Final Exam Reviewer

Public Corporations under Atty. Ordonez & Atty. Buban

PUP Legal Annotations on Statutory Provisions Offered by Nonsensicals (LASON) Notes Section 18. Power to Generate and Apply Resources. - Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenues and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them; to have a just share in national taxes which shall be automatically and directly released to them without need of any further action; to have an equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits; to acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and assets for productive, developmental, or welfare purposes, in the exercise or furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self-reliant communities and active participants in the attainment of national goals. Section 130. Fundamental Principles. - The following fundamental principles shall govern the exercise of the taxing and other revenue-raising powers of local government units: (a) Taxation shall be uniform in each local government unit; (b) Taxes, fees, charges and other impositions shall: (1) be equitable and based as far as practicable on the taxpayer's ability to pay; (2) be levied and collected only for public purposes; (3) not be unjust, excessive, oppressive, or confiscatory; (4) not be contrary to law, public policy, national economic policy, or in the restraint of trade; (c) The collection of local taxes, fees, charges and other impositions shall in no case be let to any private person; (d) The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of, and be subject to the disposition by, the local government unit levying the tax, fee, charge or other imposition unless otherwise specifically provided herein; and, (e) Each local government unit shall, as far as practicable, evolve a progressive system of taxation. PHILIPPINE PETROLEUM CORPORATION, petitioner, vs.MUNICIPALITY OF PILILLA, RIZAL, Represented by MAYOR NICOMEDES F. PATENIA, respondent. Facts: Petitioner, Philippine Petroleum Corporation is a business enterprise engaged in the manufacture of lubricated oil basestock. Under the National Internal Revenue Code of 1939, manufactured oils and other fuels are subject to specific tax. Then PD No. 231, or the Local Tax Code was issued governing the exercise by lgus taxing and other revenue-raising powers. Sections 19 and 19 (a) thereof, provide among others, that the municipality may impose taxes on business, except on those for which fixed taxes are provided on manufacturers, importers or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, repackers, and compounders of liquors, distilled spirits and/or wines in accordance with the schedule listed therein. The Secretary of Finance issued Provincial Circular No. 26-73, directed to all provincial, city and municipal treasurers to refrain from collecting any local tax imposed in old or new tax ordinances subject to the specific tax under the National Internal Revenue Code Likewise, Provincial Circular No. 26 A-73 was issued by the Secretary of Finance instructing all City Treasurers to refrain from collecting any local tax imposed in tax ordinances enacted before or after the effectivity of the Local Tax Code. Respondent Municipality of Pililla, Rizal, through Municipal Council Resolution No. 25, S-1974 enacted Municipal Tax Ordinance No. 1, S-1974 otherwise known as "The Pililla Tax Code of 1974" said ordinance imposed a tax on business, except for those for which fixed taxes are provided in the Local Tax Code on manufacturers, importers, or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, repackers, and compounders of liquors, distilled spirits and/or wines in accordance with the schedule found in the Local Tax Code, as well as mayor's permit, sanitary inspection fee and storage permit fee for flammable, combustible or explosive substances (Rollo, pp. 183-187), while Section 139 of the disputed ordinance imposed surcharges and interests on unpaid taxes, fees or charges (Ibid., p. 193). Subsequently Presidential Decree No. 426 was issued amending certain provisions of P.D. 231 but retaining Sections 19 and 19 (a) with adjusted rates and 22(b). P.D. 436 was promulgated increasing the specific tax on lubricating oils, gasoline, bunker fuel oil, diesel fuel oil and other similar petroleum products levied under S ections 142, 144 and 145 of the National Internal Revenue Code, as amended, and granting provinces, cities and

municipalities certain shares in the specific tax on such products in lieu of local taxes imposed on petroleum products. The questioned Municipal Tax Ordinance No. 1 was reviewed and approved by the Provincial Treasurer of Rizal on January 13, 1975 (Rollo, p. 143), but was not implemented and/or enforced by the Municipality of Pililla because of its having been suspended up to now in view of Provincial Circular Nos. 26-73 and 26 A-73. Provincial Circular No. 6-77 dated March 13, 1977 was also issued directing all city and municipal treasurers to refrain from collecting the so-called storage fee on flammable or combustible materials imposed under the local tax ordinance of their respective locality, said fee partaking of the nature of a strictly revenue measure or service charge. On June 3, 1977, P.D. 1158 otherwise known as the National Internal Revenue Code of 1977 was enacted, Section 153 of which specifically imposes specific tax on refined and manufactured mineral oils and motor fuels. Enforcing the provisions of the above-mentioned ordinance, the respondent filed a complaint on April 4, 1986 docketed as Civil Case No. 057-T against PPC for the collection of the business tax from 1979 to 1986; storage permit fees from 1975 to 1986; mayor's permit and sanitary inspection fees from 1975 to 1984. PPC, however, have already paid the lastnamed fees starting 1985 (Rollo, p. 74). Issue: Whether or not petitioner PPC whose oil products are subject to specific tax under the NIRC, is still liable to pay (a) tax on business and (b) storage fees, considering Provincial Circular No. 6-77; and mayor's permit and sanitary inspection fee unto the respondent Municipality of Pililla, Rizal, based on Municipal Ordinance No. 1. Held: PC No. 26-73 and PC No. 26 A-73 suspended the effectivity of local tax ordinances imposing a tax on business under Section 19 (a) of the Local Tax Code (P.D. No. 231), with regard to manufacturers, retailers, wholesalers or dealers in petroleum products subject to the specific tax under the National Internal Revenue Code NIRC, in view of Section 22 (b) of the Code regarding non-imposition by municipalities of taxes on articles, subject to specific tax under the provisions of the NIRC. There is no question that Pililla's Municipal Tax Ordinance No. 1 imposing the assailed taxes, fees and charges is valid especially Section 9 (A) which according to the trial court "was lifted in toto and/or is a literal reproduction of Section 19 (a) of the Local Tax Code as amended by P.D. No. 426." It conforms with the mandate of said law. But P.D. No. 426 amending the Local Tax Code is deemed to have repealed Provincial Circular Nos. 26-73 and 26 A-73 issued by the Secretary of Finance when Sections 19 and 19 (a), were carried over into P.D. No. 426 and no exemptions were given to manufacturers, wholesalers, retailers, or dealers in petroleum products.

Well-settled is the rule that administrative regulations must be in harmony with the provisions of the law. In case of discrepancy between the basic law and an implementing rule or regulation, the former prevails The exercise by local governments of the power to tax is ordained by the present Constitution. To allow the continuous effectivity of the prohibition set forth in PC No. 26-73 (1) would be tantamount to restricting their power to tax by mere administrative issuances. Under Section 5, Article X of the 1987 Constitution, only guidelines and limitations that may be established by Congress can define and limit such power of local governments. Thus: Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy . . . As to the authority of the mayor to waive payment of the mayor's permit and sanitary inspection fees, the trial court did not err in holding that "since the power to tax includes the power to exempt thereof which is essentially a legislative prerogative, it follows that a municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax." The waiver partakes of the nature of an exemption. It is an ancient rule that exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ, petitioners, vs. PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR) Facts: On July 11, 1983, PAGCOR was created under PD 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law. Basco and four others (all lawyers) assailed the validity of the law creating PAGCOR on constitutional grounds among others particularly citing that the PAGCORs charter is against the constitutional provision on local autonomy. Basco et al contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local is violative of the local autonomy principle. issue: Whether or not PAGCORs charter is violative of the principle of local autonomy. Held: NO. (a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio,

12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445). (b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. (c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus: Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local governments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked. Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai and other forms of gambling shall be issued by the national government upon proper application and verification of the qualification of the applicant . . . Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila. (d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus: Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise all the powers, authority and the responsibilities vested in the Securities and Exchange Commission over such affiliating entities mentioned under the preceding section, including, but not limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure, capitalization and other matters concerning the operation of the affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original incorporation.

JESUS C. ESTANISLAO, in his capacity as the Secretary of Finance, petitioner, vs. HONORABLE AMADO COSTALES Facts: An Ordinance was passed by the Sangguniang Panglungsod of Zamboanga City on February 1982. The Sanggunian sent a copy of theOrdinance to the then Minister of Finance by registered mail for hisreview pursuant to P.D. No. 231, otherwise known as the Local TaxCode. The Minister of Finance through Deputy MinisterRoman, Jr., sent the letter addressed to the Sanggunian, suspendingthe effectivity of Ordinance No. 44 on the ground that it contravenesSection 19(a) of the Local Tax Code. The City Mayor of Zamboanga appealed the saiddecision of the Minister of Finance to the RTC of Zamboanga. The RTC held that Although the tax levied under said Ordinance is not among thosethat the Sanggunian may impose under the Local Tax Code, it upheldits validity because the Minister of Finance did not take appropriateaction on the matter within the prescribed period of 120 days afterreceipt of a copy thereof.

This petition for review on certiorari was filed by the incumbentSecretary of Finance alleging that the trial court erred when it held thatthe failure of the Minister of Finance to suspend the effectivity of Ordinance No. 44 within 120 days from receipt of a copy thereof rendered said Ordinance valid. Issue: Whether or not Ordinance No. 44 of Zamboanga City imposing P0.01 tax perliter of softdrinks produced, manufactured, and/or bottled within theterritorial jurisdiction of the City is valid? Held: No. From the foregoing, it is clear that a city, like public respondent Zamboanga City may impose, in lieu of the graduated fixed tax prescribed under Section 19 of the Local Tax Code, a percentage tax on the gross sales for the preceding calendar year of non-essential commodities at the rate of not exceeding two per cent and on the gross sales of essential commodities at the rate of not exceeding one per cent. Ordinance No. 44 of the respondent Zamboanga City imposes P0.01 per liter of softdrinks produced, manufactured, and/or bottled within the territorial jurisdiction of the City of Zamboanga. No doubt this Ordinance is ultra vires as it is not within the authority of the City to impose said tax. The authority of the City is limited to the imposition of a percentage tax on the gross sales or receipts of said product which, being non-essential, shall be at the rate of not exceeding 2% of the gross sales or receipts of the softdrinks for the preceding calendar year. The tax being imposed under said Ordinance is based on the output or production and not on the gross sales or receipts as authorized under the Local Tax Code. Public respondent Zamboanga City, however, invokes the ruling of this Court in Pepsi-Cola 4 Bottling Company vs. Municipality of Tanauan, Leyte whereby this Court upheld the validity

of Municipal Ordinance No. 27 enacted by the Municipality of Tanauan, Leyte imposing a tax of P0.01 for every gallon of softdrinks produced in the municipality as follows: That brings Us to the question of whether the remaining Ordinance No. 27 imposes a percentage or a specific tax. undoubtedly, the taxing authority conferred on local governments under Section 2, Republic Act No. 2264, is broad enough as to extend to almost "everything, excepting those which are mentioned therein." As long as the tax levied under the authority of a city or municipal ordinance is not within the exceptions and limitations in the law, the same comes within the ambit of the general rule, pursuant to the rules of expresio unius est exclusio alterious, and exceptio firmat regulum in casibus non excepti. The limitation applies, particularly, to the prohibition against municipalities and municipal districts to impose "any percentage tax on sales or other taxes in any form based thereon nor impose taxes on articles subject to specific tax, except gasoline, under the provisions of the National Internal Revenue Code." For purposes of this particular limitation, a municipal ordinance which prescribes a set ratio between the amount of the tax and the volume of sale of the taxpayer imposes a sales tax and is nun and void for being outside the power of the municipality to enact. But, the imposition of "a tax of one centavo (P0.01) on each gallon (128 fluid ounces, U.S.) of volume capacity" on all soft drinks produced or manufactured under Ordinance No. 27 does not partake of the nature of a percentage tax on sales, or other taxes in any form based thereon. The tax is levied on the produce (whether sold or not) and not on the sales. The volume capacity of the taxpayer's production of soft drinks is considered solely for purposes of determining the tax rate on the products, but there is no set 5 ratio between the volume of sales and the amount of the tax. Said case was decided by this Court on the basis of the provisions of the Local Autonomy Act (Republic Act No. 2264, as amended, which took effect on June 19, 1959), particularly Section 2 thereof, which gives the cities or municipalities ample taxing authority covering almost "everything, excepting those mentioned herein." However, the Local Autonomy Act has been superseded by the Local Tax Code insofar as the taxing authority in the provinces, cities or municipalities is concerned. By express language of Section 64(a) of the Local Tax Code, "all existing tax ordinances of provinces, cities, 6 municipalities and barrios shall be deemed ipso facto nullified on June 30, 1974." The applicable law, therefore, to the present case is the Local Tax Code and not the Local Autonomy Act. HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner, vs. MAYOR ALFREDO S. LIM Facts: The principal issue in this case is the constitutionality of Section 187 of the Local Government Code reading as follows:

