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G.R. No. 17714 In the mater of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant, vs.

ANA DE LEON, opponent-appellee. Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant. Francisco A. Delgado, Powell & Hill and Padilla & Treas for appellee. ROMUALDEZ, J.: The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was revoked by him. The petitioner denies such revocation, while the contestant affirms the same by alleging that the testator revoked his will by destroying it, and by executing another will expressly revoking the former. We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary requisites to constitute a sufficient revocation. But according to the statute governing the subject in this jurisdiction, the destruction of a will animo revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.) From the evidence submitted in this case, it appears that the testator, shortly after the execution of the first will in question, asked that the same be returned to him. The instrument was returned to the testator who ordered his servant to tear the document. This was done in his presence and before a nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been destroyed. The intention of revoking the will is manifest from the established fact that the testator was anxious to withdraw or change the provisions he had made in his first will. This fact is disclosed by the testators own statements to the witnesses Canto and the Mother Superior of the Hospital where he was confined. The original will herein presented for probate having been destroyed with animo revocandi, cannot now be probated as the will and last testament of Jesus de Leon. Judgement is affirmed with costs against the petitioner. So ordered. iaz v. De Leon G.R. No. 17714 May 31, 1922 Facts: 1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to the requirements under the law. After executing his first will, he asked it to be immediately returned to him. As it was returned, he instructed his servant to tear it. This was done in the testator's presence and his nurse. After sometime, he was asked by his physician about the incident wherein he replied that the will has already been destroyed. Issue: Whether or not there was a valid revocation of the will RULING: Yes. His intention to revoke is manifest from the facts that he was anxious to withdraw or change the provisions he made in the first will. This fact was shown from his own statements to the

witnesses and the mother superior of the hospital where he was subsequently confined. The original will which was presented for probate is deemed destroyed hence, it cannot be probated as the last will and testament of testator. G.R. No. L-47305 July 31, 1942

In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administrator-appellant, vs. PETRONA AREVALO, ET AL., oppositors-appellees. Nicasio Yatco for appellant. Ventura and Belmonte for appellees. BOCOBO, J.: The main issue in this case is whether or not Exhibit C, presented by appellant for allowance as the last will and testament of the deceased Rufina Arevalo, is a forgery. The Court of First Instance of Manila held that it was a forged document, and allowed an earlier will, Exhibit 6, whose authenticity was unquestioned. The value of the estate is over P50,000. The questioned document was prepared and signed in duplicate. It consists of two pages and is dated October 2, 1937. It appears to be signed by Rufina Arevalo and by three witnesses, Manuel M. Cruz, Remigo Colina and Angel Sanchez. The formal requisites of a will have been complied with. An initial fact that arrests the attention is the formulation by the appellees of the allegation of forgery even before seeing the questioned document. Said charge of forgery was signed on April 22, 1938, although Exhibit C, which had been in a sealed envelop, was not opened by order of the court till the next day, April 23, 1938. It is true that the opposition by the appellees was not actually filed in court till April 23, but it was signed by appellees' attorneys on April 22, was subscribed and sworn to by Amando Clemente on April 22, and a copy thereof was sent by registered mail to Attorney Nicasio Yatco on April 22. Moreover, in the morning of April 23, appellees attorneys Messrs. Jose Belmonte and Vicente Delgado, announced their opposition to the will Exhibit C in open court, before said documents was opened by order of the court on that day. One of the principal reasons of the court a quo for believing Exhibit C to be a forgery is that in the genuine signatures the terminal stroke of the capital "R" in "Rufina" is not joined with the letter "u," while in Exhibit C such ending is united with the letter "u" in the two marginal signatures, although in the central signature appearing on page 2, the two letters are separated. The probate court believes that this difference between the marginal and the central signatures is due to the fact that the forger first used the check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, but having been shown another signature with the characteristic already mentioned separation of the two letters he tried to imitate said peculiarity in making central signature. We believe the probate court over looked the well-established principle that in passing upon questioned documents, the test is the general character of the writing rather than any minute and precise comparison of individual letters or lines. In People vs. Bustos (45 Phil., 30) , this Court held: It is a first principle in writing that exact coincidence between two signatures is absolute proof that one or the other is a forgery. There must be some different before authenticity reposes upon a general characteristics resemblance, coupled with specific differences, such as naturally result from the infinite variety of conditions controlling the muscles of the writer at each separate effort

in forming his signature. (Emphasis supplied.) In the present case, a careful scrutiny of all the questioned and the standard signatures has convinced us that they have been written by the same person because they show the same general type, quality and characteristics, with natural variations. We are, therefore, inclined to give credence to the expert testimony to that effect presented by the appellant. Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures are uniform for fear that any difference might arouse suspicion. In this case, however, in some questioned signatures the letters "R" and "u" are separated, but in others, they are united. Osborne in "Questioned Documents" (pp. 368, 369) says: Another indication of genuineness in a holographic document or a considerable amount of writing, or in two or more disputed signatures, are certain natural variations in the details of the writing . It is difficult for the inexperienced or unthinking examiner to understand that a certain extent of variation in a group of several signatures and variation in repeated words and letters in a continuous holographic document can be evidence of genuineness. The forger does not understand this necessity for natural variation and, as nearly as he can, makes words and letters just alike. xxx xxx xxx

It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures under investigation, show these natural variations of writing of the same word or letter, all of course within the scope of variation of the genuine writing, this variation itself, surprising and paradoxical as it may appear, is as strong evidence of genuineness as the opposite condition is evidence of forgery. (Emphasis supplied.) Furthermore, it is to be noted that the document in question was prepared and signed in duplicate, so that there are six signatures of Rufina Arevalo, instead of only three. It is reasonable to believe that a forger would reduce the number of signatures to be forged so as to lessen the danger of detection. In this case, Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have known that it was not necessary to make a signed duplicate of the will. As for the probate court's opinion that the forger must have used Exhibit I (a check issued by "La Previsora" to Rufina Arevalo) as a model in falsifying the marginal signatures, it is highly improbable that said check was in the hands of Rufina Arevalo or of her attorney, Nicasio Yatco, on or about October 2, 1937, when the document in question was signed. The check had been issued on June 30, 1936, or over a year before, and it must have been returned by the bank concerned to "La Previsora" in the ordinary course of business, because it was produced by the Manager of "La Previsora." It should likewise be observed that the signature on the first page of the duplicate will (Exhibit C-3) does not have the supposed peculiarity of the standard signatures, that is the separation between "R" and "u." If, as the lower court states, the forger upon being shown a model other than Exhibit I, imitated said characteristic separation in making the central or body signature on the original will Exhibit C, it is indeed strange that he should not do the same immediately thereafter on the first page of the duplicate will but that he should, instead, repeat the mistake he had made on the marginal signatures on the original will. Finally, to conclude that a forgery has been committed, the evidence should be forcefully persuasive. Before we are disposed to find that an attorney-at-law has so debased himself as to aid and abet the forgery of a will, which would not only send him to jail for many years but would ruin his future, we must require proof sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt.

