ICHONG VS.

HERNANDEZ, 101 PHIL 155

Facts:
The Congress of the Philippines enacted the act which nationalizes theretail trade business, Republic Act No. 1180
entitled An Act to Regulate theRetail Business, prohibiting aliens in general to engage in retail trade in
ourcountry.Petitioner, for and in his own behalf and on behalf of other alien residents,corporations and partnerships
adversely affected by the provisions of RA No.1180, brought this action to obtain a judicial declaration that said Act is
unconstitutional.
Issue:
Whether Congress in enacting R.A. No. 1180 violated the UN Charter, theUN Declaration of Human Rights and the
Philippine-Chinese Treaty of Amity.
Held:
The UN Charter imposes no strict or legal obligations regarding the rightsand freedom of their subjects, and the
Declaration of Human Rights contains nothing more than a mere recommendation, or a common standard of
achievement for all peoples and all nations. The Treaty of Amity between the Republic of the Philippines and the
Republic of China guarantees equality of treatment to the Chinese nationals upon the sameterms as the nationals of
any other country. But the nationals of China are notdiscriminated against because nationals of all other countries,
except those of the United States, who are granted special rights by the Constitution, are allprohibited from engaging
in the retail trade.But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police
power of the State.
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade
business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and
against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the
Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor
of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein, unless
their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural
persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3)
an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of
licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and measures
and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or
opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities
a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets
and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens
now engaged in the retail business who die, to continue such business for a period of six months for purposes of
liquidation.
The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its
exercise in this instance is attended by a violation of the constitutional requirements of due process and equal
protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it
would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of
the ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws.
What is the scope of police power, and how are the due process and equal protection clauses related to it? What is
the province and power of the legislature, and what is the function and duty of the courts? These consideration must
be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and
the issue accordingly resolved.

ORTIGAS & CO. LTD., petitioner, vs. THE COURT OF APPEALS and ISMAEL G. MATHAY III, respondents. (G.R.
No. 126102)

The facts of this case, as culled from the records, are as follows:
On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of land known as Lot 1, Block 21,
Psd-66759, with an area of 1,508 square meters, located in Greenhills Subdivision IV, San Juan, Metro Manila, and
covered by Transfer Certificate of Title No. 0737. The contract of sale provided that the lot:
1. (1) be used exclusivelyfor residential purposes only, and not more than one single-family residential building will be
constructed thereon,
xx
6. The BUYER shall not erectany sign or billboard on the rooffor advertising purposes
xxx
11. No single-family residential building shall be erecteduntil the building plans, specificationhave been approved by
the SELLER
xxx
14....restrictions shall run with the land and shall be construed as real covenants until December 31, 2025 when they
shall cease and terminate[1]
These and the other conditions were duly annotated on the certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development Authority) enacted MMC
Ordinance No. 81-01, also known as the Comprehensive Zoning Area for the National Capital Region. The ordinance
reclassified as a commercial area a portion of Ortigas Avenue from Madison to Roosevelt Streets of Greenhills
Subdivision where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso and J.P. Hermoso Realty
Corp.. The lease contract did not specify the purposes of the lease. Thereupon, private respondent constructed a
single story commercial building for Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the Regional Trial Court of Pasig,
Branch 261. Docketed as Civil Case No. 64931, the complaint sought the demolition of the said commercial structure
for having violated the terms and conditions of the Deed of Sale. Complainant prayed for the issuance of a temporary
restraining order and a writ of preliminary injunction to prohibit petitioner from constructing the commercial building
and/or engaging in commercial activity on the lot. The complaint was later amended to implead Ismael G. Mathay III
and J.P. Hermoso Realty Corp., which has a ten percent (10%) interest in the lot.
In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and filed a cross-claim against
the Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29, 1995, Mathay III moved to set
aside the injunctive order, but the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 39193,
ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction. He claimed that MMC
Ordinance No. 81-01 classified the area where the lot was located as commercial area and said ordinance must be
read into the August 25, 1976 Deed of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were duly annotated on the title it
issued to Emilia Hermoso, said restrictions must prevail over the ordinance, specially since these restrictions were
agreed upon before the passage of MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the case as follows:
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed orders are hereby nullified and
set aside.
SO ORDERED.

In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01 effectively nullified the
restrictions allowing only residential use of the property in question. Ortigas seasonably moved for reconsideration, but
the appellate court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the principal issue in this case is whether respondent Court of
Appeals correctly set aside the Order dated June 16, 1995 of the trial court which issued the writ of preliminary
injunction on the sole ground that MMC Ordinance No. 81-01 nullified the building restriction imposing exclusive
residential use on the property in question.[3] It also asserts that Mathay III lacks legal capacity to question the validity
of conditions of the deed of sale; and he is barred by estoppel or waiver to raise the same question like his principals,
the owners.[4] Lastly, it avers that the appellate court unaccountably failed to address several questions of fact.
Principally, we must resolve the issue of whether the Court of Appeals erred in holding that the trial court committed
grave abuse of discretion when it refused to apply MMC Ordinance No.81-01 to Civil Case No. 64931.
But first, we must address petitioners allegation that the Court of Appeals unaccountably failed to address questions of
fact. For basic is the rule that factual issues may not be raised before this Court in a petition for review and this Court
is not duty-bound to consider said questions.[5] CA-G.R. SP No. 39193 was a special civil action for certiorari, and the
appellate court only had to determine if the trial court committed grave abuse of discretion amounting to want or
excess of jurisdiction in issuing the writ of preliminary injunction. Thus, unless vital to our determination of the issue at
hand, we shall refrain from further consideration of factual questions.
Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance. It avers that a
contractual right is not automatically discarded once a claim is made that it conflicts with police power. Petitioner
submits that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance. For one,
according to petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction of residential buildings.
Petitioner argues that even with the zoning ordinance, the seller and buyer of the re-classified lot can voluntarily agree
to an exclusive residential use thereof. Hence, petitioner concludes that the Court of Appeals erred in holding that the
condition imposing exclusive residential use was effectively nullified by the zoning ordinance.
In its turn, private respondent argues that the appellate court correctly ruled that the trial court had acted with grave
abuse of discretion in refusing to subject the contract to the MMC Ordinance No. 81-01. He avers that the appellate
court properly held the police power superior to the non-impairment of contract clause in the Constitution. He
concludes that the appellate court did not err in dissolving the writ of preliminary injunction issued by the trial court in
excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction, the trial court observed that the contract of sale was
entered into in August 1976, while the zoning ordinance was enacted only in March 1981. The trial court reasoned that
since private respondent had failed to show that MMC Ordinance No. 81-01 had retroactive effect, said ordinance
should be given prospective application only,[6] citing Co vs. Intermediate Appellate Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as having only prospective operation. Lex prospicit, non respicit.
Equally settled, only laws existing at the time of the execution of a contract are applicable thereto and not later
statutes, unless the latter are specifically intended to have retroactive effect.[7] A later law which enlarges, abridges, or
in any manner changes the intent of the parties to the contract necessarily impairs the contract itself[8] and cannot be
given retroactive effect without violating the constitutional prohibition against impairment of contracts.[9]
But, the foregoing principles do admit of certain exceptions. One involves police power. A law enacted in the exercise
of police power to regulate or govern certain activities or transactions could be given retroactive effect and may
reasonably impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but
equally to those already in existence.[10] Nonimpairment of contracts or vested rights clauses will have to yield to the
superior and legitimate exercise by the State of police power to promote the health, morals, peace, education, good
order, safety, and general welfare of the people.[11] Moreover, statutes in exercise of valid police power must be read
into every contract.[12] Noteworthy, in Sangalang vs. Intermediate Appellate Court,[13] we already upheld MMC
Ordinance No. 81-01 as a legitimate police power measure.
The trial courts reliance on the Co vs. IAC,[14] is misplaced. In Co, the disputed area was agricultural and Ordinance
No. 81-01 did not specifically provide that it shall have retroactive effect so as to discontinue all rights previously
acquired over lands located within the zone which are neither residential nor light industrial in nature,[15] and stated

with respect to agricultural areas covered that the zoning ordinance should be given prospective operation only.[16]
The area in this case involves not agricultural but urban residential land. Ordinance No. 81-01 retroactively affected
the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979), the contractual stipulations
annotated on the Torrens Title, on which Ortigas relies, must yield to the ordinance. When that stretch of Ortigas
Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila
Commission in March 1981, the restrictions in the contract of sale between Ortigas and Hermoso, limiting all
construction on the disputed lot to single-family residential buildings, were deemed extinguished by the retroactive
operation of the zoning ordinance and could no longer be enforced. While our legal system upholds the sanctity of
contract so that a contract is deemed law between the contracting parties,[17] nonetheless, stipulations in a contract
cannot contravene law, morals, good customs, public order, or public policy.[18] Otherwise such stipulations would be
deemed null and void. Respondent court correctly found that the trial court committed in this case a grave abuse of
discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as applicable to Civil
Case No. 64931. In resolving matters in litigation, judges are not only duty-bound to ascertain the facts and the
applicable laws,[19] they are also bound by their oath of office to apply the applicable law.[20]
As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of the lot in question, is a total
stranger to the deed of sale and is thus barred from questioning the conditions of said deed. Petitioner points out that
the owners of the lot voluntarily agreed to the restrictions on the use of the lot and do not question the validity of these
restrictions. Petitioner argues that Mathay III as a lessee is merely an agent of the owners, and could not override and
rise above the status of his principals. Petitioner submits that he could not have a higher interest than those of the
owners, the Hermosos, and thus had no locus standi to file CA-G.R. SP No. 39193 to dissolve the injunctive writ
issued by the RTC of Pasig City.
For his part, private respondent argues that as the lessee who built the commercial structure, it is he and he alone
who stands to be either benefited or injured by the results of the judgment in Civil Case No. 64931. He avers he is the
party with real interest in the subject matter of the action, as it would be his business, not the Hermosos, which would
suffer had not the respondent court dissolved the writ of preliminary injunction.
A real party in interest is defined as the party who stands to be benefited or injured by the judgment or the party
entitled to the avails of the suit. Interest within the meaning of the rule means material interest, an interest in issue and
to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.[21] By real interest is meant a present substantial interest, as distinguished from a mere expectancy or a
future, contingent, subordinate, or consequential interest.[22]
Tested by the foregoing definition, private respondent in this case is clearly a real party in interest. It is not disputed
that he is in possession of the lot pursuant to a valid lease. He is a possessor in the concept of a holder of the thing
under Article 525 of the Civil Code.[23] He was impleaded as a defendant in the amended complaint in Civil Case No.
64931. Further, what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot.
Clearly, it is private respondents acts which are in issue, and his interest in said issue cannot be a mere incidental
interest. In its amended complaint, petitioner prayed for, among others, judgment ordering the demolition of all
improvements illegally built on the lot in question.[24] These show that it is petitioner Mathay III, doing business as
Greenhills Autohaus, Inc., and not only the Hermosos, who will be adversely affected by the courts decree.
Petitioner also cites the rule that a stranger to a contract has no rights or obligations under it,[25] and thus has no
standing to challenge its validity.[26] But in seeking to enforce the stipulations in the deed of sale, petitioner impleaded
private respondent as a defendant. Thus petitioner must recognize that where a plaintiff has impleaded a party as a
defendant, he cannot subsequently question the latters standing in court.[27]
WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals dated March 25, 1996,
as well as the assailed resolution of August 13, 1996, in CA-G.R. SP No. 39193 is AFFIRMED. Costs against
petitioner.

PRC vs. De Guzman, G.R. L-144681

Facts: The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They
passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner

Professional Regulation Commission (PRC) then released their names as successful examinees in the medical
licensure examination. Shortly thereafter, the Board observed that the grades of the seventy-nine successful
examinees from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (BioChem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees
scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one
scored 99% in OB-Gyne.
For its part, the NBI found that the questionable passing rate of Fatima examinees in the [1993] Physician
Examination leads to the conclusion that the Fatima examinees gained early access to the test questions.
Issue: Was the act pursuant to R.A. 2382 a valid exercise of police power
Ruling: Yes, it is true that this Court has upheld the constitutional right of every citizen to select a profession or course
of study subject to a fair, reasonable, and equitable admission and academic requirements. But like all rights and
freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order, safety, and general welfare of the people. Thus, persons who
desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an
examination as a prerequisite to engaging in their chosen careers.
Additional notes:
2. On the Right Of The Respondents To Be Registered As Physicians
The function of mandamus is not to establish a right but to enforce one that has been established by law. If no legal
right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal remedy for
a legal right.[32] There must be a well-defined, clear and certain legal right to the thing demanded.[33] It is long
established rule that a license to practice medicine is a privilege or franchise granted by the government.[34]
It is true that this Court has upheld the constitutional right[35] of every citizen to select a profession or course of study
subject to a fair, reasonable, and equitable admission and academic requirements.[36] But like all rights and freedoms
guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to safeguard
health, morals, peace, education, order, safety, and general welfare of the people.[37] Thus, persons who desire to
engage in the learned professions requiring scientific or technical knowledge may be required to take an examination
as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the field of
medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who
would practice medicine.

MMDA v GARIN
Facts: The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was issued a traffic
violation receipt (TVR) and his driver's license confiscated for parking illegally along Gandara Street, Binondo, Manila,
on 05 August 1995. The following statements were printed on the TVR:
You are hereby directed to report to the MMDA Traffic Operations Center Port Area Manila after 48 hours from date of
apprehension for disposition/appropriate action thereon. Criminal case shall be filed for failure to redeem license after
30 days.
Valid as temporary DRIVER'S license for seven days from date of apprehension.
Shortly before the expiration of the TVR's validity, the respondent addressed a letter2 to then MMDA Chairman
Prospero Oreta requesting the return of his driver's license, and expressing his preference for his case to be filed in
court.
Issue: Did Rep. Act no. 7924 vest MMDA police power/
Ruling: No, Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all its
functions are administrative in nature.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the MMDA is not a local
government unit or a public corporation endowed with legislative power, and, unlike its predecessor, the Metro Manila

Commission, it has no power to enact ordinances for the welfare of the community. Thus, in the absence of an
ordinance from the City of Makati, its own order to open the street was invalid.
Full text:
Shortly before the expiration of the TVRs validity, the respondent addressed a letter[2] to then MMDA Chairman
Prospero Oreta requesting the return of his drivers license, and expressing his preference for his case to be filed in
court.
Receiving no immediate reply, Garin filed the original complaint[3] with application for preliminary injunction in Branch
260 of the Regional Trial Court (RTC) of Paraaque, on 12 September 1995, contending that, in the absence of any
implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive
erring motorists of their licenses, pre-empting a judicial determination of the validity of the deprivation, thereby
violating the due process clause of the Constitution. The respondent further contended that the provision violates the
constitutional prohibition against undue delegation of legislative authority, allowing as it does the MMDA to fix and
impose unspecified and therefore unlimited - fines and other penalties on erring motorists.
In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and continues to suffer
great and irreparable damage because of the deprivation of his license and that, absent any implementing rules from
the Metro Manila Council, the TVR and the confiscation of his license have no legal basis.
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the powers granted to it by
Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and imposition of fines and penalties for traffic
violations, which powers are legislative and executive in nature; the judiciary retains the right to determine the validity
of the penalty imposed. It further argued that the doctrine of separation of powers does not preclude admixture of the
three powers of government in administrative agencies.[4]
The MMDA also refuted Garins allegation that the Metro Manila Council, the governing board and policy making body
of the petitioner, has as yet to formulate the implementing rules for Sec. 5(f) of Rep. Act No. 7924 and directed the
courts attention to MMDA Memorandum Circular No. TT-95-001 dated 15 April 1995. Respondent Garin, however,
questioned the validity of MMDA Memorandum Circular No. TT-95-001, as he claims that it was passed by the Metro
Manila Council in the absence of a quorum.
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995, extending the validity of
the TVR as a temporary drivers license for twenty more days. A preliminary mandatory injunction was granted on 23
October 1995, and the MMDA was directed to return the respondents drivers license.
On 14 August 1997, the trial court rendered the assailed decision[5] in favor of the herein respondent and held that:
a. There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23, 1995, hence
MMDA Memorandum Circular No. TT-95-001, authorizing confiscation of drivers licenses upon issuance of a TVR, is
void ab initio.
b. The summary confiscation of a drivers license without first giving the driver an opportunity to be heard; depriving
him of a property right (drivers license) without DUE PROCESS; not filling (sic) in Court the complaint of supposed
traffic infraction, cannot be justified by any legislation (and is) hence unconstitutional.
WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e) MMDA is directed to
return to plaintiff his drivers license; th(e) MMDA is likewise ordered to desist from confiscating drivers license without
first giving the driver the opportunity to be heard in an appropriate proceeding.
In filing this petition,[6] the MMDA reiterates and reinforces its argument in the court below and contends that a license
to operate a motor vehicle is neither a contract nor a property right, but is a privilege subject to reasonable regulation
under the police power in the interest of the public safety and welfare. The petitioner further argues that revocation or
suspension of this privilege does not constitute a taking without due process as long as the licensee is given the right
to appeal the revocation.
To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains the power to determine
the validity of the confiscation, suspension or revocation of the license, the petitioner points out that under the terms of
the confiscation, the licensee has three options:

1. To voluntarily pay the imposable fine,

2. To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or
3. To request the referral of the TVR to the Public Prosecutors Office.
The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the presence of a
quorum, and that the lower courts finding that it had not was based on a misapprehension of facts, which the petitioner
would have us review. Moreover, it asserts that though the circular is the basis for the issuance of TVRs, the basis for
the summary confiscation of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such power is self-executory and
does not require the issuance of any implementing regulation or circular.
Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando, implemented Memorandum
Circular No. 04, Series of 2004, outlining the procedures for the use of the Metropolitan Traffic Ticket (MTT) scheme.
Under the circular, erring motorists are issued an MTT, which can be paid at any Metrobank branch. Traffic enforcers
may no longer confiscate drivers licenses as a matter of course in cases of traffic violations. All motorists with
unredeemed TVRs were given seven days from the date of implementation of the new system to pay their fines and
redeem their license or vehicle plates.[7]
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the petitioner from confiscating
drivers licenses is concerned, recent events have overtaken the Courts need to decide this case, which has been
rendered moot and academic by the implementation of Memorandum Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-95-001, or any other
scheme, for that matter, that would entail confiscating drivers licenses. For the proper implementation, therefore, of the
petitioners future programs, this Court deems it appropriate to make the following observations:
1. A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is not a property right, but a privilege
granted by the state, which may be suspended or revoked by the state in the exercise of its police power, in the
interest of the public safety and welfare, subject to the procedural due process requirements. This is consistent with
our rulings in Pedro v. Provincial Board of Rizal[8] on the license to operate a cockpit, Tan v. Director of Forestry[9]
and Oposa v. Factoran[10] on timber licensing agreements, and Surigao Electric Co., Inc. v. Municipality of
Surigao[11] on a legislative franchise to operate an electric plant.
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel. Sullivan,[12] which states in
part that, the legislative power to regulate travel over the highways and thoroughfares of the state for the general
welfare is extensive. It may be exercised in any reasonable manner to conserve the safety of travelers and
pedestrians. Since motor vehicles are instruments of potential danger, their registration and the licensing of their
operators have been required almost from their first appearance. The right to operate them in public places is not a
natural and unrestrained right, but a privilege subject to reasonable regulation, under the police power, in the interest
of the public safety and welfare. The power to license imports further power to withhold or to revoke such license upon
noncompliance with prescribed conditions.
Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,[13] to the effect that:
Automobiles are vehicles of great speed and power. The use of them constitutes an element of danger to persons and
property upon the highways. Carefully operated, an automobile is still a dangerous instrumentality, but, when operated
by careless or incompetent persons, it becomes an engine of destruction. The Legislature, in the exercise of the police
power of the commonwealth, not only may, but must, prescribe how and by whom motor vehicles shall be operated on
the highways. One of the primary purposes of a system of general regulation of the subject matter, as here by the
Vehicle Code, is to insure the competency of the operator of motor vehicles. Such a general law is manifestly directed
to the promotion of public safety and is well within the police power.
The common thread running through the cited cases is that it is the legislature, in the exercise of police power, which
has the power and responsibility to regulate how and by whom motor vehicles may be operated on the state
highways.
2. The MMDA is not vested with police power.

In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,[14] we categorically stated that Rep. Act
No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all its functions are
administrative in nature.
The said case also involved the herein petitioner MMDA which claimed that it had the authority to open a subdivision
street owned by the Bel-Air Village Association, Inc. to public traffic because it is an agent of the state endowed with
police power in the delivery of basic services in Metro Manila. From this premise, the MMDA argued that there was no
need for the City of Makati to enact an ordinance opening Neptune Street to the public.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the MMDA is not a local
government unit or a public corporation endowed with legislative power, and, unlike its predecessor, the Metro Manila
Commission, it has no power to enact ordinances for the welfare of the community. Thus, in the absence of an
ordinance from the City of Makati, its own order to open the street was invalid.
We restate here the doctrine in the said decision as it applies to the case at bar: police power, as an inherent attribute
of sovereignty, is the power vested by the Constitution in the legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the
same. answers the question who many exercise police power?
Having been lodged primarily in the National Legislature, it cannot be exercised by any group or body of individuals
not possessing legislative power. The National Legislature, however, may delegate this power to the president and
administrative boards as well as the lawmaking bodies of municipal corporations or local government units (LGUs).
Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national
lawmaking body.
Our Congress delegated police power to the LGUs in the Local Government Code of 1991.[15] A local government is
a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs.[16]
Local government units are the provinces, cities, municipalities and barangays, which exercise police power through
their respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local government units. With the passage of Rep. Act No.
7924 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the
administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to
as the MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation,
preparation, management, monitoring, setting of policies, installation of a system and administration. There is no
syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila
Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units,
there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve
resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed
in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and
coordinating with the various national government agencies, people's organizations, non-governmental organizations
and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its
functions are administrative in nature and these are actually summed up in the charter itself, viz:
Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.
The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and
supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy
of the local government units concerning purely local matters.
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro
Manila Council to promulgate administrative rules and regulations in the implementation of the MMDAs functions.
There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the
metropolis. [17] (footnotes omitted, emphasis supplied)
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the petitioner to grant the
MMDA the power to confiscate and suspend or revoke drivers licenses without need of any other legislative
enactment, such is an unauthorized exercise of police power.

3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations.
Section 5 of Rep. Act No. 7924 enumerates the Functions and Powers of the Metro Manila Development Authority.
The contested clause in Sec. 5(f) states that the petitioner shall install and administer a single ticketing system, fix,
impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or
nonmoving in nature, and confiscate and suspend or revoke drivers licenses in the enforcement of such traffic laws
and regulations, the provisions of Rep. Act No. 4136[18] and P.D. No. 1605[19] to the contrary notwithstanding, and
that (f)or this purpose, the Authority shall enforce all traffic laws and regulations in Metro Manila, through its traffic
operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed
security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject
to such conditions and requirements as the Authority may impose.
Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative
powers have been delegated (the City of Manila in this case), the petitioner is not precluded and in fact is duty-bound
to confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport and traffic
management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering
services and traffic education programs.[20]
This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the purpose of laying
down policies and coordinating with the various national government agencies, peoples organizations, nongovernmental organizations and the private sector, which may enforce, but not enact, ordinances.
This is also consistent with the fundamental rule of statutory construction that a statute is to be read in a manner that
would breathe life into it, rather than defeat it,[21] and is supported by the criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute.[22]
A last word. The MMDA was intended to coordinate services with metro-wide impact that transcend local political
boundaries or would entail huge expenditures if provided by the individual LGUs, especially with regard to transport
and traffic management,[23] and we are aware of the valiant efforts of the petitioner to untangle the increasingly trafficsnarled roads of Metro Manila. But these laudable intentions are limited by the MMDAs enabling law, which we can
but interpret, and petitioner must be reminded that its efforts in this respect must be authorized by a valid law, or
ordinance, or regulation arising from a legitimate source.
WHEREFORE, the petition is DISMISSED.

TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO CABIGAO and ACE TRANSPORTATION
CORPORATION, petitioners,
vs. THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE BUREAU OF LAND TRANSPORTATION,
respondents.
G.R. No. L-59234
This Petition for "Certiorari, Prohibition and mandamus with Preliminary Injunction and Temporary Restraining Order"
filed by the Taxicab Operators of Metro Manila, Inc., Felicisimo Cabigao and Ace Transportation, seeks to declare the
nullity of Memorandum Circular No. 77-42, dated October 10, 1977, of the Board of Transportation, and Memorandum
Circular No. 52, dated August 15, 1980, of the Bureau of Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic corporation composed of taxicab operators,
who are grantees of Certificates of Public Convenience to operate taxicabs within the City of Manila and to any other
place in Luzon accessible to vehicular traffic. Petitioners Ace Transportation Corporation and Felicisimo Cabigao are
two of the members of TOMMI, each being an operator and grantee of such certificate of public convenience.
On October 10, 1977, respondent Board of Transportation (BOT) issued Memorandum Circular No. 77-42 which
reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis

WHEREAS, it is the policy of the government to insure that only safe and comfortable units are used as public
conveyances;
WHEREAS, the riding public, particularly in Metro-Manila, has, time and again, complained against, and condemned,
the continued operation of old and dilapidated taxis;
WHEREAS, in order that the commuting public may be assured of comfort, convenience, and safety, a program of
phasing out of old and dilapidated taxis should be adopted;
WHEREAS, after studies and inquiries made by the Board of Transportation, the latter believes that in six years of
operation, a taxi operator has not only covered the cost of his taxis, but has made reasonable profit for his
investments;
NOW, THEREFORE, pursuant to this policy, the Board hereby declares that no car beyond six years shall be operated
as taxi, and in implementation of the same hereby promulgates the following rules and regulations:
1.
As of December 31, 1977, all taxis of Model 1971 and earlier are ordered withdrawn from public service and
thereafter may no longer be registered and operated as taxis. In the registration of cards for 1978, only taxis of Model
1972 and later shall be accepted for registration and allowed for operation;
2.
As of December 31, 1978, all taxis of Model 1972 are ordered withdrawn from public service and thereafter
may no longer be registered and operated as taxis. In the registration of cars for 1979, only taxis of Model 1973 and
later shall be accepted for registration and allowed for operation; and every year thereafter, there shall be a six-year
lifetime of taxi, to wit:
1980 Model 1974
1981 Model 1975, etc.
All taxis of earlier models than those provided above are hereby ordered withdrawn from public service as of the last
day of registration of each particular year and their respective plates shall be surrendered directly to the Board of
Transportation for subsequent turnover to the Land Transportation Commission.
For an orderly implementation of this Memorandum Circular, the rules herein shall immediately be effective in MetroManila. Its implementation outside Metro- Manila shall be carried out only after the project has been implemented in
Metro-Manila and only after the date has been determined by the Board. 1
Pursuant to the above BOT circular, respondent Director of the Bureau of Land Transportation (BLT) issued
Implementing Circular No. 52, dated August 15, 1980, instructing the Regional Director, the MV Registrars and other
personnel of BLT, all within the National Capitol Region, to implement said Circular, and formulating a schedule of
phase-out of vehicles to be allowed and accepted for registration as public conveyances. To quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with year models over six (6) years old are now banned from
operating as public utilities in Metro Manila. As such the units involved should be considered as automatically dropped
as public utilities and, therefore, do not require any further dropping order from the BOT.
In accordance therewith, cabs of model 1971 were phase-out in registration year 1978; those of model 1972, in 1979;
those of model 1973, in 1980; and those of model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as Case No. 80-7553, seeking to nullify MC
No. 77-42 or to stop its implementation; to allow the registration and operation in 1981 and subsequent years of
taxicabs of model 1974, as well as those of earlier models which were phased-out, provided that, at the time of
registration, they are roadworthy and fit for operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation and Urgent Motion", praying for an early
hearing of their petition. The case was heard on February 20, 1981. Petitioners presented testimonial and
documentary evidence, offered the same, and manifested that they would submit additional documentary proofs. Said
proofs were submitted on March 27, 1981 attached to petitioners' pleading entitled, "Manifestation, Presentation of
Additional Evidence and Submission of the Case for Resolution." 3
On November 28, 1981, petitioners filed before the same Board a "Manifestation and Urgent Motion to Resolve or
Decide Main Petition" praying that the case be resolved or decided not later than December 10, 1981 to enable them,

in case of denial, to avail of whatever remedy they may have under the law for the protection of their interests before
their 1975 model cabs are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the case, but was later informed that the
records of the case could not be located.
On December 29, 1981, the present Petition was instituted wherein the following queries were posed for consideration
by this Court:
A.
Did BOT and BLT promulgate the questioned memorandum circulars in accord with the manner required by
Presidential Decree No. 101, thereby safeguarding the petitioners' constitutional right to procedural due process?
B.
Granting, arguendo, that respondents did comply with the procedural requirements imposed by Presidential
Decree No. 101, would the implementation and enforcement of the assailed memorandum circulars violate the
petitioners' constitutional rights to.
(1)

Equal protection of the law;

(2)

Substantive due process; and

(3)

Protection against arbitrary and unreasonable classification and standard?

On Procedural and Substantive Due Process:

Presidential Decree No. 101 grants to the Board of Transportation the power
4.
To fix just and reasonable standards, classification, regulations, practices, measurements, or service to be
furnished, imposed, observed, and followed by operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to follow in the exercise of its powers:
Sec. 2. Exercise of powers. In the exercise of the powers granted in the preceding section, the Board shag
proceed promptly along the method of legislative inquiry.
Apart from its own investigation and studies, the Board, in its discretion, may require the cooperation and assistance
of the Bureau of Transportation, the Philippine Constabulary, particularly the Highway Patrol Group, the support
agencies within the Department of Public Works, Transportation and Communications, or any other government office
or agency that may be able to furnish useful information or data in the formulation of the Board of any policy, plan or
program in the implementation of this Decree.
The Board may also can conferences, require the submission of position papers or other documents, information, or
data by operators or other persons that may be affected by the implementation of this Decree, or employ any other
suitable means of inquiry.
In support of their submission that they were denied procedural due process, petitioners contend that they were not
caged upon to submit their position papers, nor were they ever summoned to attend any conference prior to the
issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway accorded the Board gives it a wide range of choice
in gathering necessary information or data in the formulation of any policy, plan or program. It is not mandatory that it
should first call a conference or require the submission of position papers or other documents from operators or
persons who may be affected, this being only one of the options open to the Board, which is given wide discretionary
authority. Petitioners cannot justifiably claim, therefore, that they were deprived of procedural due process. Neither can
they state with certainty that public respondents had not availed of other sources of inquiry prior to issuing the
challenged Circulars. operators of public conveyances are not the only primary sources of the data and information
that may be desired by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of procedural due process.
As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44 SCRA 307 (1972):
Pevious notice and hearing as elements of due process, are constitutionally required for the protection of life or vested
property rights, as well as of liberty, when its limitation or loss takes place in consequence of a judicial or quasi-judicial

proceeding, generally dependent upon a past act or event which has to be established or ascertained. It is not
essential to the validity of general rules or regulations promulgated to govern future conduct of a class or persons or
enterprises, unless the law provides otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is arbitrary and oppressive because the
roadworthiness of taxicabs depends upon their kind of maintenance and the use to which they are subjected, and,
therefore, their actual physical condition should be taken into consideration at the time of registration. As public
contend, however, it is impractical to subject every taxicab to constant and recurring evaluation, not to speak of the
fact that it can open the door to the adoption of multiple standards, possible collusion, and even graft and corruption. A
reasonable standard must be adopted to apply to an vehicles affected uniformly, fairly, and justly. The span of six
years supplies that reasonable standard. The product of experience shows that by that time taxis have fully
depreciated, their cost recovered, and a fair return on investment obtained. They are also generally dilapidated and no
longer fit for safe and comfortable service to the public specially considering that they are in continuous operation
practically 24 hours everyday in three shifts of eight hours per shift. With that standard of reasonableness and
absence of arbitrariness, the requirement of due process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal protection of the law because the same is
being enforced in Metro Manila only and is directed solely towards the taxi industry. At the outset it should be pointed
out that implementation outside Metro Manila is also envisioned in Memorandum Circular No. 77-42. To repeat the
pertinent portion:
For an orderly implementation of this Memorandum Circular, the rules herein shall immediately be effective in Metro
Manila. Its implementation outside Metro Manila shall be carried out only after the project has been implemented in
Metro Manila and only after the date has been determined by the Board.
In fact, it is the understanding of the Court that implementation of the Circulars in Cebu City is already being effected,
with the BOT in the process of conducting studies regarding the operation of taxicabs in other cities.
The Board's reason for enforcing the Circular initially in Metro Manila is that taxicabs in this city, compared to those of
other places, are subjected to heavier traffic pressure and more constant use. This is of common knowledge.
Considering that traffic conditions are not the same in every city, a substantial distinction exists so that infringement of
the equal protection clause can hardly be successfully claimed.
As enunciated in the preambular clauses of the challenged BOT Circular, the overriding consideration is the safety and
comfort of the riding public from the dangers posed by old and dilapidated taxis. The State, in the exercise, of its police
power, can prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the
people. It can prohibit all things hurtful to comfort, safety and welfare of society. 5 It may also regulate property rights.
6 In the language of Chief Justice Enrique M. Fernando "the necessities imposed by public welfare may justify the
exercise of governmental authority to regulate even if thereby certain groups may plausibly assert that their interests
are disregarded". 7
In so far as the non-application of the assailed Circulars to other transportation services is concerned, it need only be
recalled that the equal protection clause does not imply that the same treatment be accorded all and sundry. It applies
to things or persons Identically or similarly situated. It permits of classification of the object or subject of the law
provided classification is reasonable or based on substantial distinction, which make for real differences, and that it
must apply equally to each member of the class. 8 What is required under the equal protection clause is the uniform
operation by legal means so that all persons under Identical or similar circumstance would be accorded the same
treatment both in privilege conferred and the liabilities imposed. 9 The challenged Circulars satisfy the foregoing
criteria.
Evident then is the conclusion that the questioned Circulars do not suffer from any constitutional infirmity. To declare a
law unconstitutional, the infringement of constitutional right must be clear, categorical and undeniable.
WHEREFORE, the Writs prayed for are denied and this Petition is hereby dismissed. No costs.
SO ORDERED.
Digest:

Taxicab Operators of Metro Manila, Inc. vs. Board of Transportation, 117 SCRA 597
Facts: Board of Transportation issued Memorandum Circular No. 77-42 providing for the phasing out and replacement
of old and dilapidated taxis beyond 6 years old.
Pursuant to the BOT circular, the Bureau of Land Transportation issued Implementing Circular No. 52 instructing the
implementation of said circular and formulating a schedule of phase-out of vehicles to be allowed and accepted for
registration as public conveyances.

Petitioners seek to declare the nullity of the circulars on the ground that fixing the ceiling at 6 years is arbitrarily and
oppressive because the road worthiness of taxicabs depends upon their kind of maintenance and the use to which
they are subjected and therefore their actual physical condition should be taken into consideration at the time of the
registration.
Issue: WON a circular phasing out taxicabs more than 6 years old is unreasonable and arbitrary.
Held: No. A reasonable standard must be adopted to apply to all vehicles uniformly, fairly and justly. The span of 6
yearsw supplies that reaonable standard. By the time taxis have fully depreciated, theircost recovered, and a fair
return on investment obtained. Thyey are also generally dilapidated and no longer fit for safe and comfortable service
to the public.
Taxicabs in Manila, compared to those in other places are subject to heavier traffic pressure and constant use.

TIO vs. VIDEOGRAM REGULATORY BOARD

Citation: 151 SCRA 208; G.R. No. L-75697; June 18, 1987
DOCTRINES:
Validity of law; title of bill The Constitutional requirement that "every bill shall embrace only one subject which shall
be expressed in the title thereof" is sufficiently complied with if the title be comprehensive enough to include the
general purpose which a statute seeks to achieve. It is not necessary that the title express each and every end that
the statute wishes to accomplish. The requirement is satisfied if all the parts of the statute are related, and are
germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to
the general subject and title.
Taxation; security against oppressive taxation The power to impose taxes is one so unlimited in force and so
searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except
such as rest in the discretion of the authority which exercises it. In imposing a tax, the legislature acts upon its
constituents. This is, in general, a sufficient security against erroneous and oppressive taxation.
Taxation as a revenue and regulatory measure The tax imposed by the DECREE is not only a regulatory but also a
revenue measure prompted by the realization that earnings of videogram establishments of around P600 million per
annum have not been subjected to tax, thereby depriving the Government of an additional source of revenue. . . . The
levy of the 30% tax is for a public purpose. It was imposed primarily to answer the need for regulating the
video industry, particularly because of the rampant film piracy, the flagrant violation of intellectual property
rights, and the proliferation of pornographic video tapes. And while it was also an objective of the DECREE to
protect the movie industry, the tax remains a valid imposition.
Undue delegation of legislative power The grant in Section 11 of the DECREE of authority to the BOARD to "solicit
the direct assistance of other agencies and units of the government and deputize, for a fixed and limited period, the
heads or personnel of such agencies and units to perform enforcement functions for the Board" is not a delegation of
the power to legislate but merely a conferment of authority or discretion as to its execution, enforcement, and
implementation. "The true distinction is between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in
pursuance of the law. The first cannot be done; to the latter, no valid objection can be made." Besides, in the very
language of the decree, the authority of the BOARD to solicit such assistance is for a "fixed and limited period" with

the deputized agencies concerned being "subject to the direction and control of the BOARD." That the grant of such
authority might be the source of graft and corruption would not stigmatize the DECREE as unconstitutional. Should the
eventuality occur, the aggrieved parties will not be without adequate remedy in law.
FACTS:
Valentin Tio is a videogram establishment operator adversely affected by Presidential Decree No. 1987 entitled "An
Act Creating the Videogram Regulatory Board".
P.D. No. 1987 provides for the levy of a tax over each cassette sold (Sec. 134) and a 30% tax on the gross receipts of
a videogram establishment, payable to the local government (Sec. 10). The rationale for this decree is set forth in its
preambulatory/whereas clauses to wit:
1. WHEREAS, the proliferation and unregulated circulation of videograms including, among others, videotapes, discs,
cassettes ... have greatly prejudiced the operations of moviehouses and theaters, and have caused a sharp decline in
theatrical attendance by at least forty percent (40%) and a tremendous drop in the collection of [taxes] thereby
resulting in substantial losses estimated at P450 Million annually in government revenues;
2. WHEREAS, videogram(s) establishments collectively earn around P600 Million per annum from rentals, sales and
disposition of videograms, and such earnings have not been subjected to tax, thereby depriving the Government of
approximately P180 Million in taxes each year;
3. WHEREAS, the unregulated activities of videogram establishments have also affected the viability of the movie
industry, ...;
5. WHEREAS, proper taxation of the activities of videogram establishments will not only alleviate the dire financial
condition of the movie industry ..., but also provide an additional source of revenue for the Government, and at the
same time rationalize the heretofore uncontrolled distribution of videograms;
6. WHEREAS, the rampant and unregulated showing of obscene videogram features constitutes a clear and present
danger to the moral and spiritual well-being of the youth [READ: PORN], and impairs the mandate of the Constitution
for the State to support the rearing of the youth for civic efficiency and the development of moral character and
promote their physical, intellectual, and social well-being;
8. WHEREAS, in the face of these grave emergencies corroding the moral values of the people [AGAIN, READ:
PORN] and betraying the national economic recovery program, bold emergency measures must be adopted with
dispatch; (emphasis supplied and certain passages omitted)

ISSUES:
The petioner, among others, raised the following issues:
1. Whether or not the imposition of the 30% tax is a rider and the same is not germane to the subject matter of the law.
2. Whether or not there is undue delegation of power and authority; and
HELD:
1. No, the tax is not a rider and is germane to the purpose and subject of the law.
The Constitutional requirement that "every bill shall embrace only one subject which shall be expressed in the title
thereof" is sufficiently complied with if the title be comprehensive enough to include the general purpose which a
statute seeks to achieve. It is not necessary that the title express each and every end that the statute wishes to
accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to the subject
matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title.
Reading section 10 of P.D. No. 1987 closely, one can see that the foregoing provision is allied and germane to, and is
reasonably necessary for the accomplishment of, the general object of the law, which is the regulation of the video
industry through the Videogram Regulatory Board as expressed in its title. The tax provision is not inconsistent with,

nor foreign to that general subject and title. As a tool for regulation it is simply one of the regulatory and control
mechanisms scattered throughout the decree.
Aside from revenue collection, tax laws may also be enacted for the purpose of regulating an activity. At the same
time, the videogram industry is also an untapped source of revenue which the government may validly tax. All of this is
evident from preambulatory clauses nos. 2, 5, 6 and 8, quoted in part above.
The levy of the 30% tax is also for a public purpose. It was imposed primarily to answer the need for regulating the
video industry, particularly because of the rampant film piracy, the flagrant violation of intellectual property rights, and
the proliferation of pornographic video tapes. And while it was also an objective of the law to protect the movie
industry, the tax remains a valid imposition.
2. No. There was no undue delegation of law making authority.
Petitioner was concerned that Section 11 of P.D. No. 1987 stating that the videogram board (Board) has authority to
"solicit the direct assistance of other agencies and units of the government and deputize, for a fixed and limited period,
the heads or personnel of such agencies and units to perform enforcement functions for the Board" is an undue
delegation of legislative power.
This is not a delegation of the power to legislate but merely a conferment of authority or discretion as to its execution,
enforcement, and implementation. "The true distinction is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be
exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made."
Besides, in the very language of the decree, the authority of the Board to solicit such assistance is for a "fixed and
limited period" with the deputized agencies concerned being "subject to the direction and control of the Board."
The petition was DISMISSED.
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR
EDUCATIONAL MEASUREMENT, petitioners, vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as Presiding Judge of
the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, respondents.
G.R. No. 89572 December 21, 1989
The issue before us is mediocrity. The question is whether a person who has thrice failed the National Medical
Admission Test (NMAT) is entitled to take it again. The petitioner contends he may not, under its rule that- A student
shall be allowed only 3 chances to take the NMAT. After 3 successive failures, a student shall not be allowed to take
the NMAT for the fourth time. The private respondent insists he can, on constitutional grounds.
Facts:
Private respondent is a graduate of the University of the East with a degree of BS Zoology. The petitioner claims that
he took the NMAT 3 times and flunked it as many times. When he applied to take it again, the petitioner rejected his
application on the basis of the aforesaid rule. He then went to the RTC of Valenzuela to compel his admission to the
test. In his original petition for mandamus, he first invoked his constitutional rights to academic freedom and quality
education. By agreement of the parties, the private respondent was allowed to take the NMAT scheduled on April16,
1989, subject to the outcome of his petition. In an amended petition filed with leave of court, he squarely challenged
the constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds
raised were due process and equal protection.
Issue:
Whether or not there was a violation of the Constitution on academic freedom, due process and equal protection.
Held: No. The court upheld the constitutionality of the NMAT as a measure intended to limit the admission to
medical schools only to those who have initially proved their competence and preparation for a medical education.
There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if
(a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the

State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals. 5
In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful
method.
The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the
responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may
unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or
oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from
the intrusion of those not qualified to be doctors.
The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that
"every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable
admission and academic requirements.
Ratio:
While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is
true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's
ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated
or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common
good while also giving the individual a sense of satisfaction. The Court feels that it is not enough to simply invoke the
right to quality education as a guarantee of the Constitution: one must show that he is entitled to it because of his
preparation and promise.

Sangalang, Bel-Air Association vs. Intermediate Appellate Court (1989)

[G.R. No. 71169. August 25, 1989.]
STATEMENT OF THE CASE
Before the Court are six consolidated petitions, docketed as G.R. nos. 71169, 74376, 76394, 78182, 82281 and
60727. The first five petitions for a motion for reconsideration raise the issue of whether Jupiter Street is for the
exclusive use of Bel-Air Village residents. Meanwhile, the last petition (G.R. 60727) raises the lone issue of whether or
not the Mayor of Makati could have validly opened Jupiter and Orbit Streets to vehicular traffic.
Facts

Ayala Corporation (original owner of the property subsequently subdivided as Bel-Air Village) executed a Deed
of Donation covering Jupiter and Orbit streets to Bel-Air Village Association (BAVA).

Respondents allege that upon instructions of the Mayor of Makati, studies were made by the on the feasibility of
opening streets in Bel-Air Village calculated to alleviate traffic congestions along the public streets adjacent to Bel-Air
Village.
o Accordingly, it was deemed necessary by the Municipality of Makati in the interest of the general public to open to
traffic several village streets including Jupiter and Orbit streets.

Respondents claim: BAVA had agreed to the opening of Bel-Air Village streets and that the opening was
demanded by public necessity and in the exercise of police power.

Petitioners counter-argument: It has never agreed on the opening of Jupiter and Orbit streets. By virtue of its
ownership of the streets, it should not be deprived without due process of law and without just compensation.
ISSUES/HOLDING
a.

W/N the Mayor of Makati could have validly opened Jupiter and Orbit streets? YES

b.

If yes, what is the nature of the state power being invoked by the Mayor? POLICE POWER

RATIO
a. BAVA cannot rightfully complain that the Mayor of Makati, in opening up Jupiter and Orbit streets, had acted
arbitrarily.
Citing Sangalang v. IAC, the Court held that Jupiter street lies as the boundary between Bel-Air Village and Ayala
Corporations commercial section. Being considered as merely a boundary and hence not part of Ayalas real estate
development projects it cannot be said to have been for the exclusive benefit of Bel-Air Village residents.
The very Deed of Donation executed by Ayala Corp. covering Jupiter and Orbit Streets, amongst others, effectively
required both passageways open to the general public.
o
the property will be used as a street for the use of the members of the DONEE (BAVA), their families,
personnel, guests, domestic help and under certain reasonable conditions and restrictions, by the general public
As the Court asserted in Sangalang, the opening of Jupiter and Orbit streets was warranted by the demands of the
common good, in terms of traffic decongestion and public convenience.

b. The act of the Mayor now challenged is in the concept of police power.
o The demolition of the gates at Orbit and Jupiter streets does not amount to deprivation of property without due
process of law or expropriation without just compensation there is no taking of property involved.
o Police power as the state authority to enact legislation that may interfere with personal liberty or property in order
to promote the general welfare.
o Even liberty itself, the greatest of all rights, is not unrestricted license to act accordingly to ones will. It is subject to
the far more overriding demands and requirements of the greater number.
o Public welfare when clashing with the individual right to property should not be made to prevail through the states
exercise of its police power.
o The exercise of police power, however, may not be done arbitrarily or unreasonably. But the burden of showing
that it is unjustified lies on the aggrieved party.
o In the case at bar, BAVA has failed to show that the opening up of Orbit and Jupiter streets was unjustified or that
the Mayor acted unreasonably.
o The fact that the opening has led to the loss of privacy of BAVA residents is no argument against the Municipalitys
effort to ease vehicular traffic in Makati. The duty of local executive is to take care of the needs of the greater number,
in many cases at the expense, of the minority.
DISPOSITIVE: Motion for reconsideration by Bel-Air Village Association is DENIED with FINALITY. The petition in
G.R. 60727 is GRANTED.