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction. Pursuant to Section 187 of the Local Government Code, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretarys resolution and sustained the ordinance, holding inter alia that the procedural requirements had been observed. More importantly, it declared Section 187 of the Local Government Code as unconstitutional because of its vesture in the Secretary of Justice of the power of control over local governments in violation of the policy of local autonomy mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only the power of supervision over local governments. The court cited the familiar distinction between control and supervision, the first being the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter, while the second is the power of a superior officer to see to it that lower officers perform their functions is accordance with law. Issues: Whether or not Section 187 of the Local Government Code is unconstitutional; and Whether or not the Secretary of Justice can exercise control, rather than supervision, over the local government Held: The judgment of the lower court is reversed in so far as its declaration that Section 187 of the Local Government Code is unconstitutional but affirmed the said lower courts finding that the procedural requirements in the enactment of the Manila Revenue Code have been observed. Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his

own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. An officer in control lays down the rules in the doing of an act. It they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision. Regarding the issue on the non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code, the Court carefully examined every exhibit and agree with the trial court that the procedural requirements have indeed been observed. The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process. MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, petitioner, vs. HON. FERDINAND J. MARCOS, in his capacity as the Presiding Judge of the RTC, Cebu City Facts: Petitioner was created by virtue of RA6958, mandated to "principally undertake the economical,efficient and effective control, management and supervision of the Mactan International Airport in theProvince of Cebu and the Lahug Airport in Cebu City. Under Section 1: The authority shall be exempt fromrealty taxes imposed by the National Government or any of its political subdivisions, agencies andinstrumentalities.However, the Officer of the Treasurer of Cebu City demanded payment for realty taxes on parcels of land belonging to petitioner. Petitioner objected invoking its tax exemption. It also asserted that it is aninstrumentality of the government performing governmental functions, citing section 133 of the LGC whichputs limitations on the taxing powers of LGUs. The city refused insisting that petitioner is a GOCCperforming proprietary functions whose tax exemption was withdrawn by Sections 193 and 234 of the LGC.Petitioner filed a declaratory relief before the RTC. The trial court dismissed the petitioner rulingthat the LGC withdrew the tax exemption granted the GOCCs. Issue: Wheter or Not the City of Cebu has the power to impose taxes on petitioner Held: Yes There can be no question that under Section 14 RA 6958 the petitioner is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies, andinstrumentalities. Nevertheless, since taxation is the rule and exemption is the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The LGC, enacted pursuant to Section 3, Article X of the constitution provides for the exercise byLGUs of their power to tax, the scope thereof or its limitations, and the exemption from

taxation. Section133 of the LGC prescribes the common limitations on the taxing powers of LGUs: (o) Taxes, fees or chargesof any kind on the national government, its agencies and instrumentalities and LGUs. Among the "taxes"enumerated in the LGC is real property tax. Section 234 of LGC provides for the exemptions from payment of GOCCs, except as provided therein. On the other hand, the LGC authorizes LGUs to grant tax exemption privileges. Reading together Section 133, 232 and 234 of the LGC, we conclude that as a general rule, aslaid down in Secs 133 the taxing powers of LGUs cannot extend to the levy of inter alia, "taxes, fees, andcharges of any kind of the National Government, its agencies and instrumentalties, and LGUs"; however,pursuant to Sec 232, provinces, cities, municipalities in the Metropolitan Manila Area may impose the realproperty tax except on, inter alia, "real property owned by the Republic of the Philippines or any of itspolitical subdivisions except when the beneficial used thereof has been granted to a taxable person."As to tax exemptions or incentives granted to or presently enjoyed by natural or juridical persons,including government-owned and controlled corporations, Section 193 of the LGC prescribes the generalrule, viz., they are withdrawn upon the effectivity of the LGC, except upon the effectivity of the LGC,except those granted to local water districts, cooperatives duly registered under R.A. No. 6938, non stockand non-profit hospitals and educational institutions, and unless otherwise provided in the LGC. The latterproviso could refer to Section 234, which enumerates the properties exempt from real property tax. Butthe last paragraph of Section 234 further qualifies the retention of the exemption in so far as the realproperty taxes are concerned by limiting the retention only to those enumerated therein; all others notincluded in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as the realproperty is owned by the Republic of the Philippines, or any of its political subdivisions covered by item (a)of the first paragraph of Section 234, the exemption is withdrawn if the beneficial use of such property hasbeen granted to taxable person for consideration or otherwise.Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC,exemptions from real property taxes granted to natural or juridical persons, including GOCCs, except as provided in the said section, and the petitioner is, undoubtedly, a government-owned corporation, itnecessarily follows that its exemption from such tax granted it in Section 14 of its charter, R.A. No. 6958,has been withdrawn. Any claim to the contrary can only be justified if the petitioner can seek refuge underany of the exceptions provided in Section 234, but not under Section 133, as it now asserts, since, asshown above, the said section is qualified by Section 232 and 234. In short, the petitioner can no longerinvoke the general rule in Section 133.It must show that the parcels of land in question, which are real property, are any one of thoseenumerated in Section 234, either by virtue of ownership, character, or use of the property. Most likely, itcould only be the first, but not under any explicit provision of the said section, for one exists. In light of thepetitioner's theory that it is an "instrumentality of the Government", it could only be within be first item of the first paragraph of the section by expanding the scope of the terms Republic of the Philippines" toembrace ."instrumentalities" and "agencies." This view does not persuade us. In the first place, the petitioner's claim that it is an instrumentality of the Government is based on Section 133(o), which expressly mentions the word "instrumentalities"; and in the second place it fails to consider the fact that the legislature used the phrase "National Government, its agencies and instrumentalities" "in Section 133(o),but only the phrase "Republic of the Philippines or any of its political subdivision "in Section 234(a). If Section 234(a) intended to extend the exception therein to the withdrawal of the exemption frompayment of real property taxes under the last sentence of the said section to the agencies andinstrumentalities of the National Government mentioned in Section 133(o),

then it should have restated the wording of the latter. Yet, it did not Moreover, that Congress did not wish to expand the scope of theexemption in Section 234(a) to include real property owned by other instrumentalities or agencies of thegovernment including governmentowned and controlled corporations is further borne out by the fact thatthe source of this exemption is Section 40(a) of P.D. No. 646, otherwise known as the Real Property TaxCode.Note that as a reproduced in Section 234(a), the phrase "and any governmentowned or controlledcorporation so exempt by its charter" was excluded. The justification for this restricted exemption inSection 234(a) seems obvious: to limit further tax exemption privileges, specially in light of the generalprovision on withdrawal of exemption from payment of real property taxes in the last paragraph of property taxes in the last paragraph of Section 234. These policy considerations are consistent with theState policy to ensure autonomy to local governments 33 and the objective of the LGC that they enjoygenuine and meaningful local autonomy to enable them to attain their fullest development as selfreliantcommunities and make them effective partners in the attainment of national goals. With the repealing clause of RA 7160 the tax exemption provided. All general and special in the charter of the MCIAA has been expressly repeated. It state laws, acts, City Charters, decrees, executive orders, proclamations and administrative regulations, or part of parts thereof which are inconsistent with any of the provisions of the Code are hereby repeated or modified accordingly. Therefore the SC affirmed the decision and order of the RTC and herein petitioner has to pay the assessed realty tax of its properties effective January 1, 1992 up to the present. TITLE V Local Fiscal Administration CHAPTER I General Provisions Section 304. Scope. - This Title shall govern the conduct and management of financial affairs, transactions, and operations of provinces, cities, municipalities, and barangays. Section 305. Fundamental Principles. - The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles: (a) No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; (b) Local government funds and monies shall be spent solely for public purposes; (c) Local revenue is generated only from sources expressly authorized by law or ordinance, and collection thereof shall at all times be acknowledged properly; (d) All monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law;

(e) Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received; (f) Every officer of the local government unit whose duties permit or require the possession or custody of local funds shall be properly bonded, and such officer shall be accountable and responsible for said funds and for the safekeeping thereof in conformity with the provisions of law; (g) Local governments shall formulate sound financial plans, and local budgets shall be based on functions, activities, and projects, in terms of expected results; (h) Local budget plans and goals shall, as far as practicable, be harmonized with national development plans, goals, and strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources; (i) Local budgets shall operationalize approved local development plans; (j) Local government units shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units; (k) National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the local government units in their respective local development plans are considered in the formulation of budgets of national line agencies or offices; (l) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of the local government units; and (m) The local government unit shall endeavor to have a balanced budget in each fiscal year of operation. Power of Eminent Domain Section 19. RA 7160 Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent 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 the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously 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 proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally,

That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. RULE 67 Expropriation Rules of Court Section 1. The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. (1a) Section 2. Entry of plaintiff upon depositing value with authorized 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 possession of the real property involved if he deposits with the authorized government 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 and 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 officer 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 parties. (2a) Section 3. Defenses and objections. If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, crossclaim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. (n) Section 4. Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend

as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. (4a) Section 5. Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate 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 appointment 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 commissioners shall have received copies of the objections. (5a) Section 6. Proceedings by commissioners. Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, 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 commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation 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. (6a) Section 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and 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 with 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 until 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 commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve 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. (7a)

Section 8. Action upon commissioners' report. Upon the expiration of the period of ten (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 hearing, accept the report and render judgment in accordance therewith, or, for cause shown, it may recommit the same to the commissioners for further report of facts, or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part and it may make such order or render 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. (8a) Section 9. Uncertain ownership; conflicting claims. If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. (9a) Section 10. Rights of plaintiff after judgment and payment. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. (10a) Section 11. Entry not delayed by appeal; effect of reversal. The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. (11a) Section 12. Costs, by whom paid. The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. (12a) Section 13. Recording judgment, and its effect. The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. (13a)

Section 14. Power of guardian in such proceedings. The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. (14a) Limitations Moday vs Court of Appeals Moday is a landowner in Bunawan, Agusan del Sur. In 1989, the Sangguniang Bayan of Bunawan passed a resolution authorizing the mayor to initiate an expropriation case against a 1 hectare portion of Modays land. Purpose of which is to erect a gymnasium and other public buildings. The mayor approved the resolution and the resolution was transmitted to the Sangguniang Panlalawigan which disapproved the said resolution ruling that the expropriation is not necessary because there are other lots owned by Bunawan that can be used for such purpose. The mayor pushed through with the expropriation nonetheless.

ISSUE: Whether or not a municipality may expropriate private property by virtue of a municipal resolution which was disapproved by the Sangguniang Panlalawigan.

HELD: Yes. Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. It is governments right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation. The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is beyond the powers conferred upon the council or president making the same. This was not the case in the case at bar as the SP merely stated that there are other available lands for the purpose sought, the SP did not even bother to declare the SB resolution as invalid. Hence, the expropriation case is valid. Municipality of Paranaque vs VM Realty Corp Facts: Petitioner sought to exercise its power of eminent domainbased on a resolution by the municipal council. Petitioner cites a previous case wherein a resolution gave authority to

exercise eminent domain. Petitioner also relies on the Implementing Rules, which provides that a resolution authorizes a Local Government Unit to exercise eminent domain.

that case that just compensation should be determined as of the filing of the complaint. We explicitly stated therein that although the general rule in determining just compensation in eminent domain is the value of the property as of the date of the filing of the complaint, the rule "admits of an exception: where this Court fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings. Camarines Sur vs CA Facts: On December 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur passed a Resolution authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial Capitol site, in order to establish a pilot farm for nonfood 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, filed two separate cases for expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin, at the Regional Trial Court, Pili, Camarines Sur. The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. In an order, 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 the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. 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 February 26, 1990. In their petition before the Court of Appeals, the San Joaquins asked: (a) that Resolution of the Sangguniang Panlalawigan be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order denying the motion to dismiss and 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. Asked by the Court of Appeals to give his Comment to the petition, the Solicitor General stated that under Section 9 of the Local Government Code (B.P. Blg. 337), there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. However, the Solicitor General expressed the view that the Province of Camarines Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project. The Court of Appeals set aside the order of the trial court, allowing the Province of Camarines Sur to take possession of private respondents' lands and the order denying the admission of the amended motion to dismiss. It also ordered the trial court to suspend the expropriation proceedings until after the Province of Camarines Sur shall have submitted the

Issue: Whether or Not an LGU can exercise its power of eminent domain pursuant to a resolution by its law-making body.

Held: Under Section 19, of the present Local Government Code (RA 7160), it is stated as the first requisite that LGUs can exercise its power of eminent domain if there is an ordinance enacted by its legislative body enabling the municipal chief executive. A resolution is not an ordinance, the former is only an opinion of a law-making body, the latter is a law. The case cited by Petitioner involves BP 337, which was the previous Local Government Code, which is obviously no longer in effect. RA 7160 prevails over the Implementing Rules, the former being the law itself and the latter only

an administrative rule which cannot amend the former. CITY OF CEBU vs. SPOUSES APOLONIO and BLASA DEDAMO On 17 September 1993, petitioner City of Cebu filed a complaint for eminent domain against respondents spouses Apolonio and Blasa Dedamo. The petitioner alleged therein that it needed the land for a public purpose, i.e., for the construction of a public road which shall serve as an access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the back of Magellan International Hotel Roads in Cebu City. The lower court fixed the amount of just compensation at P20,826,339.50. Petitioner alleged that the lower court erred in fixing the amount of just compensation at P20,826,339.50. The just compensation should be based on the prevailing market price of the property at the commencement of the expropriation proceedings. The petitioner did not convince the Court of Appeals, which affirmed the lower courts decision in toto. ISSUE: Whether or not just compensation should be determined as of the date of the filing of the complaint. HELD: No. In the case at bar, the applicable law as to the point of reckoning for the determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that just compensation shall be determined as of the time of actual taking. The petitioner has misread our ruling in The National Power Corp. vs. Court of Appeals. We did not categorically rule in

requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non-agricultural land. Issue: WON the Province of Cam Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the San Joaquins. HELD: To sustain the Court of Appeals would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc., without first applying for conversion of the use of the lands with the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. Ratio: WHEREFORE, the petition is GRANTED and the questioned 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 private respondents' property; (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 private respondents' property from agricultural to non-agricultural use. The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the trial court, denying the amended motion to dismiss of the private respondents. SO ORDERED. City of Mandaluyong vs. Aguilar [GR 137152, 29 January 2001] Antonio, Francisco, Thelma, Eusebio, and Rodolfo N. Aguilar, constructed residential houses several decades ago on a portion of the 3 lots located at 9 de Febrero Street, Barangay Mauwag, City of Mandaluyong. The Aguilars had since leased out these houses to tenants until the present. On the vacant portion of the lots, other families constructed residential structures which they likewise occupied. In 1983, the lots were classified by Resolution 125 of the Board of the Housing and Urban Development Coordinating Council as an Area for Priority Development for urban land reform under Proclamation 1967 and 2284 of then President Marcos. As a result of this classification, the tenants and occupants of the lots offered to purchase the land from the Aguilars, but the latter refused to sell. On 7 November 1996, the Sangguniang Panlungsod of Mandaluyong, upon petition of the Kapitbisig, an association of tenants and occupants of the subject land, adopted Resolution 516, Series of 1996 authorizing Mayor Benjamin Abalos of the City of Mandaluyong to initiate action for the expropriation of the subject lots and construction of a medium-rise condominium for qualified occupants of the land. On 10 January 1996, Mayor Abalos allegedly sent a letter to the Aguilars offering to purchase the said property at P3,000.00 per square meter. On 4 August 1997, the City filed with the Regional Trial Court (RTC), Branch 168, Pasig City a complaint for expropriation, seeking to expropriate 3 adjoining parcels of land with an aggregate area of 1,847 square meters in the names of the Aguilars, and praying that the

fixing of just compensation at the fair market value of P3,000.00 per square meter. In their answer, the Aguilars, except Eusebio who died in 1995, denied having received a copy of Mayor Abalos' offer to purchase their lots. They alleged that the expropriation of their land is arbitrary and capricious, and is not for a public purpose; that the subject lots are their only real property and are too small for expropriation, while the City has several properties inventoried for socialized housing; and that the fair market value of P3,000.00 per square meter is arbitrary because the zonal valuation set by the Bureau of Internal Revenue is P7,000.00 per square meter. As counterclaim, the Aguilars prayed for damages of P21 million. On 5 November 1997, the City filed an Amended Complaint and named as an additional defendant Virginia N. Aguilar and, at the same time, substituted Eusebio Aguilar with his heirs. The City also excluded from expropriation TCT N59870 and thereby reduced the area sought to be expropriated from three (3) parcels of land to two (2) parcels totalling 1,636 square meters.The Amended Complaint was admitted by the trial court on 18 December 1997. On 17 September 1998, the trial court issued an order dismissing the Amended Complaint after declaring the Aguilars as "small property owners" whose land is exempt from expropriation under Republic Act 7279. The court also found that the expropriation was not for a public purpose for the City's failure to present any evidence that the intended beneficiaries of the expropriation are landless and homeless residents of Mandaluyong. The City moved for reconsideration. On 29 December 1998, the court denied the motion. The City filed a petition for review with the Supreme Court. Issue: Whether the City has exhausted all means to acquire the land under the hands of private persons, but which is within the Areas for Priority Development (APD). Held: Presidential Decree (PD) 1517, the Urban Land Reform Act, was issued by then President Marcos in 1978. The decree adopted as a State policy the liberation of human communities from blight, congestion and hazard, and promotion of their development and modernization, the optimum use of land as a national resource for public welfare. Pursuant to this law, Proclamation 1893 was issued in 1979 declaring the entire Metro Manila as Urban Land Reform Zone for purposes of urban land reform. This was amended in 1980 by Proclamation 1967 and in 1983 by Proclamation 2284 which identified and specified 245 sites in Metro Manila as Areas for Priority Development and Urban Land Reform Zones. The acquisition of lands for socialized housing is governed by several provisions in the law. Pursuant to Section 9 of RA 7279, Lands for socialized housing are to be acquired in the following order: (1) government lands; (2) alienable lands of the public domain; (3) unregistered or abandoned or idle lands; (4) lands within the declared Areas for Priority Development (APD), Zonal Improvement Program (ZIP) sites, Slum Improvement and Resettlement (SIR) sites which have not yet been acquired; (5) BLISS sites which have not yet been acquired; and (6) privately- owned lands. Section 9, however, is not a single provision that can be read separate from the other provisions of the law. It must be read together with Section 10 of RA 7279. Thus, lands for socialized housing under RA 7279 are to be acquired in several modes. Among these modes are the following: (1) community mortgage; (2) land swapping, (3) land assembly or consolidation; (4) land banking; (5) donation to the government; (6) joint venture agreement; (7) negotiated purchase; and (8) expropriation.

The mode of expropriation is subject to two conditions: (a) it shall be resorted to only when the other modes of acquisition have been exhausted; and (b) parcels of land owned by small property owners are exempt from such acquisition. The acquisition of the lands in the priority list must be made subject to the modes and conditions set forth in the next provision. In other words, land that lies within the APD may be acquired only in the modes under, and subject to the conditions of, Section 10. Herein, the City claims that it had faithfully observed the different modes of land acquisition for socialized housing under RA 7279 and adhered to the priorities in the acquisition for socialized housing under said law. It, however, did not state with particularity whether it exhausted the other modes of acquisition in Section 9 of the law before it decided to expropriate the subject lots. The law states "expropriation shall be resorted to when other modes of acquisition have been exhausted." The City alleged only one mode of acquisition, i.e., by negotiated purchase. The City, through the City Mayor, tried to purchase the lots from the Aguilars but the latter refused to sell. As to the other modes of acquisition, no mention has been made. Not even Resolution 516, Series of 1996 of the Sangguniang Panlungsod authorizing the Mayor of Mandaluyong to effect the expropriation of the subject property states whether the city government tried to acquire the same by community mortgage, land swapping, land assembly or consolidation, land banking, donation to the government, or joint venture agreement under Section 9 of the law. City of Iloilo vs Legaspi Via a Petition for Certiorari and Prohibition with Prayer for Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order, the City of Iloilo, represented by Mayor Jerry P. Treas, seeks the nullification and/or modification of the Order dated 05 June 2002 of Honorable Emilio Legaspi, Presiding Judge, Regional Trial Court, Branch 22, Iloilo City, denying its Motion for Reconsideration of the courts Order dated 15 April 2002, holding in abeyance the resolution of the Motion for Issuance of Writ of Possession until after it shall have rested its case. The City Council of Iloilo enacted an Ordinance allowing the City Mayor to buy the said property in question and in refusal to commence an expropriation proceeding. The property owner refused to sell the property hence the government started an expropriation proceeding. The City of Iloilo filed an eminent domain case and deposited the 15% of the current market value of the property to the clerk of court with prayer for the issuance of writ of possession. The trial court held in abeyance the writ prayed for hence the present case. Petitioner has the irrefutable right to exercise its power of eminent domain. It being a local government unit, the basis for its exercise is granted under Section 19 of Rep. Act No. 7160, to wit: Sec. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent 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 the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously 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 proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. The requisites for authorizing immediate entry are as follows: the filing of a complaint for expropriation sufficient in form and substance; and the deposit of the amount equivalent to fifteen percent (15%) of the fair market value of the property to be expropriated based on its current tax declaration. Upon compliance with these requirements, the issuance of a writ of possession becomes ministerial. Reclassification of Lands Section 20. Reclassification of Lands. (a) A city or municipality may, through an ordinance passed by the sanggunian after conducting public hearings for the purpose, authorize the reclassification of agricultural lands and provide for the manner of their utilization or disposition in the following cases: (1) when the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture or (2) where the land shall have substantially greater economic value for residential, commercial, or industrial purposes, as determined by the sanggunian concerned: Provided, That such reclassification shall be limited to the following percentage of the total agricultural land area at the time of the passage of the ordinance: (1) For highly urbanized and independent component cities, fifteen percent (15%); (2) For component cities and first to the third class municipalities, ten percent (10%); and (3) For fourth to sixth class municipalities, five percent (5%): Provided, further, That agricultural lands distributed to agrarian reform beneficiaries pursuant to Republic Act Numbered Sixty-six hundred fifty-seven (R.A. No. 6657). otherwise known as "The Comprehensive Agrarian Reform Law", shall not be affected by the said reclassification and the conversion of such lands into other purposes shall be governed by Section 65 of said Act. (b) The President may, when public interest so requires and upon recommendation of the National Economic and Development Authority, authorize a city or municipality to reclassify lands in excess of the limits set in the next preceding paragraph. (c) The local government units shall, in conformity with existing laws, continue to prepare their respective comprehensive land use plans enacted through zoning ordinances which shall be the primary and dominant bases for the future use of land resources: Provided. That the requirements for food production, human settlements, and industrial expansion shall be taken into consideration in the preparation of such plans. (d) Where approval by a national agency is required for reclassification, such approval shall not be unreasonably withheld. Failure to act on a proper and complete application for reclassification within three (3) months from receipt of the same shall be deemed as approval thereof. (e) Nothing in this Section shall be construed as repealing, amending, or modifying in any manner the provisions of R.A. No. 6657.

Fortich vs Corona The dramatic and well-publicized hunger strike staged by some alleged farmerbeneficiaries in front of the Department of Agrarian Reform compound in Quezon City on October 9, 1997 commanded nationwide attention that even church leaders and some presidential candidates tried to intervene for the strikers cause. [1] The strikers protested the March 29, 1996 Decision of the Office of the President (OP), issued through then Executive Secretary Ruben D. Torres in OP Case No. 96-C-6424, which approved the conversion of a one hundred forty-four (144)-hectare land from agricultural to agro-industrial/institutional area. This led the Office of the President, through then Deputy Executive Secretary Renato C. Corona, to issue the so-called Win-Win [2] Resolution on November 7, 1997, substantially modifying its earlier Decision after it had already become final and executory. The said Resolution modified the approval of the land conversion to agro-industrial area only to the extent of forty-four (44) hectares, and ordered the remaining one hundred (100) hectares to be distributed to qualified farmerbeneficiaries. Thus, this instant case. When the Office of the President issued the Order dated June 23,1997 declaring the Decision of March 29, 1996 final and executory, as no one has seasonably filed a motion for reconsideration thereto, the said Office had lost its jurisdiction to re-open the case, more so modify its Decision. Having lost its jurisdiction, the Office of the President has no more authority to entertain the second motion for reconsideration filed by respondent DAR Secretary, which second motion became the basis of the assailed Win-Win Resolution. Section 7 of Administrative Order No. 18 and Section 4, Rule 43 of the Revised Rules of Court mandate that only one (1) motion for reconsideration is allowed to be taken from the Decision of March 29, 1996. And even if a second motion for reconsideration was permitted to be filed in exceptionally meritorious cases, as provided in the second paragraph of Section 7 of AO 18, still the said motion should not have been entertained considering that the first motion for reconsideration was not seasonably filed, thereby allowing the Decision of March 29, 1996 to lapse into finality. Thus, the act of the Office of the President in reopening the case and substantially modifying its March 29,1996 Decision which had already become final and executory, was in gross disregard of the rules and basic legal precept that accord finality to administrative determinations. Roxas and Co. Inc vs CA Petitioner Roxas and Co. Is a corporation that owns 3 haciendas in Batangas, which the government wishes to acquire under the Comprehensive Agrarian Law (CARL). Before the effectivity of the law, the petitioner filed with the Department of Agrarian Reform a voluntary offer to sell (VOS) Hacienda Caylaway pursuant to EO 229, which served as guidelines to the comprehensive agrarian program. The two other haciendasBanilad and Palicowere placed under compulsory acquisition by the DAR in accordance with the CARL. Hacienda Banilad and Palico DAR sent invitations to Roxas and Co in order to discuss the results of the DAR investigation, finding both Banilad and Palico qualified under the CARP. For Hacienda Palico, DAR sent a letter of acquisition to Roxas and Co at their offices in Manila, while for Hacienda Banilad,

DAR addressed the notices to Jaime Pimintel, caretaker of the said hacienda. It was petitioner Pimintel who attended all the proceedings regarding the two haciendas. Hence, during trial, Roxas and Co claimed that they were not informed of the acquisition proceedings on their two haciendas. DAR then opened a trust account in favor of petitioner Roxas and Co. These trust accounts were replaced by DAR with cash and Land Bank of the Philippines (LBP) bonds. Meanwhile, petitioner Roxas applied for the conversion of the haciendas from agricultural to nonagricultural. Despite this, DAR proceeded with the acquisition of the two haciendas. It then issued and distributed certificate of land ownership awards (CLOA) to farmer beneficiaries. Hacianda Caylaway Although Hacienda Caylaway was initially offered for sale to the government, Roxas and Co sent a letter to DAR secretary withdrawing its offer. According to Roxas, the reclassification of Caylaway from agricultural to non agricultural was authorized by the Sangguniang Bayan of Nasugbu. Also, the municipality of Nasugbu where the haciendas are located had been declared a tourist zone. Roxas also argued that the land is not suitable for agricultural purposes. DAR secretary denied Roxas withdrawal of his VOS. According to the secretary, the withdrawal can only be based on specific grounds such as unsuitability of soil for agriculture, slope of the lad is over 180 degrees and that the land is undeveloped. Despite the denial of the withdrawal of the VOS, petitioner still filed an application for conversion with the DAR Adjudication Board (DARAB), which submitted the case to the Secretary of DAR for resolution. The DAR secretary dismissed the case. Roxas and Co went to the CA on appeal. CA dismissed appeal claiming that petitioners failed to exhaust administrative remedies. Issues: 1. WON the court can take cognizance of petitioners petition despite failure to exhaust administrative remedies 2. WON acquisition proceedings against the petitioners were valid 3. WON the court can rule on whether the haciendas may be reclassified from agricultural to non agricultural Held: 1.

2.

