EN BANC

[G.R. No. 110249. August 21, 1997]

ALFREDO
TANO,
petitioners,
SOCRATES, , respondents.

vs. GOV.

SALVADOR

P.

DECISION
DAVIDE, JR., J.:
Petitioners caption their petition as one for Certiorari, Injunction With
Preliminary Mandatory Injunction,with Prayer for Temporary Restraining Order and
pray that this Court: (1) declare as unconstitutional: (a) Ordinance No. 15-92, dated
15 December 1992, of the Sangguniang Panlungsod of Puerto Princesa; (b) Office
Order No. 23, Series of 1993, dated 22 January 1993, issued by Acting City Mayor
Amado L. Lucero of Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2,
Series of 1993, dated 19 February 1993, of the Sangguniang Panlalawigan of
Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents Provincial
and City Prosecutors of Palawan and Puerto Princesa City and Judges of Regional
Trial Courts, Metropolitan Trial Courts [1] and Municipal Circuit Trial Courts in Palawan
from assuming jurisdiction over and hearing cases concerning the violation of the
Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil action
for certiorari and prohibition.
The following is petitioners summary of the factual antecedents giving rise to
the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City
enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE
PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND
PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF, the full
text of which reads as follows:
Section 1. Title of the Ordinance. - This Ordinance is entitled: AN ORDINANCE
BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF.
Section 2. Purpose, Scope and Coverage. - To effectively free our City Sea Waters
from Cyanide and other Obnoxious substance, and shall cover all persons and/or
entities operating within and outside the City of Puerto Princesa who is are [sic]
directly or indirectly in the business or shipment of live fish and lobster outside the
City.
Section 3. Definition of terms. - For purpose of this Ordinance the following are
hereby defined:
A. SEA BASS - A kind of fish under the family of Centropomidae, better known as
APAHAP;
B. CATFISH - A kind of fish under the family of Plotosidae, better known as HITOHITO;
C. MUDFISH - A kind of fish under the family of Orphicaphalisae better known as
DALAG
D. ALL LIVE FISH - All alive, breathing not necessarily moving of all specie[s] use for
food and for aquarium purposes.
E. LIVE LOBSTER - Several relatively, large marine crustaceans of the genus
Homarus that are alive and breathing not necessarily moving.

Section 4. It shall be unlawful [for] any person or any business enterprise or

company to ship out from Puerto Princesa City to any point of destination either via
aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH,
AND MILKFISH FRIES.
Section 5. Penalty Clause. - Any person/s and or business entity violating this
Ordinance shall be penalized with a fine of not more than P5,000.00 or
imprisonment of not more than twelve (12) months, cancellation of their permit to
do business in the City of Puerto Princesa or all of the herein stated penalties, upon
the discretion of the court.
Section 6. If the owner and/or operator of the establishment found vilating the
provisions of this ordinance is a corporation or a partnership, the penalty prescribed
in Section 5 hereof shall be imposed upon its president and/or General Manager or
Managing Partner and/or Manager, as the case maybe [sic].
Section 7. Any existing ordinance or any provision of any ordinance inconsistent to
[sic] this ordinance is deemed repealed.
Section 8. This Ordinance shall take effect on January 1, 1993.
SO ORDAINED.
xxx
2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued
Office Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance No. PD426-14-74,
otherwise known as AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR
INTENDING TO ENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING OR
PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A
PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYORS PERMIT and City
Ordinance No. 15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY
1, 1998, you are hereby authorized and directed to check or conduct necessary
inspections on cargoes containing live fish and lobster being shipped out from the
Puerto Princesa Airport, Puerto Princesa Wharf or at any port within the jurisdiction
of the City to any point of destinations [sic] either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the shipper possessed the
required Mayors Permit issued by this Office and the shipment is covered by invoice
or clearance issued by the local office of the Bureau of Fisheries and Aquatic
Resources and as to compliance with all other existing rules and regulations on the
matter.
Any cargo containing live fish and lobster without the required documents as stated
herein must be held for proper disposition.
In the pursuit of this Order, you are hereby authorized to coordinate with the PAL
Manager, the PPA Manager, the local PNP Station and other offices concerned for
the needed support and cooperation.Further, that the usual courtesy and diplomacy
must be observed at all times in the conduct of the inspection.
Please be guided accordingly.
xxx
3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of
Palawan enacted Resolution No. 33 entitled: A RESOLUTION PROHIBITING THE
CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE
MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS(SUNO). CROMILEPTES
ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS AND

SPAWNING, TRADACNA GIGAS (TAKLOBO), PINCTADA MARGARITEFERA(MOTHER

PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER
PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD
FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS, the full text of which
reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose that only five
(5) percent of the corals of our province remain to be in excellent condition as [a]
habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals
of our province were principally due to illegal fishing activities like dynamite fishing,
sodium cyanide fishing, use of other obnoxious substances and other related
activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the
existence of the remaining excellent corals and allow the devastated ones to
reinvigorate and regenerate themselves into vitality within the span of five (5)
years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the
Local Government Code of 1991 empowers the Sangguniang Panlalawigan to
protect the environment and impose appropriate penalties [upon] acts which
endanger the environment such as dynamite fishing and other forms of destructive
fishing, among others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous
decision of all the members present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993
of the Sangguniang Panlalawigan and to enact Ordinance No. 2 for the purpose, to
wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED:
Section 1. TITLE - This Ordinance shall be known as an Ordinance Prohibiting the
catching, gathering, possessing, buying, selling and shipment of live marine coral
dwelling aquatic organisms, to wit: 1.Family: Scaridae (Mameng), 2. Epinephelus
Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Senorita), lobster below 200
grams and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera
(Mother Pearl, Oysters, Giant Clams and other species), 6. Penaeus Monodon (Tiger
Prawn-breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and
8. Family: Balistidae (Topical Aquarium Fishes) for a period of five (5) years in and
coming from Palawan Waters.
Section II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their fullest development as self reliant
communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for [a] more responsive and
accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers,
authority, responsibilities and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall
be liberaly interpreted in its favor, and in case of doubt, any question thereon shall

be resolved in favor of devolution of powers and of the lower government units. Any
fair and reasonable doubts as to the existence of the power shall be interpreted in
favor of the Local Government Unit concerned.
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. - Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance; and those which are essential to the promotion of the general welfare.
Section III. DECLARATION OF POLICY. - It is hereby declared to be the policy of the
Province of Palawan to protect and conserve the marine resources of Palawan not
only for the greatest good of the majority of the present generation but with [the]
proper perspective and consideration of [sic] their prosperity, and to attain this end,
the Sangguniang Panlalawigan henceforth declares that is [sic] shall be unlawful for
any person or any business entity to engage in catching, gathering, possessing,
buying, selling and shipment of live marine coral dwelling aquatic organisms as
enumerated in Section 1 hereof in and coming out of Palawan Waters for a period of
five (5) years;
Section IV. PENALTY CLAUSE. - Any person and/or business entity violating this
Ordinance shall be penalized with a fine of not more than Five Thousand Pesos
(P5,000.00), Philippine Currency, and/or imprisonment of six (6) months to twelve
(12) months and confiscation and forfeiture of paraphernalias [sic] and equipment
in favor of the government at the discretion of the Court;
Section V. SEPARABILITY CLAUSE. - If for any reason, a Section or provision of this
Ordinance shall be held as unconditional [sic] or invalid, it shall not affect the other
provisions hereof.
Section VI. REPEALING CLAUSE. - Any existing Ordinance or a provision of any
ordinance inconsistent herewith is deemed modified, amended or repealed.
Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10) days after its
publication.
SO ORDAINED.
xxx
4. The respondents implemented the said ordinances, Annexes A and C hereof
thereby depriving all the fishermen of the whole province of Palawan and the City of
Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers
Association of Palawan and other marine merchants from performing their lawful
occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa,
Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged criminally under
criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-AgutayaMagsaysay, an original carbon copy of the criminal complaint dated April 12, 1993
is hereto attached as Annex D; while xerox copies are attached as Annex D to the
copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the
respondent PNP with the respondent City Prosecutor of Puerto Princesa City, a xerox
copy of the complaint is hereto attached as Annex E;
Without seeking redress from the concerned local government units,
prosecutors office and courts, petitioners directly invoked our original jurisdiction by
filing this petition on 4 June 1993. In sum, petitioners contend that:

First, the Ordinances deprived them of due process of law, their livelihood, and
unduly restricted them from the practice of their trade, in violation of Section 2,
Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which
the Mayors permit could be granted or denied; in other words, the Mayor had the
absolute authority to determine whether or not to issue permit.
Third, as Ordinance No. 2 of the Province of Palawan altogether prohibited the
catching, gathering, possession, buying, selling and shipping of live marine coral
dwelling organisms, without any distinction whether it was caught or gathered
through lawful fishing method, the Ordinance took away the right of petitionersfishermen to earn their livelihood in lawful ways; and insofar as petitionersmembers of Airline Shippers Association are concerned, they were unduly prevented
from pursuing their vocation and entering into contracts which are proper,
necessary, and essential to carry out their business endeavors to a successful
conclusion.
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the
criminal cases based thereon against petitioners Tano and the others have to be
dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the
petition, and furnished the Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor
Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the
validity of Ordinance No.2, Series of 1993, as a valid exercise of the Provincial
Governments power under the general welfare clause (Section 16 of the Local
Government Code of 1991 [hereafter, LGC]), and its specific power to protect the
environment and impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of destructive fishing under
Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the
LGC. They claimed that in the exercise of such powers, the Province of Palawan had
the right and responsibilty to insure that the remaining coral reefs, where fish dwells
[sic], within its territory remain healthy for the future generation. The Ordinance,
they further asserted, covered onlylive marine coral dwelling aquatic
organisms which were enumerated in the ordinance and excluded other kinds of live
marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for
only five (5) years to protect and preserve the pristine coral and allow those
damaged to regenerate.
Aforementioned respondents likewise maintained that there was no violation of
due process and equal protection clauses of the Constitution. As to the former,
public hearings were conducted before the enactment of the Ordinance which,
undoubtedly, had a lawful purpose and employed reasonable means; while as to the
latter, a substantial distinction existed between a fisherman who catches live fish
with the intention of selling it live, and a fisherman who catches live fish with no
intention at all of selling it live, i.e., the former uses sodium cyanide while the latter
does not. Further, the Ordinance applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance
of a Temporary Restraining Order claiming that despite the pendency of this case,
Branch 50 of the Regional Trial Court of Palawan was bent on proceeding with
Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio
Tremocha, Romualdo Tano, Baldomero Tano, Andres Lemihan and Angel de Mesa for
violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on

said plea, we issued on 11 November 1993 a temporary restraining order directing

Judge Angel Miclat of said court to cease and desist from proceeding with the
arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor General from filing a
comment, considering that as claimed by said office in its Manifestation of 28 June
1994, respondents were already represented by counsel.
The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the comment
on the petition as the Answer, gave due course to the petition and required the
parties to submit their respective memoranda. [2]
On 22 April 1997 we ordered impleaded as party respondents the Department
of Agriculture and the Bureau of Fisheries and Aquatic Resources and required the
Office of the Solicitor General to comment on their behalf. But in light of the latters
motion of 9 July 1997 for an extension of time to file the comment which would only
result in further delay, we dispensed with said comment.
After due deliberation on the pleadings filed, we resolved to dismiss this petition
for want of merit, on 22 July 1997, and assigned it to the ponente for the writing of
the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first is composed of
Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel
de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de
Mesa,
who
were
criminally
charged
with
violating Sangguniang
Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993, of the Province
of Palawan, in Criminal Case No. 93-05-C of the 1 st Municipal Circuit Trial Court
(MCTC) of Palawan;[3] and Robert Lim and Virginia Lim who were charged with
violating City Ordinance No. 15-92 of Puerto Princesa City and Ordinance No. 2,
Series of 1993, of the Province of Palawan before the Office of the City Prosecutor of
Puerto Princesa.[4] All of them, with the exception of Teocenes Midello, Felipe
Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the
accused in Criminal Case No. 11223 for the violation of Ordinance No. 2 of
the Sangguniang Panlalawigan of Palawan, pending before Branch 50 of the
Regional Trial Court of Palawan.[5]
The second set of petitioners is composed of the rest of the petitioners
numbering seventy-seven (77), all of whom, except the Airline Shippers Association
of Palawan -- an alleged private association of several marine merchants -- are
natural persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the
prosecution, trial and determination of the criminal cases until the constitutionality
or legality of the Ordinances they allegedly violated shall have been resolved. The
second set of petitioners merely claim that they being fishermen or marine
merchants, they would be adversely affected by the ordinances.
As to the first set of petitioners, this special civil for certiorari must fail on the
ground of prematurity amounting to a lack of cause of action. There is no showing
that the said petitioners, as the accused in the criminal cases, have filed motions to
quash the informations therein and that the same were denied. The ground
available for such motions is that the facts charged therein do not constitute an
offense because the ordinances in question are unconstitutional. [6] It cannot then be
said that the lower courts acted without or in excess of jurisdiction or with grave
abuse of discretion to justify recourse to the extraordinary remedy of certiorari or

prohibition. It must further be stressed that even if the petitioners did file motions to
quash, the denial thereof would not forthwith give rise to a cause of action under
Rule 65 of the Rules of Court. The general rule is that where a motion to quash is
denied, the remedy therefrom is notcertiorari, but for the party aggrieved thereby to
go to trial without prejudice to reiterating special defenses involved in said motion,
and if, after trial on the merits of adverse decision is rendered, to appeal therefrom
in the manner authorized by law. [7] And , even where in an exceptional circumstance
such denial may be the subject of a special civil action for certiorari, a motion for
reconsideration must have to be filed to allow the court concerned an opportunity to
correct its errors, unless such motion may be dispensed with because of existing
exceptional circumstances.[8] Finally, even if a motion for reconsideration has been
filed and denied, the remedy under Rule 65 is still unavailable absent any showing
of the grounds provided for in Section 1 thereof. [9] For obvious reasons, the petition
at bar does not, and could not have , alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for
DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a
nullity ... for being unconstitutional.[10] As such, their petition must likewise fail, as
this Court is not possessed of original jurisdiction over petitions for declaratory relief
even if only questions of law are involved, [11] it being settled that the Court merely
exercises appellate jurisdiction over such petitions. [12]
II
Even granting arguendo that the first set of petitioners have a cause of action
ripe for the extraordinary writ of certiorari, there is here a clear disregard of the
hierarchy of courts, and no special and important reason or exceptional or
compelling circumstance has been adduced why direct recourse to us should be
allowed. While we have concurrent jurisdiction with Regional Trial courts and with
the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence gives petitioners no
unrestricted freedom of choice of court forum, so we held in People v. Cuaresma:[13]
This concurrence of jurisdiction is not to be taken as according to parties seeking
any of the writs an absolute unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all hierarchy of courts. That
hierarchy is determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level (inferior) courts
should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to
issue these writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition. This is established
policy. It is a policy necessary to prevent inordinate demands upon the Courts time
and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Courts docket.
The Court feels the need to reaffirm that policy at this time, and to enjoin strict
adherence thereto in the light of what it perceives to be a growing tendency on the
part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed upon and
adjudicated directly and immediately by the highest tribunal of the land.
In Santiago v. Vasquez,[14] this Court forcefully expressed that the propensity of
litigants and lawyers to disregard the hierarchy of courts must be put to a halt, not

only because of the imposition upon the precious time of this Court, but also
because of the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred to the lower
court, the proper forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We reiterated the judicial
policy that this Court will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of
[its] primary jurisdiction.
III
Notwithstanding the foregoing procedural obstacles against the first set of
petitioners, we opt to resolve this case on its merits considering that the lifetime of
the challenged Ordinances is about to end. Ordinance No. 15-92 of the City of
Puerto Princesa is effective only up to 1 January 1998, while Ordinance No. 2 of the
Province of Palawan, enacted on 19 February 1993, is effective for only five (5)
years. Besides, these Ordinances were undoubtedly enacted in the exercise of
powers under the new LGC relative to the protection and preservation of the
environment and are thus novel and of paramount importance. No further delay
then may be allowed in the resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local
government units) enjoy the presumption of constitutionality. [15] To overthrow this
presumption, there must be a clear and unequivocal breach of the Constitution, not
merely a doubtful or argumentative contradiction. In short, the conflict with the
Constitution must be shown beyond reasonable doubt. [16] Where doubt exists, even
if well founded, there can be no finding of unconstitutionality. To doubt is to sustain.
[17]

After a scrunity of the challenged Ordinances and the provisions of the

Constitution petitioners claim to have been violated, we find petitioners contentions
baseless and so hold that the former do not suffer from any infirmity, both under
the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article
XIII of the Constitution as having been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
SEC. 2. x x x
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.
xxx
SEC. 7. The State shall protect the rights of subsistence fishermen, especially of
local communities, to the preferential use of the communal marine and fishing
resources, both inland and offshore. It shall provide support to such fishermen
through appropriate technology and research, adequate financial, production, and
marketing assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing grounds of

subsistence fishermen against foreign intrusion. Fishworkers shall receive a just

share from their labor in the utilization of marine and fishing resources.
There is absolutely no showing that any of the petitioners qualifies as a
subsistence or marginal fisherman. In their petition, petitioner Airline Shippers
Association of Palawan is described as a private association composed of Marine
Merchants; petitioners Robert Lim and Virginia Lim, as merchants; while the rest of
the petitioners claim to be fishermen, without any qualification, however, as to their
status.
Since the Constitution does not specifically provide a definition of the terms
subsistence or marginal fishermen, [18] they should be construed in their general and
ordinary sense. Amarginal fisherman is an individual engaged in fishing whose
margin of return or reward in his harvest of fish as measured by existing price levels
is barely sufficient to yield a profit or cover the cost of gathering the fish, [19] while
a subsistence fisherman is one whose catch yields but the irreducible minimum for
his livelihood.[20] Section 131(p) of the LGC (R.A. No. 7160) defines a marginal
farmer or fisherman as an individual engaged in subsistence farming or fishing
which shall be limited to the sale, barter or exchange of agricultural or marine
products produced by himself and his immediate family. It bears repeating that
nothing in the record supports a finding that any petitioner falls within these
definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right to
subsistence fishermen, but to lay stress on the duty of the State to protect the
nations marine wealth. What the provision merely recognizes is that the State may
allow, by law, cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons. Our survey of the statute books
reveals that the only provision of law which speaks of the preferential right of
marginal fishermen is Section 149 of the LGC of 1991 which pertinently provides:
SEC. 149. Fishery Rentals, Fees and Charges. -- x x x
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic
beds or bangus fry areas, within a definite zone of the municipal waters, as
determined by it: Provided, however, That duly registered organizations and
cooperatives of marginal fishermen shall have preferential right to such fishery
privileges ....
In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary of the
Department of Agriculture and the Secretary of the Department of Interior and Local
Government prescribed the guidelines on the preferential treatment of small
fisherfolk relative to the fishery right mentioned in Section 149. This case, however,
does not involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal marine
and fishing resources, but of their protection, development, and conservation. As
hereafter shown, the ordinances in question are meant precisely to protect and
conserve our marine resources to the end that their enjoyment by the people may
be guaranteed not only for the present generation, but also for the generations to
come.
The so-called preferential right of subsistence or marginal fishermen to the use
of marine resources is not at all absolute. In accordance with the Regalian Doctrine,
marine resources belong to the State, and, pursuant to the first paragraph of
Section 2, Article XII of the Constitution, their exploration, development and
utilization ... shall be under the full control and supervision of the State. Moreover,

their mandated protection, development, and conservation as necessarily

recognized by the framers of the Constitution, imply certain restrictions on whatever
right of enjoyment there may be in favor of anyone. Thus, as to the curtailment of
the preferential treatment of marginal fisherman, the following exchange between
Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took place
at the plenary session of the Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would not raise the
hopes of our people, and afterwards fail in the implementation. How will this
be implemented? Will there be a licensing or giving of permits so that
government officials will know that one is really a marginal fisherman? Or if
policeman say that a person is not a marginal fisherman, he can show his
permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this is concerned
and this particular question could be tackled when we discuss the Article on
Local Governments -- whether we will leave to the local governments or to
Congress on how these things will be implemented. But certainly, I think our
Congressmen and our local officials will not be bereft of ideas on how to
implement this mandate.
xxx
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go anywhere in the
Philippines and fish in any fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that may be
passed, may be existing or will be passed.[21] (underscoring supplied for
emphasis).
What must likewise be borne in mind is the state policy enshrined in the
Constitution regarding the duty of the State to protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and harmony
of nature.[22] On this score, in Oposa v. Factoran,[23] this Court declared:
While the right to balanced and healthful ecology is to be found under the
Declaration of Principles the State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners - the advancement of which may even
be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to
exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting their continuing importance
and imposing upon the state a solemn obligation to preserve the first and protect
and advance the second , the day would not be too far when all else would be lost
not only for the present generation, but also for those to come - generations which
stand to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it a correlative duty to
refrain from impairing the environment ...

