
yet, it is not sufficient to extinguish them. It seems then that as a general
rule, an express waiver should be required, but without prejudice to having
the courts decide in exceptional cases that there is an evident waiver,
inferred from acts which reveal it beyond all doubt. (Ibid., pages 667, 668.)
(Emphasis ours.)
The mere fact that the plaintiff and his predecessors refrained from
claiming the easement, without any positive act to imply a real waiver, does
not, in our opinion, bring the case within the provision of the aforesaid
article 546, No. 5, of the Civil Code.
Our conclusion is that such a right of way, provided by the law for the
benefit of private individuals, may be waived, for Manresa so declares:
Legal easements established in the interest of private individuals may be
waived, but not so those of public utility. (Opus, volume and edition as
aforecited, page 668.)
But the court holds, for the reasons stated above, that said article 546, No.
5, Civil Code, is not applicable to the instant case, with reference to waiver,
nor is No. 2 of the same article, regarding non-user; and therefore, the
plaintiff's right of way cannot be deemed extinguished.
The judgment appealed from is modified and it is held that, upon payment of
the proper indemnity, the plaintiff is entitled to a right of way through the
shortest and least prejudicial portion of the servient estate, from plaintiff's lot
designated No. 3, in the plan Exhibit A, through defendant Timoteo Paez's
lot No. 12 according to said plan, to P. Rada Street, as provided in articles
564, 565 and concordant articles of the Civil Code.
Without express pronouncement of costs. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and
Villa-Real, JJ., concur