Yes. Petitioners action falls under the exception to the doctrine of exhaustion of administrative remedies sine there is no other plain, speedy, and adequate remedy for the petitioners at this point. The CLOAs were already issued despite the fact that there was no just compensation. Acquisition proceedings against petitioners violated their right to due process. First, there was an improper service of the Notice of Acquisition. Notices to corporations should be served through their president, manager, secretary, cashier, agent, or any of its directors or partners. Jaime Pimintel, to whom the notice was served, was neither of those. Second, there was no notice of coverage, meaning, the parcels of land were not properly identified before they were taken by the DAR. Under the law, the land owner has the right to choose 5 hectares of land he wishes to retain. Upon receiving the Notice of Acquisition, petitioner

corporation had no idea which portions of its estate were subject to compulsory acquisiton. Third, The CLOAs were issued to farmer beneficiaries without just compensation. The law provides that the deposit must be made only in cash or LBP bonds. DARs opening of a trust account in petitioners name does not constitute payment. Even if later, DAR substituted the trust account with cash and LBP bonds, such does not cure the lack of notice, which still amounts to a violation of the petitioners right to due process. 3. Despite all this, the court has not jurisdiction to rule on the reclassification of land from agricultural to non agricultural. DARs failure to observe due process does not give the court the power to adjudicate over petitioners application for land conversion. DAR is charged with the mandate of approving applications for land conversion. They have the tools and experience needed to evaluate such applications; hence, they are the proper agency with which applications for land use conversion are lodged. DAR should be given a chance to correct their defects with regard to petitioners right to due process. Petitioner dismissed. Indeed, the doctrine of primary jurisdiction does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with [91] an administrative body of special competence. Respondent DAR is in a better position to resolve petitioners application for conversion, being primarily the agency possessing the necessary expertise on the matter. The power to determine whether Haciendas Palico, Banilad and Caylaway are non-agricultural, hence, exempt from the coverage of the CARL lies with the DAR, not with this Court. Finally, we stress that the failure of respondent DAR to comply with the requisites of due process in the acquisition proceedings does not give this Court the power to nullify the CLOAs already issued to the farmer beneficiaries. To assume the power is to short-circuit the administrative process, which has yet to run its regular course. Respondent DAR must be given the chance to correct its procedural lapses in the acquisition proceedings. In [92] Hacienda Palico alone, CLOA's were issued to 177 farmer beneficiaries in 1993. Since [93] then until the present, these farmers have been cultivating their lands. It goes against the basic precepts of justice, fairness and equity to deprive these people, through no fault of their own, of the land they till. Anyhow, the farmer beneficiaries hold the property in trust for the rightful owner of the land. IN VIEW WHEREOF, the petition is granted in part and the acquisition proceedings over the three haciendas are nullified for respondent DAR's failure to observe due process therein. In accordance with the guidelines set forth in this decision and the applicable administrative procedure, the case is hereby remanded to respondent DAR for proper acquisition proceedings and determination of petitioner's application for conversion. Dept of Agrarian Reform vs Saranggani Agricultural The Sangguniang Bayan of Alabel, Sarangani passed Resolution No. 97-08 adopting a 10 year comprehensive development plan of the municipality and its land use. On January 30, 1998, pursuant to Municipal Zoning Ordinance No. 08, Series of 1997, and to accelerate the development and urbanization of Alabel, the Sangguniang Bayan of Alabel passed Resolution No. 98-03 reclassifying lots that were located within the built-up areas, based on the 19952005 Land Use Plan of the municipality, from agricultural to non-agricultural uses. Later, the Sangguniang Panlalawigan of Sarangani approved Resolution No. 98-018 or the Resolution Adopting the Ten-Year Municipal Comprehensive Development Plan (MCDP 1995-2205) and

the Land Use Development Plan and Zoning Ordinance of the Municipality of Alabel, Sarangani Per Resolution No. 97-08 and Municipal Ordinance No. 97-08, S. of 1997 of the Sangguniang Bayan of Alabel. A portion of the area involving376.5424 hectares, however, was covered by the CARP commercial farms deferment scheme. The Zoning Certification issued by the office of the Municipal Planning and Development Council (MPDC)showed that reclassified from agricultural and pasture land to residential, commercial institutional, light industrial and open space in the1995-2005 land use plan of Alabel. The respondent then field an application for land use conversion of certain parcels of land. Meanwhile, members of the Sarangani Agrarian Reform Beneficiaries Association, Inc. (SARBAI) sent a letter-petition to the DAR Secretary oppposing the application for land use conversion filed by SACI. SARBAI alleged that its members were merely forced to sign the waiver of rights, considering that the commercial farm deferment period ended on June 15, 1998. Later, the PLUTC agreed to recommend the disapproval of a portion of a property which was still viable for agriculture. The conversion was deferred subject to the submission of certain requirements. Later, the

appealed to the Office of the President. The Office of the President dismissed the appeal and denied, so they filed with the Court of Appeals a petition for review raising substantially the same issues. The CA granted the petition and ordred DAR to issue a conversion order. As to the deferred portion, DAR was directed to expedite the processing and evaluation of petitioners application. Issue: WON a notice of coverage is an indispensable requirement for the acquisition of land Held: No, Under the circumstances, a notice of coverage is not an indispensable requirement before DAR can acquire the subject lots or commercial farms, which are covered by a deferment period under the Comprehensive Agrarian Reform Law (CARL) or R.A. No 6657 upon its effectivity on June 15, 1998 Issue: WON the DAR should use the comprehensive land use plans and ordinance of the local sanggunian as primary reference Held: Yes, Section 20 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991,empowers the local government units to reclassify agricultural lands. Memorandum Circular No. 54 Prescribing the Guidelines Governing Section 20 of R.A. No. 7160 Otherwise Known as the Local Government Code of 1991Authorizing Cities and Municipalities to Reclassify Agricultural Lands Into NonPresident Ramos on June 8, 1993 specified the scope and limitations on the power of the cities and municipalities to reclassify lands into other uses. Hence, with regard to agricultural lands that have been reclassified for non-agricultural uses by the local government unit concerned, the CA is correct in declaring that DAR should refer to the comprehensive land use plans and the ordinances of the Sanggunian in assessing land use conversion applications, thus: Construing Sec. 20 of the Local Government Code and the subsequent administrative issuances implementing the same, we are of the opinion that while the DAR retains the responsibility for approving or disapproving applications for land use conversion filed by individual landowners on their landholdings, the exercise of such authority should be

confined to compliance with the requirements and limitations under existing laws and regulations, such as the allowable percentage of agricultural [area] to be reclassified, ensuring sufficient food production, areas non-negotiable for conversion and those falling under environmentally critical areas or highly restricted for conversion under the NIPAS law. Definitely, the DAR's power in such cases may not be exercised in such a manner as to defeat the very purpose of the LGU concerned in reclassifying certain areas to achieve social and economic benefits in pursuit of its mandate towards the general welfare. Precisely, therefore, the DAR is required to use the comprehensive land use plans and accompanying ordinances of the local Sanggunian as primary references in evaluating applications for land use conversion filed by individual landowners. In this case, petitioners have already complied with the standard requirements laid down under the applicable rules and regulations of the DAR. . . . The conversion of agricultural lands into non-agricultural uses shall be strictly regulated and may be allowed only when the conditions prescribed under R.A. No. 6657 are present. 21 In this regard, the Court agrees with the ratiocination of the CA that DAR's scope of authority in assessing land use conversion applications is limited to examining whether the requirements prescribed by law and existing rules and regulations have been complied with. This holds true in the present case where, because of the creation of the Province of Sarangani and in view of its thrust to urbanize, particularly its provincial capital which is the Municipality of Alabel, the local government has reclassified certain portions of its land area from agricultural to non-agricultural. Thus, to reiterate, in accordance with E.O. No. 72, Series of 1993, and subject to the limitations prescribed by law, DAR should utilize the comprehensive land use plans in evaluating the land use conversion application of respondents whose lands have already been reclassified by the local government for nonagricultural uses.

undertaking of public works and highways, telecommunications, and waterworks projects, the duration of which shall be specified by the local chief executive concerned in a written order: Provided, however, That no national or local road, alley, park, or square shall be temporarily closed for athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the local government unit concerned. (d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close and regulate the use of any local street, road, thoroughfare, or any other public place where shopping malls, Sunday, flea or night markets, or shopping areas may be established and where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold and dispensed to the general public. Cabrera vs CA Facts: The Provincial Board of Catanduanes adopted Resolution No. 158 (Closing the old road leading to the new Capitol Building and giving owners of properties traversed by the new road an area form the old raod). Pursuant thereto, Deeds of Exchange were executed under which the Province conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T.Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the Capitol Building. Learning about Resolution 158, the petitioner filed a complaint with the CFI of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public road owned by the Province in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158and the deeds of exchange were invalid, as so too was the closure of the road. The judge sustained the authority of the provincial board to enact said Resolution. The CA affirmed and found that the road was not a public road but just a trail. Also, pursuant to RA 5185, municipal authorities, subject to the approval of the Provincial Board, can close thoroughfares pursuant to Sec 2246of the Revised Administrative Code. Petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board. Issue: WON the Provincial Board can validly enact said resolution Held: Yes. Resolution 158 clearly says that it is "hereby resolved to close the old road." The closure is as plain as day except that the petitioner, with the blindness of those who will not see, refuses to acknowledge it. The Court has little patience with such puerile arguments. They border dangerously on a trifling with the administration of justice and can only prejudice the pleader's cause. The authority of the provincial board to close that road and use or convey it for other purposes is derived from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative Code: It sustained the

Section 21. Closure and Opening of Roads. (a) A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of the sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure is provided. (b) No such way or place or any part thereof shall be permanently closed without making provisions for the maintenance of public safety therein. A property thus permanently withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local government unit concerned may be lawfully used or conveyed: Provided, however, That no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. (c) Any national or local road, alley, park, or square may be temporarily closed during an actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an

subsequent sale of the land as being in accordance not only with the charter but also with Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." In the case of Favis vs. City of Baguio, the power of the City Council of Baguio City to close city streets and withdraw them from public use was also assailed. This Court said: 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. While it is true that the cases dealt with city councils and not the provincial board, there is no reason for not applying the doctrine announced therein to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province for the construction of provincial roads. The lower court found the petitioner's allegation of injury and prejudice to be without basis because he had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the CA ruled that the he "was prejudiced by the closure of the road which formerly fronted his house. He and his family were undoubtedly inconvenienced by the loss of access to their place of residence for which we believe they should be compensated." On this issue, the governing principle was laid down in Favis thus: . . . The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. Dacanay vs. Asistio FACTS: This is a petition for mandamus to the non-action of the city registered being a public road intended for public use is considered part of the public domain and therefore outside the commerce of man. After hearing the parties, on 11 October 1914 the trial court issued an

order dismissing the petitioner's application for registration of title. Hence, the instant petition for review. The Supreme Court set aside the order of the lower court, and the ordered said court to proceed with the hearing of the petitioner's application for registration of title. ISSUE: Whether or not the sale is valid HELD: Yes it is. 1. City is empowered to close city road or street and withdraw the same from public use. Section 31 of the Revised Charter of Cebu City (Legislative Powers) provides that any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers xxx to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." It is undoubtedly clear that the City of Cebu is empowered to close a city road or street. 2. Discretion of the city council cannot ordinarily be interfered with by the court. The city council is the authority competent to determine whether or not a certain property is still necessary for public use. The power to vacate a street or alley is discretionary, and the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will he presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. 3. Street withdrawn from public use becomes patrimonial property; Subsequent sale valid. When a portion of the city street was withdrawn from public use, such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract. As expressly provided by Article 422 of the Civil Code, "property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." Further, the Revised Charter of the City of Cebu, in very clear and unequivocal terms, states that "property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed." Thus, the withdrawal of the property in question from public use and its subsequent sale to the petitioner is valid.

Macasiano vs. Diokno Doctrine: Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress. Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress. Facts: On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension

and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon, pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions.. On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas. On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter shall operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the municipal government of Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets. On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag. Issue: Whether or not an ordinance or resolution issued by the municipal council of Paraaque authorizing the lease and use of public streets or thoroughfares as sites for flea markets is valid. Held: No. The ordinance or resolution authorizing the lease and use of public streets or thoroughfares as sites for a flea market is invalid. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities. All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws. Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and are therefore considered public properties of respondent municipality. Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress. Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress. Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent municipality of the conditions imposed by the former for the approval of the ordinance. Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws such as our Civil Code. Moreover,

the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective, the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare.

Corporate Powers i. Different corporate powers

Section 22 of RA 7160. Corporate Powers. (a) Every local government unit, as a corporation, shall have the following powers: (1) To have continuous succession in its corporate name; (2) To sue and be sued; (3) To have and use a corporate seal; (4) To acquire and convey real or personal property; (5) To enter into contracts; and (6) To exercise such other powers as are granted to corporations, subject to the limitations provided in this Code and other laws. (b) Local government units may continue using, modify, or change their existing corporate seals: Provided, That newly established local government units or those without corporate seals may create their own corporate seals which shall be registered with the Department of the Interior and Local Government: Provided, further, That any change of corporate seal shall also be registered as provided hereon. (c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipal or barangay hall. (d) Local government units shall enjoy full autonomy in the exercise of their proprietary functions and in the limitations provided in this Code and other applicable laws,

Section 23. Authority to Negotiate and Secure Grants. - Local chief executives may, upon authority of the sanggunian, negotiate and secure financial grants or donations in kind, in support of the basic services or facilities enumerated under Section 17 hereof, from local and foreign assistance agencies without necessity of securing clearance or approval therefor from any department, agency, or office of the national government of from any higher local government unit: Provided, That projects financed by such grants or assistance with national

security implications shall be approved by the national agency concerned: Provided, further, That when such national agency fails to act on the request for approval within thirty (30) days from receipt thereof, the same shall be deemed approved. The local chief executive shall, within thirty (30) days upon signing of such grant agreement or deed of donation, report the nature, amount, and terms of such assistance to both Houses of Congress and the President. CASES: City of Manila vs. IAC (179 SCRA 428) Facts: This is a petition for review on certiorari seeking to reverse and set aside: (a) the Decision of 1 the Intermediate Appellate Court now Court of Appeals promulgated on May 31, 1984 in AC-G.R. CV No. 00613-R entitled Irene Sto. Domingo et al., v. City Court of Manila et 2 al., modifying the decision of the then Court of First Instance of Manila, Branch VIII in Civil Case No. 121921 ordering the defendants (herein petitioners,) to give plaintiffs (herein private respondents) the right to use a burial lot in the North Cemetery corresponding to the unexpired term of the fully paid lease sued upon, to search the remains of the late Vivencio Sto. Domingo, Sr. and to bury the same in a substitute lot to be chosen by the plaintiffs; and (b) the Resolution of the Court of Appeals dated May 28, 1985 denying petitioner's motion for reconsideration. Issues: Whether or not the operations and functions of a public cemetery are a governmental, or a corporate or proprietary function of the City of Manila. Decision: Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the faculties of municipal corporations to be exercised by and through its city government in conformity with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. Its powers are twofold in character-public, governmental or political on the one hand, and corporate, private and proprietary on the other. Governmental powers are those exercised in administering the powers of the state and promoting the public welfare and they include the legislative, judicial, public and political. Municipal powers on the one hand are exercised for the special benefit and advantage of the community and include those which are ministerial, private and corporate. In McQuillin on Municipal Corporation, the rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large insofar as it is its agent in government, and private (so called) insofar as it is to promote local necessities and conveniences for its own community. In connection with the powers of a municipal corporation, it may acquire property in its public or governmental capacity, and private or proprietary capacity.

Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the settled rule is that a municipal corporation can be held liable to third persons ex contractu (from a contract). The Court further stressed: Municipal corporations are subject to be sued upon contracts and in tort.... xxx xxx xxx The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of its agent or servant in the course or line of his employment, by which another who is free from contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within tile operation of this rule of law, and are liable accordingly, to civil actions for damages when the requisite elements of liability co-exist. ... (Emphasis supplied) The Court added: ... while the following are corporate or proprietary in character, viz: municipal waterworks, slaughter houses, markets, stables, bathing establishments, wharves, ferries and fisheries. Maintenance of parks, golf courses, cemeteries and airports among others, are also recognized as municipal or city activities of a proprietary character. Under the foregoing considerations and in the absence of a special law, the North Cemetery is a patrimonial property of the City of Manila. With the acts of dominion (administration of the cemetery, order and police of the cemetery, opening of graves, exhuming and purification of the remains), there is, therefore no doubt that the North Cemetery is within the class of property which the City of Manila owns in its proprietary or private character. Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents. Hence, obligations arising from contracts have the force of law between the contracting parties. Thus a lease contract executed by the lessor and lessee remains as the law between them. Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is liable for the tortious act committed by its agents who failed to verify and check the duration of the contract of lease. The Decision of the Intermediate Appellate Court is hereby AFFIRMED. Summary: If the function of the municipal corporation is one of a PROPRIETARY function, it may be sued based on a contract or tort.

In this case, since the Manila Cemetery is a patrimonial property (acquired through its private or proprietary capacity) and operated and administered by the City of Manila through its proprietary function, it may be sued based on breach of contractual obligation, in this case, lease of burial grounds.

Province of Zamboanga vs. City of Zamboanga (22 SCRA 1334) Facts: Prior to the incorporation as a chartered city, the Municipality of Zamboanga was the provincial capital of Zamboanga Province. By virtue of Commonwealth Act 39, section 50 providing that the buildings and other properties that the Province will abandon in view of its conversion as Zamboanga City shall be paid for by the City of Zamboanga at a price to be fixed by the Auditor General, the said properties consisting of 50 lots were identified and the price were fixed thereof. In June 17, 1961, RA 3039 was approved and it amended section 50 of the Commonwealth Act 39 providing that all buildings, properties, and assets belonging to the Province of Zamboanga and located in the City of Zamboanga are transferred free of charge in favor of the City of Zamboanga. The Province of Zamboanga del Norte filed a complaint for declaratory relief with preliminary injunction contending that the RA 3039 is unconstitutional as it deprives the Province of its properties without just compensation and due process. Issue: WON RA 3039 is unconstitutional as it deprived the province of property without just compensation. Decision: The validity of the law ultimately depends on the nature of the 50 lots and buildings thereon in question. For, the matter involved here is the extent of legislative control over the properties of a municipal corporation, of which a province is one. The principle itself is simple: If the property is owned by the municipality (meaning municipal corporation) in its public and governmental capacity, the property is public and Congress has absolute control over it. If the property is owned in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control. The municipality cannot be deprived of it without due process and payment of just compensation.

ART. 424. Property for public use, in the provinces, cities, and municipalities, consists of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities. All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws. (Stressed for emphasis). Following this classification, Republic Act 3039 is valid insofar as it affects the lots used as capitol site, school sites and its grounds, hospital and leprosarium sites and the high school playground sites a total of 24 lots since these were held by the former Zamboanga province in its governmental capacity and therefore are subject to the absolute control of Congress. On the other hand, applying the norm obtaining under the principles constituting the law of Municipal Corporations, all those of the 50 properties in question which are devoted to public service are deemed public; the rest remain patrimonial. Under this norm, to be considered public, it is enough that the property be held and, devoted for governmental purposes like local administration, public education, public health, etc. We are more inclined to uphold this latter view (law of Municipal Corporations). The controversy here is more along the domains of the Law of Municipal Corporations State vs. Province than along that of Civil Law. Moreover, this Court is not inclined to hold that municipal property held and devoted to public service is in the same category as ordinary private property. The consequences are dire. As ordinary private properties, they can be levied upon and attached. They can even be acquired thru adverse possession all these to the detriment of the local community. Lastly, the classification of properties other than those for public use in the municipalities as patrimonial under Art. 424 of the Civil Code is "... without prejudice to the provisions of special laws." For purpose of this article, the principles, obtaining under the Law of Municipal Corporations can be considered as "special laws". Hence, the classification of municipal property devoted for distinctly governmental purposes as public should prevail over the Civil Code classification in this particular case. Note: If the property is owned by the municipal corporation in its public and governmental capacity, the Congress has absolute control over it. Thus, it can be transferred to another municipal corporation even without just compensation.

The capacity in which the property is held is, however, dependent on the use to which it is intended and devoted. Now, which of two norms, i.e., that of the Civil Code or that obtaining under the law of Municipal Corporations, must be used in classifying the properties in question? The Civil Code classification is embodied in its Arts. 423 and 424 which provide: ART. 423. The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property.

If the property is owned by the municipal corporation in its private or proprietary capacity, the Congress has no absolute control and the municipality cannot be deprived of it without due process and just compensation.

In determining whether or not a property is public or proprietary, the classification in the Law of Municipal Corporations shall be used since it is a special law, compared to that of the provisions of the Civil Code, as the Civil Code specifically provides that the classification used therein is without prejudice to the provisions of special laws. Under the Law of Municipal Corporations, to be considered public, it is enough that the property be held and, devoted for governmental purposes like local administration, public education, public health, etc.

Court, et al., where we ruled that private attorneys cannot represent a province or municipality in lawsuits. Section 1683 of the Revised Administrative Code provides: Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be 13 employed by its council. Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local 14 Autonomy Law, only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the 15 provincial fiscal is disqualified to represent it. For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on 16 record. In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law. The submission of Atty. Mendiola that the exception is broad enough to include situations wherein the provincial fiscal refuses to handle the case cannot be sustained. The fiscal's refusal to represent the municipality is not a legal justification for employing the services of private counsel. Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in court, pursuant to Section 1679 of the Revised Administrative Code. The legality of his representation can be questioned at any stage of the proceedings. Notes: General rule: Private lawyers cannot represent a province or municipality in a lawsuit. Only the provincial fiscal may do so. Exception: when the provincial fiscal is disqualified. Provincial fiscals refusal to take the case is not the disqualification contemplated by the law. The remedy for the province or municipality in such case is to request the Secretary of Justice to appoint a provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute the case in court.

12

Municipality of Pililia vs. CA (233 SCRA 484) Facts: The RTC of Tanay, Rizal rendered judgment ordering the Philippine Petroleum Corporation (PPC) to pay the Municipality of Pililla (municipality) business taxes and other fees. The judgment was affirmed by the SC and became final and executor. The case was remanded to the RTC for execution. In connection with the execution of judgment, Atty. Felix Mendiola filed a motion in behalf of the municipality for the examination of PPCs gross sales for the purpose of computing its business taxes. PPC filed a manifestation before the RTC to the effect that Mayor Patenia of Pililla received from it P11.5M as full satisfaction of the judgment as evidenced by the release and quit claim documents executed by the said mayor. The RTC issued an order denying Atty. Mendiolas motion for examination and execution of judgment. Atty. Mendiola filed a motion for reconsideration claiming that the total liability amounted to P24.2M while the amount received by the mayor was only P12.7M. He asserted that the mayor cannot waive the balance of the judgment over which his law firm had registered two liens for alleged consultancy services and attorneys fees amounting to more than P12M. The RTC, however, denied his MR. A petition for certiorari was filed by Atty. Mendiola which was referred to the CA for appropriate action. PPC filed a motion questioning the authority of Atty. Mendiola to represent the municipality. The CA dismissed the petition for having been filed by a private counsel in violation of the law and jurisprudence but without prejudice to the filing of a similar petition by the municipality thru the proper provincial or municipal legal officer. Atty. Mendiola filed a petition before the SC to assail the decision of the CA. Issues: WON a private lawyer can represent a province or municipality in a lawsuit. Decision: The Court of Appeals is correct in holding that Atty. Mendiola (private lawyer) has no authority to file a petition in behalf of and in the name of the Municipality of Pililla. The matter of representation of a municipality by a private attorney has been settled in Ramos 11 vs. Court of Appeals, et al., and reiterated in Province of Cebu vs. Intermediate Appellate

MUNICIPAL LIABILITY A. Specific provisions making local government units liable i. Art. 189, CC Whenever the liquidation of the partnership of two or more marriages contracted by the same person should be carried out at the same time, in order to determine the capital of each partnership all kinds of proof in the absence of inventories shall be admitted; and in case of doubt, the partnership property shall be divided between the different partnerships in proportion to the duration of each and to the property belonging to the respective spouses. ii. Art. 2180, CC The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. FACTS:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. iii. Art. 34, CC When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. iv. Sec. 24, RA 7160 Liability for Damages. - Local government units and their officials are not exempt from liability for death or injury to persons or damage to property. CITY OF MANILA, vs. GENARO N. TEOTICO and COURT OF APPEALS,

Teotico was waiting for a jeepney to take him downtown. As he was about to board the jeepney, he fell inside an uncovered and unlighted manhole and got himself injured. He incurred P1,400 as medical expenses. Teotico filed a complaint for damages with the CFI of Manila against the City of Manila, its mayor, city engineer, city health officer, city treasurer and chief of police. CFI Manila decided in favor of the City of Manila and other defendants and dismissed the complaint. On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is concerned, which was sentenced to pay damages in the 1 aggregate sum of P6,750.00. Hence, this appeal by the City of Manila. ISSUE: Whether Section 4 of RA No. 409 or Art. 2189 of the Civil Code applies.

HELD: Section 4 of RA No. 409 provides The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions. Article 2189 of the Civil Code of the Philippines provides: Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or supervision. The Court of Appeals, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject-matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for: "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by any person by reason" specifically "of the defective condition of roads, streets, bridges, public buildings, and other-public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon. At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road. Even if P. Burgos Avenue were, therefore, a national highway, this circumstance would not necessarily detract from its "control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides: Sec. 18. Legislative powers. The Municipal Board shall have the following legislative powers: xxx xxx xxx

laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires therein; to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the streets and other public places; to provide for the abatement of nuisances in the same and punish the authors or owners thereof; to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and other amusements which may annoy persons using the streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their property, or any part thereof, to provide suitable protection against injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and under their tracks, so that the natural drainage of the streets and adjacent property shall not be obstructed. WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila. It is so ordered.1wph1.t Note: In case death or injury has arisen from defective conditions of road, streets, bridges, public buildings, and other public works under the control or supervision of a province, city or municipality, the applicable law is Art. 2189 of the Civil Code which provides that such municipal corporation shall be held liable. It is not necessary that such road, street, bridge, etc. belong to the said province, city or municipality. As long as they have control and supervision on such infrastructures, they shall be held liable for damages.

BERNARDINO JIMENEZ vs. CITY OF MANILA and INTERMEDIATE APPELLATE COURT. FACTS: Jimenez went to the Sta. Ana public market to buy bagoong at the time when the market was flooded with ankle deep rainwater. He stepped on an uncovered opening which could not be seen because of the flood causing a dirty and rusty 4 inch nail to pierce his leg. He was hospitalized for 20 days due to the infection caused by this. His injury prevented him from attending to the school buses he is operating and incurred P900.00 as expenses for the supervision of Bienvenido Valdez of his business. Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation under whose administration the Sta. Ana Public Market had been placed by virtue of a Management and Operating Contract.