The LGC provisions invoked by private respondents merely seek to give flesh
and blood to the right of the people to a balanced and healthful ecology. In fact, the
General Welfare Clause, expressly mentions this right:
SEC. 16. General Welfare.-- Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants. (underscoring supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare
provisions of the LGC shall be liberally interpreted to give more powers to the local
government units in accelerating economic development and upgrading the quality
of life for the people of the community.
The LGC vests municipalities with the power to grant fishery privileges in
municipal waters and to impose rentals, fees or charges therefor; to penalize, by
appropriate ordinances, the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing; and to prosecute
any violation of the provisions of applicable fishery laws. [24] Further,
the sangguniang bayan, the sangguniang panlungsod and the sangguniang
panlalawigan are directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter alia, ordinances that
[p]rotect the environment and impose appropriate penalties for acts which
endanger the environment such as dynamite fishing and other forms of destructive
fishing ... and such other activities which result in pollution, acceleration of
eutrophication of rivers and lakes or of ecological imbalance. [25]
Finally, the centerpiece of LGC is the system of decentralization [26] as expressly
mandated by the Constitution.[27] Indispensable thereto is devolution and the LGC
expressly provides that [a]ny provision on a power of a local government unit shall
be liberally interpreted in its favor, and in case of doubt, any question thereon shall
be resolved in favor of devolution of powers and of the lower local government unit.
Any fair and reasonable doubt as to the existence of the power shall be interpreted
in favor of the local government unit concerned, [28]Devolution refers to the act by
which the National Government confers power and authority upon the various local
government units to perform specific functions and responsibilities. [29]
One of the devolved powers enumerated in the section of the LGC on devolution
is the enforcement of fishery laws in municipal waters including the conservation of
mangroves.[30] This necessarily includes enactment of ordinances to effectively carry
out such fishery laws within the municipal waters.
The term municipal waters, in turn, include not only streams, lakes, and tidal
waters within the municipality, not being the subject of private ownership and not
comprised within the national parks, public forest, timber lands, forest reserves, or
fishery reserves, but also marine waters included between two lines drawn
perpendicularly to the general coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line parallel with the
general coastline and fifteen kilometers from it. [31] Under P.D. No. 704, the marine

waters included in municipal waters is limited to three nautical miles from the
general coastline using the above perpendicular lines and a third parallel line.
These fishery laws which local government units may enforce under Section
17(b), (2), (i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015
which, inter alia, authorizes the establishment of a closed season in any Philippine
water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which
provides for the exploration, exploitation, utilization, and conservation of coral
resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58, which makes it unlawful
for any person, association, or corporation to catch or cause to be caught, sell, offer
to sell, purchase, or have in possession any of the fish specie
called gobiidae or ipon during closed season; and (5) R.A. No. 6451 which prohibits
and punishes electrofishing, as well as various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of fishing in
municipal waters and the protection of its marine environment are concerned, must
be added the following:
1. Issuance of permits to construct fish cages within municipal waters;
2. Issuance of permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within municipal waters;
4. Issuance of permits to gather/culture shelled mollusks within municipal
waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of closed season in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April 1994
between the Department of Agriculture and the Department of Interior and Local
Government.
In light then of the principles of decentralization and devolution enshrined in the
LGC and the powers granted to local government units under Section 16 (the
General Welfare Clause), and under Sections 149, 447 (a) (1) (vi), 458 (a) (1) (vi)
and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the
validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under
R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for
Palawan Act, approved on 19 July 1992. This statute adopts a comprehensive
framework for the sustainable development of Palawan compatible with protecting
and enhancing the natural resources and endangered environment of the province,
which shall serve to guide the local government of Palawan and the government
agencies concerned in the formulation and implementation of plans, programs and
projects affecting said province.[32]
At this time then, it would be appropriate to determine the relation between the
assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod of
the City of Puerto Princesa and the Sangguniang Panlalawigan of the Province of
Palawan to protect the environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or declaration of policies
quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or
purposes: (1) to establish a closed season for the species of fish or aquatic animals
covered therein for a period of five years, and (2) to protect the corals of the marine

waters of the City of Puerto Princesa and the Province of Palawan from further
destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to
enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the
establishment of closed seasons. The devolution of such power has been expressly
confirmed in the Memorandum of Agreement of 5 April 1994 between the
Department of Agriculture and the Department of Interior and Local Government.
The realization of the second objective falls within both the general welfare
clause of the LGC and the express mandate thereunder to cities and provinces to
protect the environment and impose appropriate penalties for acts which endanger
the environment.[33]
The destruction of the coral reefs results in serious, if not irreparable, ecological
imbalance, for coral reefs are among the natures life-support systems. [34] They
collect, retain, and recycle nutrients for adjacent nearshore areas such as
mangroves, seagrass beds, and reef flats; provide food for marine plants and
animals; and serve as a protective shelter for aquatic organisms. [35] It is said that
[e]cologically, the reefs are to the oceans what forests are to continents: they are
shelter and breeding grounds for fish and plant species that will disappear without
them.[36]
The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called exotic tropical
species of fish not only for aquarium use in the West, but also for the market for live
banquet fish [which] is virtually insatiable in ever more affluent Asia. [37] These exotic
species are coral-dwellers, and fishermen catch them by diving in shallow water
with corraline habitats and squirting sodium cyanide poison at passing fish directly
or onto coral crevices; once affected the fish are immobilized [merely stunned] and
then scooped by hand.[38] The diver then surfaces and dumps his catch into a
submerged net attached to the skiff . Twenty minutes later, the fish can swim
normally.Back on shore, they are placed in holding pens, and within a few weeks,
they expel the cyanide from their system and are ready to be hauled. Then they are
placed in saltwater tanks or packaged in plastic bags filled with seawater for
shipment by air freight to major markets for live food fish. [39] While the fish are
meant to survive, the opposite holds true for their former home as [a]fter the
fisherman squirts the cyanide, the first thing to perish is the reef algae, on which
fish feed. Days later, the living coral starts to expire. Soon the reef loses its function
as habitat for the fish, which eat both the algae and invertebrates that cling to the
coral. The reef becomes an underwater graveyard, its skeletal remains brittle,
bleached of all color and vulnerable to erosion from the pounding of the waves. [40] It
has been found that cyanide fishing kills most hard and soft corals within three
months of repeated application.[41]
The nexus then between the activities barred by Ordinance No. 15-92 of the City
of Puerto Princesa and the prohibited acts provided in Ordinance No. 2, Series of
1993 of the Province of Palawan, on one hand, and the use of sodium cyanide, on
the other, is painfully obvious. In sum, the public purpose and reasonableness of the
Ordinances may not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L.
Lucero of the City of Puerto Princesa, we find nothing therein violative of any
constitutional or statutory provision. The Order refers to the implementation of the
challenged ordinance and is not the Mayors Permit.

The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of
authority on the part of the Sangguniang Panlungsod of Puerto Princesa to enact
Ordinance No. 15, Series of 1992, on the theory that the subject thereof is within
the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic Resources
(BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and
that, in any event, the Ordinance is unenforceable for lack of approval by the
Secretary of the Department of Natural Resources (DNR), likewise in accordance
with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and
responsibility of the BFAR under P. D. no. 704, over the management, conservation,
development, protection, utilization and disposition of all fishery and aquatic
resources of the country is not all-encompassing. First, Section 4 thereof excludes
from such jurisdiction and responsibility municipal waters, which shall be under the
municipal or city government concerned, except insofar as fishpens and seaweed
culture in municipal in municipal centers are concerned. This section provides,
however, that all municipal or city ordinances and resolutions affecting fishing and
fisheries and any disposition thereunder shall be submitted to the Secretary of the
Department of Natural Resources for appropriate action and shall have full force and
effect only upon his approval.[42]
Second, it must at once be pointed out that the BFAR is no longer under the
Department of Natural Resources (now Department of Environment and Natural
Resources). Executive Order No. 967 of 30 June 1984 transferred the BFAR from the
control and supervision of the Minister (formerly Secretary) of Natural Resources to
the Ministry of Agriculture and Food (MAF) and converted it into a mere staff agency
thereof, integrating its functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the
BFAR was retained as an attached agency of the MAF. And under the Administrative
Code of 1987,[43]the BFAR is placed under the Title concerning the Department of
Agriculture.[44]
Therefore, it is incorrect to say that the challenged Ordinance of the City of
Puerto Princesa is invalid or unenforceable because it was not approved by the
Secretary of the DENR. If at all, the approval that should be sought would be that of
the Secretary of the Department of Agriculture (not DENR) of municipal ordinances
affecting fishing and fisheries in municipal waters has been dispensed with in view
of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends
Section 16 and 29 of P.D. No. 704 [45] insofar that they are inconsistent with the
provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local
government units have the power, inter alia, to enact ordinances to enhance the
right of the people to a balanced ecology. It likewise specifically vests municipalities
with the power to grant fishery privileges in municipal waters, and impose rentals,
fees or charges therefor; to penalize, by appropriate ordinances, the use of
explosives, noxious or poisonous substances, electricity, muro-ami, and other
deleterious methods of fishing; and to prosecute other methods of fishing; and to
prosecute any violation of the provisions of applicable fishing laws. [46] Finally, it
imposes
upon
the sangguniang
bayan, the sangguniang
panlungsod, and
the sangguniang panlalawigan the duty to enact ordinances to [p]rotect the
environment and impose appropriate penalties for acts which endanger the
environment such as dynamite fishing and other forms of destructive fishing and

such other activities which result in pollution, acceleration of eutrophication of rivers

and lakes or of ecological imbalance.[47]
In closing, we commend the Sangguniang Panlungsod of the City of Puerto
Princesa and Sangguniang Panlalawigan of the Province of Palawan for exercising
the requisite political will to enact urgently needed legislation to protect and
enhance the marine environment, thereby sharing in the herculean task of arresting
the tide of ecological destruction. We hope that other local government units shall
now be roused from their lethargy and adopt a more vigilant stand in the battle
against the decimation of our legacy to future generations. At this time, the
repercussions of any further delay in their response may prove disastrous, if not,
irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and the
temporary restraining order issued on 11 November 1993 is LIFTED.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Vitug, Panganiban, and Torres, Jr., JJ., concur.
Romero, Melo, Puno, and Francisco, JJ., joined the ponencias of Justices Davide
and Mendoza.
Bellosillo, J., see dissenting opinion.
Kapunan and Hermosisima, Jr., JJ., join Justice Bellosillo in his dissenting opinion.
Mendoza, see concurring opinion.
Regalado, J., on official leave.
EN BANC
[G.R. No. 118127. April 12, 2005]
CITY OF MANILA, , petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself,
is less immoral than if performed by someone else, who would be well-intentioned
in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Courts commitment to the protection of morals is secondary to its fealty to
the fundamental law of the land. It is foremost a guardian of the Constitution but
not the conscience of individuals. And if it need be, the Court will not hesitate to
make the hammer fall, and heavily in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not lacking in zeal to
promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition[1] under Rule 45 (then Rule 42) of the Revised
Rules on Civil Procedure seeking the reversal of the Decision[2] in Civil Case No. 9366511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court), [3] is the
validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.[4]

The antecedents are as follows:

Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and
lodging houses.[5] It built and opened Victoria Court in Malate which was licensed as
a motel although duly accredited with the Department of Tourism as a hotel. [6] On 28
June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order [7] (RTC Petition) with the
lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo
S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila
(City Council). MTDC prayed that the Ordinance, insofar as it includes motels and
inns as among its prohibited establishments, be declared invalid and
unconstitutional.[8]
Enacted by the City Council [9] on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES
PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
THEREOF, AND FOR OTHER PURPOSES.[10]
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and engage in, any
business providing certain forms of amusement, entertainment, services
and facilities where women are used as tools in entertainment and which
tend to disturb the community, annoy the inhabitants, and adversely
affect the social and moral welfare of the community, such as but not limited
to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the
said officials are prohibited from issuing permits, temporary or otherwise,
or from granting licenses and accepting payments for the operation of
business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to,
the businesses enumerated in Section 1 hereof are hereby given three (3)
months from the date of approval of this ordinance within which to wind
up business operations or to transfer to any place outside of the Ermita-

Malate area or convert said businesses to other kinds of business

allowable within the area,such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined
activities for wholesome family entertainment that cater to both local and
foreign clientele.
10. Theaters engaged in the exhibition, not only of motion
pictures but also of cultural shows, stage and theatrical plays, art
exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity
districts as provided for in the zoning ordinances for Metropolitan Manila,
except new warehouse or open-storage depot, dock or yard, motor repair
shop, gasoline service station, light industry with any machinery, or
funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General Manager, or
person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in
case of subsequent violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments, motels and
inns such as MTDCs Victoria Court considering that these were not establishments
for amusement or entertainment and they were not services or facilities for
entertainment, nor did they use women as tools for entertainment, and neither did
they disturb the community, annoy the inhabitants or adversely affect the social
and moral welfare of the community.[11]
MTDC further advanced that the Ordinance was invalid and unconstitutional for
the following reasons: (1) The City Council has no power to prohibit the operation of
motels as Section 458 (a) 4 (iv)[12] of the Local Government Code of 1991 (the Code)
grants to the City Council only the power to regulate the establishment, operation
and maintenance of hotels, motels, inns, pension houses, lodging houses and other
similar establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 499[13] which specifically declared portions of the Ermita-Malate
area as a commercial zone with certain restrictions; (3) The Ordinance does not
constitute a proper exercise of police power as the compulsory closure of the motel
business has no reasonable relation to the legitimate municipal interests sought to
be protected; (4) The Ordinance constitutes an ex post facto law by punishing the
operation of Victoria Court which was a legitimate business prior to its enactment;

(5) The Ordinance violates MTDCs constitutional rights in that: (a) it is confiscatory
and constitutes an invasion of plaintiffs property rights; (b) the City Council has no
power to find as a fact that a particular thing is a nuisance per se nor does it have
the power to extrajudicially destroy it; and (6) TheOrdinance constitutes a denial of
equal protection under the law as no reasonable basis exists for prohibiting the
operation of motels and inns, but not pension houses, hotels, lodging houses or
other similar establishments, and for prohibiting said business in the Ermita-Malate
area but not outside of this area. [14]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the community as
provided for in Section 458 (a) 4 (vii) of the Local Government Code, [16] which reads,
thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to control, to
govern and to restrain places of exhibition and amusement. [18]
Petitioners likewise asserted that the Ordinance was enacted by the City Council
of Manila to protect the social and moral welfare of the community in conjunction
with its police power as found in Article III, Section 18(kk) of Republic Act No. 409,
[19]
otherwise known as the Revised Charter of the City of Manila (Revised Charter of
Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
...
Section 18. Legislative powers. The Municipal Board shall have the following
legislative powers:
...
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion
of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be necessary

to carry into effect and discharge the powers and duties conferred by this
chapter; and to fix penalties for the violation of ordinances which shall not
exceed two hundred pesos fine or six months imprisonment, or both such
fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity;
hence, private respondent had the burden to prove its illegality or
unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D. 499
and the Ordinance as the latter simply disauthorized certain forms of businesses
and allowed the Ermita-Malate area to remain a commercial zone. [22] The Ordinance,
the petitioners likewise claimed, cannot be assailed as ex post facto as it was
prospective in operation.[23] The Ordinance also did not infringe the equal protection
clause and cannot be denounced as class legislation as there existed substantial
and real differences between the Ermita-Malate area and other places in the City of
Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio)
issued an ex-parte temporary restraining order against the enforcement of
the Ordinance.[25] And on 16 July 1993, again in an intrepid gesture, he granted the
writ of preliminary injunction prayed for by MTDC. [26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion
of said Decisionreads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series
of 1993, of the City of Manila null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court against the defendant. No
costs.
SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12 December
1994, manifesting that they are elevating the case to this Court under then Rule 42
on pure questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It erred in
concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding that
the questioned Ordinance contravenes P.D. 499[31] which allows operators of all
kinds of commercial establishments, except those specified therein; and (3) It erred
in declaring the Ordinance void and unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the
assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary power
of the State and the general welfare clause exercised by local government units
provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code. [34] They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D. 499;
and that it enjoys the presumption of validity. [35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the general
law. It reiterates that the questioned Ordinance is not a valid exercise of police
power; that it is violative of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal protection

clause; and that it confers on petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules to guide and control his
actions.
This is an opportune time to express the Courts deep sentiment and tenderness
for the Ermita-Malate area being its home for several decades. A long-time resident,
the Court witnessed the areas many turn of events. It relished its glory days and
endured its days of infamy. Much as the Court harks back to the resplendent era of
the Old Manila and yearns to restore its lost grandeur, it believes that
the Ordinance is not the fitting means to that end. The Court is of the opinion, and
so holds, that the lower court did not err in declaring theOrdinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every
sentence thereof violates a constitutional provision. The prohibitions and sanctions
therein transgress the cardinal rights of persons enshrined by the Constitution. The
Court is called upon to shelter these rights from attempts at rendering them
worthless.
The tests of a valid ordinance are well established. A long line of decisions has
held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and must be passed according to the
procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2) must not
be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable. [37]
Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws. [38] The Ordinance must satisfy two
requirements: it must pass muster under the test of constitutionality and the test of
consistency with the prevailing laws. That ordinances should be constitutional
uphold the principle of the supremacy of the Constitution. The requirement that the
enactment must not violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their derivative legislative
power, a delegation of legislative power from the national legislature. The delegate
cannot be superior to the principal or exercise powers higher than those of the
latter.[39]
This relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution
strengthening the policy of local autonomy. The national legislature is still the
principal of the local government units, which cannot defy its will or modify or
violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power in order
to effectively accomplish and carry out the declared objects of their creation. [41] This
delegated police power is found in Section 16 of the Code, known as the general
welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,

among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city council. The
Code empowers the legislative bodies to enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the
corporate powers of the province/city/ municipality provided under the Code. [42] The
inquiry in this Petition is concerned with the validity of the exercise of such
delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the limitation
that its exercise must be reasonable and for the public good. [43] In the case at bar,
the enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy. [44]
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure
the fundamental equality before the law of women and men. [45]
SEC. 1. No person shall be deprived of life, liberty or property without due process
of law, nor shall any person be denied the equal protection of laws. [46]
Sec. 9. Private property shall not be taken for public use without just compensation.
[47]

A. The Ordinance infringes

the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o person
shall be deprived of life, liberty or property without due process of law. . . . [48]
There is no controlling and precise definition of due process. It furnishes though
a standard to which governmental action should conform in order that deprivation
of life, liberty or property, in each appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of reason, obedience to the
dictates of justice,[49] and as such it is a limitation upon the exercise of the police
power.[50]
The purpose of the guaranty is to prevent governmental encroachment against
the life, liberty and property of individuals; to secure the individual from the
arbitrary exercise of the powers of the government, unrestrained by the established
principles of private rights and distributive justice; to protect property from
confiscation by legislative enactments, from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary mode of judicial procedure; and to
secure to all persons equal and impartial justice and the benefit of the general law.
[51]

