G.R. No.

L-23052

January 29, 1968

CITY OF MANILA, petitioner, vs. G NARO N. T OTICO an! CO"RT OF A## AL$, respondents. City Fiscal Manuel T. Reyes for petitioner. Sevilla, Daza and Associates for respondents. CONC #CION, C.J.: Appeal by certiorari from a decision of the Court of Appeals. On January 27, 195 , at about !"" p.m., #enaro $. %eotico &as at the corner of the Old 'uneta and (. )ur*os Avenue, +anila, &ithin a ,loadin* and unloadin*, -one, &aitin* for a .eepney to ta/e him do&n to&n. After &aitin* for about five minutes, he mana*ed to hail a .eepney that came alon* to a stop. As he stepped do&n from the curb to board the .eepney, and too/ a fe& steps, he fell inside an uncovered and unli*hted catch basin or manhole on (. )ur*os Avenue. 0ue to the fall, his head hit the rim of the manhole brea/in* his eye*lasses and causin* bro/en pieces thereof to pierce his left eyelid. As blood flo&ed therefrom, impairin* his vision, several persons came to his assistance and pulled him out of the manhole. One of them brou*ht %eotico to the (hilippine #eneral 1ospital, &here his in.uries &ere treated, after &hich he &as ta/en home. 2n addition to the lacerated &ound in his left upper eyelid, %eotico suffered contusions on the left thi*h, the left upper arm, the ri*ht le* and the upper lip apart from an abrasion on the ri*ht infra3patella re*ion. %hese in.uries and the aller*ic eruption caused by anti3tetanus in.ections administered to him in the hospital, re4uired further medical treatment by a private practitioner &ho char*ed therefor (1,5""."". As a conse4uence of the fore*oin* occurrence, %eotico filed, &ith the Court of 6irst 2nstance of +anila, a complaint 7 &hich &as, subse4uently, amended 7 for dama*es a*ainst the City of +anila, its mayor, city en*ineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial court, and 4uoted &ith approval by the Court of Appeals, At the time of the incident, plaintiff &as a practicin* public accountant, a businessman and a professor at the 8niversity of the 9ast. 1e held responsible positions in various business firms li/e the (hilippine +erchandisin* Co., the A.8. :alencia and Co., the ;ilver ;&an +anufacturin* Company and the ;incere (ac/in* Corporation. 1e &as also associated &ith several civic or*ani-ations such as the <ac/ <ac/ #olf Club, the Chamber of Commerce of the (hilippines, =>s +en Club of +anila and the ?ni*hts of @i-al. As a result of the incident, plaintiff &as prevented from en*a*in* in his customary occupation for t&enty days. (laintiff has lost a daily income of about (5"."" durin* his incapacity to &or/. )ecause of the incident, he &as sub.ected to humiliation and ridicule by his business associates and friends. 0urin* the period of his treatment, plaintiff &as under constant fear and anAiety for the &elfare of his minor children since he &as their only support. 0ue to the filin* of this case, plaintiff has obli*ated himself to pay his counsel the sum of (2,"""."". On the other hand, the defense presented evidence, oral and documentary, to prove that the ;torm 0rain ;ection, Office of the City 9n*ineer of +anila, received a report of the uncovered condition of a catchbasin at the corner of (. )ur*os and Old 'uneta ;treets, +anila, on January 25, 195 , but the same &as covered on the same day B9Ahibit 5CD that a*ain the iron cover of the same catch basin &as reported missin* on January E", 195 , but the said cover &as replaced the neAt day B9Ahibit 5CD that the Office of the City 9n*ineer never received any report to the effect that the catchbasin in 4uestion &as not covered bet&een January 25 and 29, 19F D that it has al&ays been a policy of the said office, &hich is char*ed &ith the duty of installation, repair and care of storm drains in the City of +anila, that &henever a report is received from &hatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by immediately replacin* the missin* cover or coverin* the catchbasin &ith steel mattin* that because of the lucrative scrap iron business then prevailin*, stealin* of iron catchbasin covers &as rampantD that the Office of the City 9n*ineer has filed complaints in court resultin* from theft of said iron coversD that in order to prevent such thefts, the city *overnment has chan*ed the position and layout of catchbasins in the City by constructin* them under the side&al/s &ith concrete cement covers and openin*s on the side of the *utterD and that these chan*es had been underta/en by the city from time to time &henever funds &ere available. After appropriate proceedin*s the Court of 6irst 2nstance of +anila rendered the aforementioned decision sustainin* the theory of the defendants and dismissin* the amended complaint, &ithout costs. On appeal ta/en by plaintiff, this decision &as affirmed by the Court of Appeals, eAcept insofar as the City of +anila is concerned, &hich &as sentenced to pay dama*es in the a**re*ate sum of (F,75"."". 1 1ence, this appeal by the City of +anila. %he first issue raised by the latter is &hether the present case is *overned by ;ection 5 of @epublic Act $o. 5"9 BCharter of the City of +anilaC readin*! %he city shall not be liable or held for dama*es or in.uries to persons or property arisin* from the failure of the +ayor, the +unicipal )oard, or any other city officer, to enforce the provisions of this chapter, or any other la& or ordinance, or from ne*li*ence of said +ayor, +unicipal )oard, or other officers &hile enforcin* or attemptin* to enforce said provisions. or by Article 21 9 of the Civil Code of the (hilippines &hich provides!