And the instrumental witnesses have testified that Rufina Arevalo signed the will in their presence. It is hard to believe they would commit perjury as it has not been shown they had any interest in this case. Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and marked Exhibit C, is genuine and should be allowed. It is unnecessary to discuss the incidental issues of fact so ably presented by counsel and examined in detail by the probate court, inasmuch as the foregoing disposes of the basic question raised. The relative position of the contending devisees in the affection of the deceased; whether Rufina Arevalo could go alone to the law office of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged resentment of the testatrix toward Amando Clemente when she signed the second will, and similar questions are not of sufficient significance to alter the conclusion herein arrived at. In fact, they merely tend to becloud the main issue. The next question to be inquired into is whether or not the later will (Exhibit C) dated October 2, 1937, whose probate is herein approved, has entirely revoked the earlier will, Exhibit 6, dated January 9, 1936. Though both partes admit that the first will has been revoked by the second, yet we deem it necessary to discuss the question because a member of this Court thinks the earlier will can stand in part. It appears that the undivided interest of Rufina Arevalo in two parcels of land and the improvements thereon which belonged to the conjugal partnership between Bernabe Bustamante, who had died before the making of the two wills, and Rufina Arevalo, was expressly devised to Amando Clemente in the earlier will but was not specifically mentioned in the later will. In the first will, Exhibit 6, Rufina Arevalo, who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots and the buildings thereon; devised a parcel of land and the houses standing thereon to her cousin, Petrona Arevalo Viuda de Zacarias, and to her niece, Carmen Papa de Delgado; and finally disposed, in favor of Amando Clemente, another cousin, of a piece of land and the houses thereon, and of her undivided interest in the two parcels of land and the improvements thereon, which belonged to the conjugal partnership, also making said Amando Clemente the residuary legatee. But in the second will, Exhibit C, she designates Ariston Bustamante her only heir in these terms: Segundo Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble que se describen mas abajo: (a) Original Certificate of Title of Manila No. 5059 (b) Original Certificate of Title of Manila No. 4681 (c) Transfer Certificate of Title of Manila No. 19961 (d) Original Certificate of Title of Manila No. 5066 (e) Original Certificate of Title of Manila No. 4682. Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens titles No. 4887 and No. 15628, devised to Amando Clemente in the earlier will, is not specifically mentioned in the later will, Exhibit C. Moreover, the second will has no revocation clause. At first sight, it would seem that the earlier will can stand with respect to Rufina Arevalo's share in said two parcels of land belonging to the conjugal partnership. But a closer examination of the later will counter-acts such initial reaction. In the first place, the testatrix in the second will names Ariston Bustamante her only heir to all her property, both personal and real, her words in Spanish being: "Nombro como mi unico heredero, Ariston

Bustamante, de todas mis propiedades dejadas ya mueble o inmueble." (Italics supplied.) It is true that in enumerating her parcels of land, she did not specify her interest in the two lots of the conjugal partnership. But this omission must have been due either to an oversight or to the belief that it was premature to name said two parcels as the conjugal partnership was still being liquidated. In either case, the testatrix must have thought that her comprehensive words "mi unico heredero de todas mis propiedades dejadas ya mueble o inmueble" would be sufficient to cover all her property, whether specially listed or not. Secondly, in the opening paragraph of the second will, the following words appear: "hago constar a todos este mi ultimo testamento y voluntad expresado en Castellano lenguaje que conozco y poseo, y queriendo disponer de mis bienes por virtud de este mi testamento ." (Emphasis supplied.) Though she knew that she had made a first will, she nevertheless said that the second will was her last one. This would seem to signify that her last will, cancelling her previously expressed wish, was to make Ariston Bustamante her only heir. Furthermore, when she said she wanted to dispose of her property by means of the second will ("queriendo disponer de mis bienes por virtud de este mi testamento"), it would appear to be her intention that no property of hers should be left undisposed of in the second will. This fact is corroborated in the second clause wherein she names Ariston Bustamante as her only heir to all her property whether personal or real. We believe, therefore, that the first will has been entirely revoked. Though it might appear right that Amando Clemente should receive something from the estate because he, together with Ariston Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would be venturesome for us to advance our own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the later will. As she had no forcible heirs, she was absolutely free to give her estate to whomsoever she choose, subject of course to the payment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only function of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the pale of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. It might be said that it is hard to understand how, in a temporary anger at Amando Clemente, the testatrix would entirely cut him off from the inheritance. We should not, however, sit in judgment upon her motives and sentiments, first because, as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward processes of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. In view of the foregoing, the decision appealed from, declaring the second will Exhibit C a forgery and allowing the first will Exhibit 6, should be and is hereby reversed, and another judgment shall be entered allowing the later will Exhibit C, which has entirely revoked the earlier will Exhibit 6. No special pronouncement on costs is made. Let the record of this case be returned to the court of origin for further proceedings. So ordered. Yulo, C.J. and Moran, J., concur.

Separate Opinions OZAETA, J., concurring:

I concur in the finding that the will Exhibit C is genuine. I think, however, that the discussion in the majority opinion of whether or not said Exhibit C entirely revoked the previous will Exhibit 6 is unnecessary, inasmuch as both parties in their brief have admitted the affirmative. There being no controversy between the parties on that score, there seems to be no occasion for the Court to render an opinion thereon.

PARAS, J., concurring and dissenting: The testatrix in this case executed two wills, one on January 9, 1936, and the other on October 2, 1937. In the first will, the testatrix specifically referred to seven parcels of land of considerable value and to certain personal properties. Three of these parcels of land and all the personal properties are given to Amando Clemente, another three to Ariston Bustamante, and the seventh parcel to Petrona Arevalo and Carmen Papa. In the second will, the testatrix particularly referred to only five parcels of land and certain personal properties, all of which are give to Ariston Bustamante, as her universal heir. The second will does not make mention of two of the three parcels given to Amando Clemente under the first will. The question that arises is whether the second will has the effect of revoking the first. In my opinion, where, as in the present case, the two wills can be reconciled, the first should be considered revoked only in so far as it is inconsistent with the second. As the second will was executed only twenty-one months after the first, the testatrix, who has been conclusively shown to be of sound mind at the time of the execution of the later will, could not have forgotten that she owned two other parcels of land, especially if they are of considerable value. Even the lawyer who drafted the second will was aware that the testatrix owned the said two parcels, because they were included in the inventory made of her properties in connection with the administration proceedings of the estate of her deceased husband. This omission could have been made only on purpose, and, coupled with the circumstance that the section will does not expressly revoke the first which has not been burned, torn, cancelled or obliterated, inevitably leads to the inference that the testatrix in face intended to make the first will effective as to the two parcels of land above referred to. Section 623 of the Code of Civil Procedure provides: No will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing executed as provided in case of wills; or by burning, tearing, cancelling, or obliterating the same with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. xxx xxx xxx

If partially conflicting, that of the latter date will operate to revoke the former so far as the provisions of the two are conflicting or incompatible, and in such case both wills are entitled to probate. (68 Corpus Juris 805.) Where there is no revocation in a later will of all former wills, two separate and distinct wills may be probated, especially when the probating of one only of the instruments would leave an intestacy as to part of the estate. This rule applies even though the later instrument states that it is the last will and testament of the testator, as the use of such words in a later instrument does not of itself revoke a prior will. (Id. p. 885.) I therefore vote for the probate of both wills.

G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs. LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants. Claro M. Recto and Serafin C. Dizon for appellants. Delgado & Flores for appellee. BAUTISTA ANGELO, J.: This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositorsappellants brought the case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000. Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositorsappellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918. On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law. In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition could be heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit. I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191. II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief. IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law. V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself. VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939. In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard her right to inherit from the decease. These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in its decision. A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is likewise within the province and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors. It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said will

to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence of both parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of this opposition, the court disallowed the will. If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy of the deceased to happen. Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest. The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918. Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling. There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case. A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.) Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling

because it is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief . While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of wills: SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes which permit the revocation of a will by another writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed in the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed in the manner required for a will. SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is invalid because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the same formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.) We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on the "application of rules where second will is invalid", among which a typical one is the following: It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other

words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498. These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors. It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330). But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said original. There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original. If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur. Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative revocation". This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the

existence of some other document, however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799). The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.) This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.) We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate. The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will. The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth. Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1wphl.nt

G.R. No. L-12172

August 29, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN F. FAJARDO, ET AL., defendants-appellants. Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee. Prila, Pardalis and Pejo for appellants. REYES, J. B. L., J.: Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendantsappellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, for having constructed without a permit from the municipal mayor a building that destroys the view of the public plaza. It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in question providing as follows: SECTION 1. Any person or persons who will construct or repair a building should, before constructing or repairing, obtain a written permit from the Municipal Mayor. SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00 for each repair permit issued. SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall make the violation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of the court. If said building destroys the view of the Public Plaza or occupies any public property, it shall be removed at the expense of the owner of the building or house. SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs., P. 3) Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law, appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name, located along the national highway and separated from the public plaza by a creek (Exh. D). On January 16, 1954, the request was denied, for the reason among others that the proposed building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954, defendants reiterated their request for a building permit (Exh. 3), but again the request was turned down by the mayor. Whereupon, appellants proceeded with the construction of the building without a permit, because they needed a place of residence very badly, their former house having been destroyed by a typhoon and hitherto they had been living on leased property. On February 26, 1954, appellants were charged before and convicted by the justice of the peace court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35 each and the costs, as well as to demolish the building in question because it destroys the view of the public plaza of Baao, in that "it hinders the view of travelers from the National Highway to the said public plaza."