Del Rosario v. Bengzon [GR 88265, 21 December 1989]

Facts: On 15 March 1989, the full text of Republic Act 6675 was published in two newspapers of general circulation in
the Philippines. The law took effect on 30 March 1989, 15 days after its publication, as provided in Section 15 thereof.
Section 7, Phase 3 of Administrative Order 62 was amended by Administrative Order 76 dated 28 August 1989 by
postponing to 1 January 1990 the effectivity of the sanctions and penalties for violations of the law, provided in
Sections 6 and 12 of the Generics Act and Sections 4 and 7 of the Administrative Order. Officers of the Philippine
Medical Association, the national organization of medical doctors in the Philippines, on behalf of their professional
brethren who are of kindred persuasion, filed a class suit requesting the Court to declare some provisions (specifically
penal) of the Generics Act of 1988 and the implementing Administrative Order 62 issued pursuant thereto as
unconstitutional, hence, null and void. The petition was captioned as an action for declaratory relief, over which the

Court does not exercise jurisdiction. Nevertheless, in view of the public interest involved, the Court decided to treat it
as a petition for prohibition instead.
Issue: Whether the prohibition against the use by doctors of "no substitution" and/or words of similar import in their
prescription in the Generics Act is a lawful regulation.
Held: Yes. There is no constitutional infirmity in the Generics Act; rather, it implements the constitutional mandate for
the State "to protect and promote the right to health of the people" and "to make essential goods, health and other
social services available to all the people at affordable cost" (Section 15, Art. II and Section 11, Art. XIII, 1987
Constitution). The prohibition against the use by doctors of "no substitution" and/or words of similar import in their
prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right to choose
between the brand name and its generic equivalent since his doctor is allowed to write both the generic and the brand
name in his prescription form. If a doctor is allowed to prescribe a brand-name drug with "no substitution," the patient's
option to buy a lower-priced, but equally effective, generic equivalent would thereby be curtailed. The law aims to
benefit the impoverished (and often sickly) majority of the population in a still developing country like ours, not the
affluent and generally healthy minority.
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and GMA NETWORK,
INC., petitioners,
vs. THE COMMISSION ON ELECTIONS, respondent.
[G.R. No. 132922. April 21, 1998]
FACTS:
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP) is an
organization of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers and
registered voters. It was declared to be without legal standing to sue in this case as, among other reasons, it was not
able to show that it was to suffer from actual or threatened injury as a result of the subject law. Other petitioner, GMA
Network, Inc., appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio
and television broadcast stations in the Philippines affected by the enforcement of Sec. 92 of B.P Blg. 881 requiring
radio and television broadcast companies to provide free air time to the COMELEC for the use of candidates for
campaign and other political purposes. Petitioners challenge the validity of Sec. 92 on the ground (1) that it takes
property without due process of law and without just compensation; (2) that it denies radio and television broadcast
companies the equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC to
supervise or regulate the operation of media of communication or information during the period of election. Petitioner
claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992
presidential election and 1995 senatorial election and that it stands to suffer even more should it be required to do so
again this year. Petitioners claim that the primary source of revenue of the radio and television stations is the sale of
air time to advertisers and to require these stations to provide free air time is to authorize unjust taking of private
property. According to petitioners, in 1992 it lost P22,498,560.00 in providing free air time for one hour each day and,
in this years elections, it stands to lost P58,980,850.00 in view of COMELECs requirement that it provide at least 30
minutes of prime time daily for COMELEC Time.
ISSUES:
(1) Whether or not Section 92 of B.P. No. 881 denies radio and television broadcast companies the equal protection of
the laws.
(2) Whether or not Section 92 of B.P. No. 881 constitutes taking of property without due process of law and without
just compensation.
RULING:
Petitioners argument is without merit. All broadcasting, whether radio or by television stations, is licensed by
the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast that
there are frequencies to assign. Radio and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the
temporary privilege to use them. Thus, such exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. In granting the privilege to operate broadcast stations and

supervising radio and television stations, the state spends considerable public funds in licensing and supervising
them.
The argument that the subject law singles out radio and television stations to provide free air time as against
newspapers and magazines which require payment of just compensation for the print space they may provide is
likewise without merit. Regulation of the broadcast industry requires spending of public funds which it does not do in
the case of print media. To require the broadcast industry to provide free air time for COMELEC is a fair exchange for
what the industry gets.
Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the law has no basis. In
addition, their plea that 92 (free air time) and 11(b) of R.A. No. 6646 (ban on paid political ads) should be
invalidated would pave the way for a return to the old regime where moneyed candidates could monopolize media
advertising to the disadvantage of candidates with less resources. That is what Congress tried to reform in 1987 with
the enactment of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in light of the
recent failure of interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a Reasonable Exercise of the State's Power to Regulate Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C, 4 of the
Constitution does not include the power to prohibit. In the first place, what the COMELEC is authorized to
supervise or regulate by Art. IX-C, 4 of the Constitution, 31 among other things, is the use by media of
information of their franchises or permits, while what Congress (not the COMELEC) prohibits is the sale or
donation of print space or air time for political ads. In other words, the object of supervision or regulation is
different from the object of the prohibition. It is another fallacy for petitioners to contend that the power to
regulate does not include the power to prohibit. This may have force if the object of the power were the same.
As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement
that they provide air time to the COMELEC. The use of property bears a social function and is subject to the states
duty to intervene for the common good. Broadcast media can find their just and highest reward in the fact that
whatever altruistic service they may render in connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
Blas F. Ople vs Ruben D. Torres, et al.
293 SCRA 141 / GR No. 127685, 23 July 1998,
J. Puno
FACTS:
Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference System," was
issued by President Fidel Ramos On December 12, 1996.Senator Blas F. Ople filed a petition seeking to invalidate
A.O. No. 308 on several grounds. One of them is that: The establishment of a National Computerized Identification
Reference System requires a legislative act. The issuance of A.O. No.308 by the President is an unconstitutional
usurpation of the legislative powers of congress. Petitioner claims that A.O. No. 308 is not a mere administrative order
but a law and hence, beyond the power of the President to issue. He alleges that A.O. No.308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident,
and more particularly violates their right to privacy. On this point, respondents counter-argue that: A.O. No. 308 was
issued within the executive and administrative powers of the president without encroaching on the legislative powers
of congress.
ISSUE:
legislate.

Whether the issuance of A.O. No. 308 is an unconstitutional usurpation of the power of Congress to

RULING:
Legislative power is the authority to make laws, and to alter and repeal them. The Constitution
has vested this power in the Congress. The grant of legislative power to Congress is broad, general, and
comprehensive. Any power deemed to be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. The executive power, on the other hand, is vested in the President. It
is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance. As head of the Executive Department, the President is the Chief

Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and
employees of his department. He has control over the executive department, bureaus and offices. Corollary to the
power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to
enable him to discharge his duties effectively. Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders,
rules and regulations. From these precepts, the Court holds that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order.
YNOT, petitioner, vs. IAC
G.R. No. 74457 March 20, 1987
FACTS:
Petitioner challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as
follows:
WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the
slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to
age;
WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the
prohibition against inter-provincial movement of carabaos by transporting carabeef instead;
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they
were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a
supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the
carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined
to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of
the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid
because it is imposed without according the owner a right to be heard before a competent and impartial court as
guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as
constitutional. There is also a challenge to the improper exercise of the legislative power by the former President
under Amendment No. 6 of the 1973 Constitution.
Respondents invoked police power to to justify Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued
for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the
outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps
to protect and preserve them.
RULING:
The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard against official arbitrariness.
The protection of the general welfare is the particular function of the police power which both restraints and is
restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty
and property for the promotion of the general welfare.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method
employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in
his defense and is immediately condemned and punished. The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against
the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A unconstitutional.
PHILIPPINE PRESS INSTITUTE VS. COMELEC [244 SCRA 272; G.R. No. 119694; 22 May 1995]
Facts: Respondent Comelec promulgated Resolution No. 2772 directing newspapers to provide free Comelec space
of not less than one-half page for the common use of political parties and candidates. The Comelec space shall be
allocated by the Commission, free of charge, among all candidates to enable them to make known their qualifications,
their stand on public Issue and their platforms of government. The Comelec space shall also be used by the
Commission for dissemination of vital election information.
On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:
xxx

xxx

xxx

Sec. 2. Comelec Space. The Commission shall procure free print space of not less than one half (1/2)
page in at least one newspaper of general circulation in every province or city for use as "Comelec Space"
from March 6, 1995 in the case of candidates for senator and from March 21, 1995 until May 12, 1995. In the
absence of said newspaper, "Comelec Space" shall be obtained from any magazine or periodical of said
province or city.
Sec. 3. Uses of Comelec Space. "Comelec Space" shall be allocated by the Commission, free of charge,
among all candidates within the area in which the newspaper, magazine or periodical is circulated to enable
the candidates to make known their qualifications, their stand on public issues and their platforms and
programs of government.
"Comelec Space" shall also be used by the Commission for dissemination of vital election information.
Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also be available to all candidates during
the periods stated in Section 2 hereof. Its allocation shall be equal and impartial among all candidates for the
same office. All candidates concerned shall be furnished a copy of the allocation of "Comelec Space" for their
information, guidance and compliance.
Petitioner Philippine Press Institute, Inc. (PPI), a non-profit organization of newspaper and magazine publishers, asks
the Supreme Court to declare Comelec Resolution No. 2772 unconstitutional and void on the ground that it violates
the prohibition imposed by the Constitution upon the government against the taking of private property for public use
without just compensation. On behalf of the respondent Comelec, the Solicitor General claimed that the Resolution is
a permissible exercise of the power of supervision (police power) of the Comelec over the information operations of
print media enterprises during the election period to safeguard and ensure a fair, impartial and credible election.
Issue: Whether or not Comelec Resolution No. 2772 is unconstitutional.
Held: The Supreme Court declared the Resolution as unconstitutional. It held that to compel print media companies
to donate Comelec space amounts to taking of private personal property without payment of the just compensation
required in expropriation cases. Moreover, the element of necessity for the taking has not been established by
respondent Comelec, considering that the newspapers were not unwilling to sell advertising space. The taking of
private property for public use is authorized by the constitution, but not without payment of just compensation. Also
Resolution No. 2772 does not constitute a valid exercise of the police power of the state. In the case at bench, there is
no showing of existence of a national emergency to take private property of newspaper or magazine publishers.
EMINENT DOMAIN

American Print Works v. Lawrence

whether the destruction of the building to prevent the spread of fire, authorized the blowing up of the goods contained
within it, but not whether they were authorized to blow up the materials of which the building was composed.
right of eminent domain - publicright, it arises from the laws of society and is vested in the state, or benefitof the state,
or those acting under it;
right of necessity - under the laws of society or society itself, right of self-defense or self-preservation.

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, vs. LA ORDEN DE PP. BENEDICTINOS DE FILIPINAS,

defendant-appellee.
G.R. No. L-12792

February 28, 1961

To ease and solve the daily traffic congestion on Legarda Street, the Government drew plans to extend Azcarraga
street from its junction with Mendiola street, up to the Sta. Mesa Rotonda, Sampaloc, Manila. To carry out this plan it
offered to buy a portion of approximately 6,000 square meters of a bigger parcel belonging to La Orden de PP.
Benedictinos de Filipinas, a domestic religious corporation that owns the San Beda College, a private educational
institution situated on Mendiola street. Not having been able to reach an agreement on the matter with the owner, the
Government instituted the present expropriation proceedings.
On May 27, 1957 the trial court, upon application of the Government hereinafter referred to as appellant issued
an order fixing the provisional value of the property in question at P270,000.00 and authorizing appellant to take
immediate possession thereof upon depositing said amount. The deposit having been made with the City Treasurer of
Manila, the trial court issued the corresponding order directing the Sheriff of Manila to place appellant in possession of
the property aforesaid.
On June 8, 1957, as directed by the Rules of Court, the herein appellee, in lieu of an answer, filed a motion to dismiss
the complaint based on the following grounds:
I. That the property sought to be expropriated is already dedicated to public use and therefore is not subject to
expropriation.
II. That there is no necessity for the proposed expropriation.
III. That the proposed Azcarraga Extension could pass through a different site which would entail less expense to the
Government and which would not necessitate the expropriation of a property dedicated to education.
IV. That the present action filed by the plaintiff against the defendant is discriminatory.
V. That the herein plaintiff does not count with sufficient funds to push through its project of constructing the proposed
Azcarraga Extension and to allow the plaintiff to expropriate defendant's property at this time would be only to
needlessly deprive the latter of the use of its property.".
The government filed a written opposition to the motion to dismiss (Record on Appeal, pp. 30-37) while appellee filed a
reply thereto (Id., pp. 38-48). On July 29, 1957, without receiving evidence upon the questions of fact arising from the
complaint, the motion to dismiss and the opposition thereto filed, the trial court issued the appealed order dismissing
the case.
The appealed order shows that the trial court limited itself to deciding the point of whether or not the expropriation of
the property in question is necessary (Rec. on Ap., p. 50) and, having arrived at the conclusion that such expropriation
was not of extreme necessity, dismissed the proceedings.
It is to be observed that paragraph IV of the complaint expressly alleges that appellant needs, among other properties,
the portion of appellee's property in question for the purpose of constructing the Azcarraga street extension, and that
paragraph VII of the same complaint expressly alleges that, in accordance with Section 64(b) of the Revised
Administrative Code, the President of the Philippines had authorized the acquisition, thru condemnation proceedings,
of the aforesaid parcel of land belonging to appellee, as evidenced by the third indorsement dated May 15, 1957 of the
Executive Secretary, Office of the President of the Philippines, a copy of which was attached to the complaint as
Annex "C" and made an integral part thereof. In denial of these allegations appellee's motion to dismiss alleged that
"there is no necessity for the proposed expropriation". Thus, the question of fact decisive of the whole case arose.

It is the rule in this jurisdiction that private property may be expropriated for public use and upon payment of just
compensation; that condemnation of private property is justified only if it is for the public good and there is a genuine
necessity therefor of a public character. Consequently, the courts have the power to inquire into the legality of the
exercise of the right of eminent domain and to determine whether or not there is a genuine necessity therefor (City of
Manila vs. Chinese Community, 40 Phil. 349; Manila Railroad Company vs. Hacienda Benito, Inc., 37 O.G. 1957).
Upon the other hand, it does not need extended argument to show that whether or not the proposed opening of the
Azcarraga extension is a necessity in order to relieve the daily congestion of traffic on Legarda St., is a question of fact
dependent not only upon the facts of which the trial court very liberally took judicial notice but also up on other factors
that do not appear of record and must, therefore, be established by means of evidence. We are, therefore, of the
opinion that the parties should have been given an opportunity to present their respective evidence upon these factors
and others that might be of direct or indirect help in determining the vital question of fact involved, namely, the need to
open the extension of Azcarraga street to ease and solve the traffic congestion on Legarda street.
WHEREFORE, the appealed order of dismissal is set aside and the present case is remanded to the trial court for
further proceedings in accordance with this decision. Without costs.
THE CITY OF MANILA, plaintiff-appellant, vs. CHINESE COMMUNITY OF MANILA, ET AL.
G.R. No. L-14355
The important question presented by this appeal is: In expropriation proceedings by the city of Manila, may the courts
inquire into, and hear proof upon, the necessity of the expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First Instance of said city,
praying that certain lands, therein particularly described, be expropriated for the purpose of constructing a public
improvement. The petitioner, in the second paragraph of the petition, alleged:
That for the purpose of constructing a public improvement, namely, the extension of Rizal Avenue, Manila, it is
necessary for the plaintiff to acquire ownership in fee simple of certain parcels of land situated in the district of
Binondo of said city within Block 83 of said district, and within the jurisdiction of this court.
The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of the
plaintiff, alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine
Islands, having for its purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it
was the owner of parcels one and two of the land described in paragraph 2 of the complaint; that it denied that it was
either necessary or expedient that the said parcels be expropriated for street purposes; that existing street and roads
furnished ample means of communication for the public in the district covered by such proposed expropriation; that if
the construction of the street or road should be considered a public necessity, other routes were available, which
would fully satisfy the plaintiff's purposes, at much less expense and without disturbing the resting places of the dead ;
that it had a Torrens title for the lands in question; that the lands in question had been used by the defendant for
cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said expropriation be carried
into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of money in
the transfer or removal of the bodies to some other place or site and in the purchase of such new sites, would involve
the destruction of existing monuments and the erection of new monuments in their stead, and would create irreparable
loss and injury to the defendant and to all those persons owning and interested in the graves and monuments which
would have to be destroyed; that the plaintiff was without right or authority to expropriate said cemetery or any part or
portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a public improvement.
The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of the complaint, and
alleged that said expropriation was not a public improvement; that it was not necessary for the plaintiff to acquire the
parcels of land in question; that a portion of the lands in question was used as a cemetery in which were the graves of
his ancestors; that monuments and tombstones of great value were found thereon; that the land had become quasipublic property of a benevolent association, dedicated and used for the burial of the dead and that many dead were
buried there; that if the plaintiff deemed it necessary to extend Rizal Avenue, he had offered and still offers to grant a
right of way for the said extension over other land, without cost to the plaintiff, in order that the sepulchers, chapels
and graves of his ancestors may not be disturbed; that the land so offered, free of charge, would answer every public
necessity on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of the other
defendants, answering separately, presented substantially the same defense as that presented by the Comunidad de
Chinos de Manila and Ildefonso Tambunting above referred to.
The foregoing parts of the defense presented by the defendants have been inserted in order to show the general
character of the defenses presented by each of the defendants. The plaintiff alleged that the expropriation was
necessary. The defendants each alleged (a) that no necessity existed for said expropriation and (b) that the land in
question was a cemetery, which had been used as such for many years, and was covered with sepulchres and
monuments, and that the same should not be converted into a street for public purposes.
Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judge, in
a very elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that
there was no necessity for the expropriation of the particular strip of land in question, and absolved each and all of the
defendants from all liability under the complaint, without any finding as to costs.
From that judgment the plaintiff appealed and presented the above question as its principal ground of appeal.
The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate
land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain
the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible
purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that the courts are
mere appraisers of the land involved in expropriation proceedings, and, when the value of the land is fixed by the
method adopted by the law, to render a judgment in favor of the defendant for its value.
That the city of Manila has authority to expropriate private lands for public purposes, is not denied. Section 2429 of Act
No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn private property for public
use."
The Charter of the city of Manila contains no procedure by which the said authority may be carried into effect. We are
driven, therefore, to the procedure marked out by Act No. 190 to ascertain how the said authority may be exercised.
From an examination of Act No. 190, in its section 241, we find how the right of eminent domain may be exercised.
Said section 241 provides that, "The Government of the Philippine Islands, or of any province or department thereof,
or of any municipality, and any person, or public or private corporation having, by law, the right to condemn private
property for public use, shall exercise that right in the manner hereinafter prescribed."
Section 242 provides that a complaint in expropriation proceeding shall be presented; that the complaint shall state
with certainty the right of condemnation, with a description of the property sought to be condemned together with the
interest of each defendant separately.
Section 243 provides that if the court shall find upon trial that the right to expropriate the land in question exists, it shall
then appoint commissioners.
Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provides for
an appeal from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the Supreme
Court authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on appeal shall
determine that no right of expropriation existed, it shall remand the cause to the Court of First Instance with a mandate
that the defendant be replaced in the possession of the property and that he recover whatever damages he may have
sustained by reason of the possession of the plaintiff.
It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the right to
expropriate exists," means simply that, if the court finds that there is some law authorizing the plaintiff to expropriate,
then the courts have no other function than to authorize the expropriation and to proceed to ascertain the value of the
land involved; that the necessity for the expropriation is a legislative and not a judicial question.
Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene
except for the purpose of determining the value of the land in question, there is much legal legislature. Much has been
written upon both sides of that question. A careful examination of the discussions pro and con will disclose the fact that
the decisions depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the
legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some
specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to
expropriate private land for public purposes, we think the courts have ample authority in this jurisdiction, under the
provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or
not the lands were private and whether the purpose was, in fact, public. In other words, have no the courts in this
jurisdiction the right, inasmuch as the questions relating to expropriation must be referred to them (sec. 241, Act No.
190) for final decision, to ask whether or not the law has been complied with? Suppose in a particular case, it should
be denied that the property is not private property but public, may not the courts hear proof upon that question? Or,
suppose the defense is, that the purpose of the expropriation is not public but private, or that there exists no public
purpose at all, may not the courts make inquiry and hear proof upon that question?
The city of Manila is given authority to expropriate private lands for public purposes. Can it be possible that said
authority confers the right to determine for itself that the land is private and that the purpose is public, and that the
people of the city of Manila who pay the taxes for its support, especially those who are directly affected, may not
question one or the other, or both, of these questions? Can it be successfully contended that the phrase used in Act
No. 190, "and if the court upon trial shall find that such right exists," means simply that the court shall examine the
statutes simply for the purpose of ascertaining whether a law exists authorizing the petitioner to exercise the right of
eminent domain? Or, when the case arrives in the Supreme Court, can it be possible that the phrase, "if the Supreme
Court shall determine that no right of expropriation exists," that that simply means that the Supreme Court shall also
examine the enactments of the legislature for the purpose of determining whether or not a law exists permitting the
plaintiff to expropriate?
We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an
inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the
power upon it. When the courts come to determine the question, they must only find (a) that a law or authority exists
for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance
with the law. In the present case there are two conditions imposed upon the authority conceded to the City of Manila:
First, the land must be private; and, second, the purpose must be public. If the court, upon trial, finds that neither of
these conditions exists or that either one of them fails, certainly it cannot be contended that the right is being
exercised in accordance with law.
Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. Whether the land is
public, is a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine
Islands the right to ascertain upon trial whether the right exists for the exercise of eminent domain, it intended that the
courts should inquire into, and hear proof upon, those questions. Is it possible that the owner of valuable land in this
jurisdiction is compelled to stand mute while his land is being expropriated for a use not public, with the right simply to
beg the city of Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities to
expropriate lands, without question, simply for the purpose of satisfying the aesthetic sense of those who happen for
the time being to be in authority? Expropriation of lands usually calls for public expense. The taxpayers are called
upon to pay the costs. Cannot the owners of land question the public use or the public necessity?

As was said above, there is a wide divergence of opinion upon the authority of the court to question the necessity or
advisability of the exercise of the right of eminent domain. The divergence is usually found to depend upon particular
statutory or constitutional provisions.
It has been contended and many cases are cited in support of that contention, and section 158 of volume 10 of
Ruling Case Law is cited as conclusive that the necessity for taking property under the right of eminent domain is
not a judicial question. But those who cited said section evidently overlooked the section immediately following (sec.
159), which adds: "But it is obvious that if the property is taken in the ostensible behalf of a public improvement which
it can never by any possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for
protection by the courts. While many courts have used sweeping expression in the decisions in which they have
disclaimed the power of supervising the power of supervising the selection of the sites of public improvements, it may
be safely said that the courts of the various states would feel bound to interfere to prevent an abuse of the discretion
delegated by the legislature, by an attempted appropriation of land in utter disregard of the possible necessity of its
use, or when the alleged purpose was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368;
State vs. Stewart, 74 Wis., 620.)

Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention of the appellant,
says:
The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for
appropriating private property for a particular improvement for public use, and it may select the exact location of the
improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public
necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the
consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to
determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives
of the people.
Practically every case cited in support of the above doctrine has been examined, and we are justified in making the
statement that in each case the legislature directly determined the necessity for the exercise of the right of eminent
domain in the particular case. It is not denied that if the necessity for the exercise of the right of eminent domain is
presented to the legislative department of the government and that department decides that there exists a necessity
for the exercise of the right in a particular case, that then and in that case, the courts will not go behind the action of
the legislature and make inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo, Ry,
etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the doctrine laid down in section
158 above quoted, the court said:
But when the statute does not designate the property to be taken nor how may be taken, then the necessity of taking
particular property is a question for the courts. Where the application to condemn or appropriate is made directly to the
court, the question (of necessity) should be raised and decided in limene.
The legislative department of the government was rarely undertakes to designate the precise property which should
be taken for public use. It has generally, like in the present case, merely conferred general authority to take land for
public use when a necessity exists therefor. We believe that it can be confidently asserted that, under such statute, the
allegation of the necessity for the appropriation is an issuable allegation which it is competent for the courts to decide.
(Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)
There is a wide distinction between a legislative declaration that a municipality is given authority to exercise the right
of eminent domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a
particular case. The first is a declaration simply that there exist reasons why the right should be conferred upon
municipal corporation, while the second is the application of the right to a particular case. Certainly, the legislative
declaration relating to the advisability of granting the power cannot be converted into a declaration that a necessity
exists for its exercise in a particular case, and especially so when, perhaps, the land in question was not within the
territorial authority was granted.
Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the right of eminent
domain, is a question with which the courts are not concerned. But when that right or authority is exercised for the
purpose of depriving citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to hear
proof upon the necessity in the particular case, and not the general authority.
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive authority upon
the question that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial
question. Cyclopedia, at the page stated, says:
In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising
the right of eminent domain are questions essentially political and not judicial in their character. The determination of
those questions (the necessity and the expediency) belongs to the sovereign power; the legislative department is final
and conclusive, and the courts have no power to review it (the necessity and the expediency) . . . . It (the legislature)
may designate the particular property to be condemned, and its determination in this respect cannot be reviewed by
the courts.
It is true that naby decisions may be found asserting that what is a public use is a legislative question, and many other
decisions declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or
statutory provision denying the right to take land for any use other than a public use, it occurs to us that the question
whether any particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is true,
in effect declare certain uses to be public, and, under the operation of the well-known rule that a statute will not be
declared to be unconstitutional except in a case free, or comparatively free, from doubt, the courts will certainly

sustain the action of the legislature unless it appears that the particular use is clearly not of a public nature. The
decisions must be understood with this limitation; for, certainly, no court of last resort will be willing to declare that any
and every purpose which the legislative might happen to designate as a public use shall be conclusively held to be so,
irrespective of the purpose in question and of its manifestly private character Blackstone in his Commentaries on the
English Law remarks that, so great is the regard of the law for private property that it will not authorize the least
violation of it, even for the public good, unless there exists a very great necessity therefor.
The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily in
derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of
property is held by individuals with greater tenacity, and none is guarded by the constitution and laws more sedulously,
than the right to the freehold of inhabitants. When the legislature interferes with that right, and, for greater public
purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be
enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec.,
576].)
The statutory power of taking property from the owner without his consent is one of the most delicate exercise of
government authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the
inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict
observance of the substantial provisions of the law which are prescribed as modes of the exercise of the power, and to
protect it from abuse. Not only must the authority of municipal corporations to take property be expressly conferred
and the use for which it is taken specified, but the power, with all constitutional limitation and directions for its exercise,
must be strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs. Manila
Railroad Co., 22 Phil., 411.)
It can scarcely be contended that a municipality would be permitted to take property for some public use unless some
public necessity existed therefor. The right to take private property for public use originates in the necessity, and the
taking must be limited by such necessity. The appellant contends that inasmuch as the legislature has given it general
authority to take private property for public use, that the legislature has, therefore, settled the question of the necessity
in every case and that the courts are closed to the owners of the property upon that question. Can it be imagined,
when the legislature adopted section 2429 of Act No. 2711, that it thereby declared that it was necessary to
appropriate the property of Juan de la Cruz, whose property, perhaps, was not within the city limits at the time the law
was adopted? The legislature, then, not having declared the necessity, can it be contemplated that it intended that a
municipality should be the sole judge of the necessity in every case, and that the courts, in the face of the provision
that "if upon trial they shall find that a right exists," cannot in that trial inquire into and hear proof upon the necessity for
the appropriation in a particular case?
The Charter of the city of Manila authorizes the taking of private property for public use. Suppose the owner of the
property denies and successfully proves that the taking of his property serves no public use: Would the courts not be
justified in inquiring into that question and in finally denying the petition if no public purpose was proved? Can it be
denied that the courts have a right to inquire into that question? If the courts can ask questions and decide, upon an
issue properly presented, whether the use is public or not, is not that tantamount to permitting the courts to inquire into
the necessity of the appropriation? If there is no public use, then there is no necessity, and if there is no necessity, it is
difficult to understand how a public use can necessarily exist. If the courts can inquire into the question whether a
public use exists or not, then it seems that it must follow that they can examine into the question of the necessity.
The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a
public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co.
vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)
The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a
particular case. The power of the legislature to confer, upon municipal corporations and other entities within the State,
general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general
authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The
moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the
conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to
exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal
corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority,
is a question which the courts have the right to inquire into.

The conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain
is purely legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing the
exercise of the right of eminent domain instead of in the question of the right to exercise it in a particular case.
(Creston Waterworks Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the power of restricting the exercise of eminent domain to the actual
reasonable necessities of the case and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48
Minn., 540.)
And, moreover, the record does not show conclusively that the plaintiff has definitely decided that there exists a
necessity for the appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate
that the municipal board believed at one time that other land might be used for the proposed improvement, thereby
avoiding the necessity of distributing the quiet resting place of the dead.
Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend that
the street in question should not be opened through the cemetery. One of the defendants alleges that said cemetery is
public property. If that allegations is true, then, of course, the city of Manila cannot appropriate it for public use. The
city of Manila can only expropriate private property.
It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general
community, or neighborhood, or church, while the latter is used only by a family, or a small portion of the community or
neighborhood. (11 C. J., 50.)
Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses
under a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good
faith for future use. (Lewis on Eminent Domain, sec. 434, and cases cited.)
It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which
fact, in the general acceptation of the definition of a public cemetery, would make the cemetery in question public
property. If that is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila
has no authority or right under the law to expropriate public property. But, whether or not the cemetery is public or
private property, its appropriation for the uses of a public street, especially during the lifetime of those specially
interested in its maintenance as a cemetery, should be a question of great concern, and its appropriation should not
be made for such purposes until it is fully established that the greatest necessity exists therefor.
While we do not contend that the dead must not give place to the living, and while it is a matter of public knowledge
that in the process of time sepulchres may become the seat of cities and cemeteries traversed by streets and daily
trod by the feet of millions of men, yet, nevertheless such sacrifices and such uses of the places of the dead should
not be made unless and until it is fully established that there exists an eminent necessity therefor. While cemeteries
and sepulchres and the places of the burial of the dead are still within the memory and command of the active care of
the living; while they are still devoted to pious uses and sacred regard, it is difficult to believe that even the legislature
would adopt a law expressly providing that such places, under such circumstances, should be violated.
In the present case, even granting that a necessity exists for the opening of the street in question, the record contains
no proof of the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent
lands have been offered to the city free of charge, which will answer every purpose of the plaintiff.
For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is hereby affirmed,
with costs against the appellant. So ordered.
** DIGEST **
THE CITY OF MANILA ,vs. CHINESE COMMUNITY OF MANILA, ET AL.
Facts: On Dec. 11 1916 presented a petition in the CFI of Manila praying that certain lands used by the Chinese
Community as their cemetery be expropriated for an extension of Rizal Avenue. The Comunidad de Chinos de Manila
alleged that if expropriation would take effect, it would disturb the resting places of the dead, and would require a large
sum of money to transfer the bodies; furthermore, the expropriation was unnecessary as a public improvement.
Plaintiffs theory however is that once it has established the fact, under the law, that it has authority to expropriate
land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain
the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible

purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that the courts are
mere appraisers of the land involved in expropriation proceedings, and, when the value of the land is fixed by the
method adopted by the law, to render a judgment in favor of the defendant for its value.
Issue: If the City of Manila may expropriate the lands used as cemetery for extending Rizal Avenue.
Held: Under Section 2429 of Act No. 2711 (Charter of the City of Manila), the city has the authority to expropriate
private lands for public purposes. However, said charter contains no procedure by which the authority may be carried
not effect, and how eminent domain may be exercised. The Court then opines that the power of the court is not limited
to determining WON a law exists permitting the plaintiff to expropriate. The right of expropriation is not inherent in
municipal corporations, and before it can exercise such some law must exist to confer such power. When the courts
determine the question, they must find only that a law exists for such a reason, and that the right or authority being
exercised is in accordance with the law. In the present case, there are two conditions imposed upon the authority
conceded to the City of Manila: 1, the land must be private, and 2,the purpose must be public. If the court upon trial
finds that neither exists or either fails, it cannot be contended that the right is being exercised in accordance with law.
The necessity for taking property under the right of eminent domain is not a judicial question. The legislature, in
providing for the exercise of the power of eminent domain, may directly determine the necessity of appropriating
private property for a particular improvement for public use, and may select the exact location of the improvement. The
questions of utility of proposed improvement, the extent of public necessity for its construction, the expediency f
constructing it, the suitableness of its location and the necessity of taking the land for its site are all questions
exclusive for the legislature to determine. The taking of private property for any use which is not required by the
necessities or convenience of the inhabitants of the state, is an unreasonable exercise of the right of eminent domain,
and beyond the power of the legislature to delegate.
WoN the cemetery is private or public is immaterial.
The Court opines that it is difficult to believe that even the
legislature would adopt a law providing expressly that such places under such circumstances should be violated. To
disturb the mortal remains of those endeared to us in life becomes sometimes the sad duty of the living, but except in
cases of necessity or for laudable purposes, the sanctity of the grave should be maintained. In the present case, even
granting that a necessity exists for the opening of the street in question, the record shows no proof of the necessity of
opening the same through the cemetery. The record shows that the adjoining and adjacent lands have been offered to
the city free of charge, which should answer every purpose of the plaintiff.
Republic v PLDT G.R. No. L-18841
Facts: PLDT and RCA Communications Inc (which is not a party to this case but has contractual relations with the
parties entered into an agreement where telephone messages, coming from the US and received by RCA's domestic
station, could automatically be transferred to the lines of PLDT and vice versa.
The Bureau of Telecommunications set up its own government Telephone system by renting the trunk lines of PLDT to
enable government offices to call private parties. One of the many rules prohibits the use of the service for his private
use.
Republic of the Philippines entered into an agreement with RCA for a joint overseas telephone service where the
Bureau would convey radio. Telephone overseas calls received by the RCA's station to and from local residents.
PLDT complained that the Bureau was violating the conditions for using the trunk lines not only for the use of
government offices but even to serve private persons or the general public. PLDT gave a notice that if violations were
not stopped, PLDT would sever the connections, which PLDT did.
Republic sued PLDT commanding PLDT to execute a contract 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 finds it
reasonable.
Issue: Whether or not Republic can command PLDT to execute the contract
Held: No. The Bureau was created in pursuance of a state policy reorganizing the government offices to meet the
exigencies attendant upon the establishment of a free Gov't of the Phil.
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 interservice 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.
When the Bureau 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. The acceptance by the defendant of the payment of rentals
despite its knowledge that the plaintiffs had extended the use of the trunk lines to commercial purposes, 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. To uphold PLDT's contention is to subordinate the needs of the general public.

PLDT vs. NTC and Express Telecommunications (ETCI), (G.R. No. 88404, October 18, 1990)
FACTS: ETCI filed an application with public respondent NTC for the issuance of a Certificate of Public Convenience
and Necessity (CPCN) to construct, install, establish, operate and maintain a Cellular Mobile Telephone System and
an Alpha Numeric Paging System in Metro Manila and in the Southern Luzon regions, with a prayer for provisional
authority to operate Phase A of its proposal within Metro Manila.
PLDT filed an Opposition with a Motion to Dismiss, based primarily on the following grounds: (1) ETCI is not
capacitated or qualified under its legislative franchise to operate a system wide telephone or network of telephone
service such as the one proposed in its application; (2) ETCI lacks the facilities needed and indispensable to the
successful operation of the proposed cellular mobile telephone system; (3) PLDT has itself a pending application with
NTC, Case No. 86-86, to install and operate a Cellular Mobile Telephone System for domestic and international
service not only in Manila but also in the provinces and that under the "prior operator or protection of investment
doctrine, PLDT has the priority or preference in the operation of such service; and (4) the provisional authority, if
granted, will result in needless, uneconomical and harmful duplication, among others.
After evaluating the reconsideration sought by PLDT, the NTC, in October 1988, maintained its ruling that liberally
construed, applicants franchise carries with it the privilege to operate and maintain a cellular mobile telephone
service.
On 12 December 1988, NTC issued the first challenged Order. Opining that public interest, convenience and
necessity further demand a second cellular mobile telephone service provider and finds PRIMA FACIE evidence
showing applicants legal, financial and technical capabilities to provide a cellular mobile service using the AMPS
system, NTC granted ETCI provisional authority to install, operate and maintain a cellular mobile telephone system
initially in Metro Manila, Phase A only, subject to the terms and conditions set forth in the same Order.

ISSUE: Whether NTC acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction in granting provisional authority to ETCI.
HELD: No. There was no grave abuse of discretion, tantamount to lack of or excess of jurisdiction, on the part of the
National Telecommunications Commission.
The decisive considerations are public need, public interest, and the common good. Those were the overriding factors
which motivated NTC in granting provisional authority to ETCI. Article II, Section 24 of the 1987 Constitution,
recognizes the vital role of communication and information in nation building. It is likewise a State policy to provide the
environment for the emergence of communications structures suitable to the balanced flow of information into, out of,
and across the country.
Despite the fact that there is a virtual monopoly of the telephone system in the country at present. Service is sadly
inadequate. Customer demands are hardly met, whether fixed or mobile. There is a unanimous cry to hasten the
development of a modern, efficient, satisfactory and continuous telecommunications service not only in Metro Manila
but throughout the archipelago.
Free competition in the industry may also provide the answer to a much-desired improvement in the quality and
delivery of this type of public utility, to improved technology, fast and handy mobile service, and reduced user
dissatisfaction. After all, neither PLDT nor any other public utility has a constitutional right to a monopoly position in
view of the Constitutional proscription that no franchise certificate or authorization shall be exclusive in character or
shall last longer than fifty (50) years. Additionally, the State is empowered to decide whether public interest demands
that monopolies be regulated or prohibited (1987 Constitution. Article XII, Section 19).
FULL TEXT:
Petitioner Philippine Long Distance Telephone Company (PLDT) assails, by way of certiorari and Prohibition under
Rule 65, two (2) Orders of public respondent National Telecommunications Commission (NTC), namely, the Order of
12 December 1988 granting private respondent Express Telecommunications Co., Inc. (ETCI) provisional authority to
install, operate and maintain a Cellular Mobile Telephone System in Metro-Manila (Phase A) in accordance with
specified conditions, and the Order, dated 8 May 1988, denying reconsideration.

On 22 June 1958, Rep. Act No. 2090, was enacted, otherwise known as "An Act Granting Felix Alberto and Company,
Incorporated, a Franchise to Establish Radio Stations for Domestic and Transoceanic Telecommunications." Felix
Alberto & Co., Inc. (FACI) was the original corporate name, which was changed to ETCI with the amendment of the
Articles of Incorporation in 1964. Much later, "CELLCOM, Inc." was the name sought to be adopted before the
Securities and Exchange Commission, but this was withdrawn and abandoned.
On 13 May 1987, alleging urgent public need, ETCI filed an application with public respondent NTC (docketed as NTC
Case No. 87-89) for the issuance of a Certificate of Public Convenience and Necessity (CPCN) to construct, install,
establish, operate and maintain a Cellular Mobile Telephone System and an Alpha Numeric Paging System in Metro
Manila and in the Southern Luzon regions, with a prayer for provisional authority to operate Phase A of its proposal
within Metro Manila.
PLDT filed an Opposition with a Motion to Dismiss, based primarily on the following grounds: (1) ETCI is not
capacitated or qualified under its legislative franchise to operate a systemwide telephone or network of telephone
service such as the one proposed in its application; (2) ETCI lacks the facilities needed and indispensable to the
successful operation of the proposed cellular mobile telephone system; (3) PLDT has itself a pending application with
NTC, Case No. 86-86, to install and operate a Cellular Mobile Telephone System for domestic and international
service not only in Manila but also in the provinces and that under the "prior operator" or "protection of investment"
doctrine, PLDT has the priority or preference in the operation of such service; and (4) the provisional authority, if
granted, will result in needless, uneconomical and harmful duplication, among others.
In an Order, dated 12 November 1987, NTC overruled PLDT's Opposition and declared that Rep. Act No. 2090 (1958)
should be liberally construed as to include among the services under said franchise the operation of a cellular mobile
telephone service.
In the same Order, ETCI was required to submit the certificate of registration of its Articles of Incorporation with the
Securities and Exchange Commission, the present capital and ownership structure of the company and such other

evidence, oral or documentary, as may be necessary to prove its legal, financial and technical capabilities as well as
the economic justifications to warrant the setting up of cellular mobile telephone and paging systems. The continuance
of the hearings was also directed.
After evaluating the reconsideration sought by PLDT, the NTC, in October 1988, maintained its ruling that liberally
construed, applicant's franchise carries with it the privilege to operate and maintain a cellular mobile telephone
service.
On 12 December 1988, NTC issued the first challenged Order. Opining that "public interest, convenience and
necessity further demand a second cellular mobile telephone service provider and finds PRIMA FACIE evidence
showing applicant's legal, financial and technical capabilities to provide a cellular mobile service using the AMPS
system," NTC granted ETCI provisional authority to install, operate and maintain a cellular mobile telephone system
initially in Metro Manila, Phase A only, subject to the terms and conditions set forth in the same Order. One of the
conditions prescribed (Condition No. 5) was that, within ninety (90) days from date of the acceptance by ETCI of the
terms and conditions of the provisional authority, ETCI and PLDT "shall enter into an interconnection agreement for
the provision of adequate interconnection facilities between applicant's cellular mobile telephone switch and the public
switched telephone network and shall jointly submit such interconnection agreement to the Commission for approval."
In a "Motion to Set Aside the Order" granting provisional authority, PLDT alleged essentially that the interconnection
ordered was in violation of due process and that the grant of provisional authority was jurisdictionally and procedurally
infirm. On 8 May 1989, NTC denied reconsideration and set the date for continuation of the hearings on the main
proceedings. This is the second questioned Order.
PLDT urges us now to annul the NTC Orders of 12 December 1988 and 8 May 1989 and to order ETCI to desist from,
suspend, and/or discontinue any and all acts intended for its implementation.
On 15 June 1989, we resolved to dismiss the petition for its failure to comply fully with the requirements of Circular No.
1-88. Upon satisfactory showing, however, that there was, in fact, such compliance, we reconsidered the order,
reinstated the Petition, and required the respondents NTC and ETCI to submit their respective Comments.
On 27 February 1990, we issued a Temporary Restraining Order enjoining NTC to "Cease and Desist from all or any
of its on-going proceedings and ETCI from continuing any and all acts intended or related to or which will amount to
the implementation/execution of its provisional authority." This was upon PLDT's urgent manifestation that it had been
served an NTC Order, dated 14 February 1990, directing immediate compliance with its Order of 12 December 1988,
"otherwise the Commission shall be constrained to take the necessary measures and bring to bear upon PLDT the full
sanctions provided by law."
We required PLDT to post a bond of P 5M. It has complied, with the statement that it was "post(ing) the same on its
agreement and/or consent to have the same forfeited in favor of Private Respondent ETCI/CELLCOM should the
instant Petition be dismissed for lack of merit." ETCI took exception to the sufficiency of the bond considering its initial
investment of approximately P 225M, but accepted the forfeiture proferred.
ETCI moved to have the TRO lifted, which we denied on 6 March 1990. We stated, however, that the inaugural
ceremony ETCI had scheduled for that day could proceed, as the same was not covered by the TRO.
PLDT relies on the following grounds for the issuance of the Writs prayed for:
1.
Respondent NTC's subject order effectively licensed and/or authorized a corporate entity without any
franchise to operate a public utility, legislative or otherwise, to establish and operate a telecommunications system.
2.
The same order validated stock transactions of a public service enterprise contrary to and/or in direct violation
of Section 20(h) of the Public Service Act.
3.
Respondent NTC adjudicated in the same order a controverted matter that was not heard at all in the
proceedings under which it was promulgated.

As correctly pointed out by respondents, this being a special civil action for certiorari and Prohibition, we only need
determine if NTC acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
in granting provisional authority to ETCI under the NTC questioned Orders of 12 December 1988 and 8 May 1989.

The case was set for oral argument on 21 August 1990 with the parties directed to address, but not limited to, the
following issues: (1) the status and coverage of Rep. Act No. 2090 as a franchise; (2) the transfer of shares of stock of
a corporation holding a CPCN; and (3) the principle and procedure of interconnection. The parties were thereafter
required to submit their respective Memoranda, with which they have complied.
We find no grave abuse of discretion on the part of NTC, upon the following considerations:
1.

NTC Jurisdiction

There can be no question that the NTC is the regulatory agency of the national government with jurisdiction over all
telecommunications entities. It is legally clothed with authority and given ample discretion to grant a provisional permit
or authority. In fact, NTC may, on its own initiative, grant such relief even in the absence of a motion from an applicant.
Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any stage thereafter, the
Board may grant on motion of the pleaders or on its own initiative, the relief prayed for, based on the pleading,
together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after
completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. (Rule 15, Rules
of Practice and Procedure Before the Board of Communications (now NTC).
What the NTC granted was such a provisional authority, with a definite expiry period of eighteen (18) months unless
sooner renewed, and which may be revoked, amended or revised by the NTC. It is also limited to Metro Manila only.
What is more, the main proceedings are clearly to continue as stated in the NTC Order of 8 May 1989.
The provisional authority was issued after due hearing, reception of evidence and evaluation thereof, with the hearings
attended by various oppositors, including PLDT. It was granted only after a prima facie showing that ETCI has the
necessary legal, financial and technical capabilities and that public interest, convenience and necessity so demanded.
PLDT argues, however, that a provisional authority is nothing short of a Certificate of Public Convenience and
Necessity (CPCN) and that it is merely a "distinction without a difference." That is not so. Basic differences do exist,
which need not be elaborated on. What should be borne in mind is that provisional authority would be meaningless if
the grantee were not allowed to operate. Moreover, it is clear from the very Order of 12 December 1988 itself that its
scope is limited only to the first phase, out of four, of the proposed nationwide telephone system. The installation and
operation of an alpha numeric paging system was not authorized. The provisional authority is not exclusive. Its lifetime
is limited and may be revoked by the NTC at any time in accordance with law. The initial expenditure of P130M more
or less, is rendered necessary even under a provisional authority to enable ETCI to prove its capability. And as pointed
out by the Solicitor General, on behalf of the NTC, if what had been granted were a CPCN, it would constitute a final
order or award reviewable only by ordinary appeal to the Court of Appeals pursuant to Section 9(3) of BP Blg. 129,
and not by certiorari before this Court.
The final outcome of the application rests within the exclusive prerogative of the NTC. Whether or not a CPCN would
eventually issue would depend on the evidence to be presented during the hearings still to be conducted, and only
after a full evaluation of the proof thus presented.
2.

The Coverage of ETCI's Franchise

Rep. Act No. 2090 grants ETCI (formerly FACI) "the right and privilege of constructing, installing, establishing and
operating in the entire Philippines radio stations for reception and transmission of messages on radio stations in the
foreign and domestic public fixed point-to-point and public base, aeronautical and land mobile stations, ... with the
corresponding relay stations for the reception and transmission of wireless messages on radiotelegraphy and/or
radiotelephony ...." PLDT maintains that the scope of the franchise is limited to "radio stations" and excludes
telephone services such as the establishment of the proposed Cellular Mobile Telephone System (CMTS). However, in
its Order of 12 November 1987, the NTC construed the technical term "radiotelephony" liberally as to include the
operation of a cellular mobile telephone system. It said:
In resolving the said issue, the Commission takes into consideration the different definitions of the term
"radiotelephony." As defined by the New International Webster Dictionary the term "radiotelephony" is defined as a
telephone carried on by aid of radiowaves without connecting wires. The International Telecommunications Union
(ITU) defines a "radiotelephone call" as a "telephone call, originating in or intended on all or part of its route over the
radio communications channels of the mobile service or of the mobile satellite service." From the above definitions,
while under Republic Act 2090 a system-wide telephone or network of telephone service by means of connecting
wires may not have been contemplated, it can be construed liberally that the operation of a cellular mobile telephone

service which carries messages, either voice or record, with the aid of radiowaves or a part of its route carried over
radio communication channels, is one included among the services under said franchise for which a certificate of
public convenience and necessity may be applied for.
The foregoing is the construction given by an administrative agency possessed of the necessary special knowledge,
expertise and experience and deserves great weight and respect (Asturias Sugar Central, Inc. v. Commissioner of
Customs, et al., L-19337, September 30, 1969, 29 SCRA 617). It can only be set aside on proof of gross abuse of
discretion, fraud, or error of law (Tupas Local Chapter No. 979 v. NLRC, et al., L-60532-33, November 5, 1985, 139
SCRA 478). We discern none of those considerations sufficient to warrant judicial intervention.
3.

The Status of ETCI Franchise

PLDT alleges that the ETCI franchise had lapsed into nonexistence for failure of the franchise holder to begin and
complete construction of the radio system authorized under the franchise as explicitly required in Section 4 of its
franchise, Rep. Act No. 2090. 1 PLDT also invokes Pres. Decree No. 36, enacted on 2 November 1972, which
legislates the mandatory cancellation or invalidation of all franchises for the operation of communications services,
which have not been availed of or used by the party or parties in whose name they were issued.
However, whether or not ETCI, and before it FACI, in contravention of its franchise, started the first of its radio
telecommunication stations within (2) years from the grant of its franchise and completed the construction within ten
(10) years from said date; and whether or not its franchise had remained unused from the time of its issuance, are
questions of fact beyond the province of this Court, besides the well-settled procedural consideration that factual
issues are not subjects of a special civil action for certiorari (Central Bank of the Philippines vs. Court of Appeals, G.R.
No. 41859, 8 March 1989, 171 SCRA 49; Ygay vs. Escareal, G.R. No. 44189, 8 February 1985, 135 SCRA 78; Filipino
Merchant's Insurance Co., Inc. vs. Intermediate Appellate Court, G.R. No. 71640, 27 June 1988, 162 SCRA 669).
Moreover, neither Section 4, Rep. Act No. 2090 nor Pres. Decree No. 36 should be construed as self-executing in
working a forfeiture. Franchise holders should be given an opportunity to be heard, particularly so, where, as in this
case, ETCI does not admit any breach, in consonance with the rudiments of fair play. Thus, the factual situation of this
case differs from that in Angeles Ry Co. vs. City of Los Angeles (92 Pacific Reporter 490) cited by PLDT, where the
grantee therein admitted its failure to complete the conditions of its franchise and yet insisted on a decree of forfeiture.
More importantly, PLDT's allegation partakes of a Collateral attack on a franchise Rep. Act No. 2090), which is not
allowed. A franchise is a property right and cannot be revoked or forfeited without due process of law. The
determination of the right to the exercise of a franchise, or whether the right to enjoy such privilege has been forfeited
by non-user, is more properly the subject of the prerogative writ of quo warranto, the right to assert which, as a rule,
belongs to the State "upon complaint or otherwise" (Sections 1, 2 and 3, Rule 66, Rules of Court), 2 the reason being
that the abuse of a franchise is a public wrong and not a private injury. A forfeiture of a franchise will have to be
declared in a direct proceeding for the purpose brought by the State because a franchise is granted by law and its
unlawful exercise is primarily a concern of Government.
A ... franchise is ... granted by law, and its ... unlawful exercise is the concern primarily of the Government. Hence, the
latter as a rule is the party called upon to bring the action for such ... unlawful exercise of franchise. (IV-B V.
FRANCISCO, 298 [1963 ed.], citing Cruz vs. Ramos, 84 Phil. 226).
4.