(rovinces, cities and municipalities shall be liable for dama*es for the death of, or in.uries suffered by, any person by reason of defective conditions of road, streets, brid*es, public buildin*s, and other public &or/s under their control or supervision. +anila maintains that the former provision should prevail over the latter, because @epublic Act 5"9, is a special la&, intended eAclusively for the City of +anila, &hereas the Civil Code is a *eneral la&, applicable to the entire (hilippines. %he Court of Appeals, ho&ever, applied the Civil Code, and, &e thin/, correctly. 2t is true that, insofar as its territorial application is concerned, @epublic Act $o. 5"9 is a special la& and the Civil Code a *eneral le*islationD but, as re*ards the sub.ect3matter of the provisions above 4uoted, ;ection 5 of @epublic Act 5"9 establishes a *eneral rule re*ulatin* the liability of the City of +anila for! ,dama*es or in.ury to persons or property arisin* from the failure of, city officers ,to enforce the provisions of, said Act ,or any other la& or ordinance, or from ne*li*ence, of the city ,+ayor, +unicipal )oard, or other officers &hile enforcin* or attemptin* to enforce said provisions., 8pon the other hand, Article 21 9 of the Civil Code constitutes a particular prescription ma/in* ,provinces, cities and municipalities . . . liable for dama*es for the death of, or in.ury suffered by any person by reason, 7 specifically 7 ,of the defective condition of roads, streets, bridges, public buildings, and other public !or"s under their control or supervision., 2n other &ords, said section 5 refers to liability arisin* from ne*li*ence, in *eneral, re*ardless of the ob.ect thereof, &hereas Article 21 9 *overns liability due to ,defective streets,, in particular. ;ince the present action is based upon the alle*ed defective condition of a road, said Article 21 9 is decisive thereon. 2t is ur*ed that the City of +anila cannot be held liable to %eotico for dama*es! 1C because the accident involvin* him too/ place in a national hi*h&ayD and 2C because the City of +anila has not been ne*li*ent in connection there&ith. As re*ards the first issue, &e note that it is based upon an alle*ation of fact not made in the ans&er of the City. +oreover, %eotico alle*ed in his complaint, as &ell as in his amended complaint, that his in.uries &ere due to the defective condition of a street &hich is ,under the supervision and control, of the City. 2n its ans&er to the amended complaint, the City, in turn, alle*ed that #the streets afore$entioned !ere and have been constantly "ept in good condition and regularly inspected and the stor$ drains and $anholes thereof covered by the defendant City and the officers concerned# !ho #have been ever vigilant and zealous in the perfor$ance of their respective functions and duties as i$posed upon the$ by la! .# %hus, the City had, in effect, admitted that (. )ur*os Avenue &as and is under its control and supervision. +oreover, the assertion to the effect that said Avenue is a national hi*h&ay &as made, for the first time, in its motion for reconsideration of the decision of the Court of Appeals. ;uch assertion raised, therefore, a 4uestion of fact, &hich had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof. At any rate, under Article 21 9 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from &hich responsibility is eAacted. <hat said article re4uires is that the province, city or municipality have either ,control or supervision, over said street or road. 9ven if (. )ur*os Avenue &ere, therefore, a national hi*h&ay, this circumstance &ould not necessarily detract from its ,control or supervision, by the City of +anila, under @epublic Act 5"9. 2n fact ;ection 1 BAC thereof provides! ;ec. 1 . %egislative po!ers. 7 %he +unicipal )oard shall have the follo&in* le*islative po&ers! AAA AAA AAA

BAC ;ub.ect to the provisions of eAistin* la& to provide for the laying out, construction and i$prove$ent, and to regulate the use of streets, avenues, alleys, side&al/s, &harves, piers, par/s, cemeteries, and other public placesD to provide for lighting, cleanin*, and sprin/lin* of streets and public placesD . . . to provide for the inspection of, fiA the license fees for and re*ulate the openin*s in the same for the layin* of *as, &ater, se&er and other pipes, the buildin* and repair of tunnels, se&ers, and drains, and all structures in and under the same and the erectin* of poles and the strin*in* of &ires thereinD to provide for and regulate cross !or"s, curbs, and gutters therein, . . . to regulate traffic and sales upon the streets and other public placesD to provide for the abate$ent of nuisances in the same and punish the authors or o&ners thereofD to provide for the construction and maintenance, and re*ulate the use, of brid*es, viaducts and culvertsD to prohibit and re*ulate ball playin*, /ite3flyin*, hoop rollin*, and other amusements &hich may annoy persons using the streets and public places, or fri*hten horses or other animalsD to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives &ithin the limits of the cityD to regulate the lights used on all vehicles, cars, and locomotivesD . . . to provide for and chan*e the location, *rade, and crossin* of railroads, and compel any such railroad to raise or lo&er its trac/s to conform to such provisions or chan*esD and to re4uire railroad companies to fence their property, or any part thereof, to provide suitable protection against in&ury to persons or property, and to construct and repair ditches, drains, se!ers, and culverts alon* and under their trac/s, so that the natural draina*e of the streets and ad.acent property shall not be obstructed. %his authority has been neither &ithdra&n nor restricted by @epublic Act $o. 917 and 9Aecutive Order $o. 11E, dated +ay 2, 1955, upon &hich the City relies. ;aid Act *overns the disposition or appropriation of the hi*h&ay funds and the *ivin* of aid to provinces, chartered cities and municipalities in the construction of roads and streets &ithin their respective boundaries, and 9Aecutive Order $o. 11E merely implements the provisions of said @epublic Act $o. 917, concernin* the disposition and appropriation of the hi*h&ay funds. +oreover, it provides that ,the construction, $aintenance and improvement of national primary, national secondary and national aid provincial and city roads shall be accomplished by the 1i*h&ay 0istrict 9n*ineers and 1i*h&ay City 9n*ineers under the supervision of the Commissioner of (ublic 1i*h&ays and shall be financed from such appropriations as may be authori-ed by the @epublic of the (hilippines in annual or special appropriation Acts.,

%hen, a*ain, the determination of &hether or not (. )ur*os Avenue is under the control or supervision of the City of +anila and &hether the latter is *uilty of ne*li*ence, in connection &ith the maintenance of said road, &hich &ere decided by the Court of Appeals in the affirmative, is one of fact, and the findin*s of said Court thereon are not sub.ect to our revie&. <19@96O@9, the decision appealed from should be as it is hereby affirmed, &ith costs a*ainst the City of +anila. 2t is so ordered.'(!ph)'.*+t Reyes, ,.-.%., Dizon, Ma"alintal, -engzon, ,..., /aldivar, Sanchez, Castro, Angeles and Fernando, ,,., concur. Foo%no%&'
1

+edical fees 7 (1,5"".""D 'ost income 7 (E5".""D +oral dama*es 7 (E,""".""D and Attorney>s fees 7 (2,"""."".

G.R. No. (10)9 May 29, 198( * RNAR+INO JIM N ,, petitioner, vs. CITY OF MANILA an! INT RM +IAT A## LLAT CO"RT, respondents.

