PUBLIC LAW branch of law which deals with the State, state agencies and the prot ection

n of state interests. (Branches: Political Law, Criminal Law, International Law.) PRIVATE LAW - branch of law which deals with the relationship between and among the individuals. (Branches: Civil Law, Commercial Law) POLITICAL LAW branch of public law which deals with the organization and operati on of the governmental organs of the State and defines the relations of the Stat e with the inhabitants of its territory. (Subdivisions: Law on Public Administra tion, Constitutional Law, Administrative Law, Law on Public Corporations.) CONSTITUTIONAL LAW a term used to designate the law embodied in the constitution and the legal principles growing out of the interpretation and application made by the courts of the provisions of the constitution in specific cases. Sinco CONSTITUTION body of rules and maxims with which the powers of the sovereignty a re habitually exercised. Cooley CONSTITUTIONAL LAW II deals with the relationship between the State and the inha bitants of its territory. [The RELATIONSHIP refers to rights and obligations.] JUDICIAL REVIEW the power of the courts to test the validity of executive and le gislative acts in light of their conformity with the Constitution. (1) Ordinary Judicial Review will determine only the issue of legality or consti tutionality. (2) Expanded Judicial Review whether or not there has been a grave abuse of disc retion amounting to lack or excess application of power. JUDICIAL POWER includes the power of the court to settle actual controversies in volving rights which are legally demandable and enforceable. FUNCTIONS OF JUDICIAL REVIEW (1) CHECKING invalidating a law or an executive act that is found to be contrary to the Constitution. (2) LEGITIMATING upholding the validity of the law which results from a mere dis missal of a case challenging the validity of the law. (3) SYMBOLIC to educate the bench and bar as to the controlling principles and concepts on matters of great public importance. REQUISITES OF JUDICIAL REVIEW (1) Actual Case or Controversy A conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination. A request for an advisory opinion is not an actual case or controversy. But an a ction for declaratory relief is proper for judicial determination. Issues raised must not be moot and academic; nevertheless, courts will decide a question otherwise moot, if it is capable of repetition yet evading review. (2) Proper Party The constitutional question must be raised by the proper party. A proper party is one who has sustained or is in the imminent danger of sustaini ng an injury as a result of the act complained of. Legal Standing is defined as a personal and substantial interest in the case suc h that the party has sustained or will sustain direct injury as the result of th e government act. Interest means a material interest, an interest in issue affected by the decree . Additional Requirements: (3) As a general rule, the question of constitutionality must be raised as the e arliest opportunity, so that if not raised by the pleading ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not be co nsidered on appeal. Exception: Courts in the exercise of sound discretion, may determine the time w hen a question affecting constitutionality of a statute should be presented (PP v. Vera, 65 Phil 56). (4) As a general rule, courts will not touch the issue of unconstitutionality un less it is really unavoidable or is the very list mota of the case. DOCTRINE OF CONSTITUTIONAL SUPREMACY

Implications: 1. Constitution itself, that it is deemed written in every contract and sta tutes. (Mla. Prince Hotel v. GSIS) 2. As the fundamental law, the Constitution is always supreme. 3. In times of conflict, the Constitution will always prevail. Fundamental Powers of the State 1. Police Power the power of the State authority to enact legislations that may interfere with personal liberty and property in order to promote the genera l welfare. (Agustin v. Edu) An inherent attribute of sovereignty. (MMDA v. Bel-Air) Power vested in the legislature to make, ordain, and establish all manner of who lesome and reasonable laws, statutes and ordinances, either with penalties or wi thout, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth. (MMDA v. Bel-Air) a. Police Power can be viewed in two ways: >Positive the power to prescribe regulations to promote the health, morals, peac e, education, good order or safety, and general welfare of the people. >Negative that inherent and plenary power in the State which enables it to prohi bit all things hurtful to the comfort, safety and welfare of society. (Agustin v . Edu) b. Scope Police power is so extensive and so comprehensive that the courts have refused to give it an exact definition; neither have they attempted to define its definiti on its limitation depends the security of social order the life and health of the citizens, the comfort of an existence in a thickly populated community, the enj oyment of private and social life and the beneficial use of property. It extends to the protection of the lives, limbs, health, comfort and quiet of all persons and the protection of all property within the state.(U.S. v. Torribio). It has been said the police power is so far - reaching in scope, that it has beco me almost impossible to limit its sweep. As it derives its existence from the ve ry existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the m ost essential, insistent and illimitable. Especially is it so under a modern dem ocratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have transcended human foresight. Otherwise sta ted, as we cannot foresee the needs and demands of public interest and welfare i n this constantly changing and progressive world, so we cannot delimit beforehan d the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not de fine the scope or extent of the police power of the State; what they do is to se t forth the limitations thereof. The most important of these are the due process clause and the equal protection clause.(Ichong v Hernandez). Far reaching as long as it covers public interest and public welfare. The most essential, insistent and least illimitable powers extending to all grea t public needs. Must be elastic and must be responsive to various social conditions. (Sangalang v. IAC, cited in Binay v. Domingo) Note: Police power is not capable of an exact definition, if we will put a defin ition this would tantamount to limiting a flexible concept. c. How exercised? Through legislation d. Who can exercise? There can be no doubt that the exercise of the police power of the Philippine Gov ernment belongs to the Legislature and that this power is limited only by the Ac ts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interfer