The guaranty serves as a protection against arbitrary regulation, and private

corporations and partnerships are persons within the scope of the guaranty insofar
as their property is concerned.[52]
This clause has been interpreted as imposing two separate limits on
government, usually called procedural due process and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with what kind of notice and
what form of hearing the government must provide when it takes a particular
action.[53]
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a persons life, liberty, or
property. In other words, substantive due process looks to whether there is a
sufficient justification for the governments action. [54] Case law in the United States
(U.S.) tells us that whether there is such a justification depends very much on the
level of scrutiny used.[55] For example, if a law is in an area where only rational basis
review is applied, substantive due process is met so long as the law is rationally
related to a legitimate government purpose. But if it is an area where strict scrutiny
is used, such as for protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is necessary to achieve a
compelling government purpose.[56]
The police power granted to local government units must always be exercised
with utmost observance of the rights of the people to due process and equal
protection of the law. Such power cannot be exercised whimsically, arbitrarily or
despotically[57] as its exercise is subject to a qualification, limitation or restriction
demanded by the respect and regard due to the prescription of the fundamental
law, particularly those forming part of the Bill of Rights. Individual rights, it bears
emphasis, may be adversely affected only to the extent that may fairly be required
by the legitimate demands of public interest or public welfare. [58] Due process
requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty and property. [59]
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of constitutional
infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. [60] It
must be evident that no other alternative for the accomplishment of the purpose
less intrusive of private rights can work. A reasonable relation must exist between
the purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily
invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights [62] a violation of the due
process clause.
The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are allegedly

operated under the deceptive veneer of legitimate, licensed and tax-paying

nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels.
Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila [63] had already taken judicial
notice of the alarming increase in the rate of prostitution, adultery and fornication in
Manila traceable in great part to existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and thus become the ideal
haven for prostitutes and thrill-seekers. [64]
The object of the Ordinance was, accordingly, the promotion and protection of
the social and moral values of the community. Granting for the sake of argument
that the objectives of theOrdinance are within the scope of the City Councils police
powers, the means employed for the accomplishment thereof were unreasonable
and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of
the community. However, the worthy aim of fostering public morals and the
eradication of the communitys social ills can be achieved through means less
restrictive of private rights; it can be attained by reasonable restrictions rather than
by an absolute prohibition. The closing down and transfer of businesses or their
conversion into businesses allowed under the Ordinance have no reasonable
relation to the accomplishment of its purposes. Otherwise stated, the prohibition of
the enumerated establishments will not per se protect and promote the social and
moral welfare of the community; it will not in itself eradicate the alluded social ills of
prostitution, adultery, fornication nor will it arrest the spread of sexual disease in
Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of illrepute and establishments of the like which the City Council may lawfully prohibit,
[65]
it is baseless and insupportable to bring within that classification sauna parlors,
massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not warranted under the accepted
definitions of these terms. The enumerated establishments are lawful pursuits which
are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues
to further the illegal prostitution is of no moment. We lay stress on the acrid truth
that sexual immorality, being a human frailty, may take place in the most innocent
of places that it may even take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be
followed, in the remote instance that an immoral sexual act transpires in a church
cloister or a court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every house, building, park,
curb, street or even vehicles for that matter will not be exempt from the prohibition.
Simply because there are no pure places where there are impure men. Indeed, even
the Scripture and the Tradition of Christians churches continually recall the presence
and universality of sin in mans history.[66]
The problem, it needs to be pointed out, is not the establishment, which by its
nature cannot be said to be injurious to the health or comfort of the community and
which in itself is amoral, but the deplorable human activity that may occur within its
premises. While a motel may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be classified as a house of illrepute or as a nuisance per se on a mere likelihood or a naked assumption. If that

were so and if that were allowed, then the Ermita-Malate area would not only be
purged of its supposed social ills, it would be extinguished of its soul as well as
every human activity, reprehensible or not, in its every nook and cranny would be
laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building
or establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of
liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City
of Manila so desires to put an end to prostitution, fornication and other social ills, it
can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may
exercise its authority to suspend or revoke their licenses for these violations; [67] and
it may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given three
(3) months from the date of approval of the Ordinancewithin which to wind up
business operations or to transfer to any place outside the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area.
Further, it states in Section 4 that in cases of subsequent violations of the provisions
of the Ordinance, the premises of the erring establishment shall be closed and
padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on the
constitutional guarantees of a persons fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical restraint of
the person of the citizen, but is deemed to embrace the right of man to enjoy the
facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare. [68] In accordance with this case,
the rights of the citizen to be free to use his faculties in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty. [69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to
clarify the meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not

merely freedom from bodily restraint but also the right of the individual to contract,
to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long
recognizedas essential to the orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no doubt that the meaning of liberty
must be broad indeed.
In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education. In explaining the respect the
Constitution demands for the autonomy of the person in making these choices, the
U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are central to
the liberty protected by the Fourteenth Amendment. At the heart of liberty is the
right to define ones own concept of existence, of meaning, of universe, and of the
mystery of human life. Beliefs about these matters could not define the attributes of
personhood where they formed under compulsion of the State. [71]
Persons desirous to own, operate and patronize the enumerated establishments
under Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy
to consummate their bonds in intimate sexual conduct within the motels
premisesbe it stressed that their consensual sexual behavior does not contravene
any fundamental state policy as contained in the Constitution. [72] Adults have a right
to choose to forge such relationships with others in the confines of their own private
lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice. [73] Their right to liberty
under the due process clause gives them the full right to engage in their conduct
without intervention of the government, as long as they do not run afoul of the law.
Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of all freedomit is the most
comprehensive of rights and the right most valued by civilized men. [74]
The concept of liberty compels respect for the individual whose claim to privacy
and interference demands respect. As the case of Morfe v. Mutuc,[75] borrowing the
words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness,
his isolation, are indefeasible; indeed, they are so fundamental that they are the
basis on which his civic obligations are built. He cannot abandon the consequences
of his isolation, which are, broadly speaking, that his experience is private, and the
will built out of that experience personal to himself. If he surrenders his will to
others, he surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself is in
any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe,
the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection.

Governmental powers should stop short of certain intrusions into the personal life of
the citizen.[76]
There is a great temptation to have an extended discussion on these civil
liberties but the Court chooses to exercise restraint and restrict itself to the issues
presented when it should. The previous pronouncements of the Court are not to be
interpreted as a license for adults to engage in criminal conduct. The
reprehensibility of such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be prosecuted for their
illegal conduct, they should suffer the consequences of the choice they have made.
That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially
divests the respondent of the beneficial use of its property. [77] The Ordinance in
Section 1 thereof forbids the running of the enumerated businesses in the ErmitaMalate area and in Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use of property that it can
not be used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just compensation. [78] It is intrusive
and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property
shall not be taken for public use without just compensation. The provision is the
most important protection of property rights in the Constitution. This is a restriction
on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government
takes away a persons property to benefit society, then society should pay. The
principal purpose of the guarantee is to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.[79]
There are two different types of taking that can be identified. A possessory
taking occurs when the government confiscates or physically occupies property. A
regulatory taking occurs when the governments regulation leaves no reasonable
economically viable use of the property. [80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking
also could be found if government regulation of the use of property went too far.
When regulation reaches a certain magnitude, in most if not in all cases there must
be an exercise of eminent domain and compensation to support the act. While
property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was
a question of degree and therefore cannot be disposed of by general propositions.
On many other occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the facts in each
case. The Court asks whether justice and fairness require that the economic loss
caused by public action must be compensated by the government and thus borne
by the public as a whole, or whether the loss should remain concentrated on those
few persons subject to the public action. [83]

What is crucial in judicial consideration of regulatory takings is that government

regulation is a taking if it leaves no reasonable economically viable use of property
in a manner that interferes with reasonable expectations for use. [84] A regulation
that permanently denies all economically beneficial or productive use of land is,
from the owners point of view, equivalent to a taking unless principles of nuisance
or property law that existed when the owner acquired the land make the use
prohibitable.[85] When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking. [86]
A regulation which denies all economically beneficial or productive use of land
will require compensation under the takings clause. Where a regulation places
limitations on land that fall short of eliminating all economically beneficial use, a
taking nonetheless may have occurred, depending on a complex of factors including
the regulations economic effect on the landowner, the extent to which the
regulation interferes with reasonable investment-backed expectations and the
character of government action. These inquiries are informed by the purpose of the
takings clause which is to prevent the government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.[87]
A restriction on use of property may also constitute a taking if not reasonably
necessary to the effectuation of a substantial public purpose or if it has an unduly
harsh impact on the distinct investment-backed expectations of the owner. [88]
The Ordinance gives the owners and operators of the prohibited establishments
three (3) months from its approval within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area. The directive to wind up business
operations amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his
establishment to accommodate an allowed business, the structure which housed
the previous business will be left empty and gathering dust. Suppose he transfers it
to another area, he will likewise leave the entire establishment idle. Consideration
must be given to the substantial amount of money invested to build the edifices
which the owner reasonably expects to be returned within a period of time. It is
apparent that the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the ErmitaMalate area or to convert into allowed businessesare confiscatory as well. The
penalty of permanent closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a taking of private property.
The second option instructs the owners to abandon their property and build
another one outside the Ermita-Malate area. In every sense, it qualifies as a taking
without just compensation with an additional burden imposed on the owner to build
another establishment solely from his coffers. The proffered solution does not put an
end to the problem, it merely relocates it. Not only is this impractical, it is
unreasonable, onerous and oppressive. The conversion into allowed enterprises is
just as ridiculous. How may the respondent convert a motel into a restaurant or a
coffee shop, art gallery or music lounge without essentially destroying its property?
This is a taking of private property without due process of law, nay, even without
compensation.

The penalty of closure likewise constitutes unlawful taking that should be

compensated by the government. The burden on the owner to convert or transfer
his business, otherwise it will be closed permanently after a subsequent violation
should be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance.
A zoning ordinance, although a valid exercise of police power, which limits a
wholesome property to a use which can not reasonably be made of it constitutes
the taking of such property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be destroyed
without compensation. Such principle finds no support in the principles of justice as
we know them. The police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to cover this particular
taking.
Distinction should be made between destruction from necessity and eminent
domain. It needs restating that the property taken in the exercise of police power is
destroyed because it is noxious or intended for a noxious purpose while the
property taken under the power of eminent domain is intended for a public use or
purpose and is therefore wholesome.[89] If it be of public benefit that a wholesome
property remain unused or relegated to a particular purpose, then certainly the
public should bear the cost of reasonable compensation for the condemnation of
private property for public use.[90]
Further, the Ordinance fails to set up any standard to guide or limit the
petitioners actions. It in no way controls or guides the discretion vested in them. It
provides no definition of the establishments covered by it and it fails to set forth the
conditions when the establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and unrestricted power to close
down establishments. Ordinances such as this, which make possible abuses in its
execution, depending upon no conditions or qualifications whatsoever other than
the unregulated arbitrary will of the city authorities as the touchstone by which its
validity is to be tested, are unreasonable and invalid. The Ordinance should have
established a rule by which its impartial enforcement could be secured. [91]
Ordinances placing restrictions upon the lawful use of property must, in order to
be valid and constitutional, specify the rules and conditions to be observed and
conduct to avoid; and must not admit of the exercise, or of an opportunity for the
exercise, of unbridled discretion by the law enforcers in carrying out its provisions.
[92]

Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the U.S.

Supreme Court struck down an ordinance that had made it illegal for three or more
persons to assemble on any sidewalk and there conduct themselves in a manner
annoying to persons passing by. The ordinance was nullified as it imposed no
standard at all because one may never know in advance what annoys some people
but does not annoy others.
Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community. The cited case
supports the nullification of the Ordinance for lack of comprehensible standards to
guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments
without infringing the due process clause. These lawful establishments may be
regulated, but not prevented from carrying on their business. This is a sweeping

exercise of police power that is a result of a lack of imagination on the part of the
City Council and which amounts to an interference into personal and private rights
which the Court will not countenance. In this regard, we take a resolute stand to
uphold the constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation
which is a far cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive
ordinance regulating sexually oriented businesses, which are defined to include
adult arcades, bookstores, video stores, cabarets, motels, and theaters as well as
escort agencies, nude model studio and sexual encounter centers. Among other
things, the ordinance required that such businesses be licensed. A group of motel
owners were among the three groups of businesses that filed separate suits
challenging the ordinance. The motel owners asserted that the city violated the due
process clause by failing to produce adequate support for its supposition that
renting room for fewer than ten (10) hours resulted in increased crime and other
secondary effects. They likewise argued than the ten (10)-hour limitation on the
rental of motel rooms placed an unconstitutional burden on the right to freedom of
association. Anent the first contention, the U.S. Supreme Court held that the
reasonableness of the legislative judgment combined with a study which the city
considered, was adequate to support the citys determination that motels permitting
room rentals for fewer than ten (10 ) hours should be included within the licensing
scheme. As regards the second point, the Court held that limiting motel room
rentals to ten (10) hours will have no discernible effect on personal bonds as those
bonds that are formed from the use of a motel room for fewer than ten (10) hours
are not those that have played a critical role in the culture and traditions of the
nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila,[96] it needs pointing out, is also different from this case in that what
was involved therein was a measure which regulated the mode in which motels may
conduct business in order to put an end to practices which could encourage vice
and immorality. Necessarily, there was no valid objection on due process or equal
protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power
to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise of
exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated differently, so as to give undue favor
to some and unjustly discriminate against others. [98] The guarantee means that no
person or class of persons shall be denied the same protection of laws which is
enjoyed by other persons or other classes in like circumstances. [99] The equal
protection of the laws is a pledge of the protection of equal laws. [100] It limits

governmental discrimination. The equal protection clause extends to artificial

persons but only insofar as their property is concerned. [101]
The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration:
The ideal situation is for the laws benefits to be available to all, that none be placed
outside the sphere of its coverage. Only thus could chance and favor be excluded
and the affairs of men governed by that serene and impartial uniformity, which is of
the very essence of the idea of law. There is recognition, however, in the opinion
that what in fact exists cannot approximate the ideal. Nor is the law susceptible to
the reproach that it does not take into account the realities of the situation. The
constitutional guarantee then is not to be given a meaning that disregards what is,
what does in fact exist. To assure that the general welfare be promoted, which is the
end of law, a regulatory measure may cut into the rights to liberty and property.
Those adversely affected may under such circumstances invoke the equal
protection clause only if they can show that the governmental act assailed, far from
being inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason.
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities
imposed. Favoritism and undue preference cannot be allowed. For the principle is
that equal protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be looked upon in terms
of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest.
[102]

Legislative bodies are allowed to classify the subjects of legislation. If the

classification is reasonable, the law may operate only on some and not all of the
people without violating the equal protection clause. [103] The classification must, as
an indispensable requisite, not be arbitrary. To be valid, it must conform to the
following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class. [104]
In the Courts view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By
definition, all are commercial establishments providing lodging and usually meals
and other services for the public. No reason exists for prohibiting motels and inns
but not pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly
treated, both as to rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation to the purpose of
the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this area. A noxious
establishment does not become any less noxious if located outside the area.
The standard where women are used as tools for entertainment is also
discriminatory as prostitutionone of the hinted ills the Ordinance aims to banishis

not a profession exclusive to women. Both men and women have an equal
propensity to engage in prostitution. It is not any less grave a sin when men engage
in it. And why would the assumption that there is an ongoing immoral activity apply
only when women are employed and be inapposite when men are in harness? This
discrimination based on gender violates equal protection as it is not substantially
related to important government objectives.[105] Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test
of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers
local government units to regulate, and not prohibit, the establishments
enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar establishments is
found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
...
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
...
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of
any entertainment or amusement facilities, and to prohibit certain forms of
amusement or entertainment is provided under Section 458 (a) 4 (vii) of the Code,
which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
...
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
...
(vii) Regulate the establishment, operation, and maintenance of any entertainment
or amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants, or require the suspension or suppression of

the same; or, prohibit certain forms of amusement or entertainment in order to

protect the social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments, the only power of
the City Council to legislate relative thereto is to regulate them to promote the
general welfare. The Code still withholds from cities the power to suppress and
prohibit altogether the establishment, operation and maintenance of such
establishments. It is well to recall the rulings of the Court in Kwong Sing v. City of
Manila[106] that:
The word regulate, as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
regulate should not be construed as synonymous with suppress or prohibit.
Consequently, under the power to regulate laundries, the municipal authorities
could make proper police regulations as to the mode in which the employment or
business shall be exercised.[107]
And in People v. Esguerra,[108] wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor
ratiocinating that the municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or
power to regulate or to license and regulate the liquor traffic, power to prohibit is
impliedly withheld.[109]
These doctrines still hold contrary to petitioners assertion [110] that they were
modified by the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii).
Its powers to regulate, suppress and suspend such other events or activities for
amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants and to prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community are
stated in the second and third clauses, respectively of the same Section. The
several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code,
it is pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are independent of
each other albeit closely related to justify being put together in a single
enumeration or paragraph.[111] These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and unified power of
regulation, suppression and prohibition. [112]
The Congress unequivocably specified the establishments and forms of
amusement or entertainment subject to regulation among which are beerhouses,
hotels, motels, inns, pension houses, lodging houses, and other similar
establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls,
sauna baths, massage parlors, and other places for entertainment or amusement
(Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among
other events or activities for amusement or entertainment, particularly those which
tend to disturb the community or annoy the inhabitants or certain forms of
amusement or entertainment which the City Council may suspend, suppress or
prohibit.

The rule is that the City Council has only such powers as are expressly granted
to it and those which are necessarily implied or incidental to the exercise thereof. By
reason of its limited powers and the nature thereof, said powers are to be
construed strictissimi juris and any doubt or ambiguity arising out of the terms used
in granting said powers must be construed against the City Council. [113] Moreover, it
is a general rule in statutory construction that the express mention of one person,
thing, or consequence is tantamount to an express exclusion of all others. Expressio
unius est exclusio alterium. This maxim is based upon the rules of logic and the
natural workings of human mind. It is particularly applicable in the construction of
such statutes as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction. [114]
The argument that the City Council is empowered to enact the Ordinance by
virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the
Revised Charter of Manila is likewise without merit. On the first point, the ruling of
the Court in People v. Esguerra,[115] is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by
the other provisions of the same Code, and therefore it can not be applied to
intoxicating liquors, for the power to regulate the selling, giving away and
dispensing thereof is granted specifically by section 2242 (g) to municipal councils.
To hold that, under the general power granted by section 2238, a municipal council
may enact the ordinance in question, notwithstanding the provision of section 2242
(g), would be to make the latter superfluous and nugatory, because the power to
prohibit, includes the power to regulate, the selling, giving away and dispensing of
intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of
the legislative will must necessarily prevail and override the earlier law, the Revised
Charter of Manila.Legis posteriores priores contrarias abrogant, or later statute
repeals prior ones which are repugnant thereto. As between two laws on the same
subject matter, which are irreconcilably inconsistent, that which is passed later
prevails, since it is the latest expression of legislative will. [116] If there is an
inconsistency or repugnance between two statutes, both relating to the same
subject matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail
and override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted law
contains provisions contrary to those of an existing law but no provisions expressly
repealing them. Such repeals have been divided into two general classes: those
which occur where an act is so inconsistent or irreconcilable with an existing prior
act that only one of the two can remain in force and those which occur when an act
covers the whole subject of an earlier act and is intended to be a substitute therefor.
The validity of such a repeal is sustained on the ground that the latest expression of
the legislative will should prevail.[118]
In addition, Section 534(f) of the Code states that All general and special laws,
acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly. Thus,
submitting to petitioners interpretation that the Revised Charter of Manila
empowers the City Council to prohibit motels, that portion of the Charter stating

such must be considered repealed by the Code as it is at variance with the latters
provisions granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which affects the immediate safety
of persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property,
health or comfort of the community. It is a legitimate business. If it be a
nuisance per accidens it may be so proven in a hearing conducted for that purpose.
A motel is not per se a nuisance warranting its summary abatement without judicial
intervention.[119]
Notably, the City Council was conferred powers to prevent and prohibit certain
activities and establishments in another section of the Code which is reproduced as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
...
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill repute, gambling and
other prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and
morals of the inhabitants of the city;
...
If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list of the matters it may
prohibit under the above-quoted Section. The Ordinance now vainly attempts to
lump these establishments with houses of ill-repute and expand the City Councils
powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an
effort to overreach its prohibitory powers. It is evident that these establishments
may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage
clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the contractors defined in paragraph (h) thereof. The same Section also
defined amusement as a pleasurable diversion and entertainment, synonymous to
relaxation, avocation, pastime or fun; and amusement places to include theaters,
cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances.