#ARA$, J.: %his is a petition for revie& on certiorari of! B1C the decision - of the 2ntermediate Appellate Court in AC3#.@. $o. "1E 73C: -ernardino ,i$enez v. Asiatic 0ntegrated Corporation and City of Manila, reversin* the decision -- of the Court of 6irst 2nstance of +anila, )ranch GG22 in Civil Case $o. 9FE9" bet&een the same parties, but only insofar as holdin* Asiatic 2nte*rated Corporation solely liable for dama*es and attorney>s fees instead of ma/in* the City of +anila .ointly and solidarily liable &ith it as prayed for by the petitioner and B2C the resolution of the same Appellate Court denyin* his (artial +otion for @econsideration B@ollo, p. 2C. %he dispositive portion of the 2ntermediate Appellate Court>s decision is as follo&s! <19@96O@9, the decision appealed from is hereby @9:9@;90. A ne& one is hereby entered orderin* the defendant Asiatic 2nte*rated Corporation to pay the plaintiff (221.9" actual medical eApenses, (9""."" for the amount paid for the operation and mana*ement of a school bus, (2","""."" as moral dama*es due to pains, sufferin*s and sleepless ni*hts and ( l","""."" as attorney>s fees. ;O O@09@90. Bp. 2", @olloC %he findin*s of respondent Appellate Court are as follo&s! %he evidence of the plaintiff Bpetitioner hereinC sho&s that in the mornin* of Au*ust 15, 1975 he, to*ether &ith his nei*hbors, &ent to ;ta. Ana public mar/et to buy ,ba*oon*, at the time &hen the public mar/et &as flooded &ith an/le deep rain&ater. After purchasin* the ,ba*oon*, he turned around to return home but he stepped on an uncovered openin* &hich could not be seen because of the dirty rain&ater, causin* a dirty and rusty four3 inch nail, stuc/ inside the uncovered openin*, to pierce the left le* of plaintiff3petitioner penetratin* to a depth of about one and a half inches. After administerin* first aid treatment at a nearby dru*store, his companions helped him hobble home. 1e felt ill and developed fever and he had to be carried to 0r. Juanita +ascardo. 0espite the medicine administered to him by the latter, his left le* s&elled &ith *reat pain. 1e &as then rushed to the :eterans +emorial 1ospital &here he had to be confined for t&enty B2"C days due to hi*h fever and severe pain. 8pon his dischar*e from the hospital, he had to &al/ around &ith crutches for fifteen B15C days. 1is in.ury prevented him from attendin* to the school buses he is operatin*. As a result, he had to en*a*e the services of one )ienvenido :alde- to supervise his business for an a**re*ate compensation of nine hundred pesos B(9"".""C. B0ecision, AC3#.@. C: $o. "1E 7, @ollo, pp. 1E32"C. (etitioner sued for dama*es the City of +anila and the Asiatic 2nte*rated Corporation under &hose administration the ;ta. Ana (ublic +ar/et had been placed by virtue of a +ana*ement and Operatin* Contract B@ollo, p. 57C. %he lo&er court decided in favor of respondents, the dispositive portion of the decision readin*! <19@96O@9, .ud*ment is hereby rendered in favor of the defendants and a*ainst the plaintiff dismissin* the complaint &ith costs a*ainst the plaintiff. 6or lac/ of sufficient evidence, the counterclaims of the defendants are li/e&ise dismissed. B0ecision, Civil Case $o. 9FE9", @ollo, p. 52C.

As above stated, on appeal, the 2ntermediate Appellate Court held the Asiatic 2nte*rated Corporation liable for dama*es but absolved respondent City of +anila. 1ence this petition. %he lone assi*nment of error raised in this petition is on &hether or not the 2ntermediate Appellate Court erred in not rulin* that respondent City of +anila should be .ointly and severally liable &ith Asiatic 2nte*rated Corporation for the in.uries petitioner suffered. 2n compliance &ith the resolution of July 1, 19 5 of the 6irst 0ivision of this Court B@ollo, p. 29C respondent City of +anila filed its comment on Au*ust 1E, 19 5 B@ollo, p. E5C &hile petitioner filed its reply on Au*ust 21, 19 5 B@eno, p. 51C. %hereafter, the Court in the resolution of ;eptember 11, 19 5 B@ollo, p. F2C *ave due course to the petition and re4uired both parties to submit simultaneous memoranda (etitioner filed his memorandum on October 1, 19 5 B@ollo, p. F5C &hile respondent filed its memorandum on October 25, 19 5 B@ollo, p. 2C. 2n the resolution of October 1E, 19 F, this case &as transferred to the ;econd 0ivision of this Court, the same havin* been assi*ned to a member of said 0ivision B@ollo, p. 92C. %he petition is impressed &ith merit. As correctly found by the 2ntermediate Appellate Court, there is no doubt that the plaintiff suffered in.uries &hen he fell into a draina*e openin* &ithout any cover in the ;ta. Ana (ublic +ar/et. 0efendants do not deny that plaintiff &as in fact in.ured althou*h the Asiatic 2nte*rated Corporation tries to minimi-e the eAtent of the in.uries, claimin* that it &as only a small puncture and that as a &ar veteran, plaintiff>s hospitali-ation at the <ar :eteran>s 1ospital &as free. B0ecision, AC3#.@. C: $o. "1E 7, @ollo, p. FC. @espondent City of +anila maintains that it cannot be held liable for the in.uries sustained by the petitioner because under the +ana*ement and Operatin* Contract, Asiatic 2nte*rated Corporation assumed all responsibility for dama*es &hich may be suffered by third persons for any cause attributable to it. 2t has also been ar*ued that the City of +anila cannot be held liable under Article 1, ;ection 5 of @epublic Act $o. 5"9 as amended B@evised Charter of +anilaC &hich provides! %he City shall not be liable or held for dama*es or in.uries to persons or property arisin* from the failure of the +ayor, the +unicipal )oard, or any other City Officer, to enforce the provisions of this chapter, or any other la& or ordinance, or from ne*li*ence of said +ayor, +unicipal )oard, or any other officers &hile enforcin* or attemptin* to enforce said provisions. %his issue has been laid to rest in the case of City of Manila v. Teotico B22 ;C@A 2F93272 H19F IC &here the ;upreme Court s4uarely ruled that @epublic Act $o. 5"9 establishes a *eneral rule re*ulatin* the liability of the City of +anila for ,dama*es or in.ury to persons or property arisin* from the failure of city officers, to enforce the provisions of said Act, ,or any other la& or ordinance or from ne*li*ence, of the City ,+ayor, +unicipal )oard, or other officers &hile enforcin* or attemptin* to enforce said provisions., 8pon the other hand, Article 21 9 of the Civil Code of the (hilippines &hich provides that! (rovinces, cities and municipalities shall be liable for dama*es for the death of, or in.uries suffered by any person by reason of defective conditions of roads, streets, brid*es, public buildin*s and other public &or/s under their control or supervision. constitutes a particular prescription ma/in* ,provinces, cities and municipalities ... liable for dama*es for the death of, or in.ury suffered by any person by reason, 7 specifically 7 ,of the defective condition of roads, streets, brid*es, public buildin*s, and other public &or/s under their control or supervision., 2n other &ords, Art. 1, sec. 5, @.A. $o. 5"9 refers to liability arisin* from ne*li*ence, in *eneral, re*ardless of the ob.ect, thereof, &hile Article 21 9 of the Civil Code *overns liability due to ,defective streets, public buildin*s and other public &or/s, in particular and is therefore decisive on this specific case. 2n the same suit, the ;upreme Court clarified further that under Article 21 9 of the Civil Code, it is not necessary for the liability therein established to attach, that the defective public &or/s belon* to the province, city or municipality from &hich responsibility is eAacted. <hat said article re4uires is that the province, city or municipality has either ,control or supervision, over the public buildin* in 4uestion. 2n the case at bar, there is no 4uestion that the ;ta. Ana (ublic +ar/et, despite the +ana*ement and Operatin* Contract bet&een respondent City and Asiatic 2nte*rated Corporation remained under the control of the former. 6or one thin*, said contract is eAplicit in this re*ard, &hen it provides!