es with the ordinary enjoyment of property would, without doubt, be held to be i nvalid. But where the Act is reasonably within a proper consideration of and car e for the public health, safety, or comfort, it should not be disturbed by the c ourts. The courts cannot substitute their own views for what is proper in the pr emises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the Un ited States Supreme Court states the rule thus: "If no state of circumstances co uld exist to justify such statute, then we may declare this one void because in excess of the legislative power of this state; but if it could, we must presume it did. Of the propriety of legislative interference, within the scope of the le gislative power, a legislature is the exclusive judge." (cited in Churchill v Ra fferty). Note: can be exercised only by an agency with legislative power. State [Congress] it is inherent Consequence: 1. Needs no constitutional conferment. 2. Limited judicial intervention, because of the Supreme Courts expand ed certiorari jurisdiction. (see discussion on eminent domain. ) Local Government Units (LGU) the power is delegated Consequence: 1. Should be conferred by a statute or law 2. Exercise is limited; it should be performed in accordance with the mandat e of the delegating agency. 3. Greater elbow room for judicial review. e. Elements for valid exercise There is no need to redefine here the police power of the State. Suffice it to re peat that the power is validly exercised if (a) the interests of the public gene rally, as distinguished from those of a particular class, require the interferen ce of the State, and (b) the means employed are reasonably necessary to the atta inment of the object sought to be accomplished and not unduly oppressive upon in dividuals. (DECS vs. San Diego) 1. Interest of the public generally, as distinguished from that of a partic ular class [lawful subject]. 2. The means employed are reasonably necessary to the attainment of the obj ect sought to be accomplished and not unduly oppressive upon individuals [lawful means]. f. What may be regulated under the Police Power? 1. Lawful subject: anything which touches on the interest of the public (re fer to the subsequent cases) 2. Lawful means: reasonably necessary to achieve the subject. (refer to the subsequent cases) Note: lawful subject: public safety Lawful means: three-flunked rule The subject of the challenged regulation is certainly within the ambit of the po lice 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 purpos e 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. While every person is entitled to aspire to be a doctor, he does not have a cons titutional 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 o ne's ambition. The State has the responsibility to harness its human resources a nd 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 g ood while also giving the individual a sense of satisfaction. A person cannot insist on being a physician if he will be a menace to his patien

ts. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a stu dent who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others. (DECS vs. san diego) Note: lawful subject: public safety Lawful means: 500 meter gas station rule It is a well recognized function of the police power to promote the public safet y by regulating dangerous occupation, restraining dangerous practices, and prohi biting dangerous structures. The storing handing, and use of inflammable and explosive substances, being atte nded with danger, may be regulated under the police power. Thus the explosion of fireworks may be prohibited; and it is within the police power of a municipalit y, when it is deemed necessary for public safety, to prohibit the blasting of ro cks with gunpowder within the city limits without the written consent of the boa rd of aldermen. Cities and towns have power, under the general welfare provisions of statutes an d charters, to enact reasonable ordinances relating to the selling and distribut ion oil, gasoline, an other petroleum product, within their boundaries, defining where and how filling station may be constructed and operated and regulating th e use of right ways across sidewalks to such stations; and a vested right cannot be asserted against the proper exercise of such police power. An ordinance forbidding the granting of a permit or license for such a station i n any location where, by reason of traffic condition or fire hazards, it would i mperil the public safety, or authorizing the denial of the same if such station is found to be against the public interest, is a proper exercise of the police p ower, and is not invalid as denying the equal of the police power, and is not in valid as denying the equal protection of the law or leaving the granting or refu sal of the permit to the arbitrary will of the municipal official with the issua nce thereof. (42 C. J., p. 1306; State vs. Fleming, supra.) According to the above-cited authorities it is evidence that the municipal board of the City of Manila had the power to enact ordinance No. 1985 by virtue of th e police power delegated to it by the Legislature, and consequently, said ordina nce is valid and binding.(Javier vs. Earnshaw).

Note: Lawful subject: public morals Lawful means: registration in motels must be in full view in order to crash out clandestine entry and therefore shutter prostitution and adultery. There is no question but that the challenged ordinance was precisely enacted to m inimize certain practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a n ecessary atmosphere for clandestine entry, presence and exit" and thus become th e "ideal haven for prostitutes and thrill-seekers." The challenged ordinance the n proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registratio n form, prepared for the purpose, in a lobby open to public view at all times, a nd by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of th e ordinance, argues eloquently for it. (Ermita-Malate Hotel Operators Assoc v. C ity of Manila)

Note: Lawful subject: public health and safety Lawful means: all 1st run theaters/ cinematographs should register their seating capacity with the city treasurer. To the foregoing must be added, and this is of common knowledge, that the films w hich are shown for the first time attract a large attendance, and the theatre or cinematograph, whether it is first or second class, presenting shows for the fi rst time, would be suffocatingly overcrowded if the number of tickets were not l imited. This is the reason for the prohibition of the sale of tickets in excess of the seating capacity. The prohibition applies with equal force wherever the s ame reason exists, that is, to first and second class theatres which show films for the first time. (pp v. chan) Note: Lawful subject: public welfare (affordable drugs) Lawful means: generics drugs act 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 circu mvention of the law. It secures to the patient the right to choose between the b rand name and its generic equivalent since his doctor is allowed to write both t he generic and the brand name in his prescription form. If a doctor is allowed t o prescribe a brand-name drug with "no substitution," the patient's option to bu y a lower-priced, but equally effective, generic equivalent would thereby be cur tailed. 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 gen erally healthy minority. (del Rosario vs. Bengzon)