From this decision, the accused appealed to the Court of Appeals, but the latter forwarded the records to us because the appeal attacks the constitutionality of the ordinance in question. We find that the appealed conviction can not stand. A first objection to the validity of the ordinance in question is that under it the mayor has absolute discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed; no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards; standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, and it is a settled rule that such an undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid (People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d) 392) The ordinance in question in no way controls or guides the discretion vested thereby in the respondents. It prescribes no uniform rule upon which the special permission of the city is to be granted. Thus the city is clothed with the uncontrolled power to capriciously grant the privilege to some and deny it others; to refuse the application of one landowner or lessee and to grant that of another, when for all material purposes, the two applying for precisely the same privileges under the same circumstances. The danger of such an ordinance is that it makes possible arbitrary discriminations and abuses in its execution, depending upon no conditions or qualifications whatever, other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested. Fundamental rights under our government do not depend for their existence upon such a slender and uncertain thread. Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should have established a rule by which its impartial enforcement could be secured. All of the authorities cited above sustain this conclusion. As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587, 28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that municipal ordinances placing restrictions upon lawful conduct or the lawful use of property must, in order to be valid, specify the rules and conditions to be observed in such conduct or business; and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp. 394-395). It is contended, on the other hand, that the mayor can refuse a permit solely in case that the proposed building "destroys the view of the public plaza or occupies any public property" (as stated in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the appellant was predicated on the ground that the proposed building would "destroy the view of the public plaza" by preventing its being seen from the public highway. Even thus interpreted, the ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a taking of appellants property without just compensation. We do not overlook that the modern tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness of residents. But while property may be regulated in the interest of the general welfare, and in its pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. As the case now stands, every structure that may be erected on appellants' land, regardless of its own

beauty, stands condemned under the ordinance in question, because it would interfere with the view of the public plaza from the highway. The appellants would, in effect, be constrained to let their land remain idle and unused for the obvious purpose for which it is best suited, being urban in character. To legally achieve that result, the municipality must give appellants just compensation and an opportunity to be heard. An ordinance which permanently so restricts the use of property that it can not be used for any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116). A regulation which substantially deprives an owner of all beneficial use of his property is confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So. 114). Zoning which admittedly limits property to a use which can not reasonably be made of it cannot be said to set aside such property to a use but constitutes the taking of such property without just compensation. Use of property is an element of ownership therein. Regardless of the opinion of zealots that property may properly, by zoning, be utterly destroyed without compensation, such principle finds no support in the genius of our government nor in the principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be of public benefit that property remain open and unused, then certainly the public, and not the private individuals, should bear the cost of reasonable compensation for such property under the rules of law governing the condemnation of private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185 N.E. 827) (Emphasis supplied.) The validity of the ordinance in question was justified by the court below under section 2243, par. (c), of the Revised Administrative Code, as amended. This section provides: SEC. 2243. Certain legislative powers of discretionary character . The municipal council shall have authority to exercise the following discretionary powers: xxx xxx xxx

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be constructed or repaired within them, and issue permits for the creation or repair thereof, charging a fee which shall be determined by the municipal council and which shall not be less than two pesos for each building permit and one peso for each repair permit issued. The fees collected under the provisions of this subsection shall accrue to the municipal school fund. Under the provisions of the section above quoted, however, the power of the municipal council to require the issuance of building permits rests upon its first establishing fire limits in populous parts of the town and prescribing the kinds of buildings that may be constructed or repaired within them. As there is absolutely no showing in this case that the municipal council had either established fire limits within the municipality or set standards for the kind or kinds of buildings to be constructed or repaired within them before it passed the ordinance in question, it is clear that said ordinance was not conceived and promulgated under the express authority of sec. 2243 (c) aforequoted. We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is therefore null

and void. Hence, the conviction of herein appellants is reversed, and said accused are acquitted, with costs de oficio. So ordered. People v Fajardo G.R. No. L-12172 August 29, 1958 J. B. L . Reyes Facts: Fajardo was mayor in Baao, Camrines Sur when the municipal council passed the ordinance that prohibits the construction of a building that blocks the view of the town plaza. Moreover, it redirects the grant of permission to the mayor. After his incumbency, Fajardo applied for a permit to build a building beside the gasoline station near the town plaza. His request was repeatedly denied. He continued with the construction under the rationale that he needed a house to stay in because the old one was destroyed by a typhoon. He was convicted and ordered to pay a fine and demolish the building due to its obstructing view. He appealed to the CA, which in turn forwarded the petition due to the question of the ordinances constitutionality. Issue: Is the ordinance constitutional? Held: No, petition granted. Ratio: The ordinance doesnt state any standard that limits the grant of power to the mayor. It is an arbitrary and unlimited conferment. Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should have established a rule by which its impartial enforcement could be secured. All of the authorities cited above sustain this conclusion. The ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a taking of appellants property without just compensation. While property may be regulated to the interest of the general welfare, and the state may eliminate structures offensive to the sight, the state may not permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. Fajardo would be constrained to let the land be fallow and not be used for urban purposes. To do this legally, there must be just compensation and they must be given an opportunity to be heard. An ordinance which permanently so restricts the use of property that it can not be used for any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of the property. The validity was also refuted by the Admin Code which states: SEC. 2243. Certain legislative powers of discretionary character. The municipal council shall have authority to exercise the following discretionary powers: xxx xxx xxx (c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be constructed or repaired within them, and issue permits for the creation or repair thereof, charging a fee which shall be determined by the municipal council and which shall not be less than two pesos for each building permit and one peso for each repair permit issued. The fees collected under the provisions of this subsection shall accrue to the municipal school fund. Since, there was absolutely no showing in this case that the municipal council had either established fire limits within the municipality or set standards for the kind or kinds of buildings to be constructed

or repaired within them before it passed the ordinance in question, it is clear that said ordinance was not conceived and promulgated under the express authority of sec. 2243 (c) G.R. No. 95279 July 25, 1991 ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN, Administrator, petitioner, vs. HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES, respondents. Bienvenido G. Martin for petitioner. Laurencio Saavedra for private respondents.

MELENCIO-HERRERA, J.:p Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan, which was ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent municipal employees implemented the demolition, for which reason they are also impleaded. The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 by Gregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino, said land was declared for the exclusive use of port facilities. On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San, surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the storage of copra. On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin San by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of the municipality; noting its antiquated and dilapidated structure; and. stressing the "clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." This was followed by another letter of 19 May 1989 of the same tenor. Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on 24 May 1989. Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4).

On 7 August 1989, the Trial Court 1 denied the Writ of Prohibition and upheld the power of respondent Mayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal. On 6 September 1989, petitioner's quonset building was completely demolished ( Rollo, p. 49). In its place sprang shanties and nipa huts, photographs of which have been attached to petitioner's Memorandum. On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822) 2 initially reversed the Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to order summarily, and without any judicial proceeding, the demolition of the quonset building, which was not a nuisance per se and that petitioner is in legal possession of the land on which the building stands by virtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration to petitioner of the building materials removed upon demolition, and the payment to it of attorney's fees of P10,000.00, were also ordered. However, upon reconsideration sought by reswever, upon reconsideration sought by respondent officials, Respondent Court 3 reversed itself on 13 June 1990 stating that "although Municipal Mayor Valencia initially issued an order demolition without judicial process, the deficiency was remedied when appellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oral argument after appellees (respondent officials) filed their answer." Respondent Court then quashed the Writ of Prohibition and set aside the order of restitution and payment of attorney's fees. Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal. The focal issue for determination is whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building. Respondent justify the demolition in the exercise of police power and for reasons of health, safety and general welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such power, invoking provisions of the Local Government Code. Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela . . ." It is not disputed that the quonset building, which is being used for the storage of copra, is located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should be relocated. And in the event that an immediate relocation of the building can not be accomplished, Section 16 of the Ordinance provides: A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within twelve (12) months from the approval of this Ordinance, otherwise the non-conforming use may be condemned or removed at the owner's expense. Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being in contravention of the requirements of due process, as originally held by the respondent Court. Moreover, the enforcement and administration of the provisions of the Ordinance resides with the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who may call upon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the