(x) Subject to the provisions of existing law to provide for the laying out, construction and improvement, and to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for and regulate the openings in the same for the

The lower court decided in favor of respondents City of Manila and Asiatic and dismissed the complaint. As above stated, on appeal, the Intermediate Appellate Court held the Asiatic Integrated Corporation liable for damages but absolved respondent City of Manila. ISSUE: WON IAC erred in not ruling that respondent City of Manila should be jointly and severally liable with Asiatic Integrated Corporation for the injuries petitioner suffered. DECISION: The petition is impressed with merit. This issue has been laid to rest in the case of City of Manila v. Teotico (22 SCRA 269-272 [1968]) where the Supreme Court squarely ruled that Republic Act No. 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of city officers" to enforce the provisions of said Act, "or any other law or ordinance or from negligence" of the City "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code of the Philippines which provides that: Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of defective conditions of roads, streets, bridges, public buildings and other public works under their control or supervision. constitutes a particular prescription making "provinces, cities and municipalities ... liable for damages for the death of, or injury suffered by any person by reason" specifically "of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision." In other words, Art. 1, sec. 4, R.A. No. 409 refers to liability arising from negligence, in general, regardless of the object, thereof, while Article 2189 of the Civil Code governs liability due to "defective streets, public buildings and other public works" in particular and is therefore decisive on this specific case. In the same suit, the Supreme Court clarified further that under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach, that the defective public works belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality has either "control or supervision" over the public building in question. In the case at bar, there is no question that the Sta. Ana Public Market, despite the Management and Operating Contract between respondent City and Asiatic Integrated Corporation remained under the control of the former. The fact of supervision and control of the City over subject public market was admitted by Mayor Ramon Bagatsing in his letter to Secretary of Finance Cesar Virata which reads:

These cases arose from the controversy over the Management and Operating Contract entered into on December 28, 1972 by and between the City of Manila and the Asiatic Integrated Corporation, whereby in consideration of a fixed service fee, the City hired the services of the said corporation to undertake the physical management, maintenance, rehabilitation and development of the City's public markets and' Talipapas' subject to the control and supervision of the City. xxx xxx xxx It is believed that there is nothing incongruous in the exercise of these powers vis-a-vis the existence of the contract, inasmuch as the City retains the power of supervision and control over its public markets and talipapas under the terms of the contract. In fact, the City of Manila employed a market master for the Sta. Ana Public Market whose primary duty is to take direct supervision and control of that particular market, more specifically, to check the safety of the place for the public. Finally, Section 30 (g) of the Local Tax Code as amended, provides: The treasurer shall exercise direct and immediate supervision administration and control over public markets and the personnel thereof, including those whose duties concern the maintenance and upkeep of the market and ordinances and other pertinent rules and regulations. (Emphasis supplied.) (Rollo, p. 76) As a defense against liability on the basis of a quasi-delict, one must have exercised the diligence of a good father of a family. (Art. 1173 of the Civil Code). There is no argument that it is the duty of the City of Manila to exercise reasonable care to keep the public market reasonably safe for people frequenting the place for their marketing needs. To recapitulate, it appears evident that the City of Manila is likewise liable for damages under Article 2189 of the Civil Code, respondent City having retained control and supervision over the Sta. Ana Public Market and as tort-feasor under Article 2176 of the Civil Code on quasidelicts Petitioner had the right to assume that there were no openings in the middle of the passageways and if any, that they were adequately covered. Had the opening been covered, petitioner could not have fallen into it. Thus the negligence of the City of Manila is the proximate cause of the injury suffered, the City is therefore liable for the injury suffered by the petitioner. Respondent City of Manila and Asiatic Integrated Corporation being joint tort-feasors are solidarily liable under Article 2194 of the Civil Code.

Note: Like in the Teotico case, the City of Manila was found to be solidarily liable together with Asiatic for the injury caused to Jimenez due to the open manhole. Their liability arising from Art. 2189 of the Civil Code as the City of Manila had control and supervision of the said market. It does not matter whether or not the said place was leased to another, as long as it is under the control and supervision of the City of Manila, they are still to be held liable. FLORENTINA A. GUILATCO vs. CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS FACTS: Guilatco was about to board a motorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under the control and supervision of the City of Dagupan) and she accidentally fell into a manhole located on said sidewalk. She fractured her leg. She was hospitalized due to this and was operated. She incurred P10,000.00 as medical expenses. In a civil case for damages, the trial court ruled in favor of Guilatco, ordering the City of Dagupan to pay for actual damages, and dismissed the case against City Engr. Tangco. On appeal by the respondent City of Dagupan, the appellate court reversed the lower court findings on the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5 ISSUE: WON control or supervision over a national road by the City of Dagupan exists, in effect binding the city to answer for damages in accordance with article 2189 of the Civil Code. DECISION: The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition of roads is expressed in the Civil Code as follows: Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street. 6 In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised through the City Engineer. The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board. Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the open drainage hole is located.

The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar. The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in particular to the liability arising from "defective streets, public buildings and other public works." SC ruled in favor of plaintiff.

LOCAL OFFICIALS A. Prohibited Business and Pecuniary Interest Sec. 89, RA 7160 Prohibited Business and Pecuniary Interest. (a) It shall be unlawful for any local government official or employee, directly or indirectly, to: (1) Engage in any business transaction with the local government unit in which he is an official or employee or over which he has the power of supervision, or with any of its authorized boards, officials, agents, or attorneys, whereby money is to be paid, or property or any other thing of value is to be transferred, directly or indirectly, out of the resources of the local government unit to such person or firm; (2) Hold such interests in any cockpit or other games licensed by a local government unit; (3) Purchase any real estate or other property forfeited in favor of such local government unit for unpaid taxes or assessment, or by virtue of a legal process at the instance of the said local government unit; (4) Be a surety for any person contracting or doing business with the local government unit for which a surety is required; and (5) Possess or use any public property of the local government unit for private purposes. (b) All other prohibitions governing the conduct of national public officers relating to prohibited business and pecuniary interest so provided for under Republic Act Numbered Sixty-seven thirteen (R.A. No. 6713) otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees" and other laws shall also be applicable to local government officials and employees.

Section 90. Practice of Profession. (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not: (1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; (2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.

On the other hand, Javellana filed a Motion to Dismiss the administrative case against him on the ground mainly that DLG Memorandum Circulars Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court has the sole and exclusive authority to regulate the practice of law. ISSUE: Constitutionality of DILG Memo Circular Nos. 80-38 and 90-81 DECISION: As a matter of policy, this Court accords great respect to the decisions and/or actions of administrative authorities not only because of the doctrine of separation of powers but also for their presumed knowledgeability and expertise in the enforcement of laws and regulations entrusted to their jurisdiction. With respect to the present case, we find no grave abuse of discretion on the part of the respondent, Department of Interior and Local Government (DILG), in issuing the questioned DLG Circulars Nos. 80-30 and 90-81 and in denying petitioner's motion to dismiss the administrative charge against him. In the first place, complaints against public officers and employees relating or incidental to the performance of their duties are necessarily impressed with public interest for by express constitutional mandate, a public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint against the City Government of Bago City, their real employer, of which petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia would actually be a judgment against the City Government. By serving as counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government. Petitioner's contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Court's power and authority to prescribe rules on the practice of law. The Local Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it. Section 90 of the Local Government Code does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in schools expect during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service. Javellanas petition denied by SC.

EDWIN B. JAVELLANA vs.DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T. SANTOS, SECRETARY FACTS: Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental. On October 5, 1989, City Engineer Ernesto C. Divinagracia filed Administrative Case No. C-10-90 against Javellana for: (1) violation of Department of Local Government (DLG) Memorandum Circular No. 80-38 dated June 10, 1980 in relation to DLG Memorandum Circular No. 74-58 and of Section 7, paragraph b, No. 2 of Republic Act No. 6713, otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees," and (2) for oppression, misconduct and abuse of authority. Divinagracia's complaint alleged that Javellana, an incumbent member of the City Council or Sanggunian Panglungsod of Bago City, and a lawyer by profession, has continuously engaged in the practice of law without securing authority for that purpose from the Regional Director, Department of Local Government, as required by DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular No. 74-58 of the same department.

Note: government officials are prohibited from engaging in the private practice of his profession if such practice would represent interests adverse to the government.

LOCAL OFIICIALS Elective Officials. 1. Qualifications (Sec. 39, RA 7160) SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice- governor or member of the sangguniang panlalawigan, or Mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on Election Day. (c) Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.cralaw (d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on Election Day. (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on Election Day. (f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on Election Day. Salcedo vs. COMELEC Facts: Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the position of mayor of the municipality of Sara, Iloilo in the May 11, 1998 elections, both of them filed their respective certificates of candidacy on March 27, 1998. However, on April 17, 1998, petitioner filed with the Comelec a petition seeking the cancellation of private respondent's certificate of candidacy on the ground that she had made a false representation therein by stating that her surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because she was not legally married to Neptali Salcedo.

It was alleged that On February 18, 1968, Neptali P. Salcedo married Agnes Celiz, which marriage is evidenced by a certified true copy of the marriage contract issued by the Municipal Civil Registrar of Ajuy, Iloilo. Without his first marriage having been dissolved, Neptali P. Salcedo married private respondent Ermelita Cacao in a civil ceremony held on September 21, 1986. In her answer, private respondent claimed that she had no information or knowledge at the time she married Neptali Salcedo that he was in fact already married; that, upon learning of his existing marriage, she encouraged her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital home since 1972 and has not been heard from since that time; that on February 16, 1998, Neptali Salcedo filed a petition for declaration of presumptive death before Branch 66 of the Regional Trial Court of Barotac Viejo, Iloilo, which was granted by the court. On August 12, 1998, the Comelec's Second Division ruled that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with private respondent is null and void. Consequently, the use by private respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy. Sec. 78 of the Omnibus Election Code provides: That a verified petition seeking to deny due course to or cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. A candidate's name or surname contained in the certificate of candidacy is required under Section 74 of the Omnibus Election Code and is a material misrepresentation.

However, in its en banc Resolution dated October 6, 1998, the Comelec overturned its previous resolution, ruling that private respondent's certificate of candidacy did not contain any material misrepresentation. The record shows that respondent Ermelita C. Salcedo married Neptali Salcedo on September 21, 1986. Under Article 370 of the Civil Code, the respondent may use her husband's surname. Hence, there is no material misrepresentation nor usurpation of another's name. Hence an appeal to the Supreme Court. Issue:

Whether the use of such surname constitutes a material misrepresentation under section 78 of the Omnibus Election Code so as to justify the cancellation of her certificate of candidacy. Held:

Thus, the Supreme Court held that the private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her certificate of candidacy. Maruhom vs COMELEC Facts:

The court held that it does not. It was held that it is essential that the false representation mentioned in section 78 of the Omnibus Election Code pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate, and that is the right to run for the elective post for which he filed the certificate of candidacy. Material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office. The consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave, to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. Petitioner has made no allegations concerning private respondent's qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the surname "Salcedo," petitioner does not claim that private respondent lacks the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code. Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by private respondent in her certificate of candidacy pertains to a material matter. Aside from the requirement of materiality, a false representation under section 78 must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision. There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and may have even been personally acquainted with her since she has been residing in the municipality of Sara, Iloilo since at least 1986. Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the public as his wife. Maruhom challenges in her Petition the jurisdiction of the COMELEC in declaring her registration in Marantao void. She asserts that Section 2, Article IX(c) of the Constitution prohibits the COMELEC from assuming jurisdiction or deciding issues involving the right to vote. Section 33 of Republic Act No. 8189, or the Voters Registration Act of 1996 (VRA), confers upon the MTCs and MeTCs original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities and municipalities Issue: Is the challenge on Maruhoms registration, an issue on the right to vote and thus, beyond COMELEC jurisdiction? Held: The present case is not about her being denied her right to register as a voter, but is all about her making false material representations in her COC, which would warrant the cancellation of the same. The resolutions of the COMELEC en banc merely defeated Maruhoms intent to run for elective office, but it did not deprive her of her right to vote. Although Maruhoms registration in Marantao is void, her registration in Marawi still subsists. She may be barred from voting or running for mayor in the former, but she may still exercise her right to vote, or even run for an elective post, in the latter. It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the OEC.[21] In the exercise of such jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the COC. Frivaldo vs COMELEC Facts: In the May 8, 1995 elections, Juan G. Frivaldo, eighty one years of age, a natural born Filipino, won the gubernatorial seat in the province of Sorsogon by having the most number of votes against rivals Raul Lee, Antonio Escudero Jr. and Isagani Ocampo. However, prior to the said election, Raul Lee filed a petition with the COMELEC which claimed that Frivaldo should be disqualified on the basis that he is not a Filipino Citizen. COMELEC adhered to the petition and declared that Frivaldo is disqualified and cancelled his certificate of candidacy. COMELEC also denied Frivaldo s Motion for Reconsideration but such th remained unanswered until May 11 thus resulting his name still being included on the day th of the voting. On June 29 of the same year, the COMELEC en banc issued through the

provincial board of canvassers that 2 placer, Raul Lee, be proclaimed as the winner of the gubernatorial race. The following day, Lee was declared Governor of Sorsogon. On the contrary, Juan Frivaldo contended on a petition filed with the COMELEC that he should be proclaimed the governor since, on the same day of Lees proclamation, he already took his allegiance as a citizen of the Philippines, due to the granting of his petition for repatriation under Presidential Decree 725 with the Special Committee on Naturalization on August 17, 1994. Consequentially, Frivaldo then, being the choice of the sovereign will should be declared as governor. Issue: Whether the repatriation under P.D. 725 of Frivaldo is valid and legal. Held: Under the Philippine law, Philippine citizenship may be reacquired as follows: by direct act of congress, by naturalization or by repatriation. Previously, Frivaldo sought a direct act of congress as a means of reacquiring his citizenship but it failed because of his alleged political rivals and he also sought naturalization but was rejected because of jurisdictional, substantial and procedural defects.

nd

place. Also, the effect of the said repatriation is retroacted in the date of his application since P.D. 725 showed that it created new rights for Frivaldo. He possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. 2. Disqualifications (Sec. 40, RA 7160) SEC. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. Dela Torre vs COMELEC Facts:

On the third time however, Frivaldo pursued reacquisition of Philippine citizenship under Presidential Decree 725 providing for repatriation of Filipino Women who had lost their Philippine citizenship by marriage to aliens and of natural born Filipinos. In the said decree pertaining to natural born Filipinos, it states that: natural born Filipinos who have lost their Philippine citizenship may require Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No.270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The court in addition states regarding the process of reacquisition: In fact, P.D. 725 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States, a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people. The reacquisition of citizenship is deemed valid since it followed thecorrect procedure and the said decree has not been repealed by any subsequent laws in the first

Petitioner Rolando dela Torre was disqualified from running as mayor of Cavinti Laguna on the ground that he was convicted of violation the Anti-Fencing Law.