2. Eminent Domain 1987 Consti. Article III, Section 9: Private property shall not be taken for pub lic use without just compensation. I. Definition, Nature and Functions Eminent domain, the power which the Municipality of Bunawan exercised in the inst ant case, is a fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the n ational legislature, the power of eminent domain may be validly delegated to loc al governments, other public entities and public utilities. For the taking of pr ivate property by the government to be valid, the taking must be for public use and there must be just compensation. (Moday vs. CA) xxx It is recognized by all writers that the power of eminent domain is inseparab le from sovereignty being essential to the existence of the State and inherent i n government even in its most primitive forms. Philosophers and legists may diff er as to the grounds upon which the exercise of this high power is to be justifi ed, but no one can question its existence. No law, therefore, is ever necessary to confer this right upon sovereignty or upon any government exercising sovereig n or quasi-sovereign powers. The power of eminent domain does not depend for its existence on a specific gran t in the constitution. It is inherent in sovereignty and exists in a sovereign s tate without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the publi c use do not by implication grant the power to the government of the state, but limit a power which would otherwise be without limit. (Visayan Refining Co. vs. C amus and Paredes) Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an indispensable at

tribute of sovereignty; a power grounded in the primary duty of government to se rve the common need and advance the general welfare. Thus, the right of eminent domain appertains to every independent government without the necessity for cons titutional recognition. The provisions found in modern constitutions of civilize d countries relating to the taking of property for the public use do not by impl ication grant the power to the government, but limit a power which would otherwi se be without limit. Thus, our own Constitution provides that "[p]rivate propert y shall not be taken for public use without just compensation." Furthermore, the due process and equal protection clauses act as additional safeguards against t he arbitrary exercise of this governmental power. (Heirs of Alberto Suguitan vs. City of Mandaluyong) Eminent domain, also often referred to as expropriation and, with less frequency , as condemnation, is, like police power and taxation, an inherent power of sove reignty. It need not be clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject are meant more to regulate, rathe r than to grant, the exercise of the power. Eminent domain is generally so desc ribed as the highest and most exact idea of property remaining in the government t hat may be acquired for some public purpose through a method in the nature of a forced purchase by the State. It is a right to take or reassert dominion over pr operty within the state for public use or to meet a public exigency. It is said to be an essential part of governance even in its most primitive form and thus i nseparable from sovereignty. The only direct constitutional qualification is tha t private property shall not be taken for public use without just compensation. Th is proscription is intended to provide a safeguard against possible abuse and so to protect as well the individual against whose property the power is sought to be enforced.(Manosca vs. CA) II. How exercised? Through legislation III. Who may exercise? 1. Congress 2. Local Government Units >Issue of Necessity a. Congress political question b. LGU justiciable question Upon the question whether expropriation is a legislative function exclusively, an d that the courts cannot intervene except for the purpose of determining the val ue of the land in question, there is much legal legislature. Much has been writt en upon both sides of that question. A careful examination of the discussions pr o and con will disclose the fact that the decisions depend largely upon particul ar constitutional or statutory provisions. It cannot be denied, if the legislatu re under proper authority should grant the expropriation of a certain or particu lar parcel of land for some specified public purpose, that the courts would be w ithout 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 present ed, concerning whether or not the lands were private and whether the purpose was , in fact, public. xxx The legislature, in providing for the exercise of the power of emin ent domain, may directly determine the necessity for appropriating private prope rty for a particular improvement for public use, and it may select the exact loc ation 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 constructi on, 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 p ower to interfere, or to substitute their own views for those of the representat ives of the people. (City of Manila vs. Chinese Community of Manila)

Remember: Courts to determine a. If the law or authority exists for the exercise of the right of Eminent Domain b. If the right or authority is exercised in accordance with law. The power of eminent domain is essentially legislative in nature. It is firmly se ttled, however, that such power may be validly delegated to local government uni ts, other public entities and public utilities, although the scope of this deleg ated legislative power is necessarily narrower than that of the delegating autho rity and may only be exercised in strict compliance with the terms of the delega ting law. (Heirs of Alberto Suguitan vs. City of Mandaluyong) 1987 Consti. Art. VIII Section 5. The Supreme Court shall have the following pow ers: 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus , quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower court s in: (a) All cases in which the constitutionality or validity of any treaty, internat ional or executive agreement, law, presidential decree, proclamation, order, ins truction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or hig her. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public intere st may require. Such temporary assignment shall not exceed six months without th e consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the p ractice of law, the integrated bar, and legal assistance to the under-privileged . Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and sh all not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remaineffective unless disapprove d by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Remember: the expanded certiorari jurisdiction of the Supreme Court stated above , enables the Court to determine whether or not there has been grave abuse of di scretion resulting to excess or lack of jurisdiction on the part of Congress in the performance of their actions. 3. Private Corp. Or quasi-public authorities As long as there is a public function Requirement: as long as there is a law which empowers it.