22 %hat immediately after the eAecution of this contract, the ;9CO$0 (A@%= shall start the paintin*, cleanin*, saniti-in* and repair of the public mar/ets and talipapas and &ithin ninety B9"C days thereof, the ;9CO$0 (A@%= shall submit a pro*ram of improvement, development, rehabilitation and reconstruction of the city public mar/ets and talipapas sub.ect to prior approval of the 62@;% (A@%=. B@ollo, p. 55C AAA AAA AAA :2 %hat all present personnel of the City public mar/ets and talipapas shall be retained by the ;9CO$0 (A@%= as lon* as their services remain satisfactory and they shall be eAtended the same ri*hts and privile*es as heretofore en.oyed by them. (rovided, ho&ever, that the ;9CO$0 (A@%= shall have the ri*ht, sub.ect to prior approval of the 62@;% (A@%= to dischar*e any of the present employees for cause. B@ollo, p. 55C. :22 %hat the ;9CO$0 (A@%= may from time to time be re4uired by the 62@;% (A@%=, or his duly authori-ed representative or representatives, to report, on the activities and operation of the City public mar/ets and talipapas and the facilities and conveniences installed therein, particularly as to their cost of construction, operation and maintenance in connection &ith the stipulations contained in this Contract. BlbidC %he fact of supervision and control of the City over sub.ect public mar/et &as admitted by +ayor @amon )a*atsin* in his letter to ;ecretary of 6inance Cesar :irata &hich reads! %hese cases arose from the controversy over the +ana*ement and Operatin* Contract entered into on 0ecember 2 , 1972 by and bet&een the City of +anila and the Asiatic 2nte*rated Corporation, &hereby in consideration of a fiAed service fee, the City hired the services of the said corporation to underta/e the physical mana*ement, maintenance, rehabilitation and development of the City>s public mar/ets and> %alipapas> sub.ect to the control and supervision of the City. AAA AAA AAA 2t is believed that there is nothin* incon*ruous in the eAercise of these po&ers vis3a3vis the eAistence of the contract, inasmuch as the City retains the po!er of supervision and control over its public $ar"ets and talipapas under the ter$s of the contract. B9Ahibit ,73A,C B9mphasis supplied.C B@ollo, p. 75C. 2n fact, the City of +anila employed a mar/et master for the ;ta. Ana (ublic +ar/et &hose primary duty is to ta/e direct supervision and control of that particular mar/et, more specifically, to chec/ the safety of the place for the public. %hus the Asst. Chief of the +ar/et 0ivision and 0eputy +ar/et Administrator of the City of +anila testified as follo&s! Court %his mar/et master is an employee of the City of +anilaJ +r. =mson =es, =our 1onor. K <hat are his functionsJ A 0irect supervision and control over the mar/et area assi*ned to him.,B%.s.n.,pp. 51352, 1earin* of +ay 2", 1977.C AAA AAA AAA Court As far as you /no& there is or is there any specific employee assi*ned &ith the tas/ of seein* to it that the ;ta. Ana +ar/et is safe for the publicJ +r. =mson Actually, as 2 stated, =our 1onor, that the ;ta. Ana has its o&n mar/et master. The pri$ary duty of that $ar"et $aster is to $a"e the direct supervision and control of that particular $ar"et, the chec/ or verifyin* &hether the place is safe for public safety is vested in the mar/et master. B%.s.n., pp. 2525, 1earin* of July 27, 1977.C B9mphasis supplied.C B@ollo, p. 7FC. 6inally, ;ection E" B*C of the 'ocal %aA Code as amended, provides!

The treasurer shall e1ercise direct and i$$ediate supervision ad$inistration and control over public $ar"ets and the personnel thereof, includin* those &hose duties concern the maintenance and up/eep of the mar/et and ordinances and other pertinent rules and re*ulations. B9mphasis supplied.C B@ollo, p. 7FC %he contention of respondent City of +anila that petitioner should not have ventured to *o to ;ta. Ana (ublic +ar/et durin* a stormy &eather is indeed untenable. As observed by respondent Court of Appeals, it is an error for the trial court to attribute the ne*li*ence to herein petitioner. +ore specifically stated, the findin*s of appellate court are as follo&s! ... %he trial court even chastised the plaintiff for *oin* to mar/et on a rainy day .ust to buy ba*oon*. A customer in a store has the ri*ht to assume that the o&ner &ill comply &ith his duty to /eep the premises safe for customers. 2f he ventures to the store on the basis of such assumption and is in.ured because the o&ner did not comply &ith his duty, no ne*li*ence can be imputed to the customer. B0ecision, AC3#. @. C: $o. "1E 7, @ollo, p. 19C. As a defense a*ainst liability on the basis of a 4uasi3delict, one must have eAercised the dili*ence of a *ood father of a family. BArt. 117E of the Civil CodeC. %here is no ar*ument that it is the duty of the City of +anila to eAercise reasonable care to /eep the public mar/et reasonably safe for people fre4uentin* the place for their mar/etin* needs. <hile it may be conceded that the fulfillment of such duties is eAtremely difficult durin* storms and floods, it must ho&ever, be admitted that ordinary precautions could have been ta/en durin* *ood &eather to minimi-e the dan*ers to life and limb under those difficult circumstances. 6or instance, the draina*e hole could have been placed under the stalls instead of on the passa*e &ays. 9ven more important is the fact, that the City should have seen to it that the openin*s &ere covered. ;adly, the evidence indicates that lon* before petitioner fell into the openin*, it &as already uncovered, and five B5C months after the incident happened, the openin* &as still uncovered. B@ollo, pp. 57D 59C. +oreover, &hile there are findin*s that durin* floods the vendors remove the iron *rills to hasten the flo& of &ater B0ecision, AC3#.@. C: $o. " 1E 7D @ollo, p. 17C, there is no sho&in* that such practice has ever been prohibited, much less penali-ed by the City of +anila. $either &as it sho&n that any si*n had been placed thereabouts to &arn passersby of the impendin* dan*er. %o recapitulate, it appears evident that the City of +anila is li/e&ise liable for dama*es under Article 21 9 of the Civil Code, respondent City havin* retained control and supervision over the ;ta. Ana (ublic +ar/et and as tort3feasor under Article 217F of the Civil Code on 4uasi3delicts (etitioner had the ri*ht to assume that there &ere no openin*s in the middle of the passa*e&ays and if any, that they &ere ade4uately covered. 1ad the openin* been covered, petitioner could not have fallen into it. %hus the ne*li*ence of the City of +anila is the proAimate cause of the in.ury suffered, the City is therefore liable for the in.ury suffered by the peti3 5 petitioner. @espondent City of +anila and Asiatic 2nte*rated Corporation bein* .oint tort3feasors are solidarily liable under Article 2195 of the Civil Code. (@9+2;9; CO$;209@90, the decision of the Court of Appeals is hereby +O026290, ma/in* the City of +anila and the Asiatic 2nte*rated Corporation solidarily liable to pay the plaintiff (221.9" actual medical eApenses, (9""."" for the amount paid for the operation and mana*ement of the school bus, (2","""."" as moral dama*es due to pain, sufferin*s and sleepless ni*hts and (1","""."" as attorney>s fees. ;O O@09@90. Fernan 2Chair$an3, 4utierrez, ,r., .adilla, -idin and Cortes ,,., concur.