He argues that he should not be disqualified because he is serving probation of his sentence and hence, the execution of his judgment was suspended together with all its legal consequences. Issue: Whether Dela Torre is disqualified to run for public office. Facts: Sec.40 of LGC provides:

Disqualifications.- The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence Moral turpitude is considered as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. In this case of fencing, actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. Hence Dela Torre is disqualified from seeking public office. With regard to his argument that he is under probation, the court ruled that the legal effect of probation is only to suspend the execution of the sentence. Dela Torre's conviction subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Villaber vs COMELEC Facts: Petitioner Villaber and respondent Douglas R. Cagas were rival candidates for a congressional seat in the First District of Davao del Sur during the May 14, 2001 elections. Villaber filed his certificate of candidacy for Congressman on February 19, 2001, while Cagas filed his on February 28, 2001. On March 4, 2001, Cagas filed with the Office of the Provincial Election Supervisor of COMELEC Davao del Sur, a consolidated petition to disqualify Villaber and to cancel the latters certificate of candidacy due to the fact that Villaber was convicted by the RTC for violation of BP22 and was sentenced to suffer 1 year imprisonment. The check that bounced was in the sum of P 100,000.00. Cagas further alleged that this crime involves moral

turpitude; hence, under Section 12 of the Omnibus Election Code, he is disqualified to run for any public office. On appeal, the CA affirmed the RTC Decision. Undaunted, Villaber filed with this Court a petition for review on certiorari assailing the CAs Decision. However, in its Resolution of October 26, 1992, this Court (Third Division) dismissed the petition. On February 2, 1993, our Resolution became final and executory. Cagas also asserted that Villaber made a false material representation in his certificate of candidacy that he is Eligible for the office I seek to be elected which false statement is a ground to deny due course or cancel the said certificate pursuant to Section 78 of the Omnibus Election Code. In his answer to the disqualification suit, Villaber countered mainly that his conviction has not become final and executory because the affirmed Decision was not remanded to the trial court for promulgation in his presence. Furthermore, even if the judgment of conviction was already final and executory, it cannot be the basis for his disqualification since violation of B.P. Blg. 22 does not involve moral turpitude. After the opposing parties submitted their respective position papers, the case was forwarded to the COMELEC, Manila, for resolution.

On April 30, 2001, the COMELEC finding merit in Cagas petition, issued the challenged Resolution declaring Villaber disqualified as a candidate for and from holding any elective public office and canceling his certificate of candidacy. The COMELEC ruled that a conviction for violation of B.P Blg. 22 involves moral turpitude following the ruling of this Court en banc in the administrative case of People vs. Atty. Fe Tuanda. Villaber filed a motion for reconsideration but was denied by the COMELEC en banc in a Resolution. Hence, this petition. Issue: Whether violation of B.P. Blg. 22 involves moral turpitude. Held: The COMELEC believes it is. In disqualifying petitioner Villaber from being a candidate for Congressman, the COMELEC applied Section 12 of the Omnibus Election Code which provides:

Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection,

rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.

Petitioner was charged for violating B.P. Blg. 22 under the following Information: That on or about February 13, 1986, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to Efren D. Sawal to apply on account or for value Bank of Philippine Islands (Plaza Cervantes, Manila) Check No. 958214 dated February 13, 1986 payable to Efren D. Sawal in the amount of

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.

P100,000.00, said accused well knowing that at the time of issue he did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check, when presented for payment within ninety (90) days from the date thereof, was subsequently dishonored by the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said Efren D. Sawal the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. (Emphasis ours)

As to the meaning of moral turpitude, we have consistently adopted the definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals.

The elements of the offense under the above provision are:

In In re Vinzon,the term moral turpitude is considered as encompassing everything which is done contrary to justice, honesty, or good morals. 1. The accused makes, draws or issues any check to apply to account or for value;

We, however, clarified in Dela Torre vs. Commission on Elections that not every criminal act involves moral turpitude, and that as to what crime involves moral turpitude is for the Supreme Court to determine.We further pronounced therein that: 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment; and

in International Rice Research Institute vs. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on the circumstances surrounding the case.

3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.[19]

In the case at bar, petitioner does not assail the facts and circumstances surrounding the commission of the crime. In effect, he admits all the elements of the crime for which he was convicted. At any rate, the question of whether or not the crime involves moral turpitude can be resolved by analyzing its elements alone, as we did in Dela Torre which involves the crime of fencing punishable by a special law.

The presence of the second element manifests moral turpitude. We held that a conviction for violation of B.P. Blg. 22 imports deceit and certainly relates to and affects the good moral character of a person.Thus, paraphrasing Blacks definition, a drawer who issues an unfunded check deliberately reneges on his private duties he owes his fellow men

or society in a manner contrary to accepted and customary rule of right and duty, justice, honesty or good morals. Mercado vs Manzano Facts: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. Wherein Eduardo B. Manzano won with a total of 103,853 over Ernesto S. Mercado with only 100,894 votes. The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. The COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City was filed before May 11, 1998 elections. Respondent admitted that he is registered as a foreigner with the Bureau of Immigration and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Issue: Whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Held: following

Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippines, whe n

He is not disqualified from the position and he is therefore eligible for the office he was elected. Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.

considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

Term of Office ARTICLE X LOCAL GOVERNMENT Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. LOCAL GOVERNMENT CODE OF 1991 Section 43.. As amended by Republic Act No. 8524 further by Republic Act No. 9164 Term of Office. -

Issue: W/N Capcos service as mayor from 1989 to 1992 should be considered as service for full one term, hence he should be considered to have served three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of the Local Government Code.? Held: This contention will not bear analysis. Article X, 8 of the Constitution provides: SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160): Sec. 43. Term of Office - . . .

(a) The term of office of all local elective officials elected after the effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, except that of elective barangay officials: Provided, That all local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992. (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. (c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994. 1. BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents. Jose T. Capco, Jr. was elected vice-mayor of Pateros on 1988. On 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On 1992, he ran and was elected mayor for a term of three years. On 1995, he was reelected mayor for another term. On 1998, he filed a certificate of candidacy for mayor of Pateros. Petitioner Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the theory that the latter would have already served as mayor for three consecutive terms, hence ineligible for another The Second Division of the Commission on Elections ruled in favor of petitioner and declared Capco disqualified. On MOR the COMELEC en banc, voting 5-2, reversed the decision. Respondent won the election. Hence this petition.

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. Indeed, a fundamental tenet of representative democracy is that the people should be allowed to choose whom they please to govern them. [11] To bar the election of a local official because he has already served three terms, although the first as a result of succession by operation of law rather than election, would therefore be to violate this principle. Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of the term of office of elective local officials and bars such official*s+ from serving for more than three consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served his full term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The term served must therefore be one for which *the official concerned+ was elected. The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term now withstanding his voluntary renunciation of office prior to its expiration. To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he

must also have been elected to the same position for the same number of times before the disqualification can apply. Query Case no 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election. Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one for which he was elected. Since A is only completing the service of the term for which the deceased and not he was elected. A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term. Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms. Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of the mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death , of the deceased mayor. To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the third time he is standing for

reelection) if his service of the first term is counted as one of the purpose of applying the term limit. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed. 2. ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, repondents. Romeo Lonzanida served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 he was again proclaimed winner. This was contested by his then opponent Juan Alvez who filed an election protest before the RTC Zambales, which in 1997, declared a failure of elections hence null and void and his office is declared vacant. The COMELEC ordered Lonzanida to vacate the post. Alvez assumed office for the remainder of the term. In 1998, Lonzanida filed his certificate of candidacy for mayor of San Antonio. His opponent Eufemio Muli timely filed a petition to disqualify him on the ground that he had served three consecutive terms in the same post. Lonzanida was proclaimed winner. The COMELEC ordered his disqualification because although was later unseated before the expiration of the term, his term should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. Issue: Whether petitioner Lonzanidas assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials?. Held: The petition has merit. There are two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated: In this case, the two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all [5] and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of

Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. [6] Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term porvided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.. 3. VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner, vs. THE COMMISSION ON ELECTIONS On 2002, Majority of the incumbent barangay officials of Puerto Princesa convened into a Preparatory Recall Assembly to initiate the recall of Victorino Dennis M. Socrates. They requested the COMELEC to schedule the recall election. Edward M. Hagedorn filed his certificate of candidacy for mayor in the recall election. Ma. Flores F. Adovo and Merly E. Gilo and two other individuals filed petitioned to disqualify Hagedorn from running in the recall election. The petitions were all anchored on the ground that Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post. COMELECs First Division [4] dismissed for lack of merit. Hagedorn won the recall. Hence this petition. Issue: Whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24, 2002. Held: After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a

subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorns service as mayor. In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa because: 1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001; 2. Hagedorns continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen; 3. Hagedorns recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and 4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders. 4. MAYOR ABELARDO ABUNDO, SR., Petitioner, vs. COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents. In 2001 and 2007, Abundo was proclaimed and served as the municipal mayor of Viga, Catanduanes. In the 2004 (In which he also ran), the Viga municipal board of canvassers initially proclaimed as winner Jose Torres (Torres), who, in due time, performed the functions of the office of mayor. Abundo protested Torres election and was eventually declared the winner. He assumed office for a period of a little over one year and one month. In the 2010 elections, Abundo and Torres again opposed each other. When Abundo filed his 3 certificate of candidacy for the mayoralty seat, Torres sought his disqualification predicated on the three-consecutive term limit rule. The COMELEC First Division favored Abundo, who also won in the said election. Meanwhile Ernesto R. Vega commenced a quo warranto action before the RTC in Catanduanes, to unseat Abundo on essentially the same grounds Torres raised. RTC found him ineligible to serve as municipal mayor. COMELECs Second Division and Enbanc on MR AFFIRMED and the appeal is DISMISSED for lack of merit. The COMELEC en banc held in essence the following: first, there was no involuntary interruption of Abundos 2004-2007 term service which would be an exception to the threeterm limit rule as he is considered never to have lost title to the disputed office after he won in his election protest; and second, what the Constitution prohibits is for an elective official to be in office for the same position for more than three consecutive terms and not to the service of the term.

Issue: Whether or not Abundo is deemed to have served three consecutive terms? NOTE >>>>> The Supreme Court in this case reviewed the doctrines applicable to determine if there was an involuntary renunciation of office. To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of terms and/or involuntary interruption, viz: 1. When a permanent vacancy occurs in an elective position and the official merely assumed the position pursuant to the rules on succession under the LGC, then his service for the unexpired portion of the term of the replaced official cannot be treated as one full term as contemplated under the subject constitutional and statutory provision that service cannot be counted in the application of any term limit (Borja, Jr.). If the official runs again for the same position he held prior to his assumption of the higher office, then his succession to said position is by operation of law and is considered an involuntary severance or interruption (Montebon). 2. An elective official, who has served for three consecutive terms and who did not seek the elective position for what could be his fourth term, but later won in a recall election, had an interruption in the continuity of the officials service. For, he had become in the interim, i.e., from the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city does not, by itself, work to interrupt the incumbent officials continuity of service (Latasa). 4. Preventive suspension is not a term-interrupting event as the elective officers continued stay and entitlement to the office remain unaffected during the period of suspension, although he is barred from exercising the functions of his office during this period (Aldovino, Jr.). 5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he loses in an election protest and is ousted from office, thus disenabling him from serving what would otherwise be the unexpired portion of his term of office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not be for a full term of three years or for the major part of the 3-year term; an interruption for any length of time, provided the cause is involuntary, is sufficient to break the continuity of service (Socrates, citing Lonzanida). 6. When an official is defeated in an election protest and said decision becomes final after said official had served the full term for said office, then his loss in the election contest does not constitute an interruption since he has managed to serve the term from start to finish. His full service, despite the defeat, should be counted in the application of term limits because the nullification of his proclamation came after the expiration of the term (Ong and Rivera).

Assumption of Office by Operation of Law

In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v. Commission on Elections36 (2008), the Court delved on the effects of "assumption to office by operation of law" on the three-term limit rule. This contemplates a situation wherein an elective local official fills by succession a higher local government post permanently left vacant due to any of the following contingencies, i.e., when the supposed incumbent refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office.37 In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon the death of the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor for terms 1992-1995 and 1995-1998. When Capco expressed his intention to run again for the mayoralty position during the 1998 elections, Benjamin U. Borja, Jr., who was then also a candidate for mayor, sought Capcos disqualification for violation of t he three-term limit rule. Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply."38 There was, the Court ruled, no violation of the three-term limit, for Capco "was not elected to the office of the mayor in the first term but simply found himself thrust into it by operation of law" 39 when a permanent vacancy occurred in that office. The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 20012004, and 2004-2007. However, in January 2004, or during his second term, Montebon succeeded and assumed the position of vice-mayor of Tuburan when the incumbent vice-mayor retired. When Montebon filed his certificate of candidacy again as municipal councilor, a petition for disqualification was filed against him based on the three-term limit rule. The Court ruled that Montebons assumption of office as vice-mayor in January 2004 was an interruption of his continuity of service as councilor. The Court emphasized that succession in local government office is by operation of law and as such, it is an involuntary severance from office. Since the law no less allowed Montebon to vacate his post as councilor in order to assume office as vice-mayor, his occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his position as councilor.