IV. Requisites for the exercise of Eminent Domain by the LGU: The courts have the obligation to determine whether the following requisites hav e been complied with by the local government unit concerned: a. An ordinance is enacted by the local legislative council authorizing the

local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular pr ivate property . >Difference of an Ordinance and a Resolution: The Court in no uncertain terms have pronounced that a local government unit cann ot authorize an expropriation of private property through a mere resolution of i ts lawmaking body. R.A. No. 7160 otherwise known as the Local Government Code ex pressly requires an ordinance for the purpose and a resolution that merely expre sses the sentiment of the municipal council will not suffice. A resolution will not suffice for an LGU to be able to expropriate private prope rty; and the reason for this is settled: x x x A municipal ordinance is different from a resolution. An ordinance is a la w, but a resolution is merely a declaration of the sentiment or opinion of a law making body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are e nacted differently -- a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian memb ers. If Congress intended to allow LGUs to exercise eminent domain through a mere res olution, it would have simply adopted the language of the previous Local Governm ent Code. But Congress did not. In a clear divergence from the previous Local Go vernment Code, Sec. 19 of R.A. [No.] 7160 categorically requires that the local chief executive act pursuant to an ordinance. x x x As respondent's expropriation in this case was based merely on a resolution, suc h expropriation is clearly defective. While the Court is aware of the constituti onal policy promoting local autonomy, the court cannot grant judicial sanction t o an LGU's exercise of its delegated power of eminent domain in contravention of the very law giving it such power (Beluso vs. Municipality of Panay) b. The power of eminent domain is exercised for public use, purpose or welf are, or for the benefit of the poor and the landless. c. There is payment of just compensation, as required under Section 9, Arti cle III of the Constitution, and other pertinent laws. d. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (Heirs of A lberto Suguitan vs. City of Mandaluyong)

V. Taking Taking' under the power of eminent domain may be defined generally as entering u pon private property for more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. Pursuant to the aforecited authority, a number of circumstances must be present in the "taking" of property for purposes of eminent domain. First, the expropriator must enter a private property. This circumstance is pres ent in the instant case, when by virtue of the lease agreement the Republic, thr ough the AFP, took possession of the property of Castellvi. Second, the entrance into private property must be for more than a momentary per iod. "Momentary" means, "lasting but a moment; of but a moment's duration" (The Oxford English Dictionary, Volume VI, page 596); "lasting a very short time; tra nsitory; having a very brief life; operative or recurring at every moment" (Webs ter's Third International Dictionary, 1963 edition.) The word "momentary" when a pplied to possession or occupancy of (real) property should be construed to mean "a limited period" not indefinite or permanent. The aforecited lease contract w as for a period of one year, renewable from year to year. The entry on the prope rty, under the lease, is temporary, and considered transitory. The fact that the

Republic, through the AFP, constructed some installations of a permanent nature does not alter the fact that the entry into the land was transitory, or intende d 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 intenti on of the lessee was to occupy the land permanently, as may be inferred from the construction of permanent improvements. But this "intention" cannot prevail ove r the clear and express terms of the lease contract. Intent is to be deduced fro m the language employed by the parties, and the terms 'of the contract, when una mbiguous, as in the instant case, are conclusive in the absence of averment and proof of mistake or fraud the question being not what the intention was, but wha t is expressed in the language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover , in order to judge the intention of the contracting parties, their contemporane ous and subsequent acts shall be principally considered (Art. 1371, Civil Code). If the intention of the lessee (Republic) in 1947 was really to occupy permanen tly Castellvi's property, why was the contract of lease entered into on year to year basis? Why was the lease agreement renewed from year to year? Why did not t he Republic expropriate this land of Castellvi in 1949 when, according to the Re public itself, it expropriated the other parcels of land that it occupied at the same time as the Castellvi land, for the purpose of converting them into a jet air base? 14 It might really have been the intention of the Republic to expropri ate the lands in question at some future time, but certainly mere notice - much less an implied notice of such intention on the part of the Republic to expropri ate the lands in the future did not, and could not, bind the landowner, nor bind the land itself. The expropriation must be actually commenced in court (Republi c vs. Baylosis, et al., 96 Phil. 461, 484). Third, the entry into the property should be under warrant or color of legal aut hority. This circumstance in the "taking" may be considered as present in the in stant case, because the Republic entered the Castellvi property as lessee. Fourth, the property must be devoted to a public use or otherwise informally app ropriated or injuriously affected. It may be conceded that the circumstance of t he property being devoted to public use is present because the property was used by the air force of the AFP. Fifth, the utilization of the property for public use must be in such a way as t o oust the owner and deprive him of all beneficial enjoyment of the property. In the instant case, the entry of the Republic into the property and its utilizati on of the same for public use did not oust Castellvi and deprive her of all bene ficial enjoyment of the property. Castellvi remained as owner, and was continuou sly recognized as owner by the Republic, as shown by the renewal of the lease co ntract 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 termi nated. Neither was Castellvi deprived of all the beneficial enjoyment of the pro perty, because the Republic was bound to pay, and had been paying, Castellvi the agreed monthly rentals until the time when it filed the complaint for eminent d omain on June 26, 1959. (Republic vs. Vda. De Castellvi). Remember: For simplification, the elements of taking are, 1. The expropriator must enter a private property. The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based on the assumption that air time is finished product which, it is said, become the property of the company, like oil produced from refining or similar natural resources after undergoing a process for their production. Bu t air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v. F.C.C., which upheld the right of a party personally attacked to reply, l icenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. Consequently, a license permits broadcast ing, but the licensee has no constitutional right to be the one who holds the li cense or to monopolize a radio frequency to the exclusion of his fellow citizens