Foo%no%&' L (enned by Justice Jor*e @. Co4uia and concurred in by Justices +ariano A. Mosa, 6loreliana Castro3)artolome, and )ienvenido C. 9.ercito. LL <ritten by Jud*e Amador %. :alle.os. G.R. No. 61516 Mar./ 21, 1989 FLOR NTINA A. G"ILATCO, petitioner, vs. CITY OF +AG"#AN, an! %/& 0ONORA*L CO"RT OF A## AL$, respondents. 5olan R. 6vangelista for petitioner.

The City %egal 7fficer for respondents.

$ARMI NTO, J.: 2n a civil action 1 for recovery of dama*es filed by the petitioner 6lorentina A. #uilatco, the follo&in* .ud*ment &as rendered a*ainst the respondent City of 0a*upan! AAA B1C Orderin* defendant City of 0a*upan to pay plaintiff actual dama*es in the amount of ( 15,925 Bnamely ( ,"55."" as hospital, medical and other eApenses H9Ahs. 1 to 13F"I, ( 7,52"."" as lost income for one B1C year H9Ah. 6I and ( 55"."" as bonusC. ( 15","""."" as moral dama*es, ( 5","""."" as eAemplary dama*es, and ( E,"""."" as attorney>s fees, and liti*ation eApenses, plus costs and to appropriate throu*h its ;an**unian* (an*lunsod BCity CouncilC said amounts for said purposeD B2C 0ismissin* plaintiffs complaint as a*ainst defendant City 9n*r. Alfredo #. %an*coD and BEC 0ismissin* the counterclaims of defendant City of 0a*upan and defendant City 9n*r. Alfredo #. %an*co, for lac/ of merit. 2 %he facts found by the trial court are as follo&s! 3 2t &ould appear from the evidences that on July 25, 197 , herein plaintiff, a Court 2nterpreter of )ranch 222, C62330a*upan City, &hile she &as about to board a motori-ed tricycle at a side&al/ located at (ere- )lvd. Ba $ational @oad, under the control and supervision of the City of 0a*upanC accidentally fell into a manhole located on said side&al/, thereby causin* her ri*ht le* to be fractured. As a result thereof, she had to be hospitali-ed, operated on, confined, at first at the (an*asinan (rovincial 1ospital, from July 25 to Au*ust E, 197 Bor for a period of 1F daysC. ;he also incurred hospitali-ation, medication and other eApenses to the tune of ( ,"5E.F5 B9Ah. 1 to 13F"C or a total of ( 1","""."" in all, as other receipts &ere either lost or misplacedD durin* the period of her confinement in said t&o hospitals, plaintiff suffered severe or eAcruciatin* pain not only on her ri*ht le* &hich &as fractured but also on all parts of her bodyD the pain has persisted even after her dischar*e from the +edical City #eneral 1ospital on October 9, 197 , to the present. 0espite her dischar*e from the 1ospital plaintiff is presently still &earin* crutches and the Court has actually observed that she has difficulty in locomotion. 6rom the time of the mishap on July 25, 197 up to the present, plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotion in *oin* up the stairs of her office, located near the city hall in 0a*upan City. ;he earns at least ( 72"."" a month consistin* of her monthly salary and other means of income, but since July 25, 197 up to the present she has been deprived of said income as she has already consumed her accrued leaves in the *overnment service. ;he has lost several pounds as a result of the accident and she is no lon*er her former .ovial self, she has been unable to perform her reli*ious, social, and other activities &hich she used to do prior to the incident. 0r. $orberto 6eliA and 0r. 0ominado +an-ano of the (rovincial 1ospital, as &ell as 0r. Antonio ;ison of the +edical City #eneral 1ospital in +andaluyon* @i-al B9Ah. 2D see also 9Ahs. 6, #, #31 to #319C have confirmed beyond shado& of any doubt the eAtent of the fracture and in.uries sustained by the plaintiff as a result of the mishap. On the other hand, (atrolman Claveria, 0e Asis and Cere-o corroborated the testimony of the plaintiff re*ardin* the mishap and they have confirmed the eAistence of the manhole B9Ahs. A, ), C and sub3eAhibitsC on the side&al/ alon* (ere- )lvd., at the time of the incident on July 25, 197 &hich &as partially covered by a concrete flo&er pot by leavin* *apin* hole about 2 ft. lon* by 1 1N2 feet &ide or 52 cms. &ide by 75 cms. lon* by 15" cms. deep Bsee 9Ahs. 0 and 031C. 0efendant Alfredo %an*co, City 9n*ineer of 0a*upan City and admittedly eA3officio 1i*h&ay 9n*ineer, City 9n*ineer of the (ublic <or/s and )uildin* Official for 0a*upan City, admitted the eAistence of said manhole alon* the side&al/ in (ere- )lvd., admittedly a $ational @oad in front of the 'u-on Colle*es. 1e also admitted that said manhole Bthere are at least 11 in all in (ere- )lvd.C is o&ned by the $ational #overnment and the side&al/ on &hich they are found alon* (ere- )lvd. are also o&ned by the $ational #overnment. )ut as City 9n*ineer of 0a*upan City, he supervises the maintenance of said manholes or draina*e system and sees to it that they are properly covered, and the .ob is specifically done by his subordinates, +r. ;antia*o de :era B+aintenance 6oremanC and 9n*r. 9rnesto ;olermo also a maintenance 9n*ineer. 2n his ans&er defendant %an*co eApressly admitted in par. 731 thereof, that in his capacity as eA3officio 1i*h&ay 9n*ineer for 0a*upan City he eAercises supervision and control over $ational roads, includin* the (ere- )lvd. &here the incident happened. On appeal by the respondent City of 0a*upan, the appellate court ) reversed the lo&er court findin*s on the *round that no evidence &as presented by the plaintiff3 appellee to prove that the City of 0a*upan had ,control or supervision, over (ere- )oulevard. 5 %he city contends that (ere- )oulevard, &here the fatal draina*e hole is located, is a national road that is not under the control or supervision of the City of 0a*upan. 1ence, no liability should attach to the city. 2t submits that it is actually the +inistry of (ublic 1i*h&ays that has control or supervision throu*h the 1i*h&ay 9n*ineer &hich, by mere coincidence, is held concurrently by the same person &ho is also the City 9n*ineer of 0a*upan.