Recall Election

With reference to the effects of recall election on the continuity of service, Adormeo v. Commission on Elections40 (2002) and the aforementioned case of Socrates (2002) provide guidance. In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao. However, before Tagaraos 1998-2001 term ended, a recall election was conducted in May 2000 wherein Talaga won and served the unexpired term of Tagarao until June 2001. When Talaga ran for mayor in 2001, his candidacy was challenged on the ground he had already served as mayor for three consecutive terms for violation of the three term-limit rule. The Court held therein that the remainder of Tagaraos term after the recall election during which Talaga served as mayor should not be considered f or purposes of applying the three-term limit rule. The Court emphasized that the continuity of Talagas mayorship was disrupted by his defeat during the 1998 elections. A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall election. It appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City for three consecutive terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously aware of the three-term limit principle, Hagedorn opted not to vie for the same mayoralty position in the 2001 elections, in which Socrates ran and eventually won. However, midway into his term, Socrates faced recall proceedings and in the recall election held, Hagedorn run for the formers unexpired term as mayor. Socrates sought Hagedorns disqualification under the three-term limit rule. In upholding Hagedorns candidacy to run in the recall election, the Court ruled: x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of his voluntary renunciation, but beca use of a legal prohibition.41 The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term and, hence, any subsequent election, like recall election, is no longer covered x x x."42

Conversion of a

On the other hand, the conversion of a municipality into a city does not constitute an interruption of the incumbent officials continuity of service. Th e Court said so in Latasa v. Commission on

Municipalit y into a City

Elections43 (2003). Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of the Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third term, Digos was converted into a component city, with the corresponding cityhood law providing the holdover of elective officials. When Latasa filed his certificate of candidacy as mayor for the 2001 elections, the Court declared Latasa as disqualified to run as mayor of Digos City for violation of the three-term limit rule on the basis of the following ratiocination: This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos.

Period of Preventive Suspension

In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a local elected official is under preventive suspension cannot be considered as an interruption of the continuity of his service. The Court explained why so: Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended officials continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.44 (Emphasis supplied.)

Election Protest

With regard to the effects of an election protest vis--vis the three-term limit rule, jurisprudence presents a more differing picture. The Courts pronouncements in Lonzanida v. Commission on Elections45 (1999), Ong v. Alegre46 (2006), Rivera III v. Commission on Elections47 (2007) and Dizon v. Commission on Elections48 (2009), all protest cases, are illuminating. In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio, Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the 1995 election was protested and was eventually declared by the RTC and then by COMELEC null and void on the ground of failure of elections. On February 27, 1998, or about three months before the May 1998 elections, Lonzanida vacated the mayoralty post in light of a COMELEC order and writ of execution it issu ed. Lonzanidas opponent assumed office for the remainder of the term. In the May 1998 elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed a petition for disqualification on the ground that Lonzanida had already served three consecutive terms in the same post. The Court, citing Borja Jr., reiterated the two (2) conditions which must concur for the three-term limit to apply: "1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms."49 In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of Lonzanida. The Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his assumption of office as mayor "cannot be deemed to have been by reason of a valid election but by reason of a void proclamation." And as a corollary point, the Court stated that Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary relinquishment of office.This Court deviated from the ruling in Lonzanida in Ong v. Alegre 50 owing to a variance in the factual situations attendant. In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte for terms 1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his supposed second term, the COMELEC nullified Ongs proclamation on the postulate that Ong lost during the 1998 elections. However, the COMELECs decision became final and executory on July 4, 2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his certificate of candidacy for the same position as mayor, which his opponent opposed for violation of the three-term limit rule. Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served as mayor from 1998-2001 because he was not duly elected to the post and merely assumed office as a "presumptive winner." Dismissing Ongs argument, the Court held that his assumption of office as mayor for the term 1998 -2001 constitutes "service for the full term" and hence, should be counted for purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida in the sense that Ongs service was deemed and counted as service for a full term because Ongs proclamation was voided only after the expiry of the term. The Court noted that the COMELEC decision which declared Ong as not having won the 1998 elections was "without practical and legal use and value" promulgated as it was after the contested term has expired. The Court further reasoned: Petitioner Francis Ongs contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the

term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.51 (Emphasis supplied.) The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit: The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.52 (Emphasis supplied.) Ongs slight departure from Lonzanida would later find reinforcement in the consolidated cases of Rivera III v. Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of Mabalacat, Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004. In relation to the 2004 elections, Morales again ran as mayor of the same town, emerged as garnering the majority votes and was proclaimed elective mayor for term commencing July 1, 2004 to June 30, 2007. A petition for quo warranto was later filed against Morales predicated on the ground that he is ineligible to run for a "fourth" term, having served as mayor for three consecutive terms. In his answer, Morales averred that his supposed 1998-2001 term cannot be considered against him, for, although he was proclaimed by the Mabalacat board of canvassers as elected mayor vis--vis the 1998 elections and discharged the duties of mayor until June 30, 2001, his proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee, proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only served as a mere caretaker. The Court found Morales posture untenable and held that the case of Morales presents a factual milieu similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong, in Ong, was nullified, but after he, like Morales, had served the three-year term from the start to the end of the term. Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit: Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not constitute an interruption in serving the full term. Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.) The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term, cannot constitute an interruption in Morales service of the full term; neither can Morales, as he argued, be considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of applying the three-term limit rule. In a related 2009 case of Dizon v. Commission on Elections,56 the Court would again find the same Mayor Morales as respondent in a disqualification proceeding when he ran again as a mayoralty candidate during the 2007 elections for a term ending June 30, 2010. Having been unseated from his post by virtue of this Courts ruling in Rivera, Morales would argue this time around that the three-term limit rule was no longer applicable as to his 2007 mayoralty bid. This time, the Court ruled in his favor, holding that for purposes of the 2007 elections, the threeterm limit rule was no longer a disqualifying factor as against Morales. The Court wrote: Our ruling in the Rivera case served as Morales involuntary severance from office with respect to the 2004-2007 term. Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the vice mayors office of our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon, interrupted Morales continuity of service. Thus, Morales did not hol d office for the full term of 1 July 2004 to 30 June 2007.57

Held (ABUNDO): Unlike in the abovementioned election protest cases wherein the individuals subject of disqualification were candidates who lost in the election protest and each declared loser during the elections, Abundo was the winner during the election protest and was declared the rightful holder of the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who were both unseated toward the end of their respective terms, Abundo was the protestant who ousted his opponent and had assumed the remainder of the term. Notwithstanding, We still find this Courts pronouncements in the past as instructive, and consider several doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in 2009, as potent aids in arriving at this Courts conclusion. The intention behind the three-term limit rule was not only to abrogate the "monopolization of political power" and prevent elected officials from breeding "proprietary interest in their 60 61 position" but also to "enhance the peoples freedom of choice." In the words of Justice Vicente V. Mendoza, "while people should be protected from the evils that a monopoly of power may bring about, care should be taken that their freedom of choice is not unduly 62 curtailed." In the present case, the Court finds Abundos case meritorious and declares that the two year period during which his opponent, Torres, was serving as mayor should be considered as an interruption, which effectively removed Abundos case from the ambit of the three-term limit rule. The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007 term. There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served the term until June 30, 2007 or for a period of a little over one year and one month. Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be said that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise entitled. A "term," as defined in Appari v. Court of Appeals, means, in a legal sense, "a fixed and 64 definite period of time which the law describes that an officer may hold an office." It also means the "time during which the officer may claim to hold office as a matter of right, and 65 fixes the interval after which the several incumbents shall succeed one another." It is the period of time during which a duly elected official has title to and can serve the functions of 66 an elective office. From paragraph (a) of Sec. 43, RA 7160, the term for local elected officials is three (3) years starting from noon of June 30 of the first year of said term. In the present case, during the period of one year and ten months, or from June 30, 2004 until May 8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor as a matter of right. Neither can he assert title to the same nor serve the functions of the said elective office. The reason is simple: during that period, title to hold such office and the corresponding right to assume the functions thereof still belonged to his opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and exercised the functions as mayor only upon his declaration, following the resolution of the protest, as duly elected candidate in the May 2004 elections or for only a little over one year and one month. Consequently, since the legally contemplated full term for local elected
63

officials is three (3) years, it cannot be said that Abundo fully served the term 2004-2007. The reality on the ground is that Abundo actually served less. Needless to stress, the almost two-year period during which Abundos opponent actually served as Mayor is and ought to be considered an involuntary interruption of Abundos continuity of service. Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to which he was duly elected in the May 2010 elections and is accordingly ordered IMMEDIATELY REINSTATED to said position. CHAPTER II Vacancies and Succession Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vicegovernor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vicemayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. Section 45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic succession provided above do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities; (2) The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan; (3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. (b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefore. (c) In case or permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. (d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned. 5. JUAN D. VICTORIA, petitioner, vs. THE COMMISSION ON ELECTIONS and JESUS JAMES CALISIN, respondents. Due to the suspension of the Governor of the Province of Albay, the Vice-Governor automatically assumed the functions of the governor, leaving vacant his post. Under the law, the vice-governors place should be occupied by the highest ranking Sangguniang member. The COMELEC issued a resolution dated 1993, certifying respondent as first in the order of ranking with petitioner herein as second ranking member based on the number of votes obtained by the Sanggunian members in relation to the number of registered voters in the district. On the other hand Petitioner claims that the ranking of the Sanggunian members should not only be based on the number of votes obtained in relation to the total number of registered voters, but also on the number of voters in the district who actually voted therein. Conversely, a district may have a smaller number of

registered voters but may have a big voters' turn-out, in which case the winning candidate would get a higher percentage of the votes. Applying his formula, petitioner would come out to be the highest ranking Sanggunian member. We are not persuaded. The Local Government provides: Sec. 44. Permanent Vacancies in the Office of the Governor, Vice-Governor, Mayor, and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking Sanggunian member or, in case of his permanent inability, the second highest ranking Sanggunian member, shall become the governor, vicegovernor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other Sanggunian members according to their ranking as defined herein. xxx xxx xxx For purposes of succession as provided in this Chapter, ranking in the Sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. (Emphasis ours) The law is clear that the ranking in the Sanggunian shall be determined on the basis of the proportion of the votes obtained by each winning candidate of the total number of registered voters who actually voted. In such a case, the Court has no recourse but to merely apply the law. Petitioner's contention is therefore untenable considering the clear mandate of the law, which leaves no room for other interpretation but it must very well be addressed to the legislative branch and not to this Court which has no power to change the law.

6. LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte On 1988, because no Governor had been proclaimed in Leyte, the Secretary of Local Government designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor. Petitioner Aurelio D. Menzon, a senior member of the SP was also designated as the Vice-Governor. The Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, as to

the legality of the appointment of the petitioner to act as the Vice-Governo. Undersecretary stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the ViceGovernor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices.The Sangguniang Panlalawigan, issued Resolution where it held invalid the appointment of the petitioner as acting Vice-Governor. Despite these several letters of request from the Undersec and regional director, the Acting Governor and the Sangguniang Panlalawigan, refused to correct the Resolution and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Petitioner sought to nullify the Resolution. The controversy in the Governor position was settled. Emoluments are paid to Menzon. Petilla seeks to invalidate Menzons received salary. Issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments? Held: Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the authority to designate the petitioner. We hold in the affirmative. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections.

The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz: Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . . By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. 7. LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents. Petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election

Tellers, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership as laid down in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner filed for inclusion with the Municipal Circuit Trial Court and was declared qualified and ordered her registration. The BET appealed to the RTC. The judge inhibited. Petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan. Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, disapproved petitioner's certificate due to her age. Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run. Florencio G. Sales, Jr, a rival candidate, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age. The COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. Petitioner won the elections and the Board of Election Tellers did not proclaim petitioner as the winner. Hence, this instant petition for certiorari. Issues: Wheter or not the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK was valid? Held: No. Section 424 of the Local Government Code provides that candidates for SK must be: Filipino citizen an actual resident of the barangay for at least six months 15 but not more than 21 years of age; and duly registered in the list of the Sangguniang Kabataan or in the official barangay list.

6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible.[41] In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election.[42] The will of the people as expressed through the ballot cannot cure the vice of ineligibility.[43] The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected.[44] A defeated candidate cannot be deemed elected to the office.[45] Moreover, despite his claims,[46] private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate.[47] Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections.[48] Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify,[49] is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months." Section 46. Temporary Vacancy in the Office of the Local Chief Executive. (a) When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city or municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. (b) Said temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has reported back to office. In cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist. (c) When the incumbent local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecutive days, he may designate in writing the officer-in-charge of the said office. Such

The provision is clear. Must not be more than 21 years of age. The said phrase is not equivalent to less than 22 years old. The law does not state that the candidate be less than 22 years on election day. If such was the intention of Congress in framing the LGC, then they should have expressly provided such. In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and

authorization shall specify the powers and functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees. (d) In the event, however, that the local chief executive concerned fails or refuses to issue such authorization, the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume the powers, duties, and functions of the said office on the fourth (4th) day of absence of the said local chief executive, subject to the limitations provided in subsection (c) hereof. (e) Except as provided above, the local chief executive shall in no case authorize any local official to assume the powers, duties, and functions of the office, other than the vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang barangay member, as the case may be. Section 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities: (1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities; (2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities; (3) The sanggunian concerned, in the case of sanggunian members; and (4) The city or municipal mayor, in the case of barangay officials. (b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities, shall be furnished the Department of the Interior and Local Government. (c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) days from receipt thereof. (d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however, That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribed the manner of acting upon such resignations. Section 83. Grievance Procedure. - In every local government unit, the local chief executive shall establish a procedure to inquire into, act upon, resolve or settle complaints and grievances presented by local government employees

Final Exam Reviewer

Public Corporations under Atty. Ordonez & Atty. Buban
PUP Legal Annotations on Statutory Provisions Offered by Nonsensicals (LASON) Notes Is Brought to you by: Fame Portin Proz Banzuela Randy Saladero Don So Hiong Andrew Garcia