Ordinance (id., Sec. 2, Ibid.). And any person aggrieved by the decision of the Zoning Administrator regarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals ( id., Sec. 7, Ibid.). That a summary remedy can not be resorted to is further evident from the penal provisions of said Ordinance, reading: Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished by a fine of not less than fifty pesos (P50.00) but not more than two hundred pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six (6) months, or both, at the discretion of the Court . . . (ibid., Sec. 11). [Emphasis ours]. Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial remedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to be instituted judicial proceedings in connection with the violation of ordinances" (Local Government Code, Sec. 141 [2] [t]). Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. The provincial governor, district engineer or district health officer is not authorized to destroy private property consisting of dams and fishponds summarily and without any judicial proceedings whatever under the pretense that such private property constitutes a nuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se. A dam or fishpond may be a nuisance per accidens where it endangers or impairs the health or depreciates property by causing water to become stagnant. (Monteverde v. Generoso, supra). While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149 [ee]), it can not declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. [Municipal councils] do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se nor can they authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such. These things must be determined in the ordinary courts of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry . . . . If it be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board. The petitioner is entitled to a fair and impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal Council, 24 Phil. 47 [1913]). Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no compelling necessity for precipitate action. It follows then that respondent public officials of the

Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the Court of Appeals, the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue. For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset building. WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SET ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the just compensation due petitioner for the demolition of its quonset building. G.R. No. 94759 January 21, 1991 TECHNOLOGY DEVELOPERS, INC., petitioner, vs. COURT OF APPEALS, HON. NARCISO T. ATIENZA as Presiding Judge, Bulacan, RTC, and HON. VICENTE CRUZ, Acting Mayor and the MUNICIPALITY OF STA. MARIA, BULACAN, respondents. Diosdado P. Peralta for petitioner.

GANCAYCO, J.:p The authority of the local executive to protect the community from pollution is the center of this controversy. The antecedent facts are related in the appealed decision of the Court of Appeals as follows: Petitioner, a domestic private corporation engaged in the manufacture and export of charcoal briquette, received a letter dated February 16, 1989 from private respondent acting mayor Pablo N. Cruz, ordering the full cessation of the operation of the petitioner's plant located at Guyong, Sta. Maria, Bulacan, until further order. The letter likewise requested Plant Manager Mr. Armando Manese to bring with him to the office of the mayor on February 20, 1989 the following: a) Building permit; b) Mayor's permit; c) Region IIIPollution of Environment and Natural Resources Anti-Pollution Permit; and of other document. At the requested conference on February 20, 1989, petitioner, through its representative, undertook to comply with respondent's request for the production of the required documents. In compliance with said undertaking, petitioner commenced to secure "Region III-Department of Environmental and Natural Resources Anti-Pollution Permit," although among the permits previously secured prior to the operation of petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued by the then National Pollution Control Commission (now Environmental Management Bureau) and is now at a stage where the Environmental Management Bureau is trying to determine the correct kind of anti-pollution devise to be installed as part of petitioner's request for the renewal of its permit.

Petitioner's attention having been called to its lack of mayor's permit, it sent its representatives to the office of the mayor to secure the same but were not entertained. On April 6, 1989, without previous and reasonable notice upon petitioner, respondent acting mayor ordered the Municipality's station commander to padlock the premises of petitioner's plant, thus effectively causing the stoppage of its operation. Left with no recourse, petitioner instituted an action for certiorari, prohibition, mandamus with preliminary injunction against private respondent with the court a quo which is presided by the respondent judge. In its prayer for the issuance of a writ of preliminary mandatory injunction, it alleged therein that the closure order was issued in grave abuse of discretion. During the hearing of the application for the issuance of a writ of preliminary injunction on April 14, 1989, herein parties adduced their respective evidences. The respondent judge, April 19, 1989, found that petitioner is entitled to the issuance of the writ of preliminary mandatory injunction, hence, it ordered as follows: In view of the foregoing, upon petitioner's posting of a bond in the amount of P50,000.00 to answer for such damages that respondents may sustain should petitioner eventually be found not entitled to the injunctive relief hereby issued, let a PRELIMINARY MANDATORY INJUNCTION issue ordering the respondent Hon. Pablo N. Cruz, and other person acting in his behalf and stead to immediately revoke his closure order dated April 6, 1989, and allow petitioner to resume its normal business operations until after the instant case shall have been adjudicated on the merits without prejudice to the inherent power of the court to alter, modify or even revoke this order at any given time. SO ORDERED. The writ of preliminary mandatory injunction was issued on April 28, 1989, upon petitioner's posting a bond in the amount of P50,000.00. Private respondent filed his motion for reconsideration dated May 3, 1989. Said motion for reconsideration was heard on May 30, 1989. Petitioner's counsel failed to appear and the hearing proceeded with the Provincial Prosecutor presenting his evidence. The following documents were submitted: a) Exhibit "A", Investigation report on the Technology Developers Inc., prepared by one Marivic Guina, and her conclusion and recommendation read: Due to the manufacturing process and nature of raw materials used, the fumes coming from the factory may contain particulate matters which are hazardous to the health of the people. As such, the company should cease operating until such a time that the proper air pollution device is installed and operational. b) Exhibits "B", "B-1", "B-2", three (3) sheets of coupon bond containing signatures of residents of Barangay Guyong, Sta. Maria, Bulacan;

c) Exhibit "B-3", a letter addressed to Hon. Roberto Pagdanganan Governor of the Province of Bulacan, dated November 22, 1988, complaining about the smoke coming out of the chimney of the company while in operation. Reassessing all the evidence adduced, the lower court, on June 14, 1989, issued an order (a) setting aside the order dated April 28, 1989, which granted a Writ of Preliminary Mandatory Injunction, and (b) dissolving the writ consequently issued. A motion for reconsideration dated July 6, 1989 was filed by petitioner. Said motion drew an opposition dated July 19, 1989 from private respondent. Resolving the petitioner's motion for reconsideration, the respondent judge issued an order dated August 9, 1989, denying said motion for reconsideration. 1 Hence a petition for certiorari and prohibition with preliminary injunction was filed by petitioner in the Court of Appeals seeking to annul and set aside (a) the order issued by the trial court on June 14, 1989, setting aside the order dated April 28, 1989, and (b) the order of August 9, 1989, denying petitioner's motion for reconsideration of the order of June 14, 1989. In due course the petition was denied for lack of merit by the appellate court in a decision dated January 26, 1990. 2 A motion for reconsideration thereof filed by petitioner was denied on August 10, 1990. Thus, the herein petition for review on certiorari filed with this Court. Six errors are alleged to have been committed by the appellate court which may be synthesized into the singular issue of whether or not the appellate court committed a grave abuse of discretion in rendering its question decision and resolution. The petition is devoid of merit. The well-known rule is that the matter of issuance of a writ of preliminary injunction is addressed to the sound judicial discretion of the trial court and its action shall not be disturbed on appeal unless it is demonstrated that it acted without jurisdiction or in excess of jurisdiction or otherwise, in grave abuse of its discretion. By the same token the court that issued such a preliminary relief may recall or dissolve the writ as the circumstances may warrant. To the mind of the Court the following circumstances militate against the maintenance of the writ of preliminary injunction sought by petitioner: 1. No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control if not prohibition of the operation of a business is essentially addressed to the then National Pollution Control Commission of the Ministry of Human Settlements, now the Environmental Management Bureau of the Department of Environment and Natural Resources, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virture of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriate measures are taken to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business. 2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also affect the health of the residents in the area," so that petitioner was ordered to stop its operation until further orders and it was required to bring the following:

(1) Building permit; (2) Mayor's permit; and (3) Region III-Department of Environment and Natural Resources Anti-Pollution permit.
3