ETCI's Stock Transactions

ETCI admits that in 1964, the Albertos, as original owners of more than 40% of the outstanding capital stock sold their
holdings to the Orbes. In 1968, the Albertos re-acquired the shares they had sold to the Orbes. In 1987, the Albertos
sold more than 40% of their shares to Horacio Yalung. Thereafter, the present stockholders acquired their ETCI
shares. Moreover, in 1964, ETCI had increased its capital stock from P40,000.00 to P360,000.00; and in 1987, from
P360,000.00 to P40M.
PLDT contends that the transfers in 1987 of the shares of stock to the new stockholders amount to a transfer of
ETCI's franchise, which needs Congressional approval pursuant to Rep. Act No. 2090, and since such approval had
not been obtained, ETCI's franchise had been invalidated. The provision relied on reads, in part, as follows:
SECTION 10. The grantee shall not lease, transfer, grant the usufruct of, sell or assign this franchise nor the rights
and privileges acquired thereunder to any person, firm, company, corporation or other commercial or legal entity nor
merge with any other person, company or corporation organized for the same purpose, without the approval of the
Congress of the Philippines first had. ...

It should be noted, however, that the foregoing provision is, directed to the "grantee" of the franchise, which is the
corporation itself and refers to a sale, lease, or assignment of that franchise. It does not include the transfer or sale of
shares of stock of a corporation by the latter's stockholders.
The sale of shares of stock of a public utility is governed by another law, i.e., Section 20(h) of the Public Service Act
(Commonwealth Act No. 146). Pursuant thereto, the Public Service Commission (now the NTC) is the government
agency vested with the authority to approve the transfer of more than 40% of the subscribed capital stock of a
telecommunications company to a single transferee, thus:
SEC. 20.
Acts requiring the approval of the Commission. Subject to established stations and exceptions and
saving provisions to the contrary, it shall be unlawful for any public service or for the owner, lessee or operator thereof,
without the approval and authorization of the Commission previously had
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xxx

(h)
To sell or register in its books the transfer or sale of shares of its capital stock, if the result of that sale in itself
or in connection with another previous sale, shall be to vest in the transferee more than forty per centum of the
subscribed capital of said public service. Any transfer made in violation of this provision shall be void and of no effect
and shall not be registered in the books of the public service corporation. Nothing herein contained shall be construed
to prevent the holding of shares lawfully acquired. (As amended by Com. Act No. 454).
In other words, transfers of shares of a public utility corporation need only NTC approval, not Congressional
authorization. What transpired in ETCI were a series of transfers of shares starting in 1964 until 1987. The approval of
the NTC may be deemed to have been met when it authorized the issuance of the provisional authority to ETCI. There
was full disclosure before the NTC of the transfers. In fact, the NTC Order of 12 November 1987 required ETCI to
submit its "present capital and ownership structure." Further, ETCI even filed a Motion before the NTC, dated 8
December 1987, or more than a year prior to the grant of provisional authority, seeking approval of the increase in its
capital stock from P360,000.00 to P40M, and the stock transfers made by its stockholders.
A distinction should be made between shares of stock, which are owned by stockholders, the sale of which requires
only NTC approval, and the franchise itself which is owned by the corporation as the grantee thereof, the sale or
transfer of which requires Congressional sanction. Since stockholders own the shares of stock, they may dispose of
the same as they see fit. They may not, however, transfer or assign the property of a corporation, like its franchise. In
other words, even if the original stockholders had transferred their shares to another group of shareholders, the
franchise granted to the corporation subsists as long as the corporation, as an entity, continues to exist The franchise
is not thereby invalidated by the transfer of the shares. A corporation has a personality separate and distinct from that
of each stockholder. It has the right of continuity or perpetual succession (Corporation Code, Sec. 2).
To all appearances, the stock transfers were not just for the purpose of acquiring the ETCI franchise, considering that,
as heretofore stated, a series of transfers was involved from 1964 to 1987. And, contrary to PLDT's assertion, the
franchise was not the only property of ETCI of meaningful value. The "zero" book value of ETCI assets, as reflected in
its balance sheet, was plausibly explained as due to the accumulated depreciation over the years entered for
accounting purposes and was not reflective of the actual value that those assets would command in the market.
But again, whether ETCI has offended against a provision of its franchise, or has subjected it to misuse or abuse, may
more properly be inquired into in quo warranto proceedings instituted by the State. It is the condition of every franchise
that it is subject to amendment, alteration, or repeal when the common good so requires (1987 Constitution, Article
XII, Section 11).
5.

The NTC Interconnection Order

In the provisional authority granted by NTC to ETCI, one of the conditions imposed was that the latter and PLDT were
to enter into an interconnection agreement to be jointly submitted to NTC for approval.
PLDT vehemently opposes interconnection with its own public switched telephone network. It contends: that while
PLDT welcomes interconnections in the furtherance of public interest, only parties who can establish that they have
valid and subsisting legislative franchises are entitled to apply for a CPCN or provisional authority, absent which, NTC
has no jurisdiction to grant them the CPCN or interconnection with PLDT; that the 73 telephone systems operating all
over the Philippines have a viability and feasibility independent of any interconnection with PLDT; that "the NTC is not
empowered to compel such a private raid on PLDT's legitimate income arising out of its gigantic investment;" that "it is
not public interest, but purely a private and selfish interest which will be served by an interconnection under ETCI's

terms;" and that "to compel PLDT to interconnect merely to give viability to a prospective competitor, which cannot
stand on its own feet, cannot be justified in the name of a non-existent public need" (PLDT Memorandum, pp. 48 and
50).
PLDT cannot justifiably refuse to interconnect.
Rep. Act No. 6849, or the Municipal Telephone Act of 1989, approved on 8 February 1990, mandates interconnection
providing as it does that "all domestic telecommunications carriers or utilities ... shall be interconnected to the public
switch telephone network." Such regulation of the use and ownership of telecommunications systems is in the
exercise of the plenary police power of the State for the promotion of the general welfare. The 1987 Constitution
recognizes the existence of that power when it provides.
SEC. 6. The use of property bears a social function, and all economic agents shall contribute to the common good.
Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have
the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive
justice and to intervene when the common good so demands (Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with property rights dictated by "the
objective of government to promote the rapid expansion of telecommunications services in all areas of the Philippines,
... to maximize the use of telecommunications facilities available, ... in recognition of the vital role of communications
in nation building ... and to ensure that all users of the public telecommunications service have access to all other
users of the service wherever they may be within the Philippines at an acceptable standard of service and at
reasonable cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the common good. The
NTC, as the regulatory agency of the State, merely exercised its delegated authority to regulate the use of
telecommunications networks when it decreed interconnection.
The importance and emphasis given to interconnection dates back to Ministry Circular No. 82-81, dated 6 December
1982, providing:
Sec. 1. That the government encourages the provision and operation of public mobile telephone service within local
sub-base stations, particularly, in the highly commercialized areas;
Sec. 5. That, in the event the authority to operate said service be granted to other applicants, other than the franchise
holder, the franchise operator shall be under obligation to enter into an agreement with the domestic telephone
network, under an interconnection agreement;
Department of Transportation and Communication (DOTC) Circular No. 87-188, issued in 1987, also decrees:
12.
All public communications carriers shall interconnect their facilities pursuant to comparatively efficient
interconnection (CEI) as defined by the NTC in the interest of economic efficiency.
The sharing of revenue was an additional feature considered in DOTC Circular No. 90-248, dated 14 June 1990,
laying down the "Policy on Interconnection and Revenue Sharing by Public Communications Carriers," thus:
WHEREAS, it is the objective of government to promote the rapid expansion of telecommunications services in all
areas of the Philippines;
WHEREAS, there is a need to maximize the use of telecommunications facilities available and encourage investment
in telecommunications infrastructure by suitably qualified service providers;
WHEREAS, in recognition of the vital role of communications in nation building, there is a need to ensure that all users
of the public telecommunications service have access to all other users of the service wherever they may be within the
Philippines at an acceptable standard of service and at reasonable cost.
WHEREFORE, ... the following Department policies on interconnection and revenue sharing are hereby promulgated:
1.
All facilities offering public telecommunication services shall be interconnected into the nationwide
telecommunications network/s.
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4.
The interconnection of networks shall be effected in a fair and non-discriminatory manner and within the
shortest time-frame practicable.
5.
The precise points of interface between service operators shall be as defined by the NTC; and the
apportionment of costs and division of revenues resulting from interconnection of telecommunications networks shall
be as approved and/or prescribed by the NTC.
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xxx

Since then, the NTC, on 12 July 1990, issued Memorandum Circular No. 7-13-90 prescribing the "Rules and
Regulations Governing the Interconnection of Local Telephone Exchanges and Public Calling Offices with the
Nationwide Telecommunications Network/s, the Sharing of Revenue Derived Therefrom, and for Other Purposes."
The NTC order to interconnect allows the parties themselves to discuss and agree upon the specific terms and
conditions of the interconnection agreement instead of the NTC itself laying down the standards of interconnection
which it can very well impose. Thus it is that PLDT cannot justifiably claim denial of clue process. It has been heard. It
will continue to be heard in the main proceedings. It will surely heard in the negotiations concerning the
interconnection agreement.
As disclosed during the hearing, the interconnection sought by ETCI is by no means a "parasitic dependence" on
PLDT. The ETCI system can operate on its own even without interconnection, but it will be limited to its own
subscribers. What interconnection seeks to accomplish is to enable the system to reach out to the greatest number of
people possible in line with governmental policies laid down. Cellular phones can access PLDT units and vice versa in
as wide an area as attainable. With the broader reach, public interest and convenience will be better served. To be
sure, ETCI could provide no mean competition (although PLDT maintains that it has nothing to fear from the
"innocuous interconnection"), and eat into PLDT's own toll revenue cream PLDT revenue," in its own words), but all for
the eventual benefit of all that the system can reach.
6.

Ultimate Considerations

The decisive consideration are public need, public interest, and the common good. Those were the overriding factors
which motivated NTC in granting provisional authority to ETCI. Article II, Section 24 of the 1987 Constitution,
recognizes the vital role of communication and information in nation building. It is likewise a State policy to provide the
environment for the emergence of communications structures suitable to the balanced flow of information into, out of,
and across the country (Article XVI, Section 10, Ibid.). A modern and dependable communications network rendering
efficient and reasonably priced services is also indispensable for accelerated economic recovery and development. To
these public and national interests, public utility companies must bow and yield.
Despite the fact that there is a virtual monopoly of the telephone system in the country at present. service is sadly
inadequate. Customer demands are hardly met, whether fixed or mobile. There is a unanimous cry to hasten the
development of a modern, efficient, satisfactory and continuous telecommunications service not only in Metro Manila
but throughout the archipelago. The need therefor was dramatically emphasized by the destructive earthquake of 16
July 1990. It may be that users of the cellular mobile telephone would initially be limited to a few and to highly
commercialized areas. However, it is a step in the right direction towards the enhancement of the telecommunications
infrastructure, the expansion of telecommunications services in, hopefully, all areas of the country, with chances of
complete disruption of communications minimized. It will thus impact on, the total development of the country's
telecommunications systems and redound to the benefit of even those who may not be able to subscribe to ETCI.
Free competition in the industry may also provide the answer to a much-desired improvement in the quality and
delivery of this type of public utility, to improved technology, fast and handy mobile service, and reduced user
dissatisfaction. After all, neither PLDT nor any other public utility has a constitutional right to a monopoly position in
view of the Constitutional proscription that no franchise certificate or authorization shall be exclusive in character or
shall last longer than fifty (50) years (ibid., Section 11; Article XIV Section 5, 1973 Constitution; Article XIV, Section 8,
1935 Constitution). Additionally, the State is empowered to decide whether public interest demands that monopolies
be regulated or prohibited (1987 Constitution. Article XII, Section 19).
WHEREFORE, finding no grave abuse of discretion, tantamount to lack of or excess of jurisdiction, on the part of the
National Telecommunications Commission in issuing its challenged Orders of 12 December 1988 and 8 May 1989 in
NTC Case No. 87-39, this Petition is DISMISSED for lack of merit. The Temporary Restraining Order heretofore

issued is LIFTED. The bond issued as a condition for the issuance of said restraining Order is declared forfeited in
favor of private respondent Express Telecommunications Co., Inc. Costs against petitioner.
SO ORDERED.

Republic of the Philippines vs. Vda. De Castellvi (G.R. No. L-20620)

Facts:
In 1947, the republic, through the Armed Forces of the Philippines (AFP), entered into a lease agreement over a land
in Pampanga with Castellvi on a year-to-year basis. When Castellvi gave notice to terminate the lease in 1956, the
AFP refused because of the permanent installations and other facilities worth almost P500,000.00 that were erected
and already established on the property. She then instituted an ejectment proceeding against the AFP. In 1959,
however, the republic commenced the expropriation proceedings for the land in question.
Issue: Whether or not the compensation should be determined as of 1947 or 1959.
Ruling:
The Supreme Court ruled that the taking should not be reckoned as of 1947, and that just compensation should not be
determined on the basis of the value of the property that year .
The requisites for taking are:
1. The expropriator must enter a private property;
2. The entry must be for more than a momentary period;
3. It must be under warrant or color of authorities;
4. The property must be devoted for public use or otherwise informally appropriated or injuriously affected; and
5. The utilization of the property for public use must be such a way as to oust the owner and deprive him of beneficial
enjoyment of the property.
Only requisites 1, 3 and 4 are present. It is clear, therefore, that the taking of Castellvis 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.
Requisite number 2 is not present according to the Supreme Court, 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 AFP, constructed some
installations of a permanent nature does not alter the fact that the entry into the lant 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.
The 5th requirement is also lacking. 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. Cstellvi
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 paing, 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 Castellvis 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, and that the just

compensation to be paid for the Castellvis 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 Sec. 4, Rule 67 of the Rules of Court, just compensation is to be determined as of the date of the filing of the
complaint. The Supreme 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.

United States v. Lynah, 188 U.S. 445 (1903)

Syllabus
All private property is held subject to the necessities of government and, the right of eminent domain underlies all such
rights of property.
When the United States government appropriates property which it does not claim as its own, it does so under an
implied contract that it will pay the value of the property it so appropriates.
When it is alleged in an action that the government of the United States in the exercise of its powers of eminent
domain and regulation of commerce, through officers and agents duly empowered thereto by acts of Congress, places
dams, training walls and other obstructions in the Savannah River in such manner as to hinder its natural flow and to
raise the water so as to overflow the land of plaintiff along the banks to such an extent as to cause a total destruction
of its value, and the government does not deny the ownership, admits that the work was done by authority of
Congress, and simply denies that the work has produced the alleged injury and destruction, the circuit court of the
United States has jurisdiction to inquire whether the acts done by the officers of the United States under the direction
of Congress have resulted in such an overflow and injury of the land as to render it absolutely valueless, and, if
thereby the property was, in contemplation of law, taken and appropriated by the government, to render judgment
against it for the value of the property so taken and appropriated.
Where the government of the United States, by the construction of a dam or other public works, so floods lands
belonging to an individual as to totally destroy its value, there is a taking of private property within the scope of the
Fifth Amendment.
The proceeding must be regarded as an actual appropriation of the land, including the possession and the fee, and
when the amount awarded as compensation is paid, the title, the fee and whatever rights may attach thereto pass to
the government, which becomes henceforth the full owner.
Notwithstanding that the work causing the injury was done in improving the navigability of a navigable river and by the
Constitution Congress is given full control over such improvements, the injuries cannot be regarded as purely
consequential, and the government cannot appropriate property without being liable to the obligation created by the
Fifth Amendment of paying just compensation.
On February 4, 1897, defendants in error commenced their action in the Circuit Court of the United States for the
District of South Carolina to recover of the United States the sum of $10,000 as compensation for certain real estate
(being a part of a plantation known as Verzenobre) taken and appropriated by the defendant.
The petition alleged in the first paragraph the citizenship and residence of the petitioners; in the second that they had
a claim against the United States under an implied contract for compensation for the value of property taken by the
United States for public use; third, that they were the owners as tenants in common of the plantation, and in the fourth
and seventh paragraphs:
"Fourth. That for several years continuously, and now continuously, the said government of the United States of
America, in the exercise of its power of eminent domain under the Constitution of the United States and by authority of
the acts of Congress, duly empowering its officers and agents thereto, in that case made and provided, did erect,
build, and maintain, and continuously since have been erecting, building and maintaining, and are now building,
erecting, and maintaining in and across the said Savannah River, in the bed of the said Savannah River, certain dams,
training walls, and other obstructions, obstructing and hindering the natural flow of the said Savannah River through,
in, and along the natural bed thereof and raising the said Savannah River feet at the point of and above the said

obstructions and dams in the bed of the said Savannah River, and causing the said waters of the Savannah River
aforesaid to be kept back and to flow back and to be raised and elevated above the natural height of the Savannah
River along its natural bed at the points of the said dams, training walls, and obstructions, and at points above the said
dams, training walls, and obstructions in said river."
"Seventh. And your petitioners further show that the said acts of the government of the United States as aforesaid
have been done and are being done lawfully by the officers and agents of the United States under the authority of the
United States in the exercise of its powers of eminent domain and regulation of commerce under the Constitution of
the United States and the laws of Congress for the public purpose of the improvement of the harbor of Savannah and
deepening the waters of the Savannah River at the port of Savannah, a port of entry of the United States and seaport
of the United States of America situated within the State of Georgia, on the Savannah River, and with the purpose of
deepening and enlarging the navigable channel and highway for commerce of the said Savannah River for the public
use, purpose, and benefit of interstate and foreign and international trade and commerce, and for other public
purposes, uses, and benefits."
The remaining paragraphs set forth the effect of the placing by the government of the dams, restraining walls, and
other obstructions in the river, together with the value of the property appropriated by the overflow. The answer of the
government averred:
"First. That this defendant has no knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the first and third paragraphs of the said petition and complaint."
"Second. That this defendant denies all of the allegations contained in the second fourth, fifth, sixth, seventh, and
eighth paragraphs of the said petition and complaint except so much of the fourth paragraph as alleges that the said
United States heretofore erected certain dams in the Savannah River pursuant to power vested in it by law, and
except so much of the seventh paragraph as alleges that the said dams heretofore erected by the United States were
lawfully erected by its officers and agents."
For a further defense, the statute of limitations was pleaded. The case came on for trial before the court without a jury,
which made findings of fact, and from them deduced conclusions of law and entered a judgment against the defendant
for the sum of $10,000. The findings were to the effect that the plaintiffs were the owners of the plantation, deriving
title by proper mesne conveyances from "a grant by the lord's proprietors of South Carolina," made in 1736. Other
findings pertinent to the questions which must be considered in deciding this case were as follows:
"IV. A certain parcel of these plantations, measuring about 420 acres, had been reclaimed by drainage, and had been
in actual continued use for seventy years and upwards as a rice plantation, used solely for this purpose. This rice
plantation was dependent for its irrigation upon the waters of the Savannah River and its ditches, drains, and canals,
through and by which the waters of the river were flowed in and upon the lands, and were then drained therefrom,
were adapted to the natural level of the said Savannah River, and dependent for their proper drainage and cultivation
upon the maintenance of the natural flow of the said river in, through, and over its natural channel along its natural bed
to the waters of the ocean."
"V. This portion of the plantation fronting on the river and dedicated to the culture of rice, extended almost up to, if not
quite to, low water mark, and a large part of it was between mean high water and low water mark, protected from the
river by an embankment. Through this embankment trunks or waterways were constructed, with flood gates therein.
The outer opening of the trunk was about a foot or a little less above the mean low water mark of the river, in which
the tide ebbs and flows. When it is desired to flow the lands, the flood gates are opened and the water comes in.
When it is desired to draw off this water and to effect the drainage of the lands, the flood gates are opened at low
water and the water escapes. It is essential that the outlets of the trunks or waterways should always be above the
mean low water mark."
"The facts found show that, by reason of the obstruction in the Savannah River the water has been directly backed up
against the embankment on the river and the banks on and in this plantation, the superinduced addition of water
actually invading it and destroying its drainage and leaving it useless for all practical purposes. The government does
not in a sense take this land for the purposes of putting its obstructions on it. But it forces back the water of the river
on the land as a result necessary to its purpose, without which its purpose could not be accomplished. For the
purpose of the government, that water in the river must be raised. The banks of this plantation materially assist this
operation, for by their resistance the water is kept in the channel. The backing up of the water against the banks to
create this resistance raises the water in the plantation and destroys the drainage of the plantation. This is a taking. 'It
would,' says Mr. Justice Miller,"

"be a very curious and unsatisfactory result if, in construing a provision of constitutional law, always understood to
have been adopted for protection and security to the rights of the individual as against the government, and which had
received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law
on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the
government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value
entirely, can inflict irreparable and permanent injury to any extent; can, in effect, subject to total destruction without
making any compensation, because in the narrowest sense of that word it has not been taken for the public use."
"Pumpelly v. Green Bay Co., 13 Wall. 177, 80 U. S. 178. In that case, the backing up of water on land was held to be a
taking."
"VI. The plantation of plaintiffs being actually invaded by superinduced addition of water directly caused by the
government dams and obstructions backing up the water of the Savannah River, and raising the water level at and in
the rice plantation, and making it unfit for rice cultivation or for any other known agriculture, and plaintiffs having been
compelled thereby to abandon the plantation, and this actual and practical ouster of possession being continued and
permanent by reason of the permanent condition of the flooding of the plantation, and the plantation being thereby
now an irreclaimable bog of no value,makes the action of the government a taking of lands for public purposes within
the meaning of the Fifth Amendment, for which compensation is due to the plaintiffs. Pumpelly v. Green Bay Co., 13
Wall. 182; Mugler v. Kansas, 123 U. S. 668."
"VII. The government has not gone into actual occupancy of this land, but by reason of these dams and obstructions
made necessary by this public work and fulfilling its purpose the water in the Savannah River has been raised at the
plaintiffs' plantation and has been backed up on it and remains on it so that the drainage has been destroyed and
ditches filled up and superadded water permanently kept on the land and forced up into it, making it wholly unfit for
cultivation, and the plaintiffs have thereby been practically and actually ousted of their possession. This is taking of the
land for public purposes, for which compensation must be provided. Pumpelly v. Green Bay Co., 13 Wall. 181."
The case involving the application of the Constitution of the United States was brought by writ of error directly to this
Court.
MR. JUSTICE BREWER delivered the opinion of the Court.
There are three principal questions in this case? First, did the circuit court have jurisdiction?; second, was there a
taking of the land within the meaning of the Fifth Amendment?; and third, if there was a taking, was the government
subject to the obligation of making compensation therefor?
Did the circuit court have jurisdiction? It may be premised that this question was not raised in the circuit court, nor was
it presented to this Court on the first argument, but only upon the reargument. This omission on the part of the learned
counsel for the government is certainly suggestive. Nevertheless, as the question, now for the first time presented, is
one of jurisdiction, it must be considered and determined. To sustain the challenge of jurisdiction, it is insisted by the
government that there was no implied contract, but simply tortious acts on the part of its officers, and Hill v. United
States, 149 U. S. 593, and Schillinger v. United States, 155 U. S. 163, are relied upon. Let us see what those cases
were and what they decided. In the former, the plaintiff sued to recover from the United States for the use and
occupation of land for a lighthouse. The land upon which the lighthouse was built was submerged land in Chesapeake
Bay. The government pleaded that it had a paramount right to the use of the land, and that plea was demurred to. It
was held that the circuit court had no jurisdiction, and in the opinion delivered by Mr. Justice Gray it was said, after
referring to several cases (pp. 149 U. S. 598-599):
"In Langford v. United States, it was accordingly adjudged that, when an officer of the United States took and held
possession of land of a private citizen, under a claim that it belonged to the government, the United States could not
be charged upon an implied obligation to pay for its use and occupation."
"It has since been held that if the United States appropriates to a public use land which they admit to be private
property, they may be held, as upon an implied contract, to pay its value to the owner. United States v. Great Falls
Manufacturing Company, 112 U. S. 645, and 124 U. S. 124 U.S. 581. It has likewise been held that the United States
may be sued in the Court of Claims for the use of a patent for an invention, the plaintiff's right in which they have
acknowledged. Hollister v. Benedict Manufacturing Company, 113 U. S. 59; United States v. Palmer, 128 U. S. 262.
But in each of these cases, the title of the plaintiff was admitted, and in none of them was any doubt thrown upon the
correctness of the decision in Langford's case. See Schillinger v. United States, 24 Ct.Cl. 278."