Thus, it can be inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo singula
singulis which means that words in different parts of a statute must be referred to
their appropriate connection, giving to each in its place, its proper force and effect,
and, if possible, rendering none of them useless or superfluous, even if strict
grammatical construction demands otherwise. Likewise, where words under
consideration appear in different sections or are widely dispersed throughout an act
the same principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to
the provisions of P.D. 499. As correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a commercial area. The decree
allowed the establishment and operation of all kinds of commercial establishments
except warehouse or open storage depot, dump or yard, motor repair shop, gasoline
service station, light industry with any machinery or funeral establishment. The rule
is that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with
or repugnant to the general law. [121] As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:[122]
The requirement that the enactment must not violate existing law explains itself.
Local political subdivisions are able to legislate only by virtue of a valid delegation
of legislative power from the national legislature (except only that the power to
create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local government units
cannot contravene but must obey at all times the will of their principal. In the case
before us, the enactment in question, which are merely local in origin cannot prevail
against the decree, which has the force and effect of a statute. [123]
Petitioners contend that the Ordinance enjoys the presumption of validity. While
this may be the rule, it has already been held that although the presumption is
always in favor of the validity or reasonableness of the ordinance, such presumption
must nevertheless be set aside when the invalidity or unreasonableness appears on
the face of the ordinance itself or is established by proper evidence. The exercise of
police power by the local government is valid unless it contravenes the fundamental
law of the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common
right.[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property rights
and
impairs
personal
privileges.
It
is
constitutionally
infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in its
operation; it is not sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City Council under the
Code had no power to enact the Ordinance and is therefore ultra vires, null and
void.
Concededly, the challenged Ordinance was enacted with the best of motives
and shares the concern of the public for the cleansing of the Ermita-Malate area of
its social sins. Police power legislation of such character deserves the full
endorsement of the judiciary we reiterate our support for it. But inspite of its
virtuous aims, the enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the City Council, cannot

prohibit the operation of the enumerated establishments under Section 1 thereof or

order their transfer or conversion without infringing the constitutional guarantees of
due process and equal protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional
Trial Court declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-50908 January 31, 1984
MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA, petitioners,
vs.
ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V. RAMOS, respondents.
Mary Concepcion Bautista for and in his own behalf.
The Solicitor General for respondents.
FERNANDO, C.J.:
The validity of an energy conservation measure, Letter of Instruction No. 869,
issued on May 31, 1979 the response to the protracted oil crisis that dates back
to 1974 is put in issue in this prohibition proceeding filed by petitioners, spouses
Mary Concepcion Bautista and Enrique D. Bautista, for being allegedly violative of
the due process and equal protection guarantees 1 of the Constitution. The use of
private motor vehicles with H and EH plates on week-ends and holidays was banned
from "[12:00] a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of
the holiday to 5:00 a.m. of the day after the holiday." 2 Motor vehicles of the
following classifications are exempted: (a) S (Service); (b) T (Truck); (e) DPL
(Diplomatic); (d) CC (Consular Corps); (e) TC (Tourist Cars). 3 Pursuant thereto,
respondent Alfredo L. Juinio, then Minister of Public Works, Transportation and
Communications and respondent Romeo P. Edu, then Commissioner of Land
Transportation Commission issued on June 11, 1979, Memorandum Circular No. 39,
which imposed "the penalties of fine, confiscation of vehicle and cancellation of
registration on owners of the above-specified vehicles" found violating such Letter
of Instruction.4 It was then alleged by petitioners that "while the purpose for the
issuance of the LOI 869 is laudable, to wit, energy conservation, the provision
banning the use of H and EH [vehicles] is unfair, discriminatory, [amounting to an]
arbitrary classification" and thus in contravention of the equal protection
clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process,
more specifically, "of their right to use and enjoy their private property and of their
freedom to travel and hold family gatherings, reunions and outings on week-ends
and holidays," inviting attention to the fact that others not included in the ban

enjoying "unrestricted freedom." 6 It would follow, so they contend that

Memorandum Circular No. 39 imposing penalties of fine, confiscation of the vehicle
and cancellation of license is likewise unconstitutional, for being violative of the
doctrine of "undue delegation of legislative power." 7 It is to be noted that such
Memorandum Circular does not impose the penalty of confiscation but merely that
of impounding, fine, and for the third offense that of cancellation of certificate of
registration and for the rest of the year or for ninety days whichever is longer.
This Court gave due course to the petition requiring respondent to answer. There
was admission of the facts as substantially alleged except, as previously noted, that
the ban starts at 12:00 a.m. rather than 1:00 a.m. of a Saturday or of a holiday and
as to the mention of a Willy's Kaiser jeep being registered in the name of a certain
Teresita Urbina, about which respondents had no knowledge. There was a denial of
the allegations that the classification of vehicles into heavy H and extra heavy (EH)
on the other hand and light and bantam on the other hand was violative of equal
protection and the regulation as to the use of the former cars on the dates specified
a transgression of due process. The answer likewise denied that there was an undue
delegation of legislative power, reference being made to the Land Transportation
and Traffic Code. 8 There was also a procedural objection raised, namely, that what
is sought amounts at most to an advisory opinion rather than an ajudication of a
case or controversy.
Petitioners filed a motion to be allowed to reply to the answer. It was granted. The
reply, considering its exhaustive character serving as its memorandum, stressed
anew what it emphasized as the arbitrary, unreasonable, and oppressive aspects of
the challenged Letter of Instruction and Memorandum Circular No. 39. It disputed
what it characterized as an "erroneous and arbitrary presumption that heavy car
owners unnecessarily use and therefore waste gasoline whenever they drive their
cars on week-ends and holidays;" 9 it stigmatized the ban as defeating its "avowed
purpose in the case of the affluent who own not only heavy limousines but also
many small cars [as] they may be compelled to use at least two small
cars;" 10 referred to the high cost of taxis or other public transports for those "not
able to afford expensive small cars [possibly] only one heavy and possible old
model;" 11 cited the case of "many eight cylinder vehicles which because of their
weight have been registered as light but in fact consume more or as much gasoline
as the banned vehicles." 12 Their conclusion is that "the ban imposed, in result and
effect is class legislation." 13
The parties were required to submit memoranda. Respondents did so but not
petitioners. They relied on their reply to the answer as noted, a rather
comprehensive pleading. For reasons to be set forth, this Court holds that the
petition cannot prosper.
1. First as to the procedural objection. In the memorandum for respondents, one of
the issues raised was whether "the power of judicial review may be invoked
considering the inadequacy of the record and the highly abstract and academic
questions raised by the petitioners." 14 It is inaccurate to say that the record is
inadequate. It does not admit of doubt that the ban applies to petitioners who are
"the registered owners of an eight cylinder 1969 Buick, and the vendees of a six
cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To that
extent, therefore, the enforcement of the assailed Letter of Instruction will amount
to a deprivation of what otherwise would be a valid exercise of a property right.
Thus they fall squarely within "the unchallenged rule" as to who may raise a
constitutional question, namely, to quote the language of Justice Laurel in the

leading case of People v. Vera, 16 "that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result of its enforcement. 17 Moreover,
that rule has been considerably relaxed. 18 The question then is neither abstract
nor academic as contended by respondents.
2. There is, however, this formidable obstacle that confronts petitioners. What they
seek is for this Court to hold that a Letter of Instruction, a regulatory measure
precisely enacted to cope with the serious and grave problem of energy
conservation, is void on its face. Such a task is rendered unusually difficult by what
has been referred to by Justice Laurel in the leading case of Angara v. Electoral
Commission 19 as the "presumption of constitutionality" and by the same jurist in
the case of People v. Vera 20 in slightly different words "a presumption that such an
act falls within constitutional limitations." There is need then for a factual
foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations
Association, Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there
being a presumption of validity, the necessity for evidence to rebut it is
unavoidable, unless the statute or ordinance is void on its face, which is not the
case here. The principle has been nowhere better expressed than in the leading
case of O'Gorman & Young v. Hartford Fire Insurance Co., where the American
Supreme Court through Justice Brandeis tersely and succinctly summed up the
matter thus: 'The statute here questioned deals with a subject clearly within the
scope of the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence deprives the
plaintiff of due process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing
the statute.' " 21
3. It is true, of course, that there may be instances where a police power measure
may, because of its arbitrary, oppressive or unjust character, be held offensive to
the due process clause and, therefore, may, when challenged in an appropriate
legal proceeding, be declared void on its face. This is not one of them. A recital of
the whereas clauses of the Letter of Instruction makes it clear. Thus: "[Whereas],
developments in the international petroleum supply situation continue to follow a
trend of limited production and spiralling prices thereby precluding the possibility of
immediate relief in supplies within the foreseeable future; [Whereas], the
uncertainty of fuel supply availability underscores a compelling need for the
adoption of positive measures designed to insure the viability of the country's
economy and sustain its developmental growth; [Whereas], to cushion the effect of
increasing oil prices and avoid fuel supply disruptions, it is imperative to adopt a
program directed towards the judicious use of our energy resources complemented
with intensified conservation efforts and efficient utilization thereof; * * *." 22That is
undeniable is that the action taken is an appropriate response to a problem that
presses urgently for solution. It may not be the only alternative, but its
reasonableness is immediately apparent. Thus, to repeat, substantive due process,
which is the epitome of reasonableness and fair play, is not ignored, much less
infringed.
4. In the interplay between such a fundamental right and police power, especially so
where the assailed governmental action deals with the use of one's property, the
latter is accorded much leeway. That is settled law. What is more, it is good law. Due
process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate

Hotel decision: "To hold otherwise would be to unduly restrict and narrow the scope
of police power which has been properly characterized as the most essential,
insistent and the least limitable of powers, extending as it does 'to all the great
public needs.' It would be, to paraphrase another leading decision, to destroy the
very purpose of the state if it could be deprived or allowed itself to be deprived of
its competence to promote public health, public morals, public safety and the
general welfare. Negatively put, police power is 'that inherent and plenary power in
the State which enables it to prohibit all that is hurtful to the comfort, safety, and
welfare of society.' " 23
5. The due process question having been disposed of, there is still the objection
based on the equal protection clause to be considered. A governmental act may not
be offensive to the due process clause, but may run counter to such a guarantee.
Such is the case when there is no rational basis for the classification followed. That
is the point raised by petitioners. For them, there is no rational justification for the
ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for
precisely those owned by them fall within such category. Tested by the applicable
standard that must be satisfied to avoid the charge of a denial of equal protection,
the objection of petitioners is shown to be lacking in merit. Such a classification on
its face cannot be characterized as an affront to reason. A legal norm according
to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a
rule, principle, or standard, constitutes a defense against anarchy at one extreme
and tyranny at the other. Thereby, people living together in a community with its
myriad and complex problems can minimize the friction and reduce the conflicts, to
assure, at the very least, a peaceful ordering of existence. The Ideal situation is for
the law's benefits to be available to all, that none be placed outside the sphere of its
coverage. Only thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity, which is of the very essence of
the Idea of law. The actual, given things as they are and likely to continue to be,
cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does
not take into account the realties of the situation. * * * To assure that the general
welfare be promoted, which is the end of law, a regulatory measure may cut into
the rights to liberty and property. Those adversely affected may under such
circumstances invoke the equal protection clause only if they can show that the
governmental act assailed, far from being inspired by the attainment of the
common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons
must be treated in the same manner, the conditions not being different, both in the
privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances, which if not Identical are analogous. If
law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 25
6. Nor does it militate against the validity of the Letter of Instruction just because
the ban imposed does not go as far as it could have and therefore could be less
efficacious in character. That was the solution which for the President expressing a
power validly lodged in him, recommended itself. There was a situation that called
for a corrective measure. He decided that what was issued by him would do just
that or, at the very least, help in easing the situation. That it did not cover other

matters which could very well have been regulated does not call for a declaration of
nullity. The President, to paraphrase Lutz v. Araneta, 26 "is not required by the
Constitution to adhere to the policy of all or none." 27 It is quite obvious then that no
equal protection question arises.
7. It may not be amiss to refer to a 1981 American Supreme Court
decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent along with
several other business corporations adversely affected involved in the manufacture
and utilization of plastic milk containers filed suit in a Minnesota district court
seeking to enjoin enforcement of a Minnesota statute banning the retail sale of milk
in plastic nonreturnable, nonrefillable containers, but permitting such sale in other
nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After
conducting extensive evidentiary hearings, the Minnesota court enjoined
enforcement of the statute, finding that it violated among others the equal
protection clause of the Fourteenth Amendment to the Federal Constitution. The
Minnesota Supreme Court affirmed. On certiorari, the United States Supreme Court
reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted
that "proponents of the legislation argued that it would promote resource
conservation, ease solid waste disposal problems, and conserve energy." 29 That
sufficed for the Court to conclude "that the ban on plastic nonreturnable milk
containers bears a rational relation to the State's objectives, and must be sustained
under the Equal Protection Clause." 30 It does show that notwithstanding the "new
equal protection approach" with its emphasis on "suspect classification" and
"fundamental rights and interests standard," a concept so ably expounded by
professor Gunther, the "rational relation test" 31 still retains its validity. Not that
there could be any objection to the classification here followed as being in any way
susceptible to such a pejorative expression as "suspect" or that the assailed Letter
of Instruction does not qualify under "the fundamental rights and interests"
standard
8. There was set forth in the petition what were referred to as "other reasonable
measures which the authorities concerned with energy conservation can take
immediately, which are in fact acceptable and obviously called for and should have
been done long ago, to wit: 1. require and establish taxi stands equipped with
efficient telephone and communication systems; 2. strict implementation and
observance of cargo truck hours on main arteries; 3. strict observance of traffic
rules; 4. effective solution of traffic problems and decongestion of traffic through
rerouting and quick repair of roads and efficient operation of double decker buses;
5. rationing of gasoline to avoid panic buying and give the private car owner the
option and responsibility of deciding on the use of his allocation; 6. allow neon and
electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m.
7. prohibit immediately the importation of heavy and luxury cars and seriously reexamine the car manufacturing program." 32 Admittedly, such measures are
conducive to energy conservation. The question before us however is limited to
whether or not Letter of Instruction 869 as implemented by Memorandum Circular
No. 39 is violative of certain constitutional rights. It goes no further than that. The
determination of the mode and manner through which the objective of minimizing
the consumption of oil products may be attained is left to the discretion of the
political branches. 33 Absent therefore the alleged infringement of constitutional
rights, more precisely the due process and equal protection guarantees, this Court
cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality.
9. It was likewise contended that Memorandum Circular No. 39, issued by the then

respondent Minister of Public Works, Transportation and Communications, and then

respondent Land Transportation Commissioner, imposing the penalties "of fine,
confiscation of vehicle and cancellation of license is likewise unconstitutional,"
petitioners invoking the principle of non-delegation of legislative power. 34 To that
extent that a Letter of Instruction may be viewed as an exercise of the decreemaking power of the President, then such an argument is futile. If, however, viewed
as a compliance with the duty to take care that the laws be faithfully executed, as a
consequence of which subordinate executive officials may in turn issue
implementing rules and regulations, then the objection would properly be
considered as an ultra vires allegation. There is this relevant excerpt from Teoxon v.
Member of the Board of Administrators: 35 "1. The recognition of the power of
administrative officials to promulgate rules in the implementation of the statute,
necessarily limited to what is provided for in the legislative enactment, may be
found in the early case of United States v. Barriasdecided in 1908. Then came, in a
1914 decision, United States v. Tupasi Molina, a delineation of the scope of such
competence. Thus: 'Of course the regulations adopted under legislative authority by
a particular department must be in harmony with the provisions of the law, and for
the sole purpose of carrying into effect its general provisions. By such regulations,
of course, the law itself can not be extended. So long, however, as the regulations
relate solely to carrying into effect the provisions of the law, they are valid.' In 1936,
in People v. Santos, this Court expressed its disapproval of an administrative order
that would amount to an excess of the regulatory power vested in an administrative
official. We reaffirmed such a doctrine in a 1951 decision, where we again made
clear that where an administrative order betrays inconsistency or repugnancy to the
provisions of the Act, 'the mandate of the Act must prevail and must be followed.'
Justice Barrera, speaking for the Court in Victorias Milling Company, Inc. v. Social
Security Commission, citing Parker as well as Davis did tersely sum up the matter
thus: 'A rule is binding on tile courts so long as the procedure fixed for its
promulgation is followed and its scope is within the statutory granted by the
legislature, even if the courts are not in agreement with the policy stated therein or
its innate wisdom * * *. On the other hand, administrative interpretation of the law
is at best merely advisory, for it is the courts that finally determine what the law
means.' It cannot be otherwise as the Constitution limits the authority of the
President, in whom all executive power resides, to take care that the laws be
faithfully executed. No lesser administrative executive office or agency then can,
contrary to the express language of the Constitution, assert for itself a more
extensive prerogative." 36 It was alleged in the Answer of Solicitor General Estelito P.
Mendoza that Letter of Instruction 869 and Memorandum Circular No. 39 were
adopted pursuant to the Land Transportation and Traffic Code. 37 It contains a
specific provision as to penalties. 38 Thus: "For violation of any provisions of this Act
or regulations promulgated pursuant hereto, not hereinbefore specifically punished,
a fine of not less than ten nor more than fifty pesos shall be
imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra vires as long
as the fine imposed is not less than ten nor more than fifty pesos. As to suspension
of registration, 40 the Code, insofar as applicable, provides: "Whenever it shall
appear from the records of the Commission that during any twelve-month period
more than three warnings for violations of this Act have been given to the owner of
a motor vehicle, or that the said owner has been convicted by a competent court
more than once for violation of such laws, the Commissioner may, in his discretion,
suspend the certificate of registration for a period not exceeding ninety days and,

thereupon, shall require the immediate surrender of the number plates * * *." 41 It
follows that while the imposition of a fine or the suspension of registration under the
conditions therein set forth is valid under the Land Transportation and Traffic Code,
the impounding of a vehicle finds no statutory justification. To apply that portion of
Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear
that a penalty even if warranted can only be imposed in accordance with the
procedure required by law. 42
WHEREFORE, the petition is dismissed.
Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ.,
concur.
Makasiar and Concepcion J., took no part.
Separate Opinions
ABAD SANTOS, J., dissenting:
The power of the State to restrict the use of certain motor vehicles during stated
days and hours as a fuel-saving measure is to me indubitable. It is anchored on the
police power of the State. For this reason LOI No. 869 cannot be assailed
successfully as violative of due process and equal protection guarantees of the
Constitution.
There is also no question as to the power of the Commissioner of Land
Transportation and the Minister of Public Works, Transportation and Communication
to issue Memorandum Circular No. 39 on June 11, 1979. The circular was necessary
to implement the LOI. But it does not follow that the circular is completely immune
from the taint of infirmity.
I refer to paragraph 4 of the circular which provides, inter alia, for penalties
consisting of fine and suspension or cancellation of the certificate of registration for
owners of motor vehicles violating the LOI. This portion of the circular is clearly
illegal for the LOI is absolutely and completely devoid of legal sanctions and
consequently the implementing circular cannot prescribe them. It is elementary that
only the legislature (or the President in the exercise of his legislative power) can
prescribe penalties. Executive officials whose task is to enforce the law can
prescribe penalties only if they are authorized to do so within specified limits by the
legislature.
It is contended by the respondents that the LOI and the implementing circular were
adopted pursuant to the Land Transportation and Traffic Code Republic Act No.
4136. This contention is utterly baseless.
LOI No. 869 can be compared to a multiple independently targeted ballistic missile.
It tasks various agencies of the government as follows:
1. The Ministry of Energy shall during the period of tight supply,
limit as necessary, sales of fuel products by oil companies and
other outlets to all consumers including the government and the
Armed Forces of the Philippines. Initially sales shall be limited to
1978 levels. This may be adjusted upward or downward as
required to balance supply with demand and to equitably
distribute available supplies. Moreover, the Ministry of Energy is
hereby authorized to set supply priorities and to establish supply
allocations accordingly.
2. The Ministry of Local Government and Community

Development in cooperation with the Ministry of Energy shall

formulate energy conservation plans and implement the same
through the Bay brigades; moreover, it shall assist in the
implementation of other conservation measures to be instituted
by other government agencies.
3. The Metro Manila Commission, in coordination with the
appropriate government agencies, shall develop, implement and
supervise a program for the implementation of the Executive
Order on the staggering of office hours of both government and
private sectors to achieve optimum use of transportation
facilities, as well as to improve traffic flow.
4. All Ministries, agencies and corporations of the government
shall discontinue the use of airconditioning facilities in offices
whom adequate ventilation is available. Any use of
airconditioning facilities by government offices shall be only with
prior approval of the respective ministers and, where allowed
temperature shall be kept at a minimum of 78 o F.
5. The Ministry of Public Works, Transportation and
Communications shall prohibit the use of private motor vehicles
under the "H" and "EH" classifications of the LTC on weekends
and holidays starting 0001 hours, Saturday morning, (or the day
of the holiday) until 0500 hours, Monday morning (or the day
after the holiday).
Exempted from this prohibition are motor vehicles of the
following classifications:
(a) S (Service)
(b) T (Truck)
(c) DPL (Diplomatic)
(d) CC (Consular Corps)
(e) TC (Tourist Cars)
6. The Metro Manila Traffic Management Authority shall, in
coordination with the appropriate ministries, institute traffic flow
improvement measures to ensure better traffic flow. These
agencies moreover, shall review the traffic citation system in
order to simplify the application of sanctions for traffic
violations.
7. The Ministry of Public Works, Transportation and
Communication shall review the registration requirements of
vehicles with a view to weeding out inefficient motor vehicles.
8. The Ministry of National Defense shall prohibit sports activities
involving mainly the use of motor vehicles, watercraft and
aircraft, including but not limited to car and motorcycle rallies,
racing and similar events.
9. All government Ministries, agencies and corporations shall
limit the use of government vehicles to essential activities and
shall review travel program and schedules to unnecessary trips.
10. The Metro Manila Commission, in coordination with the
appropriate agencies, shall study the feasibility of designating
pedestrian mails and bicycle lanes.
11. The Ministry of National Defense shall intensify the drive

against hoarding or black marketing of fuel especially of

kerosene and diesel and other petroleum products which from
time to time may be short of supply.
12. The Ministry of Energy shall monitor and report on the
implementation of the foregoing measures.
How can it be claimed with a straight face that the LOI was adopted pursuant to R.A.
No. 4136 when nowhere in the LOI is the law mentioned aside from the fact that the
Ministry of Public Works, Transportation and Communication which is entrusted with
the enforcement of R.A. No. 4136 is only one of the many agencies involved in
conserving energy resources? It is obvious for any one willing to see that R.A. No.
4136 has no relevance to the LOI. Such being the case, the circular which is merely
an accessory to the LOI cannot also be related to R.A. No. 4136.
LOI No. 869 is constitutional but its application pursuant to Memorandum Circular
No. 39 is not. For this reason, I vote to grant the petition.
I close this dissent with the following observation: the prohibition against the use of
certain vehicles during certain times has not been uniformly and consistently
enforced. We are a nation surrounded by rules but many of which are not enforced
or enforced indifferently. This situation breeds contempt instead of respect for the
law. A few rules that are consistently enforced are better than many which are
violated with impunity.
Teehankee, J., concurs.
Plana, J., dissent.
Separate Opinions
ABAD SANTOS, J., dissenting:
The power of the State to restrict the use of certain motor vehicles during stated
days and hours as a fuel-saving measure is to me indubitable. It is anchored on the
police power of the State. For this reason LOI No. 869 cannot be assailed
successfully as violative of due process and equal protection guarantees of the
Constitution.
There is also no question as to the power of the Commissioner of Land
Transportation and the Minister of Public Works, Transportation and Communication
to issue Memorandum Circular No. 39 on June 11, 1979. The circular was necessary
to implement the LOI. But it does not follow that the circular is completely immune
from the taint of infirmity.
I refer to paragraph 4 of the circular which provides, inter alia, for penalties
consisting of fine and suspension or cancellation of the certificate of registration for
owners of motor vehicles violating the LOI. This portion of the circular is clearly
illegal for the LOI is absolutely and completely devoid of legal sanctions and
consequently the implementing circular cannot prescribe them. It is elementary that
only the legislature (or the President in the exercise of his legislative power) can
prescribe penalties. Executive officials whose task is to enforce the law can
prescribe penalties only if they are authorized to do so within specified limits by the
legislature.
It is contended by the respondents that the LOI and the implementing circular were
adopted pursuant to the Land Transportation and Traffic Code Republic Act No.
4136. This contention is utterly baseless.
LOI No. 869 can be compared to a multiple independently targeted ballistic missile.
It tasks various agencies of the government as follows:
1. The Ministry of Energy shall during the period of tight supply,