3. This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels. 4 The alleged NBI finding that some of the signatures in the four-page petition were written by one person, 5 appears to be true in some instances, (particularly as among members of the same family), but on the whole the many signatures appear to be written by different persons. The certification of the barrio captain of said barrio that he has not received any complaint on the matter 6 must be because the complaint was sent directly to the Governor through the Acting Mayor. 4. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic Guina who in her report of December 8, 1988 observed that the fumes emitted by the plant of petitioner goes directly to the surrounding houses and that no proper air pollution device has been installed. 7 5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati on March 6,1987. 8 6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988. 9 Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community. All these factors justify the dissolution of the writ of preliminary injunction by the trial court and the appellate court correctly upheld the action of the lower court. Petitioner takes note of the plea of petitioner focusing on its huge investment in this dollar-earning industry. It must be stressed however, that concomitant with the need to promote investment and contribute to the growth of the economy is the equally essential imperative of protecting the health, nay the very lives of the people, from the deleterious effect of the pollution of the environment. WHEREFORE, the petition is DENIED, with costs against petitioner. SO ORDERED. .R. Nos. 120865-71 December 7, 1995 LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE HERCULANO TECH, PRESIDING JUDGE, BRANCH 70, REGIONAL TRIAL COURT OF BINANGONAN RIZAL; FLEET DEVELOPMENT, INC. and CARLITO ARROYO; THE MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE AURELIO C. TRAMPE, PRESIDING JUDGE, BRANCH 163,

REGIONAL TRIAL COURT OF PASIG; MANILA MARINE LIFE BUSINESS RESOURCES, INC. represented by, MR. TOBIAS REYNALD M. TIANGCO; MUNICIPALITY OF TAGUIG, METRO MANILA and/or MAYOR RICARDO D. PAPA, JR., respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE ALEJANDRO A. MARQUEZ, PRESIDING JUDGE, BRANCH 79, REGIONAL TRIAL COURT OF MORONG, RIZAL; GREENFIELD VENTURES INDUSTRIAL DEVELOPMENT CORPORATION and R. J. ORION DEVELOPMENT CORPORATION; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA VEGA, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE MANUEL S. PADOLINA, PRESIDING JUDGE, BRANCH 162, REGIONAL TRIAL COURT OF PASIG, METRO MANILA; IRMA FISHING & TRADING CORP.; ARTM FISHING CORP.; BDR CORPORATION, MIRT CORPORATION and TRIM CORPORATION; MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING JUDGE, BRANCH 78, REGIONAL TRIAL COURT OF MORONG, RIZAL; BLUE LAGOON FISHING CORP. and ALCRIS CHICKEN GROWERS, INC.; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA VEGA, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE ARTURO A. MARAVE, PRESIDING JUDGE, BRANCH 78, REGIONAL TRIAL COURT OF MORONG, RIZAL; AGP FISH VENTURES, INC., represented by its PRESIDENT ALFONSO PUYAT; MUNICIPALITY OF JALA-JALA and/or MAYOR WALFREDO M. DE LA VEGA, respondents. LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS; HON. JUDGE EUGENIO S. LABITORIA, PRESIDING JUDGE, BRANCH 161, REGIONAL TRIAL COURT OF PASIG, METRO MANILA; SEA MAR TRADING CO. INC.; EASTERN LAGOON FISHING CORP.; MINAMAR FISHING CORP.; MUNICIPALITY OF BINANGONAN and/or MAYOR ISIDRO B. PACIS, respondents.

HERMOSISIMA, JR., J.: It is difficult for a man, scavenging on the garbage dump created by affluence and profligate consumption and extravagance of the rich or fishing in the murky waters of the Pasig River and the Laguna Lake or making a clearing in the forest so that he can produce food for his family, to understand why protecting birds, fish, and trees is more important than protecting him and keeping his family alive. How do we strike a balance between environmental protection, on the one hand, and the individual personal interests of people, on the other?

Towards environmental protection and ecology, navigational safety, and sustainable development, Republic Act No. 4850 created the "Laguna Lake Development Authority." This Government Agency is supposed to carry out and effectuate the aforesaid declared policy, so as to accelerate the development and balanced growth of the Laguna Lake area and the surrounding provinces, cities and towns, in the act clearly named, within the context of the national and regional plans and policies for social and economic development. Presidential Decree No. 813 of former President Ferdinand E. Marcos amended certain sections of Republic Act No. 4850 because of the concern for the rapid expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna de Bay, combined with current and prospective uses of the lake for municipal-industrial water supply, irrigation, fisheries, and the like. Concern on the part of the Government and the general public over: the environment impact of development on the water quality and ecology of the lake and its related river systems; the inflow of polluted water from the Pasig River, industrial, domestic and agricultural wastes from developed areas around the lake; the increasing urbanization which induced the deterioration of the lake, since water quality studies have shown that the lake will deteriorate further if steps are not taken to check the same; and the floods in Metropolitan Manila area and the lakeshore towns which will influence the hydraulic system of Laguna de Bay, since any scheme of controlling the floods will necessarily involve the lake and its river systems, likewise gave impetus to the creation of the Authority. Section 1 of Republic Act No. 4850 was amended to read as follows: Sec. 1. Declaration of Policy. It is hereby declared to be the national policy to promote, and accelerate the development and balanced growth of the Laguna Lake area and the surrounding provinces, cities and towns hereinafter referred to as the region, within the context of the national and regional plans and policies for social and economic development and to carry out the development of the Laguna Lake region with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution. 1 Special powers of the Authority, pertinent to the issues in this case, include: Sec. 3. Section 4 of the same Act is hereby further amended by adding thereto seven new paragraphs to be known as paragraphs (j), (k), (l), (m), (n), (o), and (p) which shall read as follows: xxx xxx xxx (j) The provisions of existing laws to the contrary notwithstanding, to engage in fish production and other aqua-culture projects in Laguna de Bay and other bodies of water within its jurisdiction and in pursuance thereof to conduct studies and make experiments, whenever necessary, with the collaboration and assistance of the Bureau of Fisheries and Aquatic Resources, with the end in view of improving present techniques and practices. Provided, that until modified, altered or amended by the procedure provided in the following sub-paragraph, the present laws, rules and permits or authorizations remain in force; (k) For the purpose of effectively regulating and monitoring activities in Laguna de Bay, the Authority shall have exclusive jurisdiction to issue new permit for the use of the lake waters for any projects or activities in or affecting the said lake including navigation, construction, and operation of fishpens, fish

enclosures, fish corrals and the like, and to impose necessary safeguards for lake quality control and management and to collect necessary fees for said activities and projects: Provided, That the fees collected for fisheries may be shared between the Authority and other government agencies and political sub-divisions in such proportion as may be determined by the President of the Philippines upon recommendation of the Authority's Board: Provided, further, That the Authority's Board may determine new areas of fishery development or activities which it may place under the supervision of the Bureau of Fisheries and Aquatic Resources taking into account the overall development plans and programs for Laguna de Bay and related bodies of water: Provided, finally, That the Authority shall subject to the approval of the President of the Philippines promulgate such rules and regulations which shall govern fisheries development activities in Laguna de Bay which shall take into consideration among others the following: socio-economic amelioration of bonafide resident fishermen whether individually or collectively in the form of cooperatives, lakeshore town development, a master plan for fishpen construction and operation, communal fishing ground for lake shore town residents, and preference to lake shore town residents in hiring laborer for fishery projects; (l) To require the cities and municipalities embraced within the region to pass appropriate zoning ordinances and other regulatory measures necessary to carry out the objectives of the Authority and enforce the same with the assistance of the Authority; (m) The provisions of existing laws to the contrary notwithstanding, to exercise water rights over public waters within the Laguna de Bay region whenever necessary to carry out the Authority's projects; (n) To act in coordination with existing governmental agencies in establishing water quality standards for industrial, agricultural and municipal waste discharges into the lake and to cooperate with said existing agencies of the government of the Philippines in enforcing such standards, or to separately pursue enforcement and penalty actions as provided for in Section 4 (d) and Section 39-A of this Act: Provided, That in case of conflict on the appropriate water quality standard to be enforced such conflict shall be resolved thru the NEDA Board. 2 To more effectively perform the role of the Authority under Republic Act No. 4850, as though Presidential Decree No. 813 were not thought to be completely effective, the Chief Executive, feeling that the land and waters of the Laguna Lake Region are limited natural resources requiring judicious management to their optimal utilization to insure renewability and to preserve the ecological balance, the competing options for the use of such resources and conflicting jurisdictions over such uses having created undue constraints on the institutional capabilities of the Authority in the light of the limited powers vested in it by its charter, Executive Order No. 927 further defined and enlarged the functions and powers of the Authority and named and enumerated the towns, cities and provinces encompassed by the term "Laguna de Bay Region". Also, pertinent to the issues in this case are the following provisions of Executive Order No. 927 which include in particular the sharing of fees: Sec 2. Water Rights Over Laguna de Bay and Other Bodies of Water within the Lake Region: To effectively regulate and monitor activities in the Laguna de Bay region, the