. There is nothing in the First Amendment which prevents the Government from re quiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which ar e representative of his community and which would otherwise, by necessity, be ba rred from the airwaves. 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. (TELEBAP vs. COMELEC) Note: The object of Eminent Domain is private property. Therefore public propert ies are not subject to Eminent Domain proceedings. 2. The entrance into the private property must be for more than a momentary period. 3. The entry into the property should be under warrant or color of legal au thority. In this case, the petitioner's entrance in 1978 was without intent to expropriate o r was not made under warrant or color of legal authority, for it believed the pr operty was a public land covered by Proclamation No. 1354. When the private resp ondent raised his claim of ownership sometime in 1979, the petitioner flatly ref used the claim for compensation, nakedly insisted that the property was public l and and wrongly justified its possession by alleging it had already paid financia l assistance' to Marawi City in exchange for the rights of the property. Only in 1 990, after more than a decade of beneficial use, did the petitioner recognize th e private respondent's ownership and negotiated for the voluntary purchase of the property. xxx Clearly, this is not the intent nor the expropriation contemplated by law. This is a simple attempt at a voluntary purchase and sale. (NAPOCOR vs. CA) Remember: Entry under the warrant or color of authority therefore means that at the onset the purpose for the taking of the property is for expropriation. 4. The property must be devoted to a public use or otherwise informally app ropriated or injuriously affected. Note: Socialized Housing is for Public Use Petitioners contend that "socialized housing" as defined in Pres. Decree No. 122 4, as amended, for the purpose of condemnation proceedings is not "public use" s ince it will benefit only "a handful of people, bereft of public character." "Socialized housing" is defined as, "the construction of dwelling units for the middle and lower class members of our society, including the construction of the supporting infrastructure and other facilities" The "public use" requirement for a and exercise of the power of eminent domain i s a flexible and evolving concept influenced by changing conditions. In this jur isdiction, the statutory and judicial trend has been summarized as follows: The taking to be valid must be for public use. There was a time when it was felt tha t a literal meaning should be attached to such a requirement. Whatever project i s undertaken must be for the public to enjoy, as in the case of streets or parks . Otherwise, expropriation is not allowable. It is not anymore. As long as the p urpose of the taking is public, then the power of eminent domain comes into play . As just noted, the constitution in at least two cases, to remove any doubt, de termines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the exercise of this power, of utilities and other private enterprise t o the government. It is accurate to state then that at present whatever may be b eneficially employed for the general welfare satisfies the requirement of public use [Heirs of Juancho Ardona v. Reyes, G.R. Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA 220 (1983) at 234-5 quoting E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 523-4, (2nd ed., 1977) Emphasis supplied]. The term "public use" has acquired a more comprehensive coverage. To the literal import of the term signifying strict use or employment by the public has been a dded the broader notion of indirect public benefit or advantage. As discussed in the above cited case of Heirs of Juancho Ardona: Specifically, urban renewal or redevelopment and the construction of low-cost ho using is recognized as a public purpose, not only because of the expanded concep

t of public use but also because of specific provisions in the Constitution. The 1973 Constitution made it incumbent upon the State to establish, maintain and e nsure adequate social services including housing [Art. 11, sec. 7]. The 1987 Con stitution goes even further by providing that: The state shall by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to unde rprivileged and homeless citizens in urban centers and resettlement areas. It sh all also promote adequate employment opportunities to such citizens. In the impl ementation of such program the State shall respect the rights of small property owners. (Art. XIII, sec. 9, Emphaisis supplied) Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environme nt and in sum, the general welfare. The public character of housing measures doe s not change because units in housing projects cannot be occupied by all but onl y by those who satisfy prescribed qualifications. A beginning has to be made, fo r it is not possible to provide housing for are who need it, all at once. Population growth, the migration to urban areas and the mushrooming of crowded m akeshift dwellings is a worldwide development particularly in developing countri es. So basic and urgent are housing problems that the United Nations General Ass embly proclaimed 1987 as the "International Year of Shelter for the Homeless" "t o focus the attention of the international community on those problems". The Gen eral Assembly is Seriously concerned that, despite the efforts of Governments at the national and local levels and of international organizations, the driving c onditions of the majority of the people in slums and squatter areas and rural se ttlements, especially in developing countries, continue to deteriorate in both r elative and absolute terms." [G.A. Res. 37/221, Yearbook of the United Nations 1 982, Vol. 36, p. 1043-4] In the light of the foregoing, this Court is satisfied that "socialized housing" fans within the confines of "public use". It is, particularly important to draw attention to paragraph (d) of Pres. Dec. No. 1224 which opportunities inextrica bly linked with low-cost housing, or slum clearance, relocation and resettlement , or slum improvement emphasize the public purpose of the project. (Sumulong vs. Guerrero) The governing law that deals with the subject of expropriation for purposed of ur ban land reform and housing in Republic Act No. 7279 (Urban Development and Hous ing Act of 1992) and Sections 9 and 10 of which specifically provide as follows: Sec. 9. Priorities in the acquisition of Land Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its sub-divisions, instrumentalitie s, or agencies, including government-owned or controlled corporations and their s ubsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and Resettlement Program sites which have not yet be en acquired; (e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and (f) Privately-owned lands. Where on-site development is found more practicable and advantageous to the bene ficiaries, the priorities mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of governm ent lands. Sec. 10. Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land a ssembly or consolidation, land banking, donation to the Government, joint ventur e agreement, negotiated purchase, and expropriation: Provided, however, That ex propriation shall be resorted to only when other modes of acquisition have been