After eAamination of the findin*s and conclusions of the trial court and those of the appellate court, as &ell as the ar*uments presented by the parties, &e a*ree &ith those of the trial court and of the petitioner. 1ence, &e *rant the petition. 2n this revie& on certiorari, &e have simplified the errors assi*ned by the petitioner to a sin*le issue! &hether or not control or supervision over a national road by the City of 0a*upan eAists, in effect bindin* the city to ans&er for dama*es in accordance &ith article 21 9 of the Civil Code. %he liability of public corporations for dama*es arisin* from in.uries suffered by pedestrians from the defective condition of roads is eApressed in the Civil Code as follo&s! Article 21 9. (rovinces, cities and municipalities shall be liable for dama*es for the death of, or in.uries suffered by, any person by reason of the defective condition of roads, streets, brid*es, public buildin*s, and other public &or/s under their control or supervision. 2t is not even necessary for the defective road or street to belon* to the province, city or municipality for liability to attach. %he article only re4uires that either control or supervision is eAercised over the defective road or street. 6 2n the case at bar, this control or supervision is provided for in the charter of 0a*upan and is eAercised throu*h the City 9n*ineer &ho has the follo&in* duties! ;ec. 22. %he City 9n*ineer331is po&ers, duties and compensation3%here shall be a city en*ineer, &ho shall be in char*e of the department of 9n*ineerin* and (ublic <or/s. 1e shall receive a salary of not eAceedin* three thousand pesos per annum. 1e shall have the follo&in* duties! AAA B.C 1e shall have the care and custody of the public system of &ater&or/s and se&ers, and all sources of &ater supply, and shall control, maintain and re*ulate the use of the same, in accordance &ith the ordinance relatin* theretoD shall inspect and re*ulate the use of all private systems for supplyin* &ater to the city and its inhabitants, and all private se&ers, and their connection &ith the public se&er system. AAA %he same charter of 0a*upan also provides that the layin* out, construction and improvement of streets, avenues and alleys and side&al/s, and re*ulation of the use thereof, may be le*islated by the +unicipal )oard . ( %hus the charter clearly indicates that the city indeed has supervision and control over the side&al/ &here the open draina*e hole is located. %he eApress provision in the charter holdin* the city not liable for dama*es or in.uries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to eAempt the city, as in the case at bar. 8 %he charter only lays do&n general rules re*ulatin* the liability of the city. On the other hand article 21 9 applies in particular to the liability arisin* from ,defective streets, public buildin*s and other public &or/s., 9 %he City 9n*ineer, +r. Alfredo #. %an*co, admits that he eAercises control or supervision over the said road. )ut the city can not be eAcused from liability by the ar*ument that the duty of the City 9n*ineer to supervise or control the said provincial road belon*s more to his functions as an eA3 officio 1i*h&ay 9n*ineer of the +inistry of (ublic 1i*h&ay than as a city officer. %his is because &hile he is entitled to an honorarium from the +inistry of (ublic 1i*h&ays, his salary from the city *overnment substantially eAceeds the honorarium. <e do not a*ree. Alfredo #. %an*co ,BiCn his official capacity as City 9n*ineer of 0a*upan, as 9A3 Officio 1i*h&ay 9n*ineer, as 9A3Officio City 9n*ineer of the )ureau of (ublic <or/s, and, last but not the least, as )uildin* Official for 0a*upan City, receives the follo&in* monthly compensation! ( 1, 1".FF from 0a*upan CityD ( 2""."" from the +inistry of (ublic 1i*h&aysD ( 1""."" from the )ureau of (ublic <or/s and ( 5""."" by virtue of (.0. 1"9F, respectively., 10 %his function of supervision over streets, public buildin*s, and other public &or/s pertainin* to the City 9n*ineer is coursed throu*h a +aintenance 6oreman and a +aintenance 9n*ineer. 11 Althou*h these last t&o officials are employees of the $ational #overnment, they are detailed &ith the City of 0a*upan and hence receive instruction and supervision from the city throu*h the City 9n*ineer. %here is, therefore, no doubt that the City 9n*ineer eAercises control or supervision over the public &or/s in 4uestion. 1ence, the liability of the city to the petitioner under article 219 of the Civil Code is clear. )e all that as it may, the actual dama*es a&arded to the petitioner in the amount of ( 1","""."" should be reduced to the proven eApenses of ( ,"5E.F5 only. %he trial court should not have rounded off the amount. 2n determinin* actual dama*es, the court can not rely on ,speculation, con.ecture or *uess &or/, as to the amount. <ithout the actual proof of loss, the a&ard of actual dama*es becomes erroneous. 12

On the other hand, moral dama*es may be a&arded even &ithout proof of pecuniary loss, inasmuch as the determination of the amount is discretionary on the court.13 %hou*h incapable of pecuniary estimation, moral dama*es are in the nature of an a&ard to compensate the claimant for actual in.ury suffered but &hich for some reason can not be proven. 1o&ever, in a&ardin* moral dama*es, the follo&in* should be ta/en into consideration! B1C 6irst, the proAimate cause of the in.ury must be the claimee>s acts. 1) B2C ;econd, there must be compensatory or actual dama*es as satisfactory proof of the factual basis for dama*es. 15 BEC %hird, the a&ard of moral dama*es must be predicated on any of the cases enumerated in the Civil Code. 16 2n the case at bar, the physical sufferin* and mental an*uish suffered by the petitioner &ere proven. <itnesses from the petitioner>s place of &or/ testified to the de*eneration in her disposition3from bein* .ovial to depressed. ;he refrained from attendin* social and civic activities. 1( $evertheless the a&ard of moral dama*es at ( 15","""."" is eAcessive. 1er handicap &as not permanent and disabled her only durin* her treatment &hich lasted for one year. %hou*h evidence of moral loss and an*uish eAisted to &arrant the a&ard of dama*es, 18 the moderatin* hand of the la& is called for. %he Court has time and a*ain called attention to the reprehensible propensity of trial .ud*es to a&ard dama*es &ithout basis, 19 resultin* in eAhorbitant amounts.20 Althou*h the assessment of the amount is better left to the discretion of the trial court 21 under precedin* .urisprudence, the amount of moral dama*es should be reduced to ( 2","""."". As for the a&ard of eAemplary dama*es, the trial court correctly pointed out the basis! %o serve as an eAample for the public *ood, it is hi*h time that the Court, throu*h this case, should serve &arnin* to the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially &hen they are en*a*ed in construction &or/ or &hen there are manholes on their side&al/s or streets &hich are uncovered, to immediately cover the same, in order to minimi-e or prevent accidents to the poor pedestrians. 22 %oo often in the -eal to put up ,public impact, pro.ects such as beautification drives, the end is more important than the manner in &hich the &or/ is carried out. )ecause of this obsession for sho&in* off, such trivial details as misplaced flo&er pots betray the careless eAecution of the pro.ects, causin* public inconvenience and invitin* accidents. (endin* appeal by the respondent City of 0a*upan from the trial court to the appellate court, the petitioner &as able to secure an order for *arnishment of the funds of the City deposited &ith the (hilippine $ational )an/, from the then presidin* .ud*e, 1on. <illelmo 6ortun. %his order for *arnishment &as revo/ed subse4uently by the succeedin* presidin* .ud*e, 1on. @omeo 0. +a*at, and became the basis for the petitioner>s motion for reconsideration &hich &as also denied. 23 <e rule that the eAecution of the .ud*ment of the trial court pendin* appeal &as premature. <e do not find any *ood reason to .ustify the issuance of an order of eAecution even before the eApiration of the time to appeal . 2) <19@96O@9, the petition is #@A$%90. %he assailed decision and resolution of the respondent Court of Appeals are hereby @9:9@;90 and ;9% A;209 and the decision of the trial court, dated +arch 12, 1979 and amended on +arch 1E, 1979, is hereby @92$;%A%90 &ith the indicated modifications as re*ards the amounts a&arded! B1C Orderin* the defendant City of 0a*upan to pay the plaintiff actual dama*es in the amount of ( 15,925 Bnamely ( ,"55."" as hospital, medical and other eApensesD ( 7,52"."" as lost income for one B1C year and ( 55"."" as bonusCD ( 2","""."" as moral dama*es and ( 1","""."" as eAemplary dama*es. %he attorney>s fees of ( E,"""."" remain the same. ;O O@09@90. Melencio 8errera, 2Chaiperson3, .aras, .adilla and Regalado, ,,., concur. G.R. No. L-1115) Mar./ 21, 1916