"The case at bar is governed by Langford's case. It was not alleged in this petition, nor admitted in the plea, that the
United States had ever in any way acknowledged any right of property in the plaintiff as against the United States. The
plaintiff asserted a title in the land in question, with the exclusive right of building thereon, and claimed damages of the
United States for the use and occupation of the land for a lighthouse. The United States positively and precisely
pleaded that the land was submerged under the waters of Chesapeake Bay, one of the navigable waters of the United
States, and that the United States, 'under the law, for the purpose of a lighthouse, has a paramount right to its use as
against the plaintiff or any other person,' and the plaintiff demurred to this plea."
In the other case, it appeared that the architect of the capitol contracted with G. W. Cook for the laying of pavement in
the capitol grounds. The contractor in laying the pavement infringed, as petitioners claimed, upon rights granted to
them by patent. Thereafter this suit was brought not against the party guilty of the alleged infringement, but against the
United States, which had accepted the pavement in the construction of which, as petitioners claimed, the contractor
had infringed upon their rights. In the opinion, it was said (p. 155 U. S. 170):
"Here, the claimants never authorized the use of the patent right by the government; never consented to, but always
protested against it, threatening to interfere by injunction or other proceedings to restrain such use. There was no act
of Congress in terms directing, or even by implication suggesting, the use of the patent. No officer of the government
directed its use, and the contract which was executed by Cook did not name or describe it. There was no recognition
by the government or any of its officers of the fact that in the construction of the pavement there was any use of the
patent, or that any appropriation was being made of claimant's property. The government proceeded as though it were
acting only in the management of its own property and the exercise of its own rights, and without any trespass upon
the rights of the claimants. There was no point in the whole transaction, from its commencement to its close, where
the minds of the parties met or where there was anything in the semblance of an agreement. So not only does the
petition count upon a tort, but also the findings show a tort. That is the essential fact underlying the transaction and
upon which rests every pretense of a right to recover. There was no suggestion of a waiver of the tort or a pretense of
any implied contract until after the decision of the Court of Claims that it had no jurisdiction over an action to recover
for the tort."
How different is the case at bar! The government did not deny the title of the plaintiffs. It averred in the answer simply
that it had "no knowledge or information sufficient to form a belief," but did not couple such averment with any denial,
nor did it pretend that it owned the property or had a paramount proprietary right to its possession. It did not put in
issue the question of title, but rested upon a denial that the acts its officers had done by its direction had overflowed
the land and wrought the injury as alleged, or that such overflow and injury created an implied contract, and also upon
the bar of the statute of limitations. Nowhere in the record did it set up any title to the property antagonistic to that
claimed by the plaintiffs. It simply denied responsibility for what it had caused to be done, and pleaded that, if it had
ever been liable, the statute of limitations had worked a bar. No officer of the government, as in the Langford case,
claimed that the property found by the court to be the property of the plaintiffs belonged to the government. While
there was no formal admission of record that the land belonged to the plaintiffs, the case was tried alone upon the
theory that the government could not be held responsible for what it had done. It did not repudiate the actions of its
officers and agents, but, on the contrary, in terms admitted that they acted by authority of Congress, and that all that
they did was lawfully done. So that, if the overflow and destruction of this property was, as we shall presently inquire,
a taking and appropriation within the scope of the Fifth Amendment to the Constitution, the jurisdictional question now
presented is whether such appropriation, directed by Congress, created an implied contract on the part of the
government to pay for the value of the property so appropriated. Let us see what this Court has decided. In United
States v. Great Falls Manufacturing Company, 112 U. S. 645, Congress having made an appropriation therefor, a dam
was constructed across the Potomac with the view of supplying the City of Washington with water. In the construction
of such dam, certain lands belonging to the plaintiff were taken, although such lands were not by the act of Congress
specifically ordered to be taken. The property so taken not having been paid for, plaintiff brought this action in the
Court of Claims to recover the value thereof, and it was held that the action might be maintained, and in the opinion it
was said (p. 112 U. S. 656):

"It seems clear that these property rights have been held and used by the agents of the United States, under the
sanction of legislative enactments by Congress; for the appropriation of money specifically for the construction of the
dam from the Maryland shore to Conn's Island was, all the circumstances considered, equivalent to an express
direction by the legislative and executive branches of the government to its officers to take this particular property for
the public objects contemplated by the scheme for supplying the capital of the nation with wholesome water. The
making of the improvements necessarily involves the taking of the property, and if, for the want of formal proceedings

for its condemnation to public use, the claimant was entitled at the beginning of the work to have the agents of the
government enjoined from prosecuting it until provision was made for securing in some way payment of the
compensation required by the Constitution -- upon which question we express no opinion -- there is no sound reason
why the claimant might not waive that right and, electing to regard the action of the government as a taking under its
sovereign right of eminent domain, demand just compensation. Kohl v. United States, 91 U. S. 367, 91 U. S. 374. In
that view, we are of opinion that the United States, having by its agents, proceeding under the authority of an act of
Congress, taken the property of the claimant for public use, are under an obligation, imposed by the Constitution, to
make compensation. The law will imply a promise to make the required compensation where property to which the
government asserts no title is taken pursuant to an act of Congress as private property to be applied for public uses.
Such an implication being consistent with the constitutional duty of the government, as well as with common justice,
the claimant's cause of action in one that arises out of implied contract within the meaning of the statute which confers
jurisdiction upon the Court of Claims of actions founded 'upon any contract, express or implied, with the government of
the United States.'"
In Great Falls Manufacturing Company v. Attorney General, 124 U. S. 581, an action which, like the preceding, grew
out of provisions made by Congress to supply water to the City of Washington and in which the relief sought was the
removal of all structures on the premises or, if it should appear that the property had been legally condemned, the
framing of an issue, triable by jury, to ascertain the plaintiff's damages and a judgment for the amount thereof, it was
said, referring to the contention that there were certain defects in the proceedings taken by the government (p. 124 U.
S. 597):
"Even if the Secretary's survey and map and the publication of the Attorney General's notice did not, in strict law,
justify the former in taking possession of the land and water rights in question, it was competent for the company to
waive the tort and proceed against the United States, as upon an implied contract, it appearing, as it does here, that
the government recognizes and retains the possession taken in its behalf for the public purposes indicated in the act
under which its officers have proceeded."
In Hollister v. Benedict Manufacturing Company, 113 U. S. 59, an action by the assignees of a patent against a United
States collector for infringement, the law is thus stated (p. 113 U. S. 67):
"If the right of the patentee was acknowledged, and, without his consent, an officer of the government, acting under
legislative authority, made use of the invention in the discharge of his official duties, it would seem to be a clear case
of the exercise of the right of eminent domain, upon which the law would imply a promise of compensation, an action
on which would lie within the jurisdiction of the Court of Claims, such as was entertained and sanctioned in the case of
United States v. Great Falls Manufacturing Company, 112 U. S. 645."
In United States v. Palmer, 128 U. S. 262, an action in the Court of Claims by a patentee against the government to
recover upon an implied contract for the use of the patented invention, it appeared that the petitioner was the patentee
of certain improvements in infantry equipments which were adopted by the Secretary of War as a part of the
equipment of the infantry soldiers of the United States, and, sustaining the jurisdiction of the Court of Claims, it was
said (p. 128 U. S. 269):
"No tort was committed or claimed to have been committed. The government used the claimant's improvements with
his consent, and certainly with the expectation on his part of receiving a reasonable compensation for the license. This
is not a claim for an infringement, but a claim of compensation for an authorized use two things totally distinct in the
law, as distinct as trespass on lands is from use and occupation under a lease."
In United States v. Berdan Fire-Arms Company, 156 U. S. 552, a judgment of the Court of Claims against the United
States on an implied contract for the use of an improvement in breech-loading firearms was sustained although there
was no act of Congress expressly directing the use of such improvement. In the opinion, it was said (p. 156 U. S.
567):
"While the findings are not so specific and emphatic as to the assent of the government to the terms of any contract,
yet we think they are sufficient. There was certainly no denial of the patentee's rights to the invention, no assertion on
the part of the government that the patent was wrongfully issued, no claim of a right to use the invention regardless of
the patent, no disregard of all claims of the patentee, and no use, in spite of protest or remonstrance. Negatively at
least, the findings are clear. The government used the invention with the consent and express permission of the
owner, and it did not, while so using it, repudiate the title of such owner."
And then, after quoting from several of the findings, it was added (p. 156 U. S. 569):

"The import of these findings is this: that the officers of the government, charged specially with the duty of
superintending the manufacture of muskets, regarded Berdan as the inventor of this extractor ejector; that the
difference between the spiral and flat spring was an immaterial difference; that therefore they were using in the
Springfield musket Berdan's invention; that they used it with his permission as well as that of his assignee, the
petitioner, and that they used it with the understanding that the government would pay for such use as for other private
property which it might take, and this, although they did not believe themselves to have authority to agree upon the
price."
The rule deducible from these cases is that, when the government appropriates property which it does not claim as its
own, it does so under an implied contract that it will pay the value of the property it so appropriates. It is earnestly
contended in argument that the government had a right to appropriate this property. This may be conceded, but there
is a vast difference between a proprietary and a governmental right. When the government owns property or claims to
own it, it deals with it as owner and by virtue of its ownership, and if an officer of the government takes possession of
property under the claim that it belongs to the government (when in fact it does not), that may well be considered a
tortious act on his part, for there can be no implication of an intent on the part of the government to pay for that which
it claims to own. Very different from this proprietary right of the government in respect to property which it owns is its
governmental right to appropriate the property of individuals. All private property is held subject to the necessities of
government. The right of eminent domain underlies all such rights of property. The government may take personal or
real property whenever its necessities or the exigencies of the occasion demand. So the contention that the
government had a paramount right to appropriate this property may be conceded, but the Constitution in the Fifth
Amendment guarantees that, when this governmental right of appropriation -- this asserted paramount right -- is
exercised, it shall be attended by compensation.
The government may take real estate for a post office, a courthouse, a fortification, or a highway, or in time of war it
may take merchant vessels and make them part of its naval force. But can this be done without an obligation to pay
for the value of that which is so taken and appropriated? Whenever in the exercise of its governmental rights it takes
property the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor. Such is the
import of the cases cited as well as of many others.
The action which was taken resulting in the overflow and injury to these plaintiffs is not to be regarded as the personal
act of the officers, but as the act of the government. That which the officers did is admitted by the answer to have been
done by authority of the government, and although there may have been no specific act of Congress directing the
appropriation of this property of the plaintiffs, yet if that which the officers of the government did, acting under its
direction, resulted in an appropriation, it is to be treated as the act of the government. South Carolina v. Georgia, 93 U.
S. 4, 93 U. S. 13; Wisconsin v. Duluth, 96 U. S. 379; United States v. Great Falls Manufacturing Company, 112 U. S.
645.
Congress for many successive terms appropriated money for the improvement of the Savannah River. 21 Stat. 470,
480; 22 Stat.194, 200; 23 Stat. 140; 24 Stat. 321, 331; 25 Stat. 413; 26 Stat. 442; 27 Stat. 101; 28 Stat. 351. These
appropriations were in the River and Harbor bills, and were generally of so much money for improving the river, but
some deserve special mention. Thus, in 21 Stat. 470, it was provided that "one thousand dollars may be applied to
payment of damages for land taken for widening the channel opposite Savannah." In 24 Stat. 331, the Secretary of
War was directed to cause a survey to be made of the "Savannah River from cross-tides above Savannah to the bar,
with a view to obtaining twenty-eight feet of water in the channel." The appropriation in 25 Stat. 413 was for the
improvement of the river, "completing the present project and commencing the extended project contained in the
report of engineer for year ending June 30, 1887." And by the same statute, 431, among the matters referred to the
Secretary of War for survey and examination was "whether the damage to the Verzenobre freshet bank in 1887 was
caused by the work at cross-tides, and whether the maintenance of said bank is essential to the success of the work
at cross-tides, and what will be the cost of so constructing said bank as to confine the water of said river to its bed."
The report of the engineers for the year 1887, referred to in the section above quoted, shows that part of the work
which was being done by the government was in the construction of training walls and wing dams by which the width
of the waterway was reduced.
Further, the same year, 25 Stat. 94, an act was passed, entitled "An Act to Facilitate the Prosecution of Works
Projected for the Improvement of Rivers and Harbors," which authorized the Secretary of War to commence
proceedings
"for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate,
or prosecute works for the improvement of rivers and harbors for which provision has been made by law; . . .

Provided, however, that when the owner of such land, right of way, or material shall fix a price for the same which, in
the opinion of the Secretary of War, shall be reasonable, he may purchase the same at such price without further
delay."
Thus, beyond the effect of the admission in the answer and beyond the presumption of knowledge which attends the
action of all legislative bodies, it affirmatively appears, not only that Congress was making appropriations from year to
year for the improvement of the river, but also that it had express notice of damage to the banks along this very
plantation; that the works which were being done by the engineers had in view the narrowing of the width of the
waterway; that land would be damaged as the result of those works, and that it authorized the Secretary of War to
take proceedings in eminent domains to acquire the land, right of way, and material which might be necessary for
maintaining, operating, or prosecuting works of river improvement, or, if the price could be agreed upon, to purchase
the same.

This brings the case directly within the scope of the decision in United States v. Great Falls Manufacturing Company,
supra, where, as here, there was no direction to take the particular property, but a direction to do that which resulted in
a taking, and it was held that the owner might waive the right to insist on condemnation proceedings, and sue to
recover the value.
It does not appear that the plaintiffs took any action to stop the work done by the government, or protested against it.
Their inaction and silence amount to an acquiescence -- an assent to the appropriation by the government. In this
respect, the case is not dissimilar to that of a landowner who, knowing that a railroad company has entered upon his
land and is engaged in constructing its road without having complied with the statute in respect to condemnation, is
estopped from thereafter maintaining either trespass or ejectment, but is limited to a recovery of compensation.
Roberts v. Northern Pacific Railroad, 158 U. S. 1, 158 U. S. 11; Northern Pacific Railroad v. Smith, 171 U. S. 260, and
cases cited in the opinion.
The case, therefore amounts to this: the plaintiffs alleged that they were the owners of certain real estate bordering on
the Savannah River; that the government, in the exercise of its powers of eminent domain and regulation of
commerce, through officers and agents duly empowered thereto by acts of Congress, placed dams, training walls, and
other obstructions in the river in such manner as to hinder its natural flow and to raise its waters so as to overflow the
land of plaintiffs, and overflow it to such an extent as to cause a total destruction of its value. The government, not
denying the ownership of plaintiffs, admitted that the work which was done by their officers and agents was done by
authority of Congress, but denied that those works had produced the alleged injury and destruction. We are of opinion
that, under these pleadings and the issues raised thereby, the circuit court had jurisdiction to inquire whether the acts
done by the officers of the United States under the direction of Congress had resulted in such an overflow and injury of
the plaintiff's land as to render it absolutely valueless, and if thereby the property was, in contemplation of law, taken
and appropriated by the government, to render judgment against it for the value of the property so taken and
appropriated.
Was there a taking? There was no proceeding in condemnation instituted by the government, no attempt in terms to
take and appropriate the title. There was no adjudication that the fee had passed from the landowner to the
government, and if either of these be an essential element in the taking of lands within the scope of the Fifth
Amendment, there was no taking.
Some question is made as to the meaning of the findings. It appears from the fifth finding, as amended, that a large
portion of the land flooded was in its natural condition between high water mark and low water mark, and was subject
to overflow as the water passed from one stage to the other; that this natural overflow was stopped by an
embankment, and in lieu thereof, by means of flood gates, the land was flooded and drained at the will of the owner.
From this it is contended that the only result of the raising of the level of the river by the government works was to take
away the possibility of drainage. But findings nine and ten show that, both by seepage and percolation through the
embankment and an actual flowing upon the plantation above the obstruction, the water has been raised in the
plantation about eighteen inches; that it is impossible to remove this overflow of water, and, as a consequence, the
property has become an irreclaimable bog, unfit for the purpose of rice culture or any other known agriculture, and
deprived of all value. It is clear from these findings that what was a valuable rice plantation has been permanently
flooded, wholly destroyed in value, and turned into an irreclaimable bog, and this as the necessary result of the work
which the government has undertaken. Does this amount to a taking? The case of Pumpelly v. Green Bay Company,
13 Wall. 166, answers this question in the affirmative. And, on the argument, it was conceded by the learned counsel
for the government (and properly conceded in view of the findings) that, so far as respects the mere matter of overflow

and injury, there was no substantial distinction between the two cases. In that case, the Green Bay Company, as
authorized by statute, constructed a dam across Fox River by means of which the land of Pumpelly was overflowed
and rendered practically useless to him. There, as here, no proceedings had been taken to formally condemn the land.
Referring to this, it was said (p. 80 U. S. 177):
"The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision,
and that the damage is a consequential result of such use of a navigable stream as the government had a right to for
the improvement of its navigation."
"It would be a very curious and unsatisfactory result if, in construing a provision of constitutional law always
understood to have been adopted for protection and security to the rights of the individual as against the government,
and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of
the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held
that, if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its
value entirely, can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction
without making any compensation because, in the narrowest sense of that word, it is not taken for the public use.
Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen as those
rights stood at the common law, instead of the government, and make it an authority for invasion of private right under
the pretext of the public good, which had no warrant in the laws or practices of our ancestors."
Reference was also made to the case of Sinnickson v. Johnson, 17 N.J.L. 129, in respect to which it was said:
"The case is mainly valuable here as showing that overflowing land by backing the water on it was considered as
'taking' it within the meaning of the principle."
Again, on page 80 U. S. 179, it was said:
"But there are numerous authorities to sustain the doctrine that a serious interruption to the common and necessary
use of property may be, in the language of Mr. Angell, in his work on Watercourses, equivalent to the taking of it, and
that, under the constitutional provisions, it is not necessary that the land should be absolutely taken."
And in a footnote, the following authorities were cited: Angell on Water Courses, sec. 465a; Hooker v. New Haven &
Northampton Co., 14 Conn. 146; Rowe v. Granite Bridge Corporation, 21 Pick. 344; Canal Appraisers v. People, 17
Wend. 604; Lackland v. North Missouri Railroad Co., 31 Mo. 180; Stevens v. Middlesex Canal, 12 Mass. 466.
It is clear from these authorities that, where the government, by the construction of a dam or other public works, so
floods lands belonging to an individual as to substantially destroy their value, there is a taking within the scope of the
Fifth Amendment. While the government does not directly proceed to appropriate the title, yet it takes away the use
and value; when that is done, it is of little consequence in whom the fee may be vested. Of course it results from this
that the proceeding must be regarded as an actual appropriation of the land, including the possession, the right of
possession, and the fee, and when the amount awarded as compensation is paid, the title, the fee, with whatever
rights may attach thereto -- in this case, those at least which belong to a riparian proprietor -- pass to the government,
and it becomes henceforth the full owner.
Passing to the third question, it is contended that what was done by the government was done in improving the
navigability of a navigable river, that it is given by the Constitution full control over such improvements, and that, if in
doing any work therefor, injury results to riparian proprietors or others, it is an injury which is purely consequential, and
for which the government is not liable. But if any one proposition can be considered as settled by the decisions of this
Court, it is that although, in the discharge of its duties, the government may appropriate property, it cannot do so
without being liable to the obligation cast by the Fifth Amendment of paying just compensation.
In Monongahela Navigation Company v. United States, 148 U. S. 312, 148 U. S. 336,, it was said:
"But, like the other powers granted to Congress by the Constitution, the power to regulate commerce is subject to all
the limitations imposed by such instrument, and among them is that of the Fifth Amendment we have heretofore
quoted. Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it
deems it necessary to take private property, then it must proceed subject to the limitations imposed by this Fifth
Amendment, and can take only on payment of just compensation."
In that case, Congress had passed an act for condemning what was known as "the upper lock and dam of the
Monongahela Navigation Company," and provided "that, in estimating the sum to be paid by the United States, the

franchise of said corporation to collect tolls should not be considered or estimated," but we held that this proviso was
beyond the power of Congress, that it could not appropriate the property of the navigation company without paying its
full value, and that a part of that value consisted in the franchise to take tolls. So, in the recent case of Scranton v.
Wheeler, 179 U. S. 141, 179 U. S. 153, we repeated the proposition in these words:
"Undoubtedly compensation must be made or secured to the owner when that which is done is to be regarded as a
taking of private property for public use within the meaning of the Fifth Amendment of the Constitution, and, of course,
in its exercise of the power to regulate commerce, Congress may not override the provision that just compensation
must be made when private property is taken for public use."
It is true that a majority of the Court held in that case that the destruction of access to land abutting on a navigable
river by the construction by Congress of a pier on the submerged lands in front of the upland was not a taking of
private property for public uses, but only an instance of consequential injury to the property of the riparian owner. But
the right of compensation in case of a taking was conceded. There have been many cases in which a distinction has
been drawn between the taking of property for public uses and a consequential injury to such property, by reason of
some public work. In the one class, the law implies a contract, a promise to pay for the property taken which, if the
taking was by the general government, will uphold an action in the Court of Claims, while in the other class, there is
simply a tortious act doing injury over which the Court of Claims has no jurisdiction. Thus, in Transportation Company
v. Chicago, 99 U. S. 635, the city, duly authorized by statute, constructed a tunnel along the line of LaSalle Street and
under the Chicago River.
The company claimed that it was deprived of access to its premises by and during the construction. This deprivation
was not permanent, but continued only during the time necessary to complete the tunnel, and it was held that there
was no taking of the property, but only an injury, and that a temporary injury, thereto. In the course of the opinion, after
referring to the Pumpelly case, supra, and Eaton v. Boston, Concord & Montreal Railroad Company, 51 N.H. 504, we
said (p. 99 U. S. 642):
"In those cases it was held that permanent flooding of private property may be regarded as a 'taking.' In those cases
there was physical invasion of real estate of the private owner, and a practical ouster of his possession. But in the
present case, there was no such invasion. No entry was made upon the plaintiffs' lot. All that was done was to render
for a time its use more inconvenient. "
Chicago v. Taylor, 125 U. S. 161, while recognizing and reaffirming the rule there laid down, was decided upon the
ground that a new rule was established by the Illinois Constitution of 1870, which provided that "private property shall
not be taken or damaged for public use without just compensation." Montana Company v. St. Louis Mining &c.
Company, 152 U. S. 160, held that a mere order for inspection of mining property was not a taking thereof, because all
that was done was a temporary and limited interruption of the exclusive use. Gibson v. United States, 166 U. S. 269,
decided that where, by the construction of a dyke by the United States in the improvement of the Ohio River, the
plaintiff, a riparian owner, was through the greater part of the gardening season deprived of the use of her landing for
the shipment of products from and supplies to her farm, whereby the value of her farm was reduced $150 to $200 per
acre, there was no taking of the property, but only a consequential injury. See also Marchant v. Pennsylvania Railroad,
153 U. S. 380; Meyer v. Richmond, 172 U. S. 82. In this connection, Mills v. United States, 46 F. 738, decided in the
District Court for the Southern District of Georgia, is worthy of notice by reason of its similarity in many respects and
its clearly marked distinction in an essential matter. It was an action for injuries to a rice plantation on the banks of the
Savannah River resulting from works done by the United States in improving the navigability of that river, apparently
the very improvement made by the government in the present case. The condition of the claimant's rice plantation
prior to the improvement was substantially that of these plaintiffs' property, and the lands were drained by opening the
gates when the river was at low water mark. The complaint was that the erection by the government of what was
called the "cross-tides dam," running from the upper end of Hutchinson's Island to the lower end of Argyle Island, cut
off all the flow of water from the stream connecting the front and back rivers, raised both the high and low water levels
in the front river, and not only destroyed the facilities for draining these lands into the front river, but rendered it
necessary to raise the levees around the rice fields, to prevent flooding the fields at high water. This, it was alleged,
unfitted the lands for rice culture and made it necessary that new drainage into back river be provided where the water
levels were suitable. Obviously there was no taking of the plaintiff's lands, but simply an injury which could be
remedied at an expense as alleged of $10,000, and the action was one to recover the amount of this consequential
injury. The court rightfully held that it could not be sustained. Here there is no finding, no suggestion, that by any
expense the flooding could be averted. We may, of course, know that there is theoretically no limit to that which
engineering skill may accomplish. We know that vast tracts have in different parts of the world been reclaimed by
levees and other works, and so we may believe that this flooding may be prevented, that some day all these

submerged lands may be reclaimed. But, as a practical matter and for the purposes of this case, we must, under the
findings, regard the lands in controversy as irreclaimable and their value wholly and finally destroyed.
Therefore, following the settled law of this Court, we hold that there has been a taking of the lands for public uses, and
that the government is under an implied contract to make just compensation therefor.
The judgment is Affirmed.
United States v. Causby 328 U.S. 256 (1946)
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.
(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.
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 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.
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 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 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. 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 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 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.
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 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 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.