exhausted: Provided further, That where expropriation is resorted to, parcels o f land owned by small property owners shall be exempted for purposes of this Act : Provided, finally, That abandoned property, as herein defined, shall be rever ted and escheated to the State in a proceeding analogous to the procedure laid d own in Rule 91 of the Rules of Court. For the purpose of socialized housing, government-owned and foreclosed propertie s shall be acquired by the local government units, or by the National Housing Au thority primarily through negotiated purchase: Provided, That qualified benefic iaries who are actual occupants of the land shall be given the right of first re fusal. (Filstream Intl Inc vs. CA) Note: Cultural Enhancement is for public Use The term public use, not having been otherwise defined by the constitution, must b e considered in its general concept of meeting a public need or a public exigenc y. Black summarizes the characterization given by various courts to the term; th us: Public Use. Eminent domain. The constitutional and statutory basis for taking p roperty by eminent domain. For condemnation purposes, public use' is one which conf ers same benefit or advantage to the public; it is not confined to actual use by public. It is measured in terms of right of public to use proposed facilities for which condemnation is sought and, as long as public has right of use, whethe r exercised by one or many members of public, a public advantage' or public benefit' a ccrues sufficient to constitute a public use. Public use, in constitutional provi sions restricting the exercise of the right to take private property in virtue o f eminent domain, means a use concerning the whole community as distinguished fr om particular individuals. But each and every member of society need not be equ ally interested in such use, or be personally and directly affected by it; if th e object is to satisfy a great public want or exigency, that is sufficient. Rind ge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The term may be said to mean public usefulness, utility, or advantage, or what i s productive of general benefit. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individ ual. The use must be a needful one for the public, which cannot be surrendered w ithout obvious general loss and inconvenience. A public use' for which land may be taken defies absolute definition for it changes with varying conditions of soci ety, new appliances in the sciences, changing conceptions of scope and functions of government, and other differing circumstances brought about by an increase i n population and new modes of communication and transportation. Katz v. Brandon, 156 Conn., 521, 245 A.2d 579,586. The validity of the exercise of the power of eminent domain for traditional purp oses is beyond question; it is not at all to be said, however, that public use s hould thereby be restricted to such traditional uses. The idea that public use is strictly limited to clear cases of use by the public has long been discarded. Thi s Court in Heirs of Juancho Ardona v. Reyes, quoting from Berman v. Parker (348 U.S. 25; 99 L. ed. 27), held: x x x A historical research discloses the meaning of the term public use' to be one of constant growth. As society advances, its demands upon the individual increa se and each demand is a new use to which the resources of the individual may be devoted. x x x for whatever is beneficially employed for the community is a publi c use.' xxx This attempt to give some religious perspective to the case deserves little c onsideration, for what should be significant is the principal objective of, not the casual consequences that might follow from, the exercise of the power. The purpose in setting up the marker is essentially to recognize the distinctive con tribution of the late Felix Manalo to the culture of the Philippines, rather tha n to commemorate his founding and leadership of the Iglesia ni Cristo. The prac tical reality that greater benefit may be derived by members of the Iglesia ni C risto than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. Indeed, that only a fe w would actually benefit from the expropriation of property does not necessarily

diminish the essence and character of public use. (Manosca vs. CA) 5. The utilization of the property should be in such a way to oust the owne r and deprive him of all beneficial enjoyment of the property. It is hard to conceive how the jurisdiction, supervision and control of the appel lee's waterworks system may be vested in the appellant without destroying the in tegrity of the appellee's right of dominion. Ownership is nothing without the in herent rights of possession, control and enjoyment. Where the owner is deprived of the ordinary and beneficial use of his property or of its value by its being diverted to public use, there is taking within the constitutional sense. Taada & Fernando, Constitution of the Philippines, 4th ed., Vol. I, pp. 215-216. Such de privation would be the certain consequence if, as prayed for by the appellant, i t should be allowed to assume jurisdiction, supervision and control over the wat erworks system of the appellee. That would be little less than an assumption of ownership itself and not of mere administration. (Municipality of La Carlota vs. NAWASA) Note: even if the Municipality was the owner of the Waterworks system, they were deprived of the jurisdiction, supervision and control of it. This deprivation o f the benefits of the waterworks system is tantamount to taking. xxx 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 telep hone system and that of the PLDT, as the needs of the government service may req uire, 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 appr opriation of title to, and possession of, the expropriated property; but no coge nt reason appears why the said power may not be availed of to impose only a burd en upon the owner of condemned property, without loss of title and possession. I t 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 allo w inter-service connection between both telephone systems is not much different. In either case private property is subjected to a burden for public use and ben efit. If, under section 6, Article XIII, of the Constitution, the State may, in the interest of national welfare, transfer utilities to public ownership upon pa yment of just compensation, there is no reason why the State may not require a p ublic utility to render services in the general interest, provided just compensa tion is paid therefor. Ultimately, the beneficiary of the interconnecting servic e would be the users of both telephone systems, so that the condemnation would b e for public use. (Republic vs. PLDT) Note: Deprivation of ownership is tantamount to taking (in Eminent Domain cases) . VI. Just Compensation Just compensation means the value of the property at the time of the taking. It m eans a fair and full equivalent for the loss sustained. All the facts as to the condition of the property and its surroundings, its improvements and capabilitie s, should be considered. (EPZA vs. Dulay) a. Stages in Eminent Domain (expropriation) proceedings: x x x The first is concerned with the determination of the authority of the plain tiff to exercise the power of eminent domain and the propriety of its exercise i n the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a la wful right to take the property sought to be condemned, for the public use or pu rpose described in the complaint, upon the payment of just compensation to be de termined as of the date of the filing of the complaint x x x. The second phase of the eminent domain action is concerned with the determinatio n by the court of the just compensation for the property sought to be taken. This is done by the court with the assistance of not more than three (3) commissione