. M RRITT, plaintiff3appellant, vs. GO1 RNM NT OF T0 #0ILI##IN I$LAN+$, defendant3appellant.

Crossfield and 79-rien for plaintiff. Attorney 4eneral Avance*a for defendant.. TR NT, J.2 %his is an appeal by both parties from a .ud*ment of the Court of 6irst 2nstance of the city of +anila in favor of the plaintiff for the sum of (15,751, to*ether &ith the costs of the cause. Counsel for the plaintiff insist that the trial court erred B1C ,in limitin* the *eneral dama*es &hich the plaintiff suffered to (5,""", instead of (25,""" as claimed in the complaint,, and B2C ,in limitin* the time &hen plaintiff &as entirely disabled to t&o months and t&enty3one days and fiAin* the dama*e accordin*ly in the sum of (2,FFF, instead of (F,""" as claimed by plaintiff in his complaint., %he Attorney3#eneral on behalf of the defendant ur*es that the trial court erred! BaC in findin* that the collision bet&een the plaintiff>s motorcycle and the ambulance of the #eneral 1ospital &as due to the ne*li*ence of the chauffeurD BbC in holdin* that the #overnment of the (hilippine 2slands is liable for the dama*es sustained by the plaintiff as a result of the collision, even if it be true that the collision &as due to the ne*li*ence of the chauffeurD and BcC in renderin* .ud*ment a*ainst the defendant for the sum of (15,751. %he trial court>s findin*s of fact, &hich are fully supported by the record, are as follo&s! 2t is a fact not disputed by counsel for the defendant that &hen the plaintiff, ridin* on a motorcycle, &as *oin* to&ard the &estern part of Calle (adre 6aura, passin* alon* the &est side thereof at a speed of ten to t&elve miles an hour, upon crossin* %aft Avenue and &hen he &as ten feet from the south&estern intersection of said streets, the #eneral 1ospital ambulance, upon reachin* said avenue, instead of turnin* to&ard the south, after passin* the center thereof, so that it &ould be on the left side of said avenue, as is prescribed by the ordinance and the +otor :ehicle Act, turned suddenly and uneApectedly and lon* before reachin* the center of the street, into the ri*ht side of %aft Avenue, &ithout havin* sounded any &histle or horn, by &hich movement it struc/ the plaintiff, &ho &as already siA feet from the south&estern point or from the post place there. )y reason of the resultin* collision, the plaintiff &as so severely in.ured that, accordin* to 0r. ;aleeby, &ho eAamined him on the very same day that he &as ta/en to the #eneral 1ospital, he &as sufferin* from a depression in the left parietal re*ion, a &ould in the same place and in the bac/ part of his head, &hile blood issued from his nose and he &as entirely unconscious. %he mar/s revealed that he had one or more fractures of the s/ull and that the *rey matter and brain &as had suffered material in.ury. At ten o>cloc/ of the ni*ht in 4uestion, &hich &as the time set for performin* the operation, his pulse &as so &ea/ and so irre*ular that, in his opinion, there &as little hope that he &ould live. 1is ri*ht le* &as bro/en in such a &ay that the fracture eAtended to the outer s/in in such manner that it mi*ht be re*arded as double and the &ould be eAposed to infection, for &hich reason it &as of the most serious nature. At another eAamination siA days before the day of the trial, 0r. ;aleeby noticed that the plaintiff>s le* sho&ed a contraction of an inch and a half and a curvature that made his le* very &ea/ and painful at the point of the fracture. 9Aamination of his head revealed a notable read.ustment of the functions of the brain and nerves. %he patient apparently &as sli*htly deaf, had a li*ht &ea/ness in his eyes and in his mental condition. %his latter &ea/ness &as al&ays noticed &hen the plaintiff had to do any difficult mental labor, especially &hen he attempted to use his money for mathematical calculations. Accordin* to the various merchants &ho testified as &itnesses, the plaintiff>s mental and physical condition prior to the accident &as eAcellent, and that after havin* received the in.uries that have been discussed, his physical condition had under*one a noticeable depreciation, for he had lost the a*ility, ener*y, and ability that he had constantly displayed before the accident as one of the best constructors of &ooden buildin*s and he could not no& earn even a half of the income that he had secured for his &or/ because he had lost 5" per cent of his efficiency. As a contractor, he could no lon*er, as he had before done, climb up ladders and scaffoldin*s to reach the hi*hest parts of the buildin*. As a conse4uence of the loss the plaintiff suffered in the efficiency of his &or/ as a contractor, he had to dissolved the partnership he had formed &ith the en*ineer. <ilson, because he &as incapacitated from ma/in* mathematical calculations on account of the condition of his le* and of his mental faculties, and he had to *ive up a contract he had for the construction of the 8y Chaco buildin*., <e may say at the outset that &e are in full accord &ith the trial court to the effect that the collision bet&een the plaintiff>s motorcycle and the ambulance of the #eneral 1ospital &as due solely to the ne*li*ence of the chauffeur. %he t&o items &hich constitute a part of the (15,751 and &hich are dra&n in 4uestion by the plaintiff are BaC (5,""", the a&ard a&arded for permanent in.uries, and BbC the (2,FFF, the amount allo&ed for the loss of &a*es durin* the time the plaintiff &as incapacitated from pursuin* his occupation. <e find nothin* in the record &hich &ould .ustify us in increasin* the amount of the first. As to the second, the record sho&s, and the trial court so found, that the plaintiff>s services as a contractor &ere &orth (1,""" per month. %he court, ho&ever, limited the time to t&o months and t&enty3one days, &hich the plaintiff &as actually confined in the hospital. 2n this &e thin/ there &as error, because it &as clearly established that the plaintiff &as &holly incapacitated for a period of siA months. %he mere fact that he remained in the hospital only t&o months and t&enty3one days &hile the remainder of the siA months &as spent in his home, &ould not prevent recovery for the &hole time. <e, therefore, find that the amount of dama*es sustained by the plaintiff, &ithout any fault on his part, is (1 ,"75.