NATIONAL POWER CORPORATION v. HON. SYLVA G. AGUIRRE PADERANGA, et al. 464 SCRA 481 (2005),
THIRD DIVISION (Carpio Morales, J.)
The determination of just compensation is a judicial function and the recommendation of the commissioners is given
weight and consideration if the same is reasonable and just.
FACTS:
National Power Corporation (NPC) filed a case for expropriation against Petrona O. Dilao, et al. before Regional Trial
Court of Cebu, involving parcels of land located in Cebu. Expropriation was instituted to implement Leyte-Cebu
Interconnection Project. A day after the complaint was filed, NPC filed an urgent ex parte motion for the issuance of
writ of possession of the lands.
The RTC issued an order granting NPCs motion. It appointed 3 Board of Commissioners to determine just
compensation. The board recommended appraisal of parcel of land co-owned by Dilao, et al. at P516.66 per square
meter. However, NPC filed an opposition assailing the correctness of the appraisal for failing to take into account
Republic Act No. 6395 which provides that the just compensation for right-of-way easement shall be equivalent to ten
percent (10%) of the market value of the property. NPC asserted that Digao, et al. could still use the traversed land for
agricultural purposes, subject only to its easement. It added that the lots were of no use to its operations except for its
transmission lines. The RTC rendered its decision ordering NPC to pay fair market value at P516.66 per square meter.
NPC appealed but the same was denied due to failure to file and perfect its appeal within the prescribed period. A
motion for execution of judgment was subsequently filed by Dilao, et al. which was granted by the lower court. On
appeal, the CA affirmed the lower courts decision. Hence, this petition.
ISSUE:
Whether or not RTC abused its authority by misapplying the rules governing fair valuation
HELD:
In finding that the trial court did not abuse its authority in evaluating the evidence and the reports placed before it nor
did it misapply the rules governing fair valuation, the Court of Appeals found the majority reports valuation of P500 per
square meter to be fair. Said factual finding of the Court of Appeals, absent any showing that the valuation is
exorbitant or otherwise unjustified, is binding on the parties as well as this Court.
Indeed, expropriation is not limited to the acquisition of real property with a corresponding transfer of title or
possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed
by transmission lines, as in the present case, also falls within the ambit of the term expropriation.

From the Commissioners report it cannot be gainsaid that NPCs complaint merely involves a simple case of mere
passage of transmission lines over Dilao et al.s property. Aside from the actual damage done to the property
traversed by the transmission lines, the agricultural and economic activity normally undertaken on the entire property

is unquestionably restricted and perpetually hampered as the environment is made dangerous to the occupants life
and limb. The determination of just compensation in expropriation proceedings being a judicial function, the Court
finds the commissioners recommendation of P516.66 per square meter, which was approved by the trial court, to be
just and reasonable compensation for the expropriated property of Dilao and her siblings.
Richards v. Washington Terminal Co., 233 U.S. 546 (1914)
Syllabus
Although in England, Parliament, being omnipotent, may authorize the taking of private property for public use without
compensation, the English courts decline to place an unjust construction on its acts, and, unless so clear as not to
admit any other meaning, do not interpret them as interfering with rights of private property.
Legislation of Congress is different from that of Parliament, as it must be construed in the light of that provision of the
Fifth Amendment which forbids the taking of private property for public use without compensation.
While Congress may legalize, within the sphere of its jurisdiction, what otherwise would be a public nuisance, it may
not confer immunity from action for a private nuisance of such a character as to amount in effect to a taking of private
property for public use.
While the owners of a railroad constructed and operated for the public use, although with private property for private
gain, are not, in the absence of negligence, subject to action in behalf of owners of neighboring private property for the
ordinary damages attributable to the operation of the railroad, a property owner may be entitled to compensation for
such special damages as devolve exclusively upon his property and not equally upon all the neighboring property.
In this case, held that an owner of property near the portal of a tunnel in the District of Columbia constructed under
authority of Congress, while not entitled to compensation for damages caused by the usual gases and smoke emitted
from the tunnel by reason of the proper operation of the railroad, is entitled to compensation for such direct, peculiar
and substantial damages as specially affect his property and diminish its value.
The facts, which involve the right, under the Fifth Amendment, of an owner to be compensated for special and peculiar
damages to his property by reason of the operation of a railroad near the premises, are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
Plaintiff in error, who was plaintiff below, commenced this action in the Supreme Court of the District of Columbia to
recover for the damage to his property resulting from the maintenance of an alleged nuisance by defendant by means
of the operation of a railroad and tunnel upon its own lands near to, but not adjoining, those of plaintiff. Defendant
having pleaded not guilty, the issue came on for trial by jury, and, at the conclusion of plaintiff's evidence, a verdict was
directed in favor of defendant. The court of appeals affirmed the judgment (37 App.D.C. 289), and a writ of error brings
the controversy under the review of this Court.
An agreed abridgment of the evidence upon which the ruling of the trial justice was based is embodied in the bill of
exceptions. From this it appears that plaintiff is and has been since the year 1901 the owner of Lot 34 in Square 693 in
the City of Washington, having a frontage of 20 ft. upon the westerly side of New Jersey Avenue, Southeast, and an
average depth of 81 ft., with improvements thereon consisting of a three-story and basement brick dwelling house
containing ten rooms, known as No. 415 New Jersey Avenue. The rear windows upon all the floors of the house open
in the direction of the railroad tracks that lead from defendant's tunnel. The south portal of this tunnel opens within
Square 693, and near its northeasterly corner, and the tunnel extends thence in a northeasterly direction, passing
under the Capitol and Library grounds and First Street N.E. to the Union Station at Massachusetts Avenue. There are
two sets of railroad tracks in the tunnel and leading from it, and as these emerge from the south portal, they extend in
a general southwesterly direction up an incline or grade across the central portion of Square 693 on to an elevated
structure which carries the tracks over and beyond South Capitol Street. The tunnel and these tracks are used for the
passage of trains running both northwardly and southwardly, about thirty each day, all of them being passenger trains
with the exception of an occasional shifting engine. The trains frequently pass in and out of the tunnel without
stopping, but trains also very often stop at or near a switch tower that is situate near the center of Square 693. From
the nearest portion of plaintiff's house to the center of the south portal, the distance in a straight line is about 114 ft.,
there being three intervening dwelling houses, two of which have been purchased and are now owned by defendant.
From the rear end of plaintiff's lot to the middle of the tracks southwestwardly from the portal the distance in a straight
line is about 90 ft. Plaintiff's property has been damaged by the volumes of dense black or gray smoke, and also by

dust and dirt, cinders and gases, emitted from the trains while passing over the tracks and in or out of the tunnel, or
standing upon the tracks near the signal tower. There is a fanning system installed in the tunnel which causes the
gases and smoke emitted from engines while in the tunnel to be forced out of the south portal, and these gases and
smoke contaminate the air, and also add to the inconvenience suffered by plaintiff in the occupation of his property.
His house was pleasant and comfortable for purposes of occupation before the construction of the tunnel and tracks,
but since then it has not only depreciated in value, but the tenant removed therefrom, and plaintiff was obliged to
occupy the house himself by reason of his inability to rent it. The property has depreciated from a value of about
$5,500 to about $4,000, and the rental value from $30 per month to $20 per month. The furniture and other belongings
in the house have been depreciated from a value of $1,200 to $600, all of which depreciation is due to the presence of
smoke, cinders, and gases emitted from passing trains and from the mouth of the tunnel, which smoke, cinders, and
gases enter the dwelling house and settle upon the furniture and other personal property contained in it, contaminating
the air and rendering the house objectionable as a habitation. The house has also been damaged by vibrations
caused by the movement of trains on the track or in the tunnel, resulting in cracking the walls and wallpaper, breaking
glass in the windows, and disturbing the peace and slumber of the occupants.
The defendant, the Washington Terminal Company, is the owner of the tunnel and of the tracks therein, but its
ownership of tracks ceases at the south portal. The tracks extending therefrom in a southwesterly direction are owned
and used by other railroad companies, but the movement of the trains is controlled by defendant.
The tunnel and the tracks leading from it across Square 693 were located and constructed and are now maintained
under the authority of Acts of Congress of February 12, 1901, and February 28, 1903, 31 Stat. 774, c. 354; 32 Stat.
909, c. 856, in accordance with plans and specifications approved by those acts. No claim is made by plaintiff that the
tunnel, the tracks in Square 693, and the trains operated therein and thereon were constructed, operated, or
maintained in a negligent manner, and it is conceded that the tunnel and tracks were built upon property acquired by
purchase or condemnation proceedings, and were constructed under authority of the acts of Congress and of permits
issued by the Commissioners of the District of Columbia.
Such being the essential facts to be deduced from the evidence, we have reached the conclusion, for reasons
presently to be stated, that with respect to most of the elements of damage to which the plaintiff's property has been
subjected, the courts below correctly held them to be damnum absque injuria; but that with respect to such damage as
is attributable to the gases and smoke emitted from locomotive engines while in the tunnel, and forced out of it by
means of the fanning system through a portal located so near to plaintiff's property that these gases and smoke
materially contribute to injure the furniture and to render the house less habitable than otherwise it would be, there is a
right of recovery.
The acts of Congress referred to, followed by the construction of the tunnel and railroad tracks substantially in the
mode prescribed, had the effect of legalizing the construction and operation of the railroad, so that its operation, while
properly conducted and regulated, cannot be deemed to be a public nuisance. Yet it is sufficiently obvious that the acts
done by defendant, if done without legislative sanction, would form the subject of an action by plaintiff to recover
damages as for a private nuisance.
At the same time, there is no exclusive and permanent appropriation of any portion of plaintiff's land, which, indeed,
does not even abut upon defendant's property. The acts of Congress do not in terms provide for the payment of
compensation to property owners damnified through the construction and operation of the tunnel and railroad lines in
question, except to those whose lands, or a portion thereof, were necessarily appropriated. For damages, whether
direct or consequential, to noncontiguous parcels such as that of plaintiff, there is no express provision. But 9 of the
Act of 1903, 32 Stat. 916, c. 856, authorizes the Terminal Company to acquire, by purchase or condemnation, "the
lands and property necessary for all and every the purposes contemplated" by the several acts of Congress under
which the tunnel and railroad were constructed and are operated. This grant of the power of condemnation is very
broad, but it has not been acted upon by the company in the case of the present plaintiff. And since he is not wholly
excluded from the use and enjoyment of his property, there has been no "taking" of the land in the ordinary sense.
The courts of England, in a series of decisions, have dealt with the general subject now under consideration. Rex v.
Pease, 4 Barn. & Ad. 30, 40, 1 Nev. & M. 690, 2 L.J. Mag. Cas. N.S. 26, 22 Eng. Rul. Cas. 71; Vaughan v. Taff Vale R.
Co., 5 Hurl. & Nor. 679, 29 L.J. Exch. 247, 1 Eng.Rul.Cas. 296; Jones v. Festiniog Ry. Co., L.R. 3 Q.B. 733;
Hammersmith &c. Ry. Co. v. Brand, L.R. 4 H.L. 171, 38 L.J.Q.B. 265, 1 Eng.Rul.Cas. 623; Metropolitan Asylum District
v. Hill, L.R. 6 App.Cas. 193, 201, 203; London & Brighton Ry. Co. v. Truman, L.R. 11 App.Cas. 45. The rule to be
deduced from these cases is that, while no action will lie for an invasion of private rights necessarily resulting from the
establishment and operation of railways and other public works under the express sanction of an act of Parliament, yet

that such acts are to be strictly construed so as not to impair private rights unless the legislative purpose to do so
appears by express words or necessary implication. In short, Parliament, being omnipotent, may authorize the taking
of private property for public use without compensation to the owner, but the courts decline to place an unjust
construction upon its acts, and will not interpret them as interfering with rights of private property unless the language
be so clear as to admit of no other meaning.
But the legislation we are dealing with must be construed in the light of the provision of the Fifth Amendment -- "Nor
shall private property be taken for public use without just compensation" -- and is not to be given an effect inconsistent
with its letter or spirit. The doctrine of the English cases has been generally accepted by the courts of this country,
sometimes with scant regard for distinctions growing out of the constitutional restrictions upon legislative action under
our system. Thus, it has been said that "a railroad authorized by law and lawfully operated cannot be deemed a
private nuisance;" that "what the legislature has authorized to be done cannot be deemed unlawful," etc. These and
similar expressions have at times been indiscriminately employed with respect to public and to private nuisances. We
deem the true rule, under the Fifth Amendment, as under state constitutions containing a similar prohibition, to be that,
while the legislature may legalize what otherwise would be a public nuisance, it may not confer immunity from action
for a private nuisance of such a character as to amount in effect to a taking of private property for public use.
Pennsylvania R. Co. v. Angel, 41 N.J.Eq. 316, 329; Costigan v. Pennsylvania R. Co., 54 N.J.L. 233; Cogswell v. N.Y.,
N.H. & H. R. Co., 103 N.Y. 10; Garvey v. Long Island R. Co., 159 N.Y. 323; Bohan v. Port Jervis Gas Light Co., 122
N.Y. 18, 29; Sadlier v. City of New York, 81 N.Y.S. 308.
But the question remains, in cases of the class now before us, what is to be deemed a private nuisance such as
amounts to a taking of property? And, by a great and preponderant weight of judicial authority in those states whose
constitutions contain a prohibition of the taking of private property for public use without compensation, substantially in
the form employed in the Fifth Amendment, it has become established that railroads constructed and operated for the
public use, although with private capital and for private gain, are not subject to actions in behalf of neighboring
property owners for the ordinary damages attributable to the operation of the railroad, in the absence of negligence.
Such roads are treated as public highways, and the proprietors as public servants, with the exemption normally
enjoyed by such servants from liability to private suit, so far as concerns the incidental damages accruing to owners of
nonadjacent land through the proper and skillful management and operation of the railways. Any diminution of the
value of property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages
arising from the legalized nuisance, is held not to be a "taking" within the constitutional provision. The immunity is
limited to such damages as naturally and unavoidably result from the proper conduct of the road and are shared
generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a
railroad. It includes the noises and vibrations incident to the running of trains, the necessary emission of smoke and
sparks from the locomotives, and similar annoyances inseparable from the normal and nonnegligent operation of a
railroad. Transportation Co. v. Chicago, 99 U. S. 635, 99 U. S. 641; Beseman v. Pennsylvania R. Co., 50 N.J.L. 235,
240, 13 A. 164, aff'd, 52 N.J.L. 221.
That the constitutional inhibition against the taking of private property for public use without compensation does not
confer a right to compensation upon a landowner, no part of whose property has been actually appropriated and who
has sustained only those consequential damages that are necessarily incident to proximity to the railroad, has been so
generally recognized that in some of the states (Arkansas, California, Colorado, Georgia, Illinois, Louisiana,
Mississippi, Missouri, Montana, Nebraska, North Dakota, South Dakota, Texas, West Virginia, and Wyoming are, we
believe, among the number), constitutions have been established providing in substance that private property shall not
be taken or damaged for public use without compensation.
The immunity from liability for incidental injuries is attended with a considerable degree of hardship to the private
landowner, and has not been adopted without some judicial protest. But, as pointed out by Chief Justice Beasley in
the Beseman case, 50 N.J.L. at p. 238, if railroad companies were liable to suit for such damages upon the theory
that, with respect to them, the company is a tortfeasor, the practical result would be to bring the operation of railroads
to a standstill. And, on the whole, the doctrine has become so well established that it amounts to a rule of property,
and should be modified, if at all, only by the lawmaking power.
But the doctrine, being founded upon necessity, is limited accordingly. This Court, in a leading case that we deem
controlling upon the questions now at issue, had occasion to recognize this, and at the same time to apply the
distinction between public and private nuisances with respect to the private right of action. In Baltimore & Potomac R.
Co. v. Fifth Baptist Church, 108 U. S. 317, the Court, while recognizing (p. 108 U. S. 331) that the legislative authority
for operating a railway carried with it an immunity from private actions based upon those incidental inconveniences
that are unavoidably attendant upon the operation of a railroad, nevertheless sustained the right of action in a case

where a building for housing and repairing locomotive engines was unnecessarily established in close proximity to a
place of public worship, and so used that the noises of the shop and the rumbling of the locomotive engines passing in
and out, the blowing off of steam, the ringing of bells, the sound of whistles, and the smoke from the chimneys,
created a constant disturbance of the religious exercises. The Court (speaking by Mr. Justice Field) held that the
authority of the company to construct such works as it might deem necessary and expedient for the completion and
maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to
the property and rights of others, and that, whatever the extent of the authority conferred, it was accompanied with the
implied qualification that the works should not be so placed as by their use to unreasonably interfere with and disturb
the peaceful and comfortable enjoyment of others in their property. In the language of the opinion:
"Grants of privileges or powers to corporate bodies like those in question confer no license to use them in disregard of
the private rights of others, and with immunity for their invasion."
The reasoning proceeded upon the ground (p. 108 U. S. 332) that no authority conferred by Congress would justify an
invasion of private property to an extent amounting to an entire deprivation of its use and enjoyment without
compensation to the owner, "nor could such authority be invoked to justify acts creating physical discomfort and
annoyance to others in the use and enjoyment of their property, to a less extent than entire deprivation, if different
places from those occupied could be used by the corporation for its purposes, without causing such discomfort and
annoyance," and hence that the legislative authorization conferred exemption only from suit or prosecution for the
public nuisance, and did not affect "any claim of a private citizen for damages for any special inconvenience and
discomfort not experienced by the public at large."
The present case, in the single particular already alluded to -- that is to say, with respect to so much of the damage as
is attributable to the gases and smoke emitted from locomotive engines while in the tunnel, and forced out of it by the
fanning system therein installed, and issuing from the portal located near to plaintiff's property in such manner as to
materially contribute to render his property less habitable than otherwise it would be, and to depreciate it in value, and
this without, so far as appears, any real necessity existing for such damage -- is, in our opinion, within the reason and
authority of the decision just cited. This case differs from that of the Baptist Church in that there, the railroad company
was free to select some other location for the repair shop and engine house, while here, the evidence shows that the
location of the tunnel and its south portal was established pursuant to law, and not voluntarily chosen by defendant.
This circumstance, however, does not, as we think, afford sufficient ground for a distinction affecting the result. The
case shows that Congress has authorized, and in effect commanded, defendant to construct its tunnel with a portal
located in the midst of an inhabited portion of the city. The authority, no doubt, includes the use of steam locomotive
engines in the tunnel, with the inevitable concomitants of foul gases and smoke emitted from the engines. No question
is made but that it includes the installation and operation of a fanning system for ridding the tunnel of this source of
discomfort to those operating the trains and traveling upon them. All this being granted, the special and peculiar
damage to the plaintiff as a property owner in close proximity to the portal is the necessary consequence, unless, at
least, it be feasible to install ventilating shafts or other devices for preventing the outpouring of gases and smoke from
the entire length of the tunnel at a single point upon the surface, as at present. Construing the acts of Congress in the
light of the Fifth Amendment, they do not authorize the imposition of so direct and peculiar and substantial a burden
upon plaintiff's property without compensation to him. If the damage is not preventible by the employment at
reasonable expense of devices such as have been suggested, then plaintiff's property is "necessary for the purposes
contemplated," and may be acquired by purchase or condemnation (32 Stat. 916, c. 856, 9), and, pending its
acquisition, defendant is responsible. If the damage is readily preventible, the statute furnishes no excuse, and
defendant's responsibility follows on general principles.
No doubt there will be some practical difficulty in distinguishing between that part of the damage which is attributable
to the gases and smoke emitted from the locomotive engines while operated upon the railroad tracks adjacent to
plaintiff's land, and with respect to which we hold there is no right of action, and damage that arises from the gases
and smoke that issue from the tunnel, and with respect to which there appears to be a right of action. How this
difficulty is to be solved in order to determine the damages that should be assessed in this action, or the compensation
that should be awarded in case condemnation proceedings are resorted to, is a question not presented by this record,
and upon which therefore no opinion is expressed.
Judgment reversed and cause remanded to the court of appeals, with directions to reverse the judgment of the
Supreme Court of the District and remand the cause to that court with directions for a new trial, and for further
proceedings in accordance with the views above expressed.
Quezon City vs Ericta Case Digest

G.R. No. L-34915 June 24, 1983

FACTS:
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. 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.
ISSUE: Whether or not the Section 9 of Ordinance No. 6118, S-64 is a valid exercise of police power?
HELD: We find the stand of the private respondent as well as the decision of the respondent Judge to be wellfounded. We quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city
ordinance. An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would
justify the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified
under the power granted to Quezon City to tax, fix the license fee, and regulate such other business, trades, and
occupation as may be established or practised in the City.' The power to regulate does not include the power to
prohibit. 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.' Police power is defined by Freund
as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property'. 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. 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.

PPI vs. COMELEC (supra)

Facts:
On March 2, 1995, COMELEC promulgated Resolution No. 2772 stating that theCommission shall have free print
space of not less than one-half page in at least one newspaper in every province or city as Comelec Space This ad
space will be used by candidates for their campaign and platforms of government, and for the Commissions
dissemination of vitalinformation. Moreover, COMELEC released a letter-directive ordering the different newspapersto
comply with the said resolution. The petitioner Philippine Press Institute (PPI) filed apetition contending that
COMELEC violated the prohibition imposed by the Constitution against the taking of properties without just
compensation due to Sec 2 . Moreover, thedirective of COMELEC amounts to involuntary servitude and violation of
the freedom of expression and of the press due to Sec 8. On the other hand, COMELEC asserts their directiveis not
mandatory and compelling. They only ask for a donation. They aver that even if theorder is mandatory , it would still
be valid through the use of police power.
Issue:
Is COMELECs action constitutional through the exercise of police power?
Held:
No. Looking at Sec 2, it seems that respondent is correct that the order to give a free space to COMELEC is not
mandatory as there is no compelling language or any criminal or administrative charges for violation. The respondents
reason for creating the resolution was due to the voluntary offers given by the newspaper company in the 1992
electionsto help them advertise important election matters. However, the court will have to disagree that even if the
order is mandatory, it would still be valid as an exercise of police power. First, only thelegislature can exercise olice
power except if it is delegated to some other body. The COMELEC did not give any effort to specify evidences that
they were given police ower .According to the Constitution, when a property is taken , it must be given a just
compensation. In the case at bar, there is no just compensation as the newspapers will give the space for free as a
donation. Moreover, there was no showing of reasonable necessity or emergency for thetaking of print space
confronted the Commission. However, Sec 8 still stands as it is within the power of COMELEC to control the media
influences of candidates to prevent unequalcampaigns.Petition is partially granted. Sec 2 is not mandatory and Sec 8
is valid.

Province of Cam Sur v CA, 222 SCRA 137, GR 103125 (1993)

Facts: On 22 December 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur passed Resolution
129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the
provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a
housing project for provincial government employees. Pursuant to the Resolution, the Province of Camarines Sur,
through its Governor, Hon. Luis R. Villafuerte, filed two separate cases for expropriation against Ernesto N. San
Joaquin and Efren N. San Joaquin with the Regional Trial Court, Pili, Camarines Sur (Hon. Benjamin V. Panga
presiding; Special Civil Action Nos. P-17-89 and P-19-89). Forthwith, the Province of Camarines Sur filed a motion for
the issuance of a writ of possession. The San Joaquins failed to appear at the hearing of the motion. The San
Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. In an
order dated 6 December 1989, the trial court denied the motion to dismiss and authorized the Province of Camarines
Sur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5,714.00, the
amount provisionally fixed by the trial court to answer for damages that San Joaquin may suffer in the event that the
expropriation cases do not prosper. The trial court issued a writ of possession in an order dated 18 January 1990. The
San Joaquins filed a motion for relief from the order, authorizing the Province of Camarines Sur to take possession of
their property and a motion to admit an amended motion to dismiss. Both motions were denied in the order dated 26
February 1990. The San Joaquins filed their petition before the Court of Appeals, praying (a) that Resolution No. 129,
Series of 1988 of the Sangguniang Panlalawigan be declared null and void; (b) that the complaints for expropriation
be dismissed; and (c) that the order dated December 6, 1989 (i) denying the motion to dismiss and (ii) allowing the
Province of Camarines Sur to take possession of the property subject of the expropriation and the order dated
February 26, 1990, denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an
order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of
injunction. The Court of Appeals set aside the order of the trial court, and ordered the trial court to suspend the

expropriation proceedings until after the Province of Camarines Sur shall have submitted the requisite approval of the
Department of Agrarian Reform to convert the classification of the property of the San Joaquins from agricultural to
non-agricultural land. The Province of Camarines Sur filed a petition for certiorari before the Supreme Court.
Issue: Whether the establishment of the Pilot Development Center and the housing project are deemed for public
use.
Held: Local government units have no inherent power of eminent domain and can exercise it only when expressly
authorized by the legislature. In delegating the power to expropriate, the legislature may retain certain control or
impose certain restraints on the exercise thereof by the local governments. While such delegated power may be a
limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must
be clearly expressed, either in the law conferring the power or in other legislations. It is the legislative branch of the
local government unit that shall determine whether the use of the property sought to be expropriated shall be public,
the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene
only when a particular undertaking has no real or substantial relation to the public use. Statutes conferring the power
of eminent domain to political subdivisions cannot be broadened or constricted by implication. Section 9 of BP 337
does not intimate in the least that local government units must first secure the approval of the Department of Land
Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary
expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which
expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of
Agrarian Reform. The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order 129A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the
suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority.
While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove
conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the
applications for reclassification submitted by the land owners or tenant beneficiaries. Further, there has been a shift
from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain
may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g.
roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use".
Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the
general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project. The
expropriation of the property authorized by Resolution 129, Series of 1988, is for a public purpose. The establishment
of a pilot development center would inure to the direct benefit and advantage of the people of the Province of
Camarines Sur. Once operational, the center would make available to the community invaluable information and
technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and
craftsmen would be enhanced. The housing project also satisfies the public purpose requirement of the Constitution.
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. Thus, the decision of the Court of
Appeals is set aside insofar as it (a) nullifies the trial court's order allowing the Province of Camarines Sur to take
possession of the property of the San Joaquins; (b) orders the trial court to suspend the expropriation proceedings;
and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to
convert or reclassify the property of the San Joaquins property from agricultural to non-agricultural use.
Eslaban vs. Vda. de Onorio [GR 146062, 28 June 2001]
Facts: Clarita Vda. de Onorio is the owner of a lot in Barangay M. Roxas, Sto. Nino, South Cotabato with an area of
39,512 square meters (Lot 1210-A-Pad-11-000586, TCT T-22121 of the Registry of Deeds, South Cotabato). On 6
October 1981, Santiago Eslaban, Jr., Project Manager of the NIA, approved the construction of the main irrigation
canal of the NIA on the said lot, affecting a 24,660 square meter portion thereof. De Onorio's husband agreed to the
construction of the NIA canal provided that they be paid by the government for the area taken after the processing of
documents by the Commission on Audit. Sometime in 1983, a Rightof-Way agreement was executed between De
Onorio and the NIA. The NIA then paid De Onorio the amount of P4,180.00 as Right-of-Way damages. De Onorio
subsequently executed an Affidavit of Waiver of Rights and Fees whereby she waived any compensation for damages
to crops and improvements which she suffered as a result of the construction of a right-of-way on her property. The
same year, Eslaban offered De Onorio the sum of P35,000,00 by way of amicable settlement (financial assistance)
pursuant to Executive Order 1035, 18. De Onorio demanded payment for the taking of her property, but Eslaban/NIA
refused to pay.