rs. x x x. (Municipality of Binan vs. Garcia) b. Computation Just Compensation = Fair Market Value + [Consequential Damages Consequential Ben efits] JC = FMV + [CD- CB] Note: the formula will apply if only a portion of the property is taken. Fair Market Value is the price arrived at by one who is not compelled to buy and one who is not willing to sell. c. Reckoning point: Thus, the value of the property must be determined either as of the date of the t aking of the property or the filing of the complaint, "whichever came first." Ev en before the new rule, however, it was already held in Commissioner of Public H ighways v. Burgos that the price of the land at the time of taking, not its valu e after the passage of time, represents the true value to be paid as just compen sation. It was, therefore, error for the Court of Appeals to rule that the just compensation to be paid to respondent should be determined as of the filing of t he complaint in 1990, and not the time of its taking by the NIA in 1981, because petitioner was allegedly remiss in its obligation to pay respondent, and it was respondent who filed the complaint. In the case of Burgos, it was also the prop erty owner who brought the action for compensation against the government after 25 years since the taking of his property for the construction of a road. Indeed, the value of the land may be affected by many factors. It may be enhance d on account of its taking for public use, just as it may depreciate. As observe d in Republic v. Lara: [W]here property is taken ahead of the filing of the condemnation proceedings, t he value thereof may be enhanced by the public purpose for which it is taken; th e entry by the plaintiff upon the property may have depreciated its value thereb y; or there may have been a natural increase in the value of the property from t he time it is taken to the time the complaint is filed, due to general economic conditions. The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond hi s loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way that compensation to be paid can be t ruly just, i.e., "just" not only to the individual whose property is taken, "but to the public, which is to pay for it" (MCIAA vs. Rodriguez) Note: if the taking and filing coincides, the reckoning point is the filing. If the taking preceded the filing, the reckoning point will be the tak ing. PRINCIPLE: If consequential benefits exceeds the consequential damages, the comp utation will be JC = FMV, the [CD- CB] should be disregarded, because expropriat or should indemnify the lose acquired by the owner. d. Who determines just compensation? The determination of "just compensation" in eminent domain cases is a judicial f unction. The executive department or the legislature may make the initial determ inations but when a party claims a violation of the guarantee in the Bill of Rig hts that private property may not be taken for pubhc use without just compensati on, no statute, decree, or executive order can mandate that its own determinatio n shag prevail over the court's findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation. xxx It is violative of due process to deny to the owner the opportunity to prov e that the valuation in the tax documents is unfair or wrong. And it is repulsiv e to basic concepts of justice and fairness to allow the haphazard work of a min or bureaucrat or clerk to absolutely prevail over the judgment of a court promul gated only after expert commissioners have actually viewed the property, after e vidence and arguments pro and con have been presented, and after all factors and considerations essential to a fair and just determination have been judiciously evaluated. (EPZA vs. Dulay)

Rule 67 of the Rules of Court (Expropriation) Sec. 5. Ascertainment of compensation. Upon the rendition of the order of exprop riation, the court shall appoint not more than three (3) competent and disintere sted persons as commissioners to ascertain and report to the court the just comp ensation for the property sought to be taken. The order of appointment shall des ignate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointmen t of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commi ssioners shall have received copies of the objections. Sec. 6. Proceedings by commissioners. Before entering upon the performance of th eir duties, the commissioners shall take and subscribe an oath that they will fa ithfully perform their duties as commissioners, which oath shall be filed in cou rt with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearing s before them, and the commissioners shall, unless the parties consent to the co ntrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioner s shall assess the consequential damages to the property not taken and deduct fr om such consequential damages the consequential benefits to be derived by the ow ner from the public use or purpose of the property taken, the operation of its f ranchise by the corporation or the carrying on of the business of the corporatio n or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. Sec. 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall hav e been passed upon by them, and may render judgment upon such partial report, an d direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal wit h such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual unti l the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissione rs were notified of their appointment, which time may be extended in the discret ion of the court. Upon the filing of such report, the clerk of the court shall s erve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. Sec. 8. Action upon commissioners' report. Upon the expiration of the period of te n (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after he aring, accept the report and render judgment in accordance therewith; or, for ca use shown, it may recommit the same to the commissioners for further report of f acts; or it may set aside the report and appoint new commissioners; or it may ac cept the report in part and reject it in part; and it may make such order or ren der such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. e. Entry into the property a. LGU R.A. 7160, SEC. 19. Eminent Domain. - A local government unit may, through its c hief executive and acting pursuant to an ordinance, exercise the power of eminen

t domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of t he Constitution and pertinent laws: Provided, however, That the power of eminen t domain may not be exercised unless a valid and definite offer has been previou sly made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the p roper court of at least fifteen percent (15%) of the fair market value of the pr operty based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property sh all be determined by the proper court, based on the fair market value at the tim e of the taking of the property. b. other expropriators. Revised Rules of Court, Sec. 2. Entry of plaintiff upon depositing value with au thorized government depositary. Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the p ossession of the real property involved if he deposits with the authorized gover nment depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained a nd the amount to be deposited shall be promptly fixed by the court. After such deposit is made the court shall order the sheriff or other proper off icer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the par ties. f. Just Compensation: how payable? Payable in cash, exception: agrarian expropriation where the expropriato r can pay by means of government bonds. g. Just Compensation: when payable? In summation, while the prevailing doctrine is that the non-payment of just compen sation does not entitle the private landowner to recover possession of the expro priated lots,[however, in cases where the government failed to pay just compensa tion within five (5) years from the finality of the judgment in the expropriatio n proceedings, the owners concerned shall have the right to recover possession o f their property. This is in consonance with the principle that the government c annot keep the property and dishonor the judgment. To be sure, the five-year peri od limitation will encourage the government to pay just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of just compensation. In Cosculluela v. Court of Appe als,[29] we defined just compensation as not only the correct determination of t he amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be consid ered just. (People vs. Lim) h. Who should be made party to an expropriation proceedings? The defendants in an expropriation case are not limited to the owners of the pro perty condemned. They include all other persons owning, occupying or claiming t o 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. In the American jurisdiction, the term "owner" when employed in statutes relatin g to eminent domain to designate the persons who are to be made parties to the p roceeding, 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, including

a mortgagee, a lessee and a vendee in possession under an executory contract. E very person having an estate or interest at law or in equity in the land taken i s entitled to share in the award. If a person claiming an interest in the land s ought to be condemned is not made a party, he is given the right to intervene an d lay claim to the compensation. (de Knecht vs. CA) VII. Allied Provisions 1987 Consti. Artcile XII, Section 17. In times of national emergency, when the p ublic interest so requires, the State may, during the emergency and under reason able terms prescribed by it, temporarily take over or direct the operation of an y privately-owned public utility or business affected with public interest. The above provision pertains to the right of the State in times of national emerg ency, and in the exercise of its police power, to temporarily take over the oper ation of any business affected with public interest. In the 1986 Constitutional Commission, the term national emergency was defined to include threat from extern al aggression, calamities or national disasters, but not strikes unless it is of such proportion that would paralyze government service. The duration of the emerg ency itself is the determining factor as to how long the temporary takeover by t he government would last. The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such the government is not required to compensate the private entity-owner of the said bu siness as there is no transfer of ownership, whether permanent or temporary. Th e private entity-owner affected by the temporary takeover cannot, likewise, clai m just compensation for the use of the said business and its properties as the t emporary takeover by the government is in exercise of its police power and not o f its power of eminent domain. PIATCO cannot, by mere contractual stipulation, contravene the Constitutional pr ovision on temporary government takeover and obligate the government to pay reaso nable cost for the use of the Terminal and/or Terminal Complex. Article XII, sec tion 17 of the 1987 Constitution envisions a situation wherein the exigencies of the times necessitate the government to temporarily take over or direct the oper ation of any privately owned public utility or business affected with public int erest. It is the welfare and interest of the public which is the paramount consi deration in determining whether or not to temporarily take over a particular bus iness. Clearly, the State in effecting the temporary takeover is exercising its police power. Police power is the most essential, insistent, and illimitable of powers. Its exercise therefore must not be unreasonably hampered nor its exerci se be a source of obligation by the government in the absence of damage due to a rbitrariness of its exercise. Thus, requiring the government to pay reasonable c ompensation for the reasonable use of the property pursuant to the operation of the business contravenes the Constitution. (Agan vs. PIATCO, May 2003)

VIII. Eminent Domain as Differentiated from Police Power But while property may be regulated in the interest of the general welfare, and i n its pursuit, the State may prohibit structures offensive to the sight (Churchi ll and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of p olice power, permanently divest owners of the beneficial use of their property a nd practically confiscate them solely to preserve or assure the aesthetic appear ance of the community. As the case now stands, every structure that may be erect ed on appellants' land, regardless of its own beauty, stands condemned under the ordinance in question, because it would interfere with the view of the public p laza from the highway. The appellants would, in effect, be constrained to let th eir land remain idle and unused for the obvious purpose for which it is best sui ted, being urban in character. To legally achieve that result, the municipality must give appellants just compensation and an opportunity to be heard. (Pp vs. Fa jardo) Police power has been defined as the "state authority to enact legislation that

may interfere with personal liberty or property in order to promote the general welfare." It consists of two essential elements. First, it is an imposition of restraint upon liberty or property. Second, the power is exercised for the bene fit of the common good. Its definition in elastic terms underscores its all-enc ompassing and comprehensive embrace. It is and still is the most essential, insis tent, and illimitable of the State's powers. It is familiar knowledge that unlike the power of eminent domain, police power is exercised without provision for jus t compensation for its paramount consideration is public welfare. It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take ove r or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duratio n of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary take over as dictated by the exigencies of the time. As we ruled in our Decision, th is power of the State can not be negated by any party nor should its exercise be a source of obligation for the State. (Agan vs. PIATCO, Jan. 2004) Note: Police Power Eminent Domain 1. Restricts/ divests/ limits the use of property. 2. No compensation. 1. Property is applied/ appropriated for pu blic use. 2. With just compensation.