limit as necessary, sales of fuel products by oil companies and

other outlets to all consumers including the government and the
Armed Forces of the Philippines. Initially sales shall be limited to
1978 levels. This may be adjusted upward or downward as
required to balance supply with demand and to equitably
distribute available supplies. Moreover, the Ministry of Energy is
hereby authorized to set supply priorities and to establish supply
allocations accordingly.
2. The Ministry of Local Government and Community
Development in cooperation with the Ministry of Energy shall
formulate energy conservation plans and implement the same
through the Bay brigades; moreover, it shall assist in the
implementation of other conservation measures to be instituted
by other government agencies.
3. The Metro Manila Commission, in coordination with the
appropriate government agencies, shall develop, implement and
supervise a program for the implementation of the Executive
Order on the staggering of office hours of both government and
private sectors to achieve optimum use of transportation
facilities, as well as to improve traffic flow.
4. All Ministries, agencies and corporations of the government
shall discontinue the use of airconditioning facilities in offices
whom adequate ventilation is available. Any use of
airconditioning facilities by government offices shall be only with
prior approval of the respective ministers and, where allowed
temperature shall be kept at a minimum of 78 o F.
5. The Ministry of Public Works, Transportation and
Communications shall prohibit the use of private motor vehicles
under the "H" and "EH" classifications of the LTC on weekends
and holidays starting 0001 hours, Saturday morning, (or the day
of the holiday) until 0500 hours, Monday morning (or the day
after the holiday).
Exempted from this prohibition are motor vehicles of the
following classifications:
(a) S (Service)
(b) T (Truck)
(c) DPL (Diplomatic)
(d) CC (Consular Corps)
(e) TC (Tourist Cars)
6. The Metro Manila Traffic Management Authority shall, in
coordination with the appropriate ministries, institute traffic flow
improvement measures to ensure better traffic flow. These
agencies moreover, shall review the traffic citation system in
order to simplify the application of sanctions for traffic
violations.
7. The Ministry of Public Works, Transportation and
Communication shall review the registration requirements of
vehicles with a view to weeding out inefficient motor vehicles.
8. The Ministry of National Defense shall prohibit sports activities
involving mainly the use of motor vehicles, watercraft and

aircraft, including but not limited to car and motorcycle rallies,

racing and similar events.
9. All government Ministries, agencies and corporations shall
limit the use of government vehicles to essential activities and
shall review travel program and schedules to unnecessary trips.
10. The Metro Manila Commission, in coordination with the
appropriate agencies, shall study the feasibility of designating
pedestrian mails and bicycle lanes.
11. The Ministry of National Defense shall intensify the drive
against hoarding or black marketing of fuel especially of
kerosene and diesel and other petroleum products which from
time to time may be short of supply.
12. The Ministry of Energy shall monitor and report on the
implementation of the foregoing measures.
How can it be claimed with a straight face that the LOI was adopted pursuant to R.A.
No. 4136 when nowhere in the LOI is the law mentioned aside from the fact that the
Ministry of Public Works, Transportation and Communication which is entrusted with
the enforcement of R.A. No. 4136 is only one of the many agencies involved in
conserving energy resources? It is obvious for any one willing to see that R.A. No.
4136 has no relevance to the LOI. Such being the case, the circular which is merely
an accessory to the LOI cannot also be related to R.A. No. 4136.
LOI No. 869 is constitutional but its application pursuant to Memorandum Circular
No. 39 is not. For this reason, I vote to grant the petition.
I close this dissent with the following observation: the prohibition against the use of
certain vehicles during certain times has not been uniformly and consistently
enforced. We are a nation surrounded by rules but many of which are not enforced
or enforced indifferently. This situation breeds contempt instead of respect for the
law. A few rules that are consistently enforced are better than many which are
violated with impunity.
Teehankee, J., concur
Plana, J., dissent.
The Lawphil Project - Arellano Law Foundation

SECOND DIVISION
[G.R. No. 107916. February 20, 1997]
PERCIVAL
MODAY,
ZOTICO
MODAY
(deceased)
and
LEONORA
MODAY, petitioners, vs. COURT OF APPEALS, JUDGE EVANGELINE S.
YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR
AND MUNICIPALITY OF BUNAWAN, respondents.
DECISION
ROMERO, J.:
The main issue presented in this case is whether a municipality may expropriate
private property by virtue of a municipal resolution which was disapproved by the
Sangguniang Panlalawigan. Petitioner seeks the reversal of the Court of Appeals
decision and resolution, promulgated on July 15, 1992 and October 22, 1992
respectively[1], and a declaration that Municipal Resolution No. 43-89 of the
Bunawan Sangguniang Bayan is null and void.

On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in

Agusan del Sur passed Resolution No. 43-89, "Authorizing the Municipal Mayor to
Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138Pls-4 along the National Highway Owned by Percival Moday for the Site of Bunawan
Farmers Center and Other Government Sports Facilities." [2]
In due time, Resolution No. 43-89 was approved by then Municipal Mayor
Anuncio C. Bustillo and transmitted to the Sangguniang Panlalawigan for its
approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved said
Resolution and returned it with the comment that "expropriation is unnecessary
considering that there are still available lots in Bunawan for the establishment of
the government center."[3]
The Municipality of Bunawan, herein public respondent, subsequently filed a
Petition for Eminent Domain against petitioner Percival Moday before the Regional
Trial Court at Prosperidad, Agusan del Sur.[4] The complaint was later amended to
include the registered owners, Percival Moday's parents, Zotico and Leonora Moday,
as party defendants.
On March 6, 1991, public respondent municipality filed a Motion to Take or Enter
Upon the Possession of Subject Matter of This Case stating that it had already
deposited with the municipal treasurer the necessary amount in accordance with
Section 2, Rule 67 of the Revised Rules of Court and that it would be in the
government's best interest for public respondent to be allowed to take possession of
the property.
Despite petitioners' opposition and after a hearing on the merits, the Regional
Trial Court granted respondent municipality's motion to take possession of the land.
The lower court held that the Sangguniang Panlalawigan's failure to declare the
resolution invalid leaves it effective. It added that the duty of the Sangguniang
Panlalawigan is merely to review the ordinances and resolutions passed by the
Sangguniang Bayan under Section 208 (l) of B.P. Blg. 337, old Local Government
Code and that the exercise of eminent domain is not one of the two acts
enumerated in Section 19 thereof requiring the approval of the Sangguniang
Panlalawigan.[5] The dispositive portion of the lower court's Order dated July 2, 1991
reads:
"WHEREFORE, it appearing that the amount of P632.39 had been deposited as per
Official Receipt No. 5379647 on December 12, 1989 which this Court now
determines as the provisional value of the land, the Motion to Take or Enter Upon
the Possession of the Property filed by petitioner through counsel is hereby
GRANTED. The Sheriff of this Court is ordered to forthwith place the plaintiff in
possession of the property involved.
Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the
purpose of ascertaining the just compensation or fair market value of the property
sought to be taken, with notice to all the parties concerned.
SO ORDERED."[6]
Petitioners' motion for reconsideration was denied by the trial court on October
31, 1991.
Petitioners elevated the case in a petition for certiorari alleging grave abuse of
discretion on the part of the trial court, but the same was dismissed by respondent
appellate court on July 15, 1992. [7] The Court of Appeals held that the public purpose
for the expropriation is clear from Resolution No. 43-89 and that since the
Sangguniang Panlalawigan of Agusan del Sur did not declare Resolution No. 43-89
invalid, expropriation of petitioners' property could proceed.

Respondent appellate court also denied petitioners' motion for reconsideration

on October 22, 1992.[8]
Meanwhile, the Municipality of Bunawan had erected three buildings on the
subject property: the Association of Barangay Councils (ABC) Hall, the Municipal
Motorpool, both wooden structures, and the Bunawan Municipal Gymnasium, which
is made of concrete.
In the instant petition for review filed on November 23, 1992, petitioner seeks
the reversal of the decision and resolution of the Court of Appeals and a declaration
that Resolution No. 43-89 of the Municipality of Bunawan is null and void.
On December 8, 1993, the Court issued a temporary restraining order enjoining
and restraining public respondent Judge Evangeline Yuipco from enforcing her July 2,
1991 Order and respondent municipality from using and occupying all the buildings
constructed and from further constructing any building on the land subject of this
petition.[9]
Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and
for Contempt, the Court issued a Resolution on March 15, 1995, citing incumbent
municipal mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and
to demolish the "blocktiendas" which were built in violation of the restraining order.
[10]

Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in
the May 8, 1995 election. [11] The incumbent Mayor Leonardo Barrios, filed a
Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of the
Temporary Restraining Order" and Memorandum on June 11, 1996 for the
Municipality of Bunawan.[12]
Petitioners contend that the Court of Appeals erred in upholding the legality of
the condemnation proceedings initiated by the municipality. According to
petitioners, the expropriation was politically motivated and Resolution No. 43-89
was correctly disapproved by the Sangguniang Panlalawigan, there being other
municipal properties available for the purpose. Petitioners also pray that the former
Mayor Anuncio C. Bustillo be ordered to pay damages for insisting on the
enforcement of a void municipal resolution.
The Court of Appeals declared that the Sangguniang Panlalawigan's reason for
disapproving the resolution "could be baseless, because it failed to point out which
and where are 'those available lots.' Respondent court also concluded that since the
Sangguniang Panlalawigan did not declare the municipal board's resolution as
invalid, expropriation of petitioners' property could proceed. [13]
The Court finds no merit in the petition and affirms the decision of the Court of
Appeals.
Eminent domain, the power which the Municipality of Bunawan exercised in the
instant case, is a fundamental State power that is inseparable from sovereignty. [14] It
is government's right to appropriate, in the nature of a compulsory sale to the State,
private property for public use or purpose. [15] Inherently possessed by the national
legislature, the power of eminent domain may be validly delegated to local
governments, other public entities and public utilities. [16] For the taking of private
property by the government to be valid, the taking must be for public use and there
must be just compensation.[17]
The Municipality of Bunawan's power to exercise the right of eminent domain is
not disputed as it is expressly provided for in Batas Pambansa Blg. 337, the Local
Government Code[18]in force at the time expropriation proceedings were initiated.
Section 9 of said law states:

"Section 9. Eminent Domain. A local government unit may, through its head and
acting pursuant to a resolution of its sanggunian, exercise the right of eminent
domain and institute condemnation proceedings for public use or purpose."
What petitioners question is the lack of authority of the municipality to exercise
this right since the Sangguniang Panlalawigan disapproved Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
"Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days after receiving
copies of approved ordinances, resolutions and executive orders promulgated by
the municipal mayor, the sangguniang panlalawigan shall examine the documents
or transmit them to the provincial attorney, or if there be none, to the provincial
fiscal, who shall examine them promptly and inform the sangguniang panlalawigan
in writing of any defect or impropriety which he may discover therein and make
such comments or recommendations as shall appear to him proper.
(2) If the sangguniang panlalawigan shall find that any municipal ordinance,
resolution or executive order is beyond the power conferred upon the
sangguniang bayan or the mayor, it shall declare such ordinance,
resolution or executive order invalid in whole or in part, entering its actions
upon the minutes and advising the proper municipal authorities thereof. The effect
of such an action shall be to annul the ordinance, resolution or executive order in
question in whole or in part. The action of the sangguniang panlalawigan shall be
final.
xxx xxx xxx." (Emphasis supplied.)
The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89
is an infirm action which does not render said resolution null and void. The law, as
expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the
power to declare a municipal resolution invalid on the sole ground that it is beyond
the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a
similar provision of law but different factual milieu then obtaining, the Court's
pronouncements in Velazco v. Blas, [19] where we cited significant early
jurisprudence, are applicable to the case at bar.
"The only ground upon which a provincial board may declare any municipal
resolution, ordinance, or order invalid is when such resolution, ordinance, or order is
'beyond the powers conferred upon the council or president making the same.'
Absolutely no other ground is recognized by the law. A strictly legal question is
before the provincial board in its consideration of a municipal resolution, ordinance,
or order. The provincial (board's) disapproval of any resolution, ordinance, or order
must be premised specifically upon the fact that such resolution, ordinance, or order
is outside the scope of the legal powers conferred by law. If a provincial board
passes these limits, it usurps the legislative functions of the municipal council or
president. Such has been the consistent course of executive authority." [20]
Thus, the Sangguniang Panlalawigan was without the authority to disapprove
Municipal Resolution No. 43-89 for the Municipality of Bunawan clearly has the
power to exercise the right of eminent domain and its Sangguniang Bayan the
capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of
B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and
could be used as lawful authority to petition for the condemnation of petitioners'
property.
As regards the accusation of political oppression, it is alleged that Percival
Moday incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support
the latter's candidacy for mayor in previous elections. Petitioners claim that then

incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating

their land even if there were other properties belonging to the municipality and
available for the purpose. Specifically, they allege that the municipality owns a
vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch
plan.[21]
The limitations on the power of eminent domain are that the use must be public,
compensation must be made and due process of law must be observed. [22] The
Supreme Court, taking cognizance of such issues as the adequacy of compensation,
necessity of the taking and the public use character or the purpose of the taking [23],
has ruled that the necessity of exercising eminent domain must be genuine and of a
public character.[24] Government may not capriciously choose what private property
should be taken.
After a careful study of the records of the case, however, we find no evidentiary
support for petitioners' allegations. The uncertified photocopy of the sketch plan
does not conclusively prove that the municipality does own vacant land adjacent to
petitioners' property suited to the purpose of the expropriation. In the questioned
decision, respondent appellate court similarly held that the pleadings and
documents on record have not pointed out any of respondent municipality's "other
available properties available for the same purpose. [25] " The accusations of political
reprisal are likewise unsupported by competent evidence. Consequently, the Court
holds that petitioners' demand that the former municipal mayor be personally liable
for damages is without basis.
WHEREFORE, the instant petition is hereby DENIED. The questioned Decision
and Resolution of the Court of Appeals in the case of "Percival Moday, et al. v.
Municipality of Bunawan,et al." (CA G.R. SP No. 26712) are AFFIRMED. The
Temporary Restraining Order issued by the Court on December 8, 1993 is LIFTED.
SO ORDERED.
Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18841
January 27, 1969
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-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.t
SEC. 79. The Bureau of Telecommunications shall exercise the following powers
and duties:
(a) To operate and maintain existing wire-telegraph and radiotelegraph 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. 17Through 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 counterclaims.
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 revenues.
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
counterclaims.
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

SUPREME COURT
Manila
EN BANC
G.R. No. L-20620 August 15, 1974
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
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 defendantappellees.
ZALDIVAR, J.:p
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,
1959. 1
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 condemnation.3
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 ToledoGozun; 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 meter. 5
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 decision 6 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 motion.
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 discussion.
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 Security. 7
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:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND ENTERED into by and
between INTESTATE ESTATE OF ALFONSO DE CASTELLVI,
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 LESSEE,
WITNESSETH:
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 nature.
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 provided.
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 abovementioned 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 lessee.
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, 1959.
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 uses?
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 peso.
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. 30Considering that the lands of Castellvi and ToledoGozun 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 newlydiscovered 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 newlydiscovered
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.
IT IS SO ORDERED.
Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muoz Palma and Aquino,
JJ., concur.
Castro, Fernando, Teehankee and Makasiar, JJ., took no part.
The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON
CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of
Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.
GUTIERREZ, JR., J.:
This is a petition for review which seeks the reversal of the decision of the Court of
First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64,
of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial
park cemetery shall be set aside for charity burial of deceased
persons who are paupers and have been residents of Quezon
City for at least 5 years prior to their death, to be determined by
competent City Authorities. The area so designated shall
immediately be developed and should be open for operation not
later than six months from the date of approval of the
application.

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

does not reveal any provision that would justify the ordinance in
question except the provision granting police power to the City.
Section 9 cannot be justified under the power granted to Quezon
City to tax, fix the license fee, and regulatesuch other business,
trades, and occupation as may be established or practised in the
City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit
(People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of
Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A
fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but
also prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation of the
provision thereof is punishable with a fine and/or imprisonment
and that upon conviction thereof the permit to operate and
maintain a private cemetery shall be revoked or cancelled.' The
confiscatory clause and the penal provision in effect deter one
from operating a memorial park cemetery. Neither can the
ordinance in question be justified under sub- section "t", Section
12 of Republic Act 537 which authorizes the City Council to'prohibit the burial of the dead within the center of
population of the city and provide for their burial in
such proper place and in such manner as the
council may determine, subject to the provisions of
the general law regulating burial grounds and
cemeteries and governing funerals and disposal of
the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes
confiscation or as euphemistically termed by the respondents,
'donation'
We now come to the question whether or not Section 9 of the
ordinance in question is a valid exercise of police power. The
police power of Quezon City is defined in sub-section 00, Sec.
12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and
regulations not repugnant to law as may be
necessary to carry into effect and discharge the
powers and duties conferred by this act and such
as it shall deem necessary and proper to provide
for the health and safety, promote, the prosperity,
improve the morals, peace, good order, comfort
and convenience of the city and the inhabitants
thereof, and for the protection of property therein;
and enforce obedience thereto with such lawful
fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this
section.
We start the discussion with a restatement of certain basic
principles. Occupying the forefront in the bill of rights is the
provision which states that 'no person shall be deprived of life,

liberty or property without due process of law' (Art. Ill, Section 1

subparagraph 1, Constitution).
On the other hand, there are three inherent powers of
government by which the state interferes with the property
rights, namely-. (1) police power, (2) eminent domain, (3)
taxation. These are said to exist independently of the
Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the
public welfare by restraining and regulating the use of liberty
and property' (Quoted in Political Law by Tanada and Carreon, V11, p. 50). It is usually exerted in order to merely regulate the
use and enjoyment of property of the owner. If he is deprived of
his property outright, it is not taken for public use but rather to
destroy in order to promote the general welfare. In police power,
the owner does not recover from the government for injury
sustained in consequence thereof (12 C.J. 623). It has been said
that police power is the most essential of government powers, at
times the most insistent, and always one of the least limitable of
the powers of government (Ruby vs. Provincial Board, 39 PhiL
660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya
Fan, 10 PhiL 104). The Supreme Court has said that police power
is so far-reaching in scope that it has almost become impossible
to limit its sweep. As it derives its existence from the very
existence of the state itself, it does not need to be expressed or
defined in its scope. Being coextensive with self-preservation
and survival itself, it is the most positive and active of all
governmental processes, the most essential insistent and
illimitable Especially it is so under the modern democratic
framework where the demands of society and nations have
multiplied to almost unimaginable proportions. The field and
scope of police power have become almost boundless, just as
the fields of public interest and public welfare have become
almost all embracing and have transcended human foresight.
Since the Courts cannot foresee the needs and demands of
public interest and welfare, they cannot delimit beforehand the
extent or scope of the police power by which and through which
the state seeks to attain or achieve public interest and welfare.
(Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the
government and the due process clause being the broadest
station on governmental power, the conflict between this power
of government and the due process clause of the Constitution is
oftentimes inevitable.
It will be seen from the foregoing authorities that police power is
usually exercised in the form of mere regulation or restriction in
the use of liberty or property for the promotion of the general
welfare. It does not involve the taking or confiscation of property
with the exception of a few cases where there is a necessity to
confiscate private property in order to destroy it for the purpose

of protecting the peace and order and of promoting the general

welfare as for instance, the confiscation of an illegally possessed
article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118,
Series of 1964 of Quezon City is not a mere police regulation but
an outright confiscation. It deprives a person of his private
property without due process of law, nay, even without
compensation.
In sustaining the decision of the respondent court, we are not unmindful of the
heavy burden shouldered by whoever challenges the validity of duly enacted
legislation whether national or local As early as 1913, this Court ruled in Case v.
Board of Health (24 PhiL 250) that the courts resolve every presumption in favor of
validity and, more so, where the ma corporation asserts that the ordinance was
enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v.
City Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate
Justice and now Chief Justice Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of
any evidence to offset the presumption of validity that attaches
to a statute or ordinance. As was expressed categorically by
Justice Malcolm 'The presumption is all in favor of validity. ... The
action of the elected representatives of the people cannot be
lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular ...
municipality and with all the facts and lances which surround the
subject and necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that the
regulations are essential to the well-being of the people. ... The
Judiciary should not lightly set aside legislative action when
there is not a clear invasion of personal or property rights under
the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil.
102, at p. 111. There was an affirmation of the presumption of
validity of municipal ordinance as announced in the leading
Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case
v. Board of Health supra :
... Under the provisions of municipal charters which are known
as the general welfare clauses, a city, by virtue of its police
power, may adopt ordinances to the peace, safety, health,
morals and the best and highest interests of the municipality. It
is a well-settled principle, growing out of the nature of wellordered and society, that every holder of property, however
absolute and may be his title, holds it under the implied liability
that his use of it shall not be injurious to the equal enjoyment of
others having an equal right to the enjoyment of their property,
nor injurious to the rights of the community. An property in the
state is held subject to its general regulations, which are
necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject
to such reasonable limitations in their enjoyment as shall

prevent them from being injurious, and to such reasonable

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

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

United States v. Causby

328 U.S. 256 (1946)
Annotate this Case

Syllabus
Case

U.S. Supreme Court

United States v. Causby, 328 U.S. 256 (1946)
United States v. Causby
No. 630
Argued May 1, 1946
Decided May 27, 1946
328 U.S. 256
CERTIORARI TO THE COURT OF CLAIMS
Syllabus
Respondents owned a dwelling and a chicken farm near a municipal airport. The
safe path of glide to one of the runways of the airport passed directly over
respondents' property at 83 feet, which was 67 feet above the house, 63 feet above
the barn and 18 feet above the highest tree. It was used 4% of the time in taking off
and 7% of the time in landing. The Government leased the use of the airport for a
term of one month commencing June 1, 1942, with a provision for renewals until
June 30, 1967, or six months after the end of the national emergency, whichever
was earlier. Various military aircraft of the United States used the airport. They
frequently came so close to respondents' property that they barely missed the tops
of trees, the noise was startling, and the glare from their landing lights lighted the
place up brightly at night. This destroyed the use of the property as a chicken farm
and caused loss of sleep, nervousness, and fright on the part of respondents. They
sued in the Court of Claims to recover for an alleged taking of their property and for
damages to their poultry business. The Court of Claims found that the Government
had taken an easement over respondents' property, and that the value of the
property destroyed and the easement taken was $2,000; but it made no finding as
to the precise nature or duration of the easement.
Held:

1. A servitude has been imposed upon the land for which respondents are entitled
to compensation under the Fifth Amendment. Pp.328 U. S. 260-267.
(a) The common law doctrine that ownership of land extends to the periphery of the
universe has no place in the modern world. Pp. 328 U. S. 260-261.
(b) The air above the minimum safe altitude of flight prescribed by the Civil
Aeronautics Authority is a public highway and part of the public domain, as declared
by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics
Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.
(c) Flights below that altitude are not within the navigable air space which Congress
placed within the public domain, even though they are within the path of glide
approved by the Civil Aeronautics Authority. Pp. 328 U. S. 263-264.
Page 328 U. S. 257
(d) Flights of aircraft over private land which are so low and frequent as to be a
direct and immediate interference with the enjoyment and use of the land are as
much an appropriation of the use of the land as a more conventional entry upon it.
Pp. 328 U. S. 261-262,328 U. S. 264-267.
2. Since there was a taking of private property for public use, the claim was
"founded upon the Constitution," within the meaning of 141(1) of the Judicial
Code, and the Court of Claims had jurisdiction to hear and determine it. P. 328 U. S.
267.
3. Since the court's findings of fact contain no precise description of the nature or
duration of the easement taken, the judgment is reversed, and the cause is
remanded to the Court of Claims so that it may make the necessary findings.
Pp. 328 U. S. 267-268.
(a) An accurate description of the easement taken is essential, since that interest
vests in the United States. P. 328 U. S. 267.
(b) Findings of fact on every "material issue" are a statutory requirement, and a
deficiency in the findings cannot be rectified by statements in the opinion. Pp. 328
U. S. 267-268.
(c) A conjecture in lieu of a conclusion from evidence would not be a proper
foundation for liability of the United States. P. 328 U. S. 268.
104 Ct.Cls. 342, 60 F.Supp. 751, reversed and remanded.
The Court of Claims granted respondents a judgment for the value of property
destroyed and damage to their property resulting from the taking of an easement
over their property by low-flying military aircraft of the United States, but failed to
include in its findings of fact a specific description of the nature or duration of the

easement. 104 Ct.Cls. 342, 60 F.Supp. 751. This Court granted certiorari. 327 U.S.
775. Reversed and remanded, p. 328 U. S. 268.
Page 328 U. S. 258
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a case of first impression. The problem presented is whether respondents'
property was taken within the meaning of the Fifth Amendment by frequent and
regular flights of army and navy aircraft over respondents' land at low altitudes. The
Court of Claims held that there was a taking, and entered judgment for respondent,
one judge dissenting. 60 F.Supp. 751. The case is here on a petition for a writ of
certiorari which we granted because of the importance of the question presented.
Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It
has on it a dwelling house, and also various outbuildings which were mainly used for
raising chickens. The end of the airport's northwest-southeast runway is 2,220 feet
from respondents' barn and 2,275 feet from their house. The path of glide to this
runway passes directly over the property -- which is 100 feet wide and 1,200 feet
long. The 30 to 1 safe glide angle [Footnote 1] approved by the Civil Aeronautics
Authority [Footnote 2] passes over this property at 83 feet, which is 67 feet above
the house, 63 feet above the barn and 18 feet above the highest tree. [Footnote 3]
The use by the United States of this airport is pursuant to a lease executed in May,
1942, for a term commencing June 1, 1942 and ending June 30, 1942, with a
provision for renewals until June 30, 1967, or six
Page 328 U. S. 259
months after the end of the national emergency, whichever is the earlier.
Various aircraft of the United States use this airport -- bombers, transports, and
fighters. The direction of the prevailing wind determines when a particular runway is
used. The northwest-southeast runway in question is used about four percent of the
time in taking off and about seven percent of the time in landing. Since the United
States began operations in May, 1942, its four-motored heavy bombers, other
planes of the heavier type, and its fighter planes have frequently passed over
respondents' land buildings in considerable numbers and rather close together.
They come close enough at times to appear barely to miss the tops of the trees, and
at times so close to the tops of the trees as to blow the old leaves off. The noise is
startling. And, at night, the glare from the planes brightly lights up the place. As a
result of the noise, respondents had to give up their chicken business. As many as
six to ten of their chickens were killed in one day by flying into the walls from fright.
The total chickens lost in that manner was about 150. Production also fell off. The

result was the destruction of the use of the property as a commercial chicken farm.
Respondents are frequently deprived of their sleep, and the family has become
nervous and frightened. Although there have been no airplane accidents on
respondents' property, there have been several accidents near the airport and close
to respondents' place. These are the essential facts found by the Court of Claims.
On the basis of these facts, it found that respondents' property had depreciated in
value. It held that the United States had taken an easement over the property on
June 1, 1942, and that the value of the property destroyed and the easement taken
was $2,000.
Page 328 U. S. 260
I. The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C.
171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49
U.S.C. 401 et seq. Under those statutes, the United States has "complete and
exclusive national sovereignty in the air space" over this country. 49 U.S.C. 176(a).
They grant any citizen of the United States "a public right of freedom of transit in air
commerce [Footnote 4] through the navigable air space of the United States." 49
U.S.C. 403. And "navigable air space" is defined as "airspace above the minimum
safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C.
180. And it is provided that "such navigable airspace shall be subject to a public
right of freedom of interstate and foreign air navigation." Id. It is therefore argued
that, since these flights were within the minimum safe altitudes of flight which had
been prescribed, they were an exercise of the declared right of travel through the
airspace. The United States concludes that, when flights are made within the
navigable airspace without any physical invasion of the property of the landowners,
there has been no taking of property. It says that, at most, there was merely
incidental damage occurring as a consequence of authorized air navigation. It also
argues that the landowner does not own superadjacent airspace which he has not
subjected to possession by the erection of structures or other occupancy. Moreover,
it is argued that, even if the United States took airspace owned by respondents, no
compensable damage was shown. Any damages are said to be merely
consequential for which no compensation may be obtained under the Fifth
Amendment.
It is ancient doctrine that at common law ownership of the land extended to the
periphery of the universe -- cujus
Page 328 U. S. 261

est solum ejus est usque and coelum. [Footnote 5] But that doctrine has no place in
the modern world. The air is a public highway, as Congress has declared. Were that
not true, every transcontinental flight would subject the operator to countless
trespass suits. Common sense revolts at the idea. To recognize such private claims
to the airspace would clog these highways, seriously interfere with their control and
development in the public interest, and transfer into private ownership that to which
only the public has a just claim.
But that general principle does not control the present case. For the United States
conceded on oral argument that, if the flights over respondents' property rendered
it uninhabitable, there would be a taking compensable under the Fifth Amendment.
It is the owner's loss, not the taker's gain, which is the measure of the value of the
property taken. United States v. Miller, 317 U. S. 369. Market value fairly determined
is the normal measure of the recovery. Id. And that value may reflect the use to
which the land could readily be converted, as well as the existing use. United States
v. Powelson, 319 U. S. 266, 319 U. S. 275, and cases cited. If, by reason of the
frequency and altitude of the flights, respondents could not use this land for any
purpose, their loss would be complete. [Footnote 6] It would be as complete as if
the United States had entered upon the surface of the land and taken exclusive
possession of it.
We agree that, in those circumstances, there would be a taking. Though it would be
only an easement of flight
Page 328 U. S. 262
which was taken, that easement, if permanent and not merely temporary, normally
would be the equivalent of a fee interest. It would be a definite exercise of complete
dominion and control over the surface of the land. The fact that the planes never
touched the surface would be as irrelevant as the absence in this day of the feudal
livery of seisin on the transfer of real estate. The owner's right to possess and
exploit the land -- that is to say, his beneficial ownership of it -- would be destroyed.
It would not be a case of incidental damages arising from a legalized nuisance, such
as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. In that case,
property owners whose lands adjoined a railroad line were denied recovery for
damages resulting from the noise, vibrations, smoke, and the like, incidental to the
operations of the trains. In the supposed case, the line of flight is over the land. And
the land is appropriated as directly and completely as if it were used for the
runways themselves.

There is no material difference between the supposed case and the present one,
except that, here, enjoyment and use of the land are not completely destroyed. But
that does not seem to us to be controlling. The path of glide for airplanes might
reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a
residential section to a wheat field. Some value would remain. But the use of the
airspace immediately above the land would limit the utility of the land and cause a
diminution in its value. [Footnote 7] That was the philosophy of Portsmouth Harbor
Land & Hotel Co. v.
Page 328 U. S. 263
United States, 260 U. S. 327. In that case, the petition alleged that the United States
erected a fort on nearby land, established a battery and a fire control station there,
and fired guns over petitioner's land. The Court, speaking through Mr. Justice
Holmes, reversed the Court of Claims which dismissed the petition on a demurrer,
holding that "the specific facts set forth would warrant a finding that a servitude has
been imposed." [Footnote 8] 260 U.S. at 260 U. S. 330. And see Delta Air Corp. v.
Kersey, 193 Ga. 862, 20 S.E.2d 245.Cf. United States v. 357.25 Acres of Land, 55
F.Supp. 461.
The fact that the path of glide taken by the planes was that approved by the Civil
Aeronautics Authority does not change the result. The navigable airspace which
Congress has placed in the public domain is "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. 180. If
that agency prescribed 83 feet as the minimum safe altitude, then we would have
presented the question of the validity of the regulation. But nothing of the sort has
been done. The path of glide governs the method of operating -- of landing or taking
off. The altitude required for that operation is not the minimum safe altitude of flight
which is the downward reach of the navigable airspace. The minimum prescribed by
the authority is 500 feet during the day and 1000 feet at night for air carriers (Civil
Air Regulations, Pt. 61, 61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1)
and from 300 to 1000 feet for
Page 328 U. S. 264
other aircraft depending on the type of plane and the character of the
terrain. Id., Pt. 60, 60.350-60.3505, Fed.Reg.Cum.Supp.,supra. Hence, the flights
in question were not within the navigable airspace which Congress placed within the
public domain. If any airspace needed for landing or taking off were included, flights
which were so close to the land as to render it uninhabitable would be immune. But
the United States concedes, as we have said, that, in that event, there would be a

taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of
flight within the meaning of the statute. The Civil Aeronautics Authority has, of
course, the power to prescribe air traffic rules. But Congress has defined navigable
airspace only in terms of one of them -- the minimum safe altitudes of flight.
We have said that the airspace is a public highway. Yet it is obvious that, if the
landowner is to have full enjoyment of the land, he must have exclusive control of
the immediate reaches of the enveloping atmosphere. Otherwise buildings could not
be erected, trees could not be planted, and even fences could not be run. The
principle is recognized when the law gives a remedy in case overhanging structures
are erected on adjoining land. [Footnote 9] The landowner owns at least as much of
the space above the ground as the can occupy or use in connection with the
land. See Hinman v. Pacific Air Transport, 84 F.2d 755. The fact that he does not
occupy it in a physical sense -- by the erection of buildings and the like -- is not
material. As we have said, the flight of airplanes, which skim the surface but do not
touch it, is as much an appropriation of the use of the land as a more conventional
entry upon it. We would not doubt that, if the United States erected
Page 328 U. S. 265
an elevated railway over respondents' land at the precise altitude where its planes
now fly, there would be a partial taking, even though none of the supports of the
structure rested on the land. [Footnote 10] The reason is that there would be an
intrusion so immediate and direct as to subtract from the owner's full enjoyment of
the property and to limit his exploitation of it. While the owner does not in any
physical manner occupy that stratum of airspace or make use of it in the
conventional sense, he does use it in somewhat the same sense that space left
between buildings for the purpose of light and air is used. The superadjacent
airspace at this low altitude is so close to the land that continuous invasions of it
affect the use of the surface of the land itself. We think that the landowner, as an
incident to his ownership, has a claim to it, and that invasions of it are in the same
category as invasions of the surface. [Footnote 11]
In this case, as in Portsmouth Harbor Land & Hotel Co. v. United States, supra, the
damages were not merely consequential. They were the product of a direct invasion
of respondents' domain.
Page 328 U. S. 266
As stated in United States v. Cress, 243 U. S. 316, 243 U. S. 328,

". . . it is the character of the invasion, not the amount of damage resulting from it,
so long as the damage is substantial, that determines the question whether it is a
taking."
We said in United States v. Powelson, supra, p. 319 U. S. 279, that, while the
meaning of "property" as used in the Fifth Amendment was a federal question, "it
will normally obtain its content by reference to local law." If we look to North
Carolina law, we reach the same result. Sovereignty in the airspace rests in the
State "except where granted to and assumed by the United States."
Gen.Stats.1943, 63-11. The flight of aircraft is lawful
"unless at such a low altitude as to interfere with the then existing use to which the
land or water, or the space over the land or water, is put by the owner, or unless so
conducted as to be imminently dangerous to persons or property lawfully on the
land or water beneath."
Id., 63-13. Subject to that right of flight, "ownership of the space above the lands
and waters of this State is declared to be vested in the several owners of the
surface beneath." Id., 63-12. Our holding that there was an invasion of
respondents' property is thus not inconsistent with the local law governing a
landowner's claim to the immediate reaches of the superadjacent airspace.
The airplane is part of the modern environment of life, and the inconveniences
which it causes are normally not compensable under the Fifth Amendment. The
airspace, apart from the immediate reaches above the land, is part of the public
domain. We need not determine at this time what those precise limits are. Flights
over private land are not a taking, unless they are so low and so frequent as to be a
direct and immediate interference with the enjoyment and use of the land. We need
not speculate on that phase of the present case. For the findings of the Court
Page 328 U. S. 267
of Claims plainly establish that there was a diminution in value of the property, and
that the frequent, low-level flights were the direct and immediate cause. We agree
with the Court of Claims that a servitude has been imposed upon the land.
II. By 145(1) of the Judicial Code, 28 U.S.C. 250(1), the Court of Claims has
jurisdiction to hear and determine
"All claims (except for pensions) founded upon the Constitution of the United States
or . . . upon any contract, express or implied, with the Government of the United
States."
We need not decide whether repeated trespasses might give rise to an implied
contract. Cf. Portsmouth Harbor Land & Hotel Co. v. United States, supra. If there is

a taking, the claim is "founded upon the Constitution," and within the jurisdiction of
the Court of Claims to hear and determine. See Hollister v. Benedict & Burnham
Mfg. Co., 113 U. S. 59, 113 U. S. 67; Hurley v. Kincaid, 285 U. S. 95, 285 U. S.
104; Yearsley v. W. A. Ross Construction Co., 309 U. S. 18, 309 U. S. 21. Thus, the
jurisdiction of the Court of Claims in this case is clear.
III. The Court of Claims held, as we have noted, that an easement was taken. But
the findings of fact contain no precise description as to its nature. It is not described
in terms of frequency of flight, permissible altitude, or type of airplane. Nor is there
a finding as to whether the easement taken was temporary or permanent. Yet an
accurate description of the property taken is essential, since that interest vests in
the United States. United States v. Cress, supra, 243 U. S. 328-329, and cases cited.
It is true that the Court of Claims stated in its opinion that the easement taken was
permanent. But the deficiency in findings cannot be rectified by statements in the
opinion. United States v. Esnault-Pelterie, 299 U. S. 201, 299 U. S. 205-206; United
States v. Seminole Nation, 299 U. S. 417, 299 U. S. 422. Findings of fact on every
"material issue" are a statutory
Page 328 U. S. 268
requirement. 53 Stat. 752, 28 U.S.C. 288. The importance of findings of fact based
on evidence is emphasized here by the Court of Claims' treatment of the nature of
the easement. It stated in its opinion that the easement was permanent because
the United States "no doubt intended to make some sort of arrangement whereby it
could use the airport for its military planes whenever it had occasion to do so." That
sounds more like conjecture, rather than a conclusion from evidence, and if so, it
would not be a proper foundation for liability of the United States. We do not stop to
examine the evidence to determine whether it would support such a finding, if
made. For that is not our function. United States v. Esnault-Pelterie, supra, p. 299 U.
S. 206.
Since on this record it is not clear whether the easement taken is a permanent or a
temporary one, it would be premature for us to consider whether the amount of the
award made by the Court of Claims was proper.
The judgment is reversed, and the cause is remanded to the Court of Claims so that
it may make the necessary findings in conformity with this opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. L-60549, 60553 to 60555 October 26, 1983
HEIRS OF JUANCHO ARDONA, petitioners,
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding Judge of Branch I,
COURT OF FIRST instance OF CEBU, and the PHILIPPINE TOURISM
AUTHORITY, respondents.
George M. Baladjay, Mario G. dela Victoria, Olegario Sarmiento, Jr., and Democrito
Barcenas for petitioners.
The Solicitor General for respondent Judge.
F.A. Sugue & Elino B. Lingas for Philippine Tourism Authoirity

GUTIERREZ, JR., J.:

This is a petition for certiorari with preliminary injunction challenging the
constitutionality of Presidential Decree No. 564, the Revised Charter of the
Philippine Tourism Authority, and Proclamation No. 2052 declaring the barangays of
Sibugay, Malubog, Babag and Sirao including the proposed Lusaran Dam in the City
of Cebu and in the municipalities of Argao and Dalaguete in the province of Cebu as
tourist zones. The petitioners ask that we restrain respondent Court of First Instance
of Cebu and the Philippine Tourism Authority (PTA) from enforcing and implementing
the writs of possession issued in four (4) expropriation cases filed by PTA against the
petitioners: Civil Cases Nos. R-19562, R-19684, R-20701, and R-21608 of the Court
of First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4) Complaints with the Court of First
Instance of Cebu City for the expropriation of some 282 hectares of rolling land
situated in barangays Malubog and Babag, Cebu City, under PTA's express authority
"to acquire by purchase, by negotiation or by condemnation proceedings any
private land within and without the tourist zones" for the purposes indicated in
Section 5, paragraph B(2), of its Revised Charter (PD 564), more specifically, for the
development into integrated resort complexes of selected and well-defined
geographic areas with potential tourism value. As uniformly alleged in the
complaints, the purposes of the expropriation are:
xxx xxx xxx