Accordingly, De Onorio filed on 10 December 1990 a complaint against Eslaban before the Regional Trial Court
(RTC), praying that Eslaban/NIA be ordered to pay the sum of P111,299.55 as compensation for the portion of her
property used in the construction of the canal constructed by the NIA, litigation expenses, and the costs. Eslaban
admitted that NIA constructed an irrigation canal over the property of De Onorio and that NIA paid a certain landowner
whose property had been taken for irrigation purposes, but Eslaban interposed the defense that: (1) the government
had not consented to be sued; (2) the total area used by the NIA for its irrigation canal was only 2.27 hectares, not
24,600 square meters; and (3) that De Onorio was not entitled to compensation for the taking of her property
considering that she secured title over the property by virtue of a homestead patent under Commonwealth Act 141. On
18 October 1993, the trial court rendered a decision, ordering the NIA to pay to De Onorio the sum of P107,517.60 as
just compensation for the questioned area of 24,660 square meters of land owned by De Onorio and taken by the NIA
which used it for its main canal plus costs. On 15 November 1993, the NIA appealed to the Court of Appeals which, on
31 October 2000, affirmed the decision of the Regional Trial Court. NIA filed the petition for review.
Issue: Whether the valuation of just compensation is determined at the time the property was taken or at the time the
complaint for expropriation is filed.
Held: Whenever public lands are alienated, granted or conveyed to applicants thereof, and the deed grant or
instrument of conveyance [sales patent] registered with the Register of Deeds and the corresponding certificate and
owner's duplicate of title issued, such lands are deemed registered lands under the Torrens System and the certificate
of title thus issued is as conclusive and indefeasible as any other certificate of title issued to private lands in ordinary
or cadastral registration proceedings. The only servitude which a private property owner is required to recognize in
favor of the government is the easement of a "public highway, way, private way established by law, or any government
canal or lateral thereof where the certificate of title does not state that the boundaries thereof have been predetermined." This implies that the same should have been pre-existing at the time of the registration of the land in
order that the registered owner may be compelled to respect it. Conversely, where the easement is not pre-existing
and is sought to be imposed only after the land has been registered under the Land Registration Act, proper
expropriation proceedings should be had, and just compensation paid to the registered owner thereof. Herein, the
irrigation canal constructed by the NIA on the contested property was built only on 6 October 1981, several years after
the property had been registered on 13 May 1976. Accordingly, prior expropriation proceedings should have been filed
and just compensation paid to the owner thereof before it could be taken for public use. With respect to the
compensation which the owner of the condemned property is entitled to receive, it is likewise settled that it is the
market value which should be paid or "that sum of money which a person, desirous but not compelled to buy, and an
owner, willing but not compelled to sell, would agree on as a price to be given and received therefor." Further, just
compensation means not only the correct amount to be paid to the owner of the land but also the payment of the land
within a reasonable time from its taking. Without prompt payment, compensation cannot be considered "just" for then
the property owner is made to suffer the consequence of being immediately deprived of his land while being made to
wait for a decade or more before actually receiving the amount necessary to cope with his loss. Nevertheless, there
are instances where the expropriating agency takes over the property prior to the expropriation suit, in which case just
compensation shall be determined as of the time of taking, not as of the time of filing of the action of eminent domain.
The value of the property, thus, must be determined either as of the date of the taking of the property or the filing of
the complaint, "whichever came first."
De Knecht v CA [G.R. No. 109234. May 20, 1998]
Facts:
In 1979, the Republic of the Philippines initiated a case for expropriation against the Knechts' property. The
government sought to utilize the land for the completion of the Manila Flood Control and Drainage Project and the
extension of the EDSA towards Roxas Boulevard.
The CFI issued a writ of possession. This SC, however, held that the choice of area for the extension of EDSA was
arbitrary. The SC annulled the writ.
In 1982, the City Treasurer of Pasay discovered that the Knechts failed to pay real estate taxes on the property from
1980 to 1982. As a consequence of this deficiency, the City Treasurer sold the property at public auction on May 27,
1982 for the sum of P63,000.00, the amount of the deficiency taxes. The highest bidders were respondents Babiera
and Sangalang couples.

The petitioners failed to redeem the property. Babiera then filed for registration of the land to his name. The trial court
granted the petition. The Knechts, who were in possession of the property, allegedly learned of the auction sale only
by the time they received the orders of the land registration courts.
The De Knechts also filed Civil Case No. 2961-P to prevent the titles from being given to the contending spouses.
They put up lack of notice to the sale as defense. This was dismissed for lack of counsel to appear on the last hearing.
On March 12, 1985, Sangalang and Babiera sold the land to respondent Salem Investment Corporation (Salem) for
P400,000.00.
Meanwhile, on February 17, 1983, the Batasang Pambansa passed B.P. Blg. 340 authorizing the national government
to expropriate certain properties in Pasay City for the EDSA Extension. The just compensation for this purpose was
docketed by the OSG under civil case 7327. The De Knecht property was covered by the expropriation. On August
30, seven of the eight houses of the Knechts were demolished and the government took possession of the portion of
land on which the houses stood. Salem instituted against them Civil Case No. 85-263 for unlawful detainer.
The SC allowed for the expropriation this time. Meanwhile, Salem conveyed 5,611.92 square meters of the subject
property to respondent spouses Mariano and Anacoreta Nocom. Part was left to Salem.
As prayed for by Salem, the trial court issued an order on September 13, 1990 for the release of P5,763,650.00 to
Salem by the Philippine National Bank (PNB) as partial payment of just compensation.
The De Knechts filed a motion to intervene. On April 23, 1992, as prayed for by Mariano Nocom, the trial court ordered
the release of P11,526,000.00 as third installment for his 5,611.92 square meters of the subject land. The De Knechts
questioned this in the CA.
The CA quashed their motion to intervene due to the lack of legal interest. They filed an original action for the
annulment of TC judgments. Therein, the Knechts challenged the validity of the orders of the land registration courts in
the two petitions of the Sangalangs and Babieras for registration of their names, the reconveyance case and the just
compensation proceedings.
The Court of Appeals dismissed the petition for lack of merit on November 24, 1992. Hence the filing of G.R. No.
108015. In a Resolution dated February 1, 1993, the SC denied the petition finding "no reversible error" committed by
the Court of Appeals. The De Knechts alleged:
1. CA committed a reversible error when it claimed 7327 was not an eminent domain proceeding
2. another error when CA upheld res judicata to bar the MFR
3. another error when CA refused for respondent judge to rule for the motion for inhibition

Issue:
1. Were the De Knechts denied due process when they were not sufficiently notified of the tax delinquency, the
auction sale, and the surrender of the owners duplicate for the tax lien?
2. Is the first civil case (2961-P) res judicata? Was there due process in this dismissal?
3. Is 7327 an expropriation case?
Held: Petition dismissed.
Ratio:
1. No.
The De Knechts claimed that they did not receive the notices for tax delinquency and the auction sale. That was why
they were unable to claim the property.

It has been ruled that the notices and publication, as well as the legal requirements for a tax delinquency sale, are
mandatory; and the failure to comply therewith can invalidate the sale. The prescribed notices must be sent to comply
with the requirements of due process.
The De knechts claim was a factual question and not to be answered in the SC. Moreover, the question had already
been answered in the previous cases in the appellate courts. Res judicata had already set in.
Res judicata is a ground for dismissal of an action. It is a rule that precludes parties from relitigating issues actually
litigated and determined by a prior and final judgment. It pervades every well-regulated system of jurisprudence, and
is based upon two grounds embodied in various maxims of the common law-- one, public policy and necessity, that
there should be a limit to litigation; and another, the individual should not be vexed twice for the same cause.
When a right of fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for
such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the
parties and those in privity with them in law or estate.
2. Yes. Yes.
Petitioners claim it wasnt due to the lack of judgment on the merits in the said case. Moreover, it was based by the
court on their lack of interest.
Court- "Lack of interest" is analogous to "failure to prosecute." (S 3, R 17 of ROC)
An action may be dismissed for failure to prosecute in any of the following instances: (1) if the plaintiff fails to appear
at the time of trial; or (2) if he fails to prosecute the action for an unreasonable length of time; or (3) if he fails to
comply with the Rules of Court or any order of the court.
They also requested for postponments which prompted Salem to move for dismissal. The court agreed. The order of
dismissal was based on the following factors: (1) pendency of the complaint for a considerable length of time; (2)
failure of counsel to appear at the scheduled hearing despite notice; and (3) lack of interest of the petitioners. Under
Section 3, Rule 17, a dismissal order which does not provide that it is without prejudice to the filing of another action is
understood to be an adjudication on the merits.
The Knechts contend, however, that the facts of the case do not call for the application of res judicata because this
amounts to "a sacrifice of justice to technicality." It must be noted that the Knechts were given the opportunity to assail
the tax sale and present their evidence on its validity in Civil Case No. 2961-P, the reconveyance case.
3. Yes. The Court of Appeals erred in declaring that Civil Case No. 7327 was not an expropriation case.
It was precisely in the exercise of the state's power of eminent domain under B.P. Blg. 340 that expropriation
proceedings were instituted against the owners of the lots sought to be expropriated.
B.P. Blg. 340 did not, by itself, lay down the procedure for expropriation. The law merely described the specific
properties expropriated and declared that just compensation was to be determined by the court. It designated the then
Ministry of Public Works and Highways as the administrator in the "prosecution of the project." Thus, in the absence of
a procedure in the law for expropriation, reference must be made to the provisions on eminent domain in Rule 67 of
the Revised Rules of Court.
The complaint must join as defendants all persons owning or claiming to own, or occupying, any part thereof or
interest therein.
The defendants in an expropriation case are not limited to the owners of the property condemned. They include all
other persons owning, occupying or claiming to own the property including a mortgagee, a lessee and a vendee in
possession under an executory contract. Every person having an estate or interest at law or in equity in the land taken
is entitled to share in the award.
The Knechts insist that although they were no longer the registered owners of the property at the time Civil Case No.
7327 was filed, they still occupied the property and therefore should have been joined as defendants in the
expropriation proceedings. They claim that they still occupied the land when it was expropriated and therefore had a
share.

Four months earlier, in January 1990, Civil Case No. 2961-P for reconveyance was dismissed with finality by this
Court and judgment was entered in February 1990. The Knechts lost whatever right or colorable title they had to the
property after we affirmed the order of the trial court dismissing the reconveyance case.
The Knechts' possession of the land and buildings was based on their claim of ownership not on any juridical title such
as a lessee, mortgagee, or vendee.
Indeed, the Knechts had no legal interest in the property by the time the expropriation proceedings were instituted.
They had no right to intervene and the trial court did not err in denying their "Motion for Intervention and to Implead
Additional Parties." Their intervention having been denied, the Knechts had no personality to move for the inhibition of
respondent Judge Sayo from the case.
Additional notes from full text:
The defendants in an expropriation case are not limited to the owners of the property condemned. They include all
other persons owning, occupying or claiming to own the property. When a parcel of land is taken by eminent domain,
the owner of the fee is not necessarily the only person who is entitled to compensation.[65] In the American
jurisdiction, the term "owner" when employed in statutes relating to eminent domain to designate the persons who are
to be made parties to the proceeding, refers, as is the rule in respect of those entitled to compensation, to all those
who have lawful interest in the property to be condemned,[66] including a mortgagee,[67] a lessee[68] and a vendee
in possession under an executory contract.[69] Every person having an estate or interest at law or in equity in the land
taken is entitled to share in the award.[70] If a person claiming an interest in the land sought to be condemned is not
made a party, he is given the right to intervene and lay claim to the compensation.[71]
The Knechts insist that although they were no longer the registered owners of the property at the time Civil Case No.
7327 was filed, they still occupied the property and therefore should have been joined as defendants in the
expropriation proceedings. When the case was filed, all their eight (8) houses were still standing; seven (7) houses
were demolished on August 29, 1990 and the last one on April 6, 1991. They claim that as occupants of the land at the
time of expropriation, they are entitled to a share in the just compensation.
Civil Case No. 7327, the expropriation case, was filed on May 15, 1990. Four months earlier, in January 1990, Civil
Case No. 2961-P for reconveyance was dismissed with finality by this Court and judgment was entered in February
1990. The Knechts lost whatever right or colorable title they had to the property after we affirmed the order of the trial
court dismissing the reconveyance case. The fact that the Knechts remained in physical possession cannot give them
another cause of action and resurrect an already settled case. The Knechts' possession of the land and buildings was
based on their claim of ownership,[72] not on any juridical title such as a lessee, mortgagee, or vendee. Since the
issue of ownership was put to rest in Civil Case No. 2961-P, it follows that their physical possession of the property
after the finality of said case was bereft of any legality and merely subsisted at the tolerance of the registered owners.
[73] This tolerance ended when Salem filed Civil Case No. 85-263 for unlawful detainer against the Knechts. As
prayed for, the trial court ordered their ejectment and the demolition of their remaining house.
Indeed, the Knechts had no legal interest in the property by the time the expropriation proceedings were instituted.
They had no right to intervene and the trial court did not err in denying their "Motion for Intervention and to Implead
Additional Parties." Their intervention having been denied, the Knechts had no personality to move for the inhibition of
respondent Judge Sayo from the case. The Court of Appeals therefore did not err in dismissing CA-G.R. SP No.
27817.

IN VIEW WHEREOF, the Petition in G.R. No. 109234 is dismissed and the Motion for Reconsideration in G.R. No.
108015 is denied. The decisions of the Court of Appeals in CA-G.R. SP No. 27817 and CA-G.R. SP No. 28089 are
affirmed.
NATIONAL HOUSING AUTHORITY, petitioner,
Presiding Judge

vs. HONORABLE PASTOR P. REYES, in his capacity as

G.R. No. L-49439 June 29, 1983

The undisputed fact that in this certiorari proceeding against respondent Judge for failure to comply with the provision
of the Presidential Decrees as to the amount to be paid by petitioner to entitle it to a writ of possession in an
expropriation proceeding, no question was raised as to their validity, calls for the grant of the remedy sought.

The controversy started with the filing of a complaint with the then Court of Agrarian Relations, Seventh Regional
District, Branch II, Cavite City, against private respondents, for the expropriation, pursuant to Presidential Decree No.
757, of a parcel of land, with an area of 25,000 square meters, owned and registered in the name of respondent
Quirino Austria, and needed for the expansion of the Dasmarias Resettlement Project.
1 Then came from petitioner about a year later a motion for the issuance of a writ of possession.
2 Petitioner was able to secure an order placing it in possession.
3 Thereafter, private respondent Quirino Austria filed a Motion to Withdraw Deposit in the amount of P6,600.00, a sum
which was equivalent to the value of the property assessed for taxation purposes and which was deposited by
petitioner pursuant to Presidential Decree No. 42 .
4 There was an Opposition to the Motion to Withdraw Deposit by petitioner, citing Section 92 of Presidential Decree
No. 464 which states: "Basis for payment of just compensation in expropriation proceedings. In determining such
compensation when private property is acquired by the government for public use, the same shall not exceed the
market value declared by the owner or administrator or anyone having legal interest in the property, or such market
value as determined by the assessor, whichever is lower."
5 Petitioner's submission is that the owner's declaration at P1,400.00 which is lower than the assessor's assessment,
is the just compensation for the respondents' property, respondents thus being precluded from withdrawing any
amount more than P1,400.00.
6 Respondent Judge, however, issued an order dated July 13, 1978 which, according to petitioner, is clearly contrary
to the letter and spirit of the aforecited laws.
7 There was a Motion for Reconsideration dated July 21, 1978.
8 Its basis is the provision in Presidential Decree No. 1224: "In the determination of just compensation for such private
lands and improvement to be expropriated, the government shall choose between the value of the real property and
improvements thereon as declared by the owner or administrator thereof or the market value determined by the City
or provincial assessor, whichever is lower, at the time of the filing of the expropriation complaint. "
9 It was then submitted that under the aforequoted statutory provision, the owner's declared market value at
P1,400.00 which is lower than that fixed by the assessor is the just compensation of respondent Quirino Austria's
property sought to be expropriated. The motion for reconsideration was denied for lack of merit. Hence, this petition.
On January 4, 1979, the Court issued the following resolution: "Considering the allegations contained, the issues
raised and the arguments adduced in the petition for certiorari and mandamus with preliminary injunction with prayer
for a restraining order, the Court Resolved without giving due course to the petition to require the respondents to
comment, not to file a motion to dismiss, within ten (10) days from notice. The Court further Resolved to issue a
temporary restraining order, effective as of this date and continuing until otherwise ordered by the Court." 10 The
comment was thereafter submitted by private respondents Quirino Austria and Luciano Austria.
Private respondents stress that while there may be basis for the allegation that respondent Judge did not follow
Presidential Decree No. 76 as amended by Presidential Decree No. 464, as further amended by Presidential Decree
Nos. 794, 1224 and 1259, the matter is still subject to his final disposition, he having been vested with the original and
competent authority to exercise his judicial discretion in the light of the constitutional provisions. 11 There was a
comment likewise submitted by counsel on behalf of respondent Judge but again, there was no question raised as to
the validity of the aforementioned Decrees. Such comments were considered as answers. The case was originally
submitted to the Second Division, and in a resolution of February 21, 1979, it referred this case to the Court en banc.
Under the state of the pleadings as submitted to this Court, it is evident why, as noted at the outset, certiorari lies.
1.
One of the basic postulates in constitutional law is the presumption of validity of legislative or executive acts.
In Angara v. Electoral Commission 12 the leading case on the subject until now, Justice Laurel, in speaking of judicial
review, made clear that it is not for the judiciary to "pass upon questions of wisdom, justice or expediency of
legislation." 13 His landmark opinion continues: "More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the government. " 14 As

pointed out in Ermita-Malate Hotel & Motel Operators Association, Inc. v. City Mayor of Manila: 15 "Primarily what calls
for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a
challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor
of validity ..." 16 As of this stage in this particular case, there is a failure to challenge the validity of such legislation.
Both public and private respondents in their comments considered as answers raised no such constitutional question.
Even for it, therefore, as of this stage of litigation, and under the conceded facts, there should be a recognition that the
law as it stands must be applied. The Decree having spoken so clearly and unequivocally calls for obedience. It is
repeating a common place to state that on a matter where the applicable law speaks in no uncertain language, the
Court has no choice except to yield to its command.
2.
Nor is there any choice for petitioner National Housing Authority for precisely it was created for the laudable
purpose of "urban land reform." 17 The first whereas clause speaks of the "magnitude of the housing problem of the
country" which "has grown into such proportions that only a purposeful, determined, organized mass housing
development program can meet the needs of Filipino families" for decent housing. 18 Moreover, the Presidential
Decree is mandated by the Constitution which requires the State to "establish, maintain, and ensure adequate social
services in the field of ... housing ..." as well as "to guarantee the enjoyment of the people of a decent standard of
living." 19 The very first section of the Decree speaks of the following: "Pursuant to the mandate of the New
Constitution, there shall be developed a comprehensive and integrated housing program which shall embrace, among
others, housing development and resettlement, sources and schemes of financing, and delineation of government and
private sector participation. The program shall specify the priorities and targets in accordance with the integrated
national human settlements plan prepared by the Human Settlements Commission. " 20 In view of the urgency of the
housing problem the various decrees mentioned earlier were issued for the purpose of assuring that the government
would be in a financial position to cope with such basic human need which in the Philippines, under the welfare state
concept, and according to the express language of the Constitution, is an obligation cast upon the State. The
memorandum for petitioner submitted by Government Corporate Counsel, now likewise the Presidential Legal
Assistant, Justice Manuel M. Lazaro, pursues the matter further in prose impressed with force and clarity: "The issue
in this petition for certiorari and mandamus involves the application of a rule introduced by P.D. No. 76 and reiterated
in subsequent decrees that not only promotes social justice but also ends the baneful and one-sided practice abetted
by the collusive acquiescence of government officials and employees, of under declaring properties for the purpose of
taxation but ballooning the price thereof when the same properties are to be acquired by the government for public
purposes. Put to the test, therefore, is the power of the government to introduce rationality in the laws and to
discourage a deceitful practice that is not only ruinous to the government coffers but also undermines its efforts at
awakening a democratic responsiveness of the citizenry toward good government and its economic and social
programs. The courts should recognize that the rule introduced by P.D. No. 76 and reiterated in subsequent decrees
does not upset the established concepts of justice or the constitutional provision on just compensation for, precisely,
the owner is allowed to make his own valuation of his property." 21
WHEREFORE, the writ of certiorari is granted and the order of respondent Judge of July 13, 1978 is hereby nullified
and set aside. The restraining order issued by this Court on January 4, 1979 is hereby made permanent. The case is
remanded to the lower court for further action conformably to law and to the above opinion. No costs.
EPZA VS. DULAY [148 SCRA 305; G.R. No. L-59603; 29 Apr 1987]
Facts: The four parcels of land which are the subject of this case is where the Mactan Export Processing Zone
Authority in Cebu (EPZA) is to be constructed. Private respondent San Antonio Development Corporation (San
Antonio, for brevity), in which these lands are registered under, claimed that the lands were expropriated to the
government without them reaching the agreement as to the compensation. Respondent Judge Dulay then issued an
order for the appointment of the commissioners to determine the just compensation. It was later found out that the
payment of the government to San Antonio would be P15 per square meter, which was objected to by the latter
contending that under PD 1533, the basis of just compensation shall be fair and according to the fair market value
declared by the owner of the property sought to be expropriated, or by the assessor, whichever is lower. Such
objection and the subsequent Motion for Reconsideration were denied and hearing was set for the reception of the
commissioners report. EPZA then filed this petition for certiorari and mandamus enjoining the respondent from further
hearing the case.
Issue: Whether or Not the exclusive and mandatory mode of determining just compensation in PD 1533 is
unconstitutional.
Held:

The Supreme Court ruled that the mode of determination of just compensation in PD 1533 is unconstitutional.

The method of ascertaining just compensation constitutes impermissible encroachment to judicial prerogatives. It
tends to render the courts inutile in a matter in which under the Constitution is reserved to it for financial determination.
The valuation in the decree may only serve as guiding principle or one of the factors in determining just compensation,
but it may not substitute the courts own judgment as to what amount should be awarded and how to arrive at such
amount. The determination of just compensation is a judicial function. The executive department or the legislature may
make the initial determination but when a party claims a violation of the guarantee in the Bill of Rights that the private
party may not be taken for public use without just compensation, no statute, decree, or executive order can mandate
that its own determination shall prevail over the courts findings. Much less can the courts be precluded from looking
into the justness of the decreed compensation.
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