Authority shall have exclusive jurisdiction to issue permit for the use of all surface water for any projects or activities in or affecting the said region including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. For the purpose of this Executive Order, the term "Laguna de Bay Region" shall refer to the Provinces of Rizal and Laguna; the Cities of San Pablo, Pasay, Caloocan, Quezon, Manila and Tagaytay; the towns of Tanauan, Sto. Tomas and Malvar in Batangas Province; the towns of Silang and Carmona in Cavite Province; the town of Lucban in Quezon Province; and the towns of Marikina, Pasig, Taguig, Muntinlupa, and Pateros in Metro Manila. Sec 3. Collection of Fees. The Authority is hereby empowered to collect fees for the use of the lake water and its tributaries for all beneficial purposes including but not limited to fisheries, recreation, municipal, industrial, agricultural, navigation, irrigation, and waste disposal purpose; Provided, that the rates of the fees to be collected, and the sharing with other government agencies and political subdivisions, if necessary, shall be subject to the approval of the President of the Philippines upon recommendation of the Authority's Board, except fishpen fee, which will be shared in the following manner; 20 percent of the fee shall go to the lakeshore local governments, 5 percent shall go to the Project Development Fund which shall be administered by a Council and the remaining 75 percent shall constitute the share of LLDA. However, after the implementation within the three-year period of the Laguna Lake Fishery Zoning and Management Plan, the sharing will be modified as follows: 35 percent of the fishpen fee goes to the lakeshore local governments , 5 percent goes to the Project Development Fund and the remaining 60 percent shall be retained by LLDA; Provided, however, that the share of LLDA shall form part of its corporate funds and shall not be remitted to the National Treasury as an exception to the provisions of Presidential Decree No. 1234. (Emphasis supplied) It is important to note that Section 29 of Presidential Decree No. 813 defined the term "Laguna Lake" in this manner: Sec 41. Definition of Terms. (11) Laguna Lake or Lake. Whenever Laguna Lake or lake is used in this Act, the same shall refer to Laguna de Bay which is that area covered by the lake water when it is at the average annual maximum lake level of elevation 12.50 meters, as referred to a datum 10.00 meters below mean lower low water (M.L.L.W). Lands located at and below such elevation are public lands which form part of the bed of said lake. Then came Republic Act No. 7160, the Local Government Code of 1991. The municipalities in the Laguna Lake Region interpreted the provisions of this law to mean that the newly passed law gave municipal governments the exclusive jurisdiction to issue fishing privileges within their municipal waters because R.A. 7160 provides: Sec. 149. Fishery Rentals, Fees and Charges. (a) Municipalities shall have the exclusive authority to grant fishery privileges in the municipal waters and impose rental fees or charges therefor in accordance with the provisions of this Section. (b) The Sangguniang Bayan may:

(1) Grant fishing privileges to erect fish corrals, oyster, mussel or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, as determined by it; . . . . (2) Grant privilege to gather, take or catch bangus fry, prawn fry or kawagkawag or fry of other species and fish from the municipal waters by nets, traps or other fishing gears to marginal fishermen free from any rental fee, charges or any other imposition whatsoever. xxx xxx xxx Sec. 447. Power, Duties, Functions and Compensation. . . . . xxx xxx xxx (XI) Subject to the provisions of Book II of this Code, grant exclusive privileges of constructing fish corrals or fishpens, or the taking or catching of bangus fry, prawn fry or kawag-kawag or fry of any species or fish within the municipal waters. xxx xxx xxx Municipal governments thereupon assumed the authority to issue fishing privileges and fishpen permits. Big fishpen operators took advantage of the occasion to establish fishpens and fishcages to the consternation of the Authority. Unregulated fishpens and fishcages, as of July, 1995, occupied almost one-third of the entire lake water surface area, increasing the occupation drastically from 7,000 hectares in 1990 to almost 21,000 hectares in 1995. The Mayor's permit to construct fishpens and fishcages were all undertaken in violation of the policies adopted by the Authority on fishpen zoning and the Laguna Lake carrying capacity. To be sure, the implementation by the lakeshore municipalities of separate independent policies in the operation of fishpens and fishcages within their claimed territorial municipal waters in the lake and their indiscriminate grant of fishpen permits have already saturated the lake area with fishpens, thereby aggravating the current environmental problems and ecological stress of Laguna Lake. In view of the foregoing circumstances, the Authority served notice to the general public that: In compliance with the instructions of His Excellency PRESIDENT FIDEL V. RAMOS given on June 23, 1993 at Pila, Laguna pursuant to Republic Act 4850 as amended by Presidential Decree 813 and Executive Order 927 series of 1983 and in line with the policies and programs of the Presidential Task Force on Illegal Fishpens and Illegal Fishing, the general public is hereby notified that: 1. All fishpens, fishcages and other aqua-culture structures in the Laguna de Bay Region, which were not registered or to which no application for registration and/or permit has been filed with Laguna Lake Development Authority as of March 31, 1993 are hereby declared outrightly as illegal. 2. All fishpens, fishcages and other aqua-culture structures so declared as illegal shall be subject to demolition which shall be undertaken by the Presidential Task Force for Illegal Fishpen and Illegal Fishing.

3. Owners of fishpens, fishcages and other aqua-culture structures declared as illegal shall, without prejudice to demolition of their structures be criminally charged in accordance with Section 39-A of Republic Act 4850 as amended by P.D. 813 for violation of the same laws. Violations of these laws carries a penalty of imprisonment of not exceeding 3 years or a fine not exceeding Five Thousand Pesos or both at the discretion of the court. All operators of fishpens, fishcages and other aqua-culture structures declared as illegal in accordance with the foregoing Notice shall have one (1) month on or before 27 October 1993 to show cause before the LLDA why their said fishpens, fishcages and other aquaculture structures should not be demolished/dismantled. One month, thereafter, the Authority sent notices to the concerned owners of the illegally constructed fishpens, fishcages and other aqua-culture structures advising them to dismantle their respective structures within 10 days from receipt thereof, otherwise, demolition shall be effected. Reacting thereto, the affected fishpen owners filed injunction cases against the Authority before various regional trial courts, to wit: (a) Civil Case No. 759-B, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 70, Binangonan, Rizal, filed by Fleet Development, Inc. and Carlito Arroyo; (b) Civil Case No. 64049, for Injunction, Regional Trial Court, Branch 162, Pasig, filed by IRMA Fishing and Trading Corp., ARTM Fishing Corp., BDR Corp., MIRT Corp. and TRIM Corp.; (c) Civil Case No. 566, for Declaratory Relief and Injunction, Regional Trial Court, Branch 163, Pasig, filed by Manila Marine Life Business Resources, Inc. and Tobias Reynaldo M. Tianco; (d) Civil Case No. 556-M, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 78, Morong, Rizal, filed by AGP Fishing Ventures, Inc.; (e) Civil Case No. 522-M, for Prohibition, Injunction and Damages, Regional Trial Court, Branch 78, Morong, Rizal, filed by Blue Lagoon and Alcris Chicken Growers, Inc.; (f) Civil Case No. 554-, for Certiorari and Prohibition, Regional Trial Court, Branch 79, Morong, Rizal, filed by Greenfields Ventures Industrial Corp. and R.J. Orion Development Corp.; and (g) Civil Case No. 64124, for Injunction, Regional Trial Court, Branch 15, Pasig, filed by SEA-MAR Trading Co., Inc. and Eastern Lagoon Fishing Corp. and Minamar Fishing Corporation. The Authority filed motions to dismiss the cases against it on jurisdictional grounds. The motions to dismiss were invariably denied. Meanwhile, temporary restraining order/writs of preliminary mandatory injunction were issued in Civil Cases Nos. 64124, 759 and 566 enjoining the Authority from demolishing the fishpens and similar structures in question. Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos. 120865-71, were filed by the Authority with this court. Impleaded as parties-respondents are concerned regional trial courts and respective private parties, and the municipalities and/or respective Mayors of Binangonan, Taguig and Jala-jala, who issued permits for the construction and operation of fishpens in Laguna de Bay. The Authority sought the following reliefs, viz.: (A) Nullification of the temporary restraining order/writs of preliminary injunction issued in Civil Cases Nos. 64125, 759 and 566; (B) Permanent prohibition against the regional trial courts from exercising jurisdiction over cases involving the Authority which is a co-equal body; (C) Judicial pronouncement that R.A. 7610 (Local Government Code of 1991) did not repeal, alter or modify the provisions of R.A. 4850, as amended, empowering the Authority to issue permits for fishpens, fishcages and other aqua-culture structures in Laguna de Bay and that, the Authority the government agency vested with exclusive authority to issue said permits.