V
Plaintiff, in line with the policy of the government to promote tourism
and development of tourism projects will construct in Barangays
Malubog, Busay and Babag, all of Cebu City, a sports complex
(basketball courts, tennis courts, volleyball courts, track and field,
baseball and softball diamonds, and swimming pools), clubhouse, gold
course, children's playground and a nature area for picnics and
horseback riding for the use of the public.
The development plan, covering approximately 1,000 hectares,
includes the establishment of an electric power grid in the area by the
National Power Corporation, thus assuring the supply of electricity
therein for the benefit of the whole community. Deep wells will also be
constructed to generate water supply within the area. Likewise, a
complex sewerage and drainage system will be devised and
constructed to protect the tourists and nearby residents from the
dangers of pollution.
Complimentary and support facilities for the project will be
constructed, including public rest houses, lockers, dressing rooms,
coffee shops, shopping malls, etc. Said facilities will create and offer
employment opportunities to residents of the community and further
generate income for the whole of Cebu City.
Plaintiff needs the property above described which is directly covered
by the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their respective
Opposition with Motion to Dismiss and/or Reconsideration. The defendants in Civil
Case No. R-19562 filed a manifestation adopting the answer of defendants in Civil
Case No. R-19864. The defendants, now petitioners, had a common allegation in
that the taking is allegedly not impressed with public use under the Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the issue of public
use, that there is no specific constitutional provision authorizing the taking of
private property for tourism purposes; that assuming that PTA has such power, the
intended use cannot be paramount to the determination of the land as a land
reform area; that limiting the amount of compensation by Legislative fiat is
constitutionally repugnant; and that since the land is under the land reform
program, it is the Court of Agrarian Relations and not the Court of First Instance that
has jurisdiction over the expropriation cases.
The Philippine Tourism Authority having deposited with The Philippine National
Bank, Cebu City Branch, an amount equivalent to 10% of the value of the properties

pursuant to Presidential Decree No. 1533. the lower court issued separate orders
authorizing PTA to take immediate possession of the premises and directing the
issuance of writs of possession.
On May 25, 1982, petitioners filed this petition questioning the orders of the
respondent Judge, The respondents have correctly restated the grounds in the
petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the Constitution
does not provide for the expropriation of private property for tourism or
other related purposes;
B. The writs of possession or orders authorizing PTA to take immediate
possession is premature because the "public use" character of the
taking has not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent domain
law;
D. The properties in question have been previously declared a land
reform area; consequently, the implementation of the social justice
pro- ,vision of the Constitution on agrarian reform is paramount to the
right of the State to expropriate for the purposes intended;
E. Proclamation No. 2052 declaring certain barangays in Cebu City,
which include the lands subject of expropriation as within a tourist
zone, is unconstitutional for it impairs the obligation of contracts; "F.
Since the properties are within a land reform area, it is the Court of
Agrarian Relations, not the lower court, that has jurisdiction pursuant
to Pres. Decree No. 946;
F. The forcible ejectment of defendants from the premises constitutes a
criminal act under Pres. Decree No. 583;
In their memorandum, the petitioners have summarized the issues as follows:
I. Enforcement of the Writ of Possession is Premature:
II. Presidential Decree 564 Amending Presidential Decree l89 is
Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore, Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered by the
Land Reform Program Violates the Constitution:

V. Presidential Proclamation 2052 is Unconstitutional:

VI. Presidential Decree No 1533 is Unconstitutional:
VII. The Court of First Instance has no Jurisdiction:
VIII. The Filing of the Present Petition is not Premature.
The issues raised by the petitioners revolve around the proposition that the actions
to expropriate their properties are constitutionally infirm because nowhere in the
Constitution can a provision be found which allows the taking of private property for
the promotion of tourism.
The petitioners' arguments in their pleadings in support of the above proposition are
subsumed under the following headings:
1. Non-compliance with the "public use" requirement under the
eminent domain provision of the Bill of Rights.
2. Disregard of the land reform nature of the property being
expropriated.
3. Impairment of the obligation of contracts.
There are three provisions of the Constitution which directly provide for the exercise
of the power of eminent domain. Section 2, Article IV states that private property
shall not be taken for public use without just compensation. Section 6, Article XIV
allows the State, in the interest of national welfare or defense and upon payment of
just compensation to transfer to public ownership, utilities and other private
enterprises to be operated by the government. Section 13, Article XIV states that
the Batasang Pambansa may authorize upon payment of just compensation the
expropriation of private lands to be subdivided into small lots and conveyed at cost
to deserving citizens.
While not directly mentioning the expropriation of private properties upon payment
of just compensation, the provisions on social justice and agrarian reforms which
allow the exercise of police power together with the power of eminent domain in the
implementation of constitutional objectives are even more far-reaching insofar as
taking of private property is concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social justice to ensure the dignity,
welfare, and security of all the people. Towards its end, the State shall
regulate the acquisition, ownership, use, enjoyment, and disposition of
private property, and equitably diffuse property ownership and profits.

xxx xxx xxx

Section 12, Article XIV provides:
See. 12. The State shall formulate and implement an agrarian reform
program aimed at emancipating the tenant from the bondage of the
soil and achieving the goals enunciated in this Constitution.
The equitable diffusion of property ownership in the promotion of social justice
implies the exercise, whenever necessary, of the power to expropriate private
property. Likewise there can be no meaningful agrarian reform program unless the
power to expropriate is utilized.
We cite all the above provisions on the power to expropriate because of the
petitioners' insistence on a restrictive view of the eminent domain provision. The
thrust of all constitutional provisions on expropriation is in the opposite direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus (40 Phil. 550)
categorized the restrictive view as wholly erroneous and based on a misconception
of fundamentals.
The petitioners look for the word "tourism" in the Constitution. Understandably the
search would be in vain. The policy objectives of the framers can be expressed only
in general terms such as social justice, local autonomy, conservation and
development of the national patrimony, public interest, and general welfare, among
others. The programs to achieve these objectives vary from time to time and
according to place, To freeze specific programs like Tourism into express
constitutional provisions would make the Constitution more prolix than a bulky code
and require of the framers a prescience beyond Delphic proportions. The particular
mention in the Constitution of agrarian reform and the transfer of utilities and other
private enterprises to public ownership merely underscores the magnitude of the
problems sought to be remedied by these programs. They do not preclude nor limit
the exercise of the power of eminent domain for such purposes like tourism and
other development programs.
In the leading case of Visayan Refining Co. v. Camus (supra), this Court emphasized
that the power of eminent domain is inseparable from sovereignty being essential
to the existence of the State and inherent in government even in its most primitive
forms. The only purpose of the provision in the Bill of Rights is to provide some form
of restraint on the sovereign power. It is not a grant of authority The power of eminent domain does not depend for its existence on a
specific grant in the constitution. It is inherent in sovereignty and
exists in a sovereign state without any recognition of it in the
constitution. The provision found in most of the state constitutions
relating to the taking of property for the public use do not by

implication grant the power to the government of the state, but limit a
power which would otherwise be without limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that "public use"
means literally use by the public and that "public use" is not synonymous with
"public interest", "public benefit", or "public welfare" and much less "public
convenience. "
The petitioners face two major obstacles. First, their contention which is rather
sweeping in its call for a retreat from the public welfare orientation is unduly
restrictive and outmoded. Second, no less than the lawmaker has made a policy
determination that the power of eminent domain may be exercised in the promotion
and development of Philippine tourism.
The restrictive view of public use may be appropriate for a nation which
circumscribes the scope of government activities and public concerns and which
possesses big and correctly located public lands that obviate the need to take
private property for public purposes. Neither circumstance applies to the
Philippines. We have never been a laissez faire State, And the necessities which
impel the exertion of sovereign power are all too often found in areas of scarce
public land or limited government resources.
Certain aspects of parliamentary government were introduced by the 1973
amendments to the Constitution with further modifications in the 1976 and 1981
amendments. Insofar as the executive and legislative departments are concerned,
the traditional concept of checks and balances in a presidential form was
considerably modified to remove some roadblocks in the expeditious
implementation of national policies. There was no such change for the judiciary. We
remain as a checking and balancing department even as all strive to maintain
respect for constitutional boundaries. At the same time, the philosophy of
coordination in the pursuit of developmental goals implicit in the amendments also
constrains in the judiciary to defer to legislative discretion iii the judicial review of
programs for economic development and social progress unless a clear case of
constitutional infirmity is established. We cannot stop the legitimate exercise of
power on an invocation of grounds better left interred in a bygone age and time.* As
we review the efforts of the political departments to bring about self-sufficiency, if
not eventual abundance, we continue to maintain the liberal approach because the
primary responsibility and the discretion belong to them.
There can be no doubt that expropriation for such traditions' purposes as the
construction of roads, bridges, ports, waterworks, schools, electric and
telecommunications systems, hydroelectric power plants, markets and
slaughterhouses, parks, hospitals, government office buildings, and flood control or

irrigation systems is valid. However, the concept of public use is not limited to
traditional purposes. Here as elsewhere the Idea that "public use" is strictly limited
to clear cases of "use by the public" has been discarded.
In the United States, the rule was enunciated in Berman v. Parker (348 U.S. 25; 99 L.
ed. 27) as follows:
We do not sit to determine whether a particular housing project is or is
not desirable. The concept of the public welfare is broad and inclusive.
See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424, 96 L ed 469,
472, 72 S Ct 405. The values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as
carefully patrolled. In the present case, the Congress and its authorized
agencies have made determinations that take into account a wide
variety of values. It is not for us to reappraise them. If those who
govern the District of Columbia decide that the Nation's Capital should
be beautiful as well as sanitary, there is nothing in the Fifth
Amendment that stands in the way.
Once the object is within the authority of Congress, the right to realize
it through the exercise of eminent domain is clear. For the power of
eminent domain is merely the means to the end. See Luxton v. North
River Bridge Co. 153 US 525, 529, 530, 38 L ed 808, 810, 14 S Ct 891;
United States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed
576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated from the rest of North
Carolina because of the flooding of the reservoir of a dam thus making the provision
of police, school, and health services unjustifiably expensive, the government
decided to expropriate the private properties in the village and the entire area was
made part of an adjoining national park. The district court and the appellate court
ruled against the expropriation or excess condemnation. The Court of Appeals
applied the "use by the public" test and stated that the only land needed for public
use was the area directly flooded by the reservoir. The village may have been cut off
by the dam but to also condemn it was excess condemnation not valid under the
"Public use" requirement. The U.S. Supreme Court inUnited States ex rel TVA v.
Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It
stated:
The Circuit Court of Appeals, without expressly relying on a compelling
rule of construction that would give the restrictive scope to the T.V.A.
Act given it by the district court, also interpreted the statute narrowly.
It first analyzed the facts by segregating the total problem into distinct
parts, and thus came to the conclusion that T.V.A.'s purpose in
condemning the land in question was only one to reduce its liability

arising from the destruction of the highway. The Court held that use of
the lands for that purpose is a "private" and not a "public use" or, at
best, a "public use" not authorized by the statute. we are unable to
agree with the reasoning and conclusion of the Circuit Court of
Appeals.
We think that it is the function of Congress to decide what type of
taking is for a public use and that the agency authorized to do the
taking may do so to the still extent of its statutory authority, United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580,
16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of the judicial power to determine
what is a "public use" in Fourteenth Amendment controversies, this
Court has said that when Congress has spoken on this subject "Its
decision is entitled to deference until it is shown to involve an
impossibility." Old Dominion Land Co. v. United States, 269, US 55, 66,
70 L ed 162, 46 S Ct 39. Any departure from this judicial restraint
would result in courts deciding on what is and is not a governmental
function and in their invalidating legislation on the basis of their view
on that question at the moment of decision, a practice which has
proved impracticable in other fields. See Case v. Bowles decided
February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438. New
York v. United States, 326 US 572 ante 326, 66 S Ct 310). We hold that
the T.V.A. took the tracts here involved for a public purpose, if, as we
think is the case, Congress authorized the Authority to acquire, hold,
and use the lands to carry out the purposes of the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the
statutory and judicial trend as follows:
The taking to be valid must be for public use. There was a time when it
was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not
allowable. It is not any more. As long as the purpose of the taking is
public, then the power of eminent domain comes into play. As just
noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals. The other is
in the transfer, through the exercise of this power, of utilities and other
private enterprise to the government. It is accurate to state then that
at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Fernando, The
Constitution of the Philippines, 2nd ed., pp. 523-524)

The petitioners' contention that the promotion of tourism is not "public use"
because private concessioners would be allowed to maintain various facilities such
as restaurants, hotels, stores, etc. inside the tourist complex is impressed with even
less merit. Private bus firms, taxicab fleets, roadside restaurants, and other private
businesses using public streets end highways do not diminish in the least bit the
public character of expropriations for roads and streets. The lease of store spaces in
underpasses of streets built on expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively to private airlines and
shipping companies are still for public use. The expropriation of private land for
slum clearance and urban development is for a public purpose even if the
developed area is later sold to private homeowners, commercial firms,
entertainment and service companies, and other private concerns.
The petitioners have also failed to overcome the deference that is appropriately
accorded to formulations of national policy expressed in legislation. The rule in
Berman u. Parker (supra) of deference to legislative policy even if such policy might
mean taking from one private person and conferring on another private person
applies as well as in the Philippines.
... Once the object is within the authority of Congress, the means by
which it will be attained is also for Congress to determine. Here one of
the means chosen is the use of private enterprise for redevelopment of
the area. Appellants argue that this makes the project a taking from
one businessman for the benefit of another businessman. But the
means of executing the project are for Congress and Congress alone to
determine, once the public purpose has been established. Selb Luxton
v. North River Bridge Co. (US) supra; cf. Highland v. Russel Car & Snow
Plow Co. 279 US 253, 73 L ed 688, 49 S Ct 314. The public end may be
as well or better served through an agency of private enterprise than
through a department of government-or so the Congress might
conclude. We cannot say that public ownership is the sole method of
promoting the public purposes of community redevelopment projects.
What we have said also disposes of any contention concerning the fact
that certain property owners in the area may be permitted to
repurchase their properties for redevelopment in harmony with the
over-all plan. That, too, is a legitimate means which Congress and its
agencies may adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348
US 33, 34)
An examination of the language in the 1919 cases of City of Manila v. Chinese
Community of Manila (40 Phil, 349) and Visayan Refining Co. vs. Camus, earlier
cited, shows that from the very start of constitutional government in our country
judicial deference to legislative policy has been clear and manifest in eminent
domain proceedings.
The expressions of national policy are found in the revised charter of the Philippine
Tourism Authority, Presidential Decree No. 564:

WHEREAS, it is the avowed aim of the government to promote

Philippine tourism and work for its accelerated and balanced growth as
well as for economy and expediency in the development of the tourism
plant of the country;
xxx xxx xxx
SECTION 1. Declaration of Policy. - It is hereby declared to be the policy
of the State to promote, encourage, and develop Philippine tourism as
an instrument in accelerating the development of the country, of
strengthening the country's foreign exchange reserve position, and of
protecting Philippine culture, history, traditions and natural beauty,
internationally as well as domestically.
The power of eminent domain is expressly provided for under Section 5 B(2) as
follows:
xxx xxx xxx
2. Acquisition of Private Lands, Power of Eminent Domain. To acquire
by purchase, by negotiation or by condemnation proceedings any
private land within and without the tourist zones for any of the
following reasons: (a) consolidation of lands for tourist zone
development purposes, (b) prevention of land speculation in areas
declared as tourist zones, (c) acquisition of right of way to the zones,
(d) protection of water shed areas and natural assets with tourism
value, and (e) for any other purpose expressly authorized under this
Decree and accordingly, to exercise the power of eminent domain
under its own name, which shall proceed in the manner prescribed by
law and/or the Rules of Court on condemnation proceedings. The
Authority may use any mode of payment which it may deem expedient
and acceptable to the land owners: Provided, That in case bonds are
used as payment, the conditions and restrictions set forth in Chapter
III, Section 8 to 13 inclusively, of this Decree shall apply.
xxx xxx xxx
The petitioners rely on the Land Reform Program of the government in raising their
second argument. According to them, assuming that PTA has the right to
expropriate, the properties subject of expropriation may not be taken for the
purposes intended since they are within the coverage of "operation land transfer"
under the land reform program. Petitioners claim that certificates of land transfer
(CLT'S) and emancipation patents have already been issued to them thereby making
the lands expropriated within the coverage of the land reform area under
Presidential Decree No. 2; that the agrarian reform program occupies a higher level
in the order of priorities than other State policies like those relating to the health

and physical well- being of the people; and that property already taken for public
use may not be taken for another public use.
We have considered the above arguments with scrupulous and thorough
circumspection. For indeed any claim of rights under the social justice and land
reform provisions of the Constitution deserves the most serious consideration. The
Petitioners, however, have failed to show that the area being developed is indeed a
land reform area and that the affected persons have emancipation patents and
certificates of land transfer.
The records show that the area being developed into a tourism complex consists of
more than 808 hectares, almost all of which is not affected by the land reform
program. The portion being expropriated is 282 hectares of hilly and unproductive
land where even subsistence farming of crops other than rice and corn can hardly
survive. And of the 282 disputed hectares, only 8,970 square meters-less than one
hectare-is affected by Operation Land Transfer. Of the 40 defendants, only two have
emancipation patents for the less than one hectare of land affected. And this 8,970
square meters parcel of land is not even within the sports complex proper but forms
part of the 32 hectares resettlement area where the petitioners and others similarly
situated would be provided with proper housing, subsidiary employment,
community centers, schools, and essential services like water and electricity-which
are non-existent in the expropriated lands. We see no need under the facts of this
petition to rule on whether one public purpose is superior or inferior to another
purpose or engage in a balancing of competing public interests. The petitioners
have also failed to overcome the showing that the taking of the 8,970 square
meters covered by Operation Land Transfer forms a necessary part of an
inseparable transaction involving the development of the 808 hectares tourism
complex. And certainly, the human settlement needs of the many beneficiaries of
the 32 hectares resettlement area should prevail over the property rights of two of
their compatriots.
The invocation of the contracts clause has no merit. The non-impairment clause has
never been a barrier to the exercise of police power and likewise eminent domain.
As stated in Manigault v. Springs (199 U.S. 473) "parties by entering into contracts
may not stop the legislature from enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544) which
involved the expropriation of land for a public plaza. The Court stated:
xxx xxx xxx
... What is claimed is that there must be a showing of necessity for
such condemnation and that it was not done in this case in support of
such a view, reliance is placed on City of Manila v. Arenano Law
Colleges. (85 Phil. 663 [1950]) That doctrine itself is based on the
earlier case of City of Manila v. Chinese Community of Manila, (50 Phil.
349) also, like Camus, a 1919 decision. As could be discerned,

however, in the Arellano Law Colleges decision. it was the antiquarian

view of Blackstone with its sanctification of the right to one's estate on
which such an observation was based. As did appear in his
Commentaries: "So great is the regard of the law for private property
that it will not, authorize the least violation of it, even for the public
good, unless there exists a very great necessity thereof." Even the
most , cursory glance at such well-nigh absolutist concept of property
would show its obsolete character at least for Philippine constitutional
law. It cannot survive the test of the 1935 Constitution with its
mandates on social justice and protection to labor. (Article II, Section 5
of the 1935 Constitution reads: "The promotion of social justice to
unsure the well-being and economic security of all the people should
be the concern of the State." Article XI, Section 6 of the same
Constitution provides: "The State shall afford protection to labor,
especially to working women and minors, and shall regulate the
relation between landowner and tenant, and between labor and capital
in industry and in agriculture. The State may provide for compulsory
arbitration.") What is more, the present Constitution pays even less
heed to the claims of property and rightly so. After stating that the
State shall promote social justice, it continues: "Towards this end, the
State shall regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property
ownership and profits." (That is the second sentence of Article II,
Section 6 of the Constitution) If there is any need for explicit
confirmation of what was set forth in Presidential Decree No. 42, the
above provision supplies it. Moreover, that is merely to accord to what
of late has been the consistent course of decisions of this Court
whenever property rights are pressed unduly. (Cf. Alalayan v. National
Power Corporation, L-24396, July 29, 1968, 24 SCRA 172; Agricultural
Credit and Cooperative Financing Administration v. Confederation of
Unions, L-21484, Nov. 29, 1969, 30 SCRA 649; Edu v. Ericta, L-32096,
Oct. 24, 1970, 35 SCRA 481; Phil. Virginia Tobacco Administration v.
Court of Industrial Relations, L-32052, July 25, 1975, 65 SCRA 416) The
statement therefore, that there could be discerned a constitutional
objection to a lower court applying a Presidential Decree, when it
leaves no doubt that a grantee of the power of eminent domain need
not prove the necessity for the expropriation, carries its own refutation.
xxx xxx xxx
The issue of prematurity is also raised by the petitioners. They claim that since the
necessity for the taking has not been previously established, the issuance of the
orders authorizing the PTA to take immediate possession of the premises, as well as
the corresponding writs of possession was premature.
Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the
government, its agency or instrumentality, as plaintiff in an expropriation

proceedings is authorized to take immediate possession, control and disposition of

the property and the improvements, with power of demolition, notwithstanding the
pendency of the issues before the court, upon deposit with the Philippine National
Bank of an amount equivalent to 10% of the value of the property expropriated. The
issue of immediate possession has been settled in Arce v. Genato(supra). In answer
to the issue:
... whether the order of respondent Judge in an expropriation case
allowing the other respondent, ... to take immediate possession of the
parcel of land sought to be condemned for the beautification of its
public plaza, without a prior hearing to determine the necessity for the
exercise of the power of eminent domain, is vitiated by jurisdictional
defect, ...
this Court held that:
... It is not disputed that in issuing such order, respondent Judge relied
on Presidential Decree No. 42 issued on the 9th of November, 1972.
(Presidential Decree No. 42 is entitled "Authorizing the Plaintiff in
Eminent Domain Proceedings to Take Possession of the Property
involved Upon Depositing the Assessed Value for Purposes of
Taxation.") The question as thus posed does not occasion any difficulty
as to the answer to be given. This petition for certiorari must fail, there
being no showing that compliance with the Presidential Decree, which
under the Transitory Provisions is deemed a part of the law of the land,
(According to Article XVII, Section 3 par. (2) of the Constitution: "All
proclamations, orders, decrees, instructions and acts promulgated,
issued, or done by the incumbent President shall be part of the law of
the land, and shall remain valid, legal, binding, and effective even after
lifting of martial law or the ratification of this Constitution, unless
modified, revoked, or superseded by subsequent proclamations.
orders, decrees instructions, or other acts of the incumbent President,
or unless expressly and explicitly modified or repealed by the regular
National Assembly") would be characterized as either an act in excess
of jurisdiction or a grave abuse of discretion. So we rule.
Likewise in Ramos v. Philippine Tourism Authority (G.R. Nos. 52449-50, June 9,
1980), this Court held:
... condemnation or expropriation proceedings is in the nature of one
that is quasi-in-rem wherein the fact that the owner of the property is
made a party is not essentially indispensable insofar was least as it
conncerns is the immediate taking of possession of the property and
the preliminary determination of its value, including the amount to be
deposited.