By this Court's resolution of May 2, 1994, the Authority's consolidated petitions were referred to the Court of Appeals. In a Decision, dated June 29, 1995, the Court of Appeals dismissed the Authority's consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among those quasi-judicial agencies of government whose decision or order are appealable only to the Court of Appeals; (B) the LLDA charter does vest LLDA with quasi-judicial functions insofar as fishpens are concerned; (C) the provisions of the LLDA charter insofar as fishing privileges in Laguna de Bay are concerned had been repealed by the Local Government Code of 1991; (D) in view of the aforesaid repeal, the power to grant permits devolved to and is now vested with their respective local government units concerned. Not satisfied with the Court of Appeals decision, the Authority has returned to this Court charging the following errors: 1. THE HONORABLE COURT OF APPEALS PROBABLY COMMITTED AN ERROR WHEN IT RULED THAT THE LAGUNA LAKE DEVELOPMENT AUTHORITY IS NOT A QUASIJUDICIAL AGENCY. 2. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT RULED THAT R.A. 4850 AS AMENDED BY P.D. 813 AND E.O. 927 SERIES OF 1983 HAS BEEN REPEALED BY REPUBLIC ACT 7160. THE SAID RULING IS CONTRARY TO ESTABLISHED PRINCIPLES AND JURISPRUDENCE OF STATUTORY CONSTRUCTION. 3. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT RULED THAT THE POWER TO ISSUE FISHPEN PERMITS IN LAGUNA DE BAY HAS BEEN DEVOLVED TO CONCERNED (LAKESHORE) LOCAL GOVERNMENT UNITS. We take a simplistic view of the controversy. Actually, the main and only issue posed is: Which agency of the Government the Laguna Lake Development Authority or the towns and municipalities comprising the region should exercise jurisdiction over the Laguna Lake and its environs insofar as the issuance of permits for fishery privileges is concerned? Section 4 (k) of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, the provisions of Presidential Decree No. 813, and Section 2 of Executive Order No. 927, cited above, specifically provide that the Laguna Lake Development Authority shall have exclusive jurisdiction to issue permits for the use of all surface water for any projects or activities in or affecting the said region, including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. On the other hand, Republic Act No. 7160, the Local Government Code of 1991, has granted to the municipalities the exclusive authority to grant fishery privileges in municipal waters. The Sangguniang Bayan may grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry area within a definite zone of the municipal waters. We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the aforementioned laws creating the Laguna Lake Development Authority and granting the latter water rights authority over Laguna de Bay and the lake region. The Local Government Code of 1991 does not contain any express provision which categorically expressly repeal the charter of the Authority. It has to be conceded that there was no intent on the part of the legislature to repeal Republic Act No. 4850 and its amendments. The repeal of laws should be made clear and expressed. It has to be conceded that the charter of the Laguna Lake Development Authority constitutes a special law. Republic Act No. 7160, the Local Government Code of 1991, is a general law. It is basic in statutory

construction that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law. It is a well-settled rule in this jurisdiction that "a special statute, provided for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law." 3 Where there is a conflict between a general law and a special statute, the special statute should prevail since it evinces the legislative intent more clearly than the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. This is because implied repeals are not favored and as much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. 4 Thus, it has to be concluded that the charter of the Authority should prevail over the Local Government Code of 1991. Considering the reasons behind the establishment of the Authority, which are environmental protection, navigational safety, and sustainable development, there is every indication that the legislative intent is for the Authority to proceed with its mission. We are on all fours with the manifestation of petitioner Laguna Lake Development Authority that "Laguna de Bay, like any other single body of water has its own unique natural ecosystem. The 900 km lake surface water, the eight (8) major river tributaries and several other smaller rivers that drain into the lake, the 2,920 km basin or watershed transcending the boundaries of Laguna and Rizal provinces, greater portion of Metro Manila, parts of Cavite, Batangas, and Quezon provinces, constitute one integrated delicate natural ecosystem that needs to be protected with uniform set of policies; if we are to be serious in our aims of attaining sustainable development. This is an exhaustible natural resource a very limited one which requires judicious management and optimal utilization to ensure renewability and preserve its ecological integrity and balance." "Managing the lake resources would mean the implementation of a national policy geared towards the protection, conservation, balanced growth and sustainable development of the region with due regard to the inter-generational use of its resources by the inhabitants in this part of the earth. The authors of Republic Act 4850 have foreseen this need when they passed this LLDA law the special law designed to govern the management of our Laguna de Bay lake resources." "Laguna de Bay therefore cannot be subjected to fragmented concepts of management policies where lakeshore local government units exercise exclusive dominion over specific portions of the lake water. The garbage thrown or sewage discharged into the lake, abstraction of water therefrom or construction of fishpens by enclosing its certain area, affect not only that specific portion but the entire 900 km of lake water. The implementation of a cohesive and integrated lake water resource management policy, therefore, is necessary to conserve, protect and sustainably develop Laguna de Bay." 5 The power of the local government units to issue fishing privileges was clearly granted for revenue purposes. This is evident from the fact that Section 149 of the New Local Government Code empowering local governments to issue fishing permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the heading, "Specific Provisions On The Taxing And Other Revenue Raising Power Of Local Government Units." On the other hand, the power of the Authority to grant permits for fishpens, fishcages and other aquaculture structures is for the purpose of effectively regulating and monitoring activities in the Laguna de Bay region (Section 2, Executive Order No. 927) and for lake quality control and management. 6 It does partake of the nature of police power which is the most pervasive, the least limitable and the most

demanding of all State powers including the power of taxation. Accordingly, the charter of the Authority which embodies a valid exercise of police power should prevail over the Local Government Code of 1991 on matters affecting Laguna de Bay. There should be no quarrel over permit fees for fishpens, fishcages and other aqua-culture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927 provides for the proper sharing of fees collected. In respect to the question as to whether the Authority is a quasi-judicial agency or not, it is our holding that, considering the provisions of Section 4 of Republic Act No. 4850 and Section 4 of Executive Order No. 927, series of 1983, and the ruling of this Court in Laguna Lake Development Authority vs. Court of Appeals, 231 SCRA 304, 306, which we quote: xxx xxx xxx As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication Board (PAB), except in cases where the special law provides for another forum. It must be recognized in this regard that the LLDA, as a specialized administrative agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws to carry out and make effective the declared national policy of promoting and accelerating the development and balanced growth of the Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution. Under such a broad grant of power and authority, the LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna Lake region from the deleterious effects of pollutants emanating from the discharge of wastes from the surrounding areas. In carrying out the aforementioned declared policy, the LLDA is mandated, among others, to pass upon and approve or disapprove all plans, programs, and projects proposed by local government offices/agencies within the region, public corporations, and private persons or enterprises where such plans, programs and/or projects are related to those of the LLDA for the development of the region. xxx xxx xxx . . . . While it is a fundamental rule that an administrative agency has only such powers as are expressly granted to it by law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily implied in the exercise of its express powers. In the exercise, therefore, of its express powers under its charter, as a regulatory and quasijudicial body with respect to pollution cases in the Laguna Lake region, the authority of the LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it may well be reduced to a "toothless" paper agency. there is no question that the Authority has express powers as a regulatory and quasi-judicial body in respect to pollution cases with authority to issue a "cease and desist order" and on matters affecting the construction of illegal fishpens, fishcages and other aqua-culture structures in Laguna de Bay. The Authority's pretense, however, that it is co-equal to the Regional Trial Courts such that all actions against it may only be instituted before the Court of Appeals cannot be sustained. On actions necessitating the resolution of legal questions affecting the powers of the Authority as provided for in its charter, the Regional Trial Courts have jurisdiction.

In view of the foregoing, this Court holds that Section 149 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, has not repealed the provisions of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it. Removal from the Authority of the aforesaid licensing authority will render nugatory its avowed purpose of protecting and developing the Laguna Lake Region. Otherwise stated, the abrogation of this power would render useless its reason for being and will in effect denigrate, if not abolish, the Laguna Lake Development Authority. This, the Local Government Code of 1991 had never intended to do. WHEREFORE, the petitions for prohibition, certiorari and injunction are hereby granted, insofar as they relate to the authority of the Laguna Lake Development Authority to grant fishing privileges within the Laguna Lake Region. The restraining orders and/or writs of injunction issued by Judge Arturo Marave, RTC, Branch 78, Morong, Rizal; Judge Herculano Tech, RTC, Branch 70, Binangonan, Rizal; and Judge Aurelio Trampe, RTC, Branch 163, Pasig, Metro Manila, are hereby declared null and void and ordered set aside for having been issued with grave abuse of discretion. The Municipal Mayors of the Laguna Lake Region are hereby prohibited from issuing permits to construct and operate fishpens, fishcages and other aqua-culture structures within the Laguna Lake Region, their previous issuances being declared null and void. Thus, the fishing permits issued by Mayors Isidro B. Pacis, Municipality of Binangonan; Ricardo D. Papa, Municipality of Taguig; and Walfredo M. de la Vega, Municipality of Jala-jala, specifically, are likewise declared null and void and ordered cancelled. The fishpens, fishcages and other aqua-culture structures put up by operators by virtue of permits issued by Municipal Mayors within the Laguna Lake Region, specifically, permits issued to Fleet Development, Inc. and Carlito Arroyo; Manila Marine Life Business Resources, Inc., represented by, Mr. Tobias Reynald M. Tiangco; Greenfield Ventures Industrial Development Corporation and R.J. Orion Development Corporation; IRMA Fishing And Trading Corporation, ARTM Fishing Corporation, BDR Corporation, Mirt Corporation and Trim Corporation; Blue Lagoon Fishing Corporation and ALCRIS Chicken Growers, Inc.; AGP Fish Ventures, Inc., represented by its President Alfonso Puyat; SEA MAR Trading Co., Inc., Eastern Lagoon Fishing Corporation, and MINAMAR Fishing Corporation, are hereby declared illegal structures subject to demolition by the Laguna Lake Development Authority. SO ORDERED. Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Separate Opinions PADILLA, J., concurring: I fully concur with the decision written by Mr. Justice R. Hermosisima, Jr.. I would only like to stress what the decision already states, i.e., that the local government units in the Laguna Lake area are not precluded from imposing permits on fishery operations for revenue raising purposes of such local government units. In other words, while the exclusive jurisdiction to determine whether or not projects or activities in the lake area should be allowed, as well as their regulation, is with the Laguna Lake

Development Authority, once the Authority grants a permit, the permittee may still be subjected to an additional local permit or license for revenue purposes of the local government units concerned. This approach would clearly harmonize the special law, Rep. Act No. 4850, as amended, with Rep. Act No. 7160, the Local Government Code. It will also enable small towns and municipalities in the lake area, like Jala-Jala, to rise to some level of economic viability. Separate Opinions PADILLA, J., concurring: I fully concur with the decision written by Mr. Justice R. Hermosisima, Jr.. I would only like to stress what the decision already states, i.e., that the local government units in the Laguna Lake area are not precluded from imposing permits on fishery operations for revenue raising purposes of such local government units. In other words, while the exclusive jurisdiction to determine whether or not projects or activities in the lake area should be allowed, as well as their regulation, is with the Laguna Lake Development Authority, once the Authority grants a permit, the permittee may still be subjected to an additional local permit or license for revenue purposes of the local government units concerned. This approach would clearly harmonize the special law, Rep. Act No. 4850, as amended, with Rep. Act No. 7160, the Local Government Code. It will also enable small towns and municipalities in the lake area, like Jala-Jala, to rise to some level of economic viability.

Laguna Lake Development Authority vs. Court of Appeals


Posted on November 18, 2012

G.R.No. 120865-71 December 7, 1995 Facts: The Laguna Lake Development Authority (LLDA) was created through RA No. 4850 in order to execute the policy towards environmental protection and sustainable development so as to accelerate the development and balanced growth of the Laguna Lake area and the surrounding provinces and towns. PD No. 813 amended certain sections of RA 4850 since water quality studies have shown that the lake will deteriorate further if steps are not taken to check the same. EO 927 further defined and enlarged the functions and powers of the LLDA and enumerated the towns, cities and provinces encompassed by the term Laguna de Bay Region. Upon implementation of RA 7160 (Local Government Code of 1991), the municipalities assumed exclusive jurisdiction & authority to issue fishing privileges within their municipal waters since Sec.149 thereof provides: Municipal corporations shall have the authority to grant fishery privileges in the municipal waters and impose rental fees or charges therefore Big fishpen operators took advantage of the occasion to establish fishpens & fish cages to the consternation of the LLDA. The implementation of separate independent policies in fish cages & fish pen operation and the indiscriminate grant of fishpen permits by the lakeshore municipalities have saturated the lake with fishpens, thereby aggravating the current environmental problems and ecological stress of Laguna Lake. The LLDA then served notice to the general public that (1) fishpens, cages & other aqua-culture structures unregistered with the LLDA as of March 31, 1993 are declared illegal; (2) those declared illegal shall be subject to demolition by the Presidential Task Force for Illegal Fishpen and Illegal Fishing; and (3) owners of those declared illegal shall be criminally charged with violation of Sec.39-A of RA 4850 as amended by PD 813. A month later, the LLDA sent notices advising the owners of the illegally constructed fishpens, fishcages and other aqua-culture structures advising them to dismantle their respective structures otherwise demolition shall be effected.

Issues: 1.Which agency of the government the LLDA or the towns and municipalities comprising the region should exercise jurisdiction over the Laguna lake and its environs insofar as the issuance of permits for fishery privileges is concerned? 2. Whether the LLDA is a quasi-judicial agency? Held: 1. Sec.4(k) of the charter of the LLDA, RA 4850, the provisions of PD 813,and Sec.2 of EO No.927, specifically provide that the LLDA shall have exclusive jurisdiction to issue permits for the use of all surface water for any projects or activities in or affecting the said region. On the other hand, RA 7160 has granted to the municipalities the exclusive authority to grant fishery privileges on municipal waters. The provisions of RA 7160 do not necessarily repeal the laws creating the LLDA and granting the latter water rights authority over Laguna de Bay and the lake region. Where there is a conflict between a general law and a special statute, latter should prevail since it evinces the legislative intent more clearly than the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. Implied repeals are not favored and, as much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. The power of LGUs to issue fishing privileges was granted for revenue purposes. On the other hand, the power of the LLDA to grant permits for fishpens, fish cages, and other aqua-culture structures is for the purpose of effectively regulating & monitoring activities in the Laguna de Bay region and for lake control and management. It partakes of the nature of police power which is the most pervasive, least limitable and most demanding of all state powers including the power of taxation. Accordingly, the charter of the LLDA which embodies a valid exercise of police power should prevail over the LGC of 1991 on matters affecting Laguna de Bay. 2. The LLDA has express powers as a regulatory and quasi-judicial body in respect to pollution cases with authority to issue a cease and desist order and on matters affecting the construction of illegal fishpens, fish cages and other aqua-culture structures in Laguna de Bay. Sec.149 of RA 7160 has not repealed the provisions of the charter of the LLDA, RA 4850, as amended. Thus, the LLDA has the exclusive jurisdiction to issue permits for enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it.