In their last argument, the petitioners claim that a consequence of the expropriation
proceedings would be their forcible ejectment. They contend that such forcible
ejectment is a criminal act under Presidential Decree No. 583. This contention is not
valid. Presidential Decree No. 583 prohibits the taking cognizance or
implementation of orders designed to obstruct the land reform program. It refers to
the harassment of tenant- farmers who try to enforce emancipation rights. It has
nothing to do with the expropriation by the State of lands needed for public
purposes. As a matter of fact, the expropriated area does not appear in the master
lists of the Ministry of Agrarian Reforms as a teranted area. The petitioners' bare
allegations have not been supported with particulars pointing to specific parcels
which are subject of tenancy contracts. The petitioners may be owner-tillers or may
have some form of possessory or ownership rights but there has been no showing of
their being tenants on the disputed lands.
The petitioners have failed to overcome the burden of anyone trying to strike down
a statute or decree whose avowed purpose is the legislative perception is the public
good. A statute has in its favor the presumption of validity. All reasonable doubts
should be resolved in favor of the constitutionality of a law. The courts will not set
aside a law as violative of the Constitution except in a clear case (People v. Vera, 65
Phil. 56). And in the absence of factual findings or evidence to rebut the
presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor
of Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the development of the 808 hectares
includes plans that would give the petitioners and other displaced persons
productive employment, higher incomes, decent housing, water and electric
facilities, and better living standards. Our dismissing this petition is, in part,
predicated on those assurances. The right of the PTA to proceed with the
expropriation of the 282 hectares already Identified as fit for the establishment of a
resort complex to promote tourism is, therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of
merit.
SO ORDERED.
Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin and
Relova, JJ., concur.
Aquino, J, concurs in the result.
De Castro, J, is on leave.

Separate Opinions

MAKASIAR, J, concurring and dissenting:

It appearing that the petitioners are not tenants of the parcels of land in question
and therefore do not fall within the purview of the Land Reform Code, the petition
should be dismissed on that score alone.
There is no need to decide whether the power of the Philippine Tourism Authority to
expropriate the land in question predicated on the police power of the State shall
take precedence over the social justice guarantee in favor of tenants and the
landless. The welfare of the landless and small land owners should prevail over the
right of the PTA to expropriate the lands just to develop tourism industry, which
benefit the wealthy only. Such a position would increase the disenchanted citizens
and drive them to dissidence. The government is instituted primarily for the welfare
of the governed and there are more poor people in this country than the rich The
tourism industry is not essential to the existence of the government, but the citizens
are, and their right to live in dignity should take precedence over the development
of the tourism industry.
Teehankee and Abad Santos, JJ., dissent.

Separate Opinions
MAKASIAR, J, concurring and dissenting:
It appearing that the petitioners are not tenants of the parcels of land in question
and therefore do not fall within the purview of the Land Reform Code, the petition
should be dismissed on that score alone.
There is no need to decide whether the power of the Philippine Tourism Authority to
expropriate the land in question predicated on the police power of the State shall
take precedence over the social justice guarantee in favor of tenants and the
landless. The welfare of the landless and small land owners should prevail over the
right of the PTA to expropriate the lands just to develop tourism industry, which
benefit the wealthy only. Such a position would increase the disenchanted citizens
and drive them to dissidence. The government is instituted primarily for the welfare
of the governed and there are more poor people in this country than the rich The
tourism industry is not essential to the existence of the government, but the citizens
are, and their right to live in dignity should take precedence over the development
of the tourism industry.

Teehankee and Abad Santos, JJ., dissent.

Sumulong vs. Guerrero, 154 SCRA 461, No. L-48685, September 30, 1987
Posted by Alchemy Business Center and Marketing Consultancy at 11:22
PM Labels: 154 SCRA 461, 1987, No. L-48685, Political Law, September
30, Sumulong vs. Guerrero

Sumulong vs. Guerrero, 154 SCRA 461, No. L-48685, September 30, 1987
G.R. No. L-48685 September 30, 1987
LORENZO SUMULONG and EMILIA VIDANES-BALAOING, petitioners,
vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING
AUTHORITY, respondents.
CORTES, J.:
On December 5, 1977 the National Housing Authority (NIIA) filed a complaint for
expropriation of parcels of land covering approximately twenty five (25) hectares,
(in Antipolo, Rizal) including the lots of petitioners Lorenzo Sumulong and Emilia
Vidanes-Balaoing with an area of 6,667 square meters and 3,333 square meters
respectively. The land sought to be expropriated were valued by the NHA at one
peso (P1.00) per square meter adopting the market value fixed by the provincial
assessor in accordance with presidential decrees prescribing the valuation of
property in expropriation proceedings.
Together with the complaint was a motion for immediate possession of the
properties. The NHA deposited the amount of P158,980.00 with the Philippine
National Bank, representing the "total market value" of the subject twenty five
hectares of land, pursuant to Presidential Decree No. 1224 which defines "the policy
on the expropriation of private property for socialized housing upon payment of just
compensation."
On January 17, 1978, respondent Judge issued the following Order:
Plaintiff having deposited with the Philippine National Bank, Heart Center Extension
Office, Diliman, Quezon City, Metro Manila, the amount of P158,980.00 representing
the total market value of the subject parcels of land, let a writ of possession be
issued.
SO ORDERED.
Pasig, Metro Manila, January 17, 1978.
(SGD) BUENAVENTURA S. GUERRERO
Judge
Petitioners filed a motion for reconsideration on the ground that they had been
deprived of the possession of their property without due process of law. This was
however, denied.
Hence, this petition challenging the orders of respondent Judge and assailing the
constitutionality of Pres. Decree No. 1224, as amended. Petitioners argue that:
1) Respondent Judge acted without or in excess of his jurisdiction or with grave
abuse of discretion by issuing the Order of January 17, 1978 without notice and

without hearing and in issuing the Order dated June 28, 1978 denying the motion
for reconsideration.
2) Pres. Decree l224, as amended, is unconstitutional for being violative of the due
process clause, specifically:
a) The Decree would allow the taking of property regardless of size and no matter
how small the area to be expropriated;
b) "Socialized housing" for the purpose of condemnation proceeding, as defined in
said Decree, is not really for a public purpose;
c) The Decree violates procedural due process as it allows immediate taking of
possession, control and disposition of property without giving the owner his day in
court;
d) The Decree would allow the taking of private property upon payment of unjust
and unfair valuations arbitrarily fixed by government assessors;
e) The Decree would deprive the courts of their judicial discretion to determine what
would be the "just compensation" in each and every raise of expropriation.
Indeed, the exercise of the power of eminent domain is subject to certain limitations
imposed by the constitution, to wit:
Private property shall not be taken for public use without just compensation (Art. IV,
Sec. 9);
No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to be established for this
Court to nullify legislative or executive measures adopted to implement specific
constitutional provisions aimed at promoting the general welfare.
Petitioners' objections to the taking of their property subsumed under the headings
of public use, just compensation, and due process have to be balanced against
competing interests of the public recognized and sought to be served under
declared policies of the constitution as implemented by legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as
amended, for the purpose of condemnation proceedings is not "public use" since it
will benefit only "a handful of people, bereft of public character."
"Socialized housing" is defined as, "the construction of dwelling units for the middle
and lower class members of our society, including the construction of the
supporting infrastructure and other facilities" (Pres. Decree No. 1224, par. 1). This
definition was later expanded to include among others:
a) The construction and/or improvement of dwelling units for the middle and lower
income groups of the society, including the construction of the supporting
infrastructure and other facilities;
b) Slum clearance, relocation and resettlement of squatters and slum dwellers as
well as the provision of related facilities and services;
c) Slum improvement which consists basically of allocating homelots to the dwellers
in the area or property involved, rearrangemeant and re-alignment of existing
houses and other dwelling structures and the construction and provision of basic
community facilities and services, where there are none, such as roads, footpaths,
drainage, sewerage, water and power system schools, barangay centers,
community centers, clinics, open spaces, parks, playgrounds and other recreational
facilities;

d) The provision of economic opportunities, including the development of

commercial and industrial estates and such other facilities to enhance the total
community growth; and
e) Such other activities undertaken in pursuance of the objective to provide and
maintain housing for the greatest number of people under Presidential Decree No,
757, (Pres. Decree No. 1259, sec. 1)
The "public use" requirement for a and exercise of the power of eminent domain is a
flexible and evolving concept influenced by changing conditions. In this jurisdiction,
the statutory and judicial trend has been summarized as follows:
The taking to be valid must be for public use. There was a time when it was felt that
a literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case of streets or parks.
Otherwise, expropriation is not allowable. It is not anymore. As long as the purpose
of the taking is public, then the power of eminent domain comes into play. As just
noted, the constitution in at least two cases, to remove any doubt, determines what
is public use. One is the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use [Heirs of Juancho Ardona v. Reyes,
G.R. Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA 220 (1983) at 234-5
quoting E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 523-4, (2nd ed.,
1977) Emphasis supplied].
The term "public use" has acquired a more comprehensive coverage. To the literal
import of the term signifying strict use or employment by the public has been added
the broader notion of indirect public benefit or advantage. As discussed in the above
cited case ofHeirs of Juancho Ardona:
The restrictive view of public use may be appropriate for a nation which
circumscribes the scope of government activities and public concerns and which
possesses big and correctly located public lands that obviate the need to take
private property for public purposes. Neither circumstance applies to the
Philippines. We have never been a laissez faire State. And the necessities which
impel the exertion of sovereign power are all too often found in areas of scarce
public land or limited government resources. (p. 231)
Specifically, urban renewal or redevelopment and the construction of low-cost
housing is recognized as a public purpose, not only because of the expanded
concept of public use but also because of specific provisions in the Constitution. The
1973 Constitution made it incumbent upon the State to establish, maintain and
ensure adequate social services including housing [Art. 11, sec. 7]. The 1987
Constitution goes even further by providing that:
The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full employment, a
rising standard of living and an improved quality of life for all. [Art. II, sec. 9]
The state shall by law, and for the common good, undertake, in cooperation with
the private sector, a continuing program of urban land reform and housing which
will make available at affordable cost decent housing and basic services to
underprivileged and homeless citizens in urban centers and resettlement areas. It
shall also promote adequate employment opportunities to such citizens. In the

implementation of such program the State shall respect the rights of small property
owners. (Art. XIII, sec. 9, Emphaisis supplied)
Housing is a basic human need. Shortage in housing is a matter of state concern
since it directly and significantly affects public health, safety, the environment and
in sum, the general welfare. The public character of housing measures does not
change because units in housing projects cannot be occupied by all but only by
those who satisfy prescribed qualifications. A beginning has to be made, for it is not
possible to provide housing for are who need it, all at once.
Population growth, the migration to urban areas and the mushrooming of crowded
makeshift dwellings is a worldwide development particularly in developing
countries. So basic and urgent are housing problems that the United Nations
General Assembly proclaimed 1987 as the "International Year of Shelter for the
Homeless" "to focus the attention of the international community on those
problems". The General Assembly is Seriously concerned that, despite the efforts of
Governments at the national and local levels and of international organizations, the
driving conditions of the majority of the people in slums and squatter areas and
rural settlements, especially in developing countries, continue to deteriorate in both
relative and absolute terms." [G.A. Res. 37/221, Yearbook of the United Nations
1982, Vol. 36, p. 1043-4]
In the light of the foregoing, this Court is satisfied that "socialized housing" fans
within the confines of "public use". It is, particularly important to draw attention to
paragraph (d) of Pres. Dec. No. 1224 which opportunities inextricably linked with
low-cost housing, or slum clearance, relocation and resettlement, or slum
improvement emphasize the public purpose of the project.
In the case at bar, the use to which it is proposed to put the subject parcels of land
meets the requisites of "public use". The lands in question are being expropriated
by the NHA for the expansion of Bagong Nayon Housing Project to provide housing
facilities to low-salaried government employees. Quoting respondents:
1. The Bagong Nayong Project is a housing and community development
undertaking of the National Housing Authority. Phase I covers about 60 hectares of
GSIS property in Antipolo, Rizal; Phase II includes about 30 hectares for industrial
development and the rest are for residential housing development.
It is intended for low-salaried government employees and aims to provide housing
and community services for about 2,000 families in Phase I and about 4,000 families
in Phase II.
It is situated on rugged terrain 7.5 kms. from Marikina Town proper; 22 Kms. east of
Manila; and is within the Lungs Silangan Townsite Reservation (created by
Presidential Proclamation No. 1637 on April 18, 1977).
The lands involved in the present petitions are parts of the expanded/additional
areas for the Bagong Nayon Project totalling 25.9725 hectares. They likewise
include raw, rolling hills. (Rollo, pp. 266-7)
The acute shortage of housing units in the country is of public knowledge. Official
data indicate that more than one third of the households nationwide do not own
their dwelling places. A significant number live in dwellings of unacceptable
standards, such as shanties, natural shelters, and structures intended for
commercial, industrial, or agricultural purposes. Of these unacceptable dwelling
units, more than one third is located within the National Capital Region (NCR) alone
which lies proximate to and is expected to be the most benefited by the housing
project involved in the case at bar [See, National Census and Statistics Office,
1980 Census of Population and Housing].

According to the National Economic and Development Authority at the time of the
expropriation in question, about "50 per cent of urban families, cannot afford
adequate shelter even at reduced rates and will need government support to
provide them withsocial housing, subsidized either partially or totally" [NEDA, FOUR
YEAR DEVELOPMENT PLAN For 1974-1977, p. 357]. Up to the present, housing some
remains to be out of the reach of a sizable proportion of the population" [NEDA,
MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, p. 240].
The mushrooming of squatter colonies in the Metropolitan Manila area as well as in
other cities and centers of population throughout the country, and, the efforts of the
government to initiate housing and other projects are matters of public knowledge
[See NEDA, FOUR YEAR DEVELOPMENT PLAN For 1974-1977, pp. 357-361; NEDA,
FIVE-YEAR PHILIPPINE DEVELOPMENT PLAN 1978-1982, pp. 215-228 NEDA, FIVE
YEAR PHILIPPINE DEVELOPMENT PLAN 1983-1987, pp. 109-117; NEDA, MEDIUM
TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, pp. 240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as amended, would allow the
taking of "any private land" regardless of the size and no matter how small the area
of the land to be expropriated. Petitioners claim that "there are vast areas of lands
in Mayamot, Cupang, and San Isidro, Antipolo, Rizal hundred of hectares of which
are owned by a few landowners only. It is surprising [therefore] why respondent
National Housing Authority [would] include [their] two man lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R. No. L-21064, February
18, 1970, 31 SCRA 413 (1970) at 428] this Court earlier ruled that expropriation is
not confined to landed estates. This Court, quoting the dissenting opinion of Justice
J.B.L. Reyes in Republic vs. Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of eminent domain under Article XIII, section 4
of our Constitution cannot be determined on a purely quantitative or area basis. Not
only does the constitutional provision speak of lands instead of landed estates, but I
see no cogent reason why the government, in its quest for social justice and peace,
should exclusively devote attention to conflicts of large proportions, involving a
considerable number of individuals, and eschew small controversies and wait until
they grow into a major problem before taking remedial action.
The said case of J.M. Tuason Co., Inc. departed from the ruling in Guido vs. Rural
Progress Administration [84 Phil. 847 (1949)] which held that the test to be applied
for a valid expropriation of private lands was the area of the land and not the
number of people who stood to be benefited. Since then "there has evolved a clear
pattern of adherence to the "number of people to be benefited test" " [Mataas na
Lupa Tenants Association, Inc. v. Dimayuga, G.R. No. 32049, June 25,1984, 130
SCRA 30 (1984) at 39]. Thus, in Pulido vs. Court of Appeals [G.R. No. 57625, May 3,
1983, 122 SCRA 63 (1983) at 73], this Court stated that, "[i]t is unfortunate that the
petitioner would be deprived of his landholdings, but his interest and that of his
family should not stand in the way of progress and the benefit of the greater may
only of the inhabitants of the country."
The State acting through the NHA is vested with broad discretion to designate the
particular property/properties to be taken for socialized housing purposes and how
much thereof may be expropriated. Absent a clear showing of fraud, bad faith, or
gross abuse of discretion, which petitioners herein failed to demonstrate, the Court
will give due weight to and leave undisturbed the NHA's choice and the size of the
site for the project. The property owner may not interpose objections merely
because in their judgment some other property would have been more suitable, or

just as suitable, for the purpose. The right to the use, enjoyment and disposal of
private property is tempered by and has to yield to the demands of the common
good. The Constitutional provisions on the subject are clear:
The State shall promote social justice in all phases of national development. (Art. II,
sec. 10)
The Congress shall give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good. To this end, the State shall
regulate the acquisition, ownership, use and disposition of property and its
increments. (Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of the provisions in the
1935 and 1973 Constitutions, emphasize:
...the stewardship concept, under which private property is supposed to be held by
the individual only as a trustee for the people in general, who are its real owners. As
a mere steward, the individual must exercise his rights to the property not for his
own exclusive and selfish benefit but for the good of the entire community or nation
[Mataas na Lupa Tenants Association, Inc. supra at 42-3 citing I. CRUZ, PHILIPPINE
POLITICAL LAW, 70 (1983 ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended, would allow the
taking of private property upon payment of unjust and unfair valuations arbitrarily
fixed by government assessors. In addition, they assert that the Decree would
deprive the courts of their judicial discretion to determine what would be "just
compensation".
The foregoing contentions have already been ruled upon by this Court in the case
ofIgnacio vs. Guerrero (G.R. No. L-49088, May 29, 1987) which, incidentally, arose
from the same expropriation complaint that led to this instant petition. The
provisions on just compensation found in Presidential Decree Nos. 1224, 1259 and
1313 are the same provisions found in Presidential Decree Nos. 76, 464, 794 and
1533 which were declared unconstitutional in Export Processing Zone All thirty vs.
Dulay (G.R. No. 5960 April 29, 1987) for being encroachments on prerogatives.
This Court abandoned the ruling in National Housing Authority vs. Reyes [G.R. No.
49439, June 29,1983, 123 SCRA 245 (1983)] which upheld Pres. Decree No. 464, as
amended by - Presidential Decree Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court pointed out that:
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of the taking. It
means a fair and full equivalent for the loss sustained. ALL the facts as to the
condition of the property and its surroundings, its improvements and capabilities,
should be considered.
xxx xxx xxx
Various factors can come into play in the valuation of specific properties singled out
for expropriation. The values given by provincial assessors are usually uniform for
very wide areas covering several barrios or even an entire total with the exception
of the poblacion. Individual differences are never taken into account. The value of
land is based on such generalities as its possible cultivation for rice, corn, coconuts,
or other crops. Very often land described as directional has been cultivated for
generations. Buildings are described in terms of only two or three classes of building

materials and estimates of areas are more often inaccurate than correct. Tax values
can serve as guides but cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the valuations made by assessors
since they had the opportunity to protest is illusory. The overwhelming mass of
landowners accept unquestioningly what is found in the tax declarations prepared
by local assessors or municipal clerks for them. They do not even look at, much less
analyze, the statements. The Idea of expropriation simply never occurs until a
demand is made or a case filed by an agency authorized to do so. (pp. 12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended, violates procedural due
process as it allows immediate taking of possession, control and disposition of
property without giving the owner his day in court. Respondent Judge ordered the
issuance of a writ of possession without notice and without hearing.
The constitutionality of this procedure has also been ruled upon in the Export
Processing Zone Authority case, viz:
It is violative of due process to deny to the owner the opportunity to prove that the
valuation in the tax documents is unfair or wrong. And it is repulsive to basic
concepts of justice and fairness to allow the haphazard work of minor bureaucrat or
clerk to absolutely prevail over the judgment of a court promulgated only after
expert commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have been judiciously
evaluated. (p. 13)
On the matter of the issuance of a writ of possession, the ruling in the Ignacio case
is reiterated, thus:
[I]t is imperative that before a writ of possession is issued by the Court in
expropriation proceedings, the following requisites must be met: (1) There must be
a Complaint for expropriation sufficient in form and in substance; (2) A provisional
determination of just compensation for the properties sought to be expropriated
must be made by the trial court on the basis of judicial (not legislative or executive)
discretion; and (3) The deposit requirement under Section 2, Rule 67 must be
complied with. (p. 14)
This Court holds that "socialized housing" defined in Pres. Decree No. 1224, as
amended by Pres. Decree Nos. 1259 and 1313, constitutes "public use" for purposes
of expropriation. However, as previously held by this Court, the provisions of such
decrees on just compensation are unconstitutional; and in the instant case the Court
finds that the Orders issued pursuant to the corollary provisions of those decrees
authorizing immediate taking without notice and hearing are violative of due
process.
WHEREFORE, the Orders of the lower court dated January 17, 1978 and June 28,
1978 issuing the writ of possession on the basis of the market value appearing
therein are annulled for having been issued in excess of jurisdiction. Let this case be
remanded to the court of origin for further proceedings to determine the
compensation the petitioners are entitled to be paid. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.