As the ne*li*ence &hich caused the collision is a tort committed by an a*ent or employee of the #overnment, the in4uiry at once arises &hether the #overnment is le*ally3liable for the dama*es resultin* therefrom. Act $o. 2557, effective 6ebruary E, 1915, reads! An Act authori-in* 9. +erritt to brin* suit a*ainst the #overnment of the (hilippine 2slands and authori-in* the Attorney3#eneral of said 2slands to appear in said suit. <hereas a claim has been filed a*ainst the #overnment of the (hilippine 2slands by +r. 9. +erritt, of +anila, for dama*es resultin* from a collision bet&een his motorcycle and the ambulance of the #eneral 1ospital on +arch t&enty3fifth, nineteen hundred and thirteenD <hereas it is not /no&n &ho is responsible for the accident nor is it possible to determine the amount of dama*es, if any, to &hich the claimant is entitledD and <hereas the 0irector of (ublic <or/s and the Attorney3#eneral recommended that an Act be passed by the 'e*islature authori-in* +r. 9. +erritt to brin* suit in the courts a*ainst the #overnment, in order that said 4uestions may be decided! $o&, therefore, -y authority of the :nited States, be it enacted by the .hilippine %egislature, that; ;9C%2O$ 1. 9. +erritt is hereby authori-ed to brin* suit in the Court of 6irst 2nstance of the city of +anila a*ainst the #overnment of the (hilippine 2slands in order to fiA the responsibility for the collision bet&een his motorcycle and the ambulance of the #eneral 1ospital, and to determine the amount of the dama*es, if any, to &hich +r. 9. +erritt is entitled on account of said collision, and the Attorney3#eneral of the (hilippine 2slands is hereby authori-ed and directed to appear at the trial on the behalf of the #overnment of said 2slands, to defendant said #overnment at the same. ;9C. 2. %his Act shall ta/e effect on its passa*e. 9nacted, 6ebruary E, 1915. 0id the defendant, in enactin* the above 4uoted Act, simply &aive its immunity from suit or did it also concede its liability to the plaintiffJ 2f only the former, then it cannot be held that the Act created any ne& cause of action in favor of the plaintiff or eAtended the defendant>s liability to any case not previously reco*ni-ed. All admit that the 2nsular #overnment Bthe defendantC cannot be sued by an individual &ithout its consent. 2t is also admitted that the instant case is one a*ainst the #overnment. As the consent of the #overnment to be sued by the plaintiff &as entirely voluntary on its part, it is our duty to loo/ carefully into the terms of the consent, and render .ud*ment accordin*ly. %he plaintiff &as authori-ed to brin* this action a*ainst the #overnment ,in order to fiA the responsibility for the collision bet&een his motorcycle and the ambulance of the #eneral 1ospital and to determine the amount of the dama*es, if any, to &hich +r. 9. +erritt is entitled on account of said collision, . . . ., %hese &ere the t&o 4uestions submitted to the court for determination. %he Act &as passed ,in order that said 4uestions may be decided., <e have ,decided, that the accident &as due solely to the ne*li*ence of the chauffeur, &ho &as at the time an employee of the defendant, and &e have also fiAed the amount of dama*es sustained by the plaintiff as a result of the collision. 0oes the Act authori-e us to hold that the #overnment is le*ally liable for that amountJ 2f not, &e must loo/ else&here for such authority, if it eAists. %he #overnment of the (hilippine 2slands havin* been ,modeled after the 6ederal and ;tate #overnments in the 8nited ;tates,, &e may loo/ to the decisions of the hi*h courts of that country for aid in determinin* the purpose and scope of Act $o. 2557. 2n the 8nited ;tates the rule that the state is not liable for the torts committed by its officers or a*ents &hom it employs, eAcept &hen eApressly made so by le*islative enactment, is &ell settled. ,%he #overnment,, says Justice ;tory, ,does not underta/e to *uarantee to any person the fidelity of the officers or a*ents &hom it employs, since that &ould involve it in all its operations in endless embarrassments, difficulties and losses, &hich &ould be subversive of the public interest., BClaussen vs. City of 'uverne, 1"E +inn., 591, citin* 8. ;. vs. ?ir/patric/, 9 <heat, 72"D F '. 9d., 199D and )eers vs. ;tates, 2" 1o&., 527D 15 '. 9d., 991.C 2n the case of Melvin vs. State B121 Cal., 1FC, the plaintiff sou*ht to recover dama*es from the state for personal in.uries received on account of the ne*li*ence of the state officers at the state fair, a state institution created by the le*islature for the purpose of improvin* a*ricultural and /indred industriesD to disseminate information calculated to educate and benefit the industrial classesD and to advance by such means the material interests of the state, bein* ob.ects similar to those sou*ht by the public school system. 2n passin* upon the 4uestion of the state>s liability for the ne*li*ent acts of its officers or a*ents, the court said! $o claim arises a*ainst any *overnment is favor of an individual, by reason of the misfeasance, laches, or unauthori-ed eAercise of po&ers by its officers or a*ents. BCitin* #ibbons vs. 8. ;., <all., 2F9D Clodfelter vs. ;tate, F $. C., 51, 5ED 51 Am. @ep., 55"D Chapman vs. ;tate, 1"5 Cal., F9"D 5E Am. ;t. @ep., 15 D #reen vs. ;tate, 7E Cal., 29D )ourn vs. 1art, 9E Cal., E21D 27 Am. ;t. @ep., 2"ED ;tory on A*ency, sec. E19.C

As to the scope of le*islative enactments permittin* individuals to sue the state &here the cause of action arises out of either fort or contract, the rule is stated in EF Cyc., 915, thus! )y consentin* to be sued a state simply &aives its immunity from suit. 2t does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or eAtend its liability to any cause not previously reco*ni-ed. 2t merely *ives a remedy to enforce a preeAistin* liability and submits itself to the .urisdiction of the court, sub.ect to its ri*ht to interpose any la&ful defense. 2n Apfelbacher vs. State B152 $. <., 155, advanced sheetsC, decided April 1F, 1915, the Act of 191E, &hich authori-ed the brin*in* of this suit, read! ;9C%2O$ 1. Authority is hereby *iven to #eor*e Apfelbacher, of the to&n of ;ummit, <au/esha County, <isconsin, to brin* suit in such court or courts and in such form or forms as he may be advised for the purpose of settlin* and determinin* all controversies &hich he may no& have &ith the ;tate of <isconsin, or its duly authori-ed officers and a*ents, relative to the mill property of said #eor*e Apfelbacher, the fish hatchery of the ;tate of <isconsin on the )ar/ @iver, and the mill property of 9van 1umphrey at the lo&er end of $a*a&ic/a 'a/e, and relative to the use of the &aters of said )ar/ @iver and $a*a&ic/a 'a/e, all in the county of <au/esha, <isconsin. 2n determinin* the scope of this act, the court said! (laintiff claims that by the enactment of this la& the le*islature admitted liability on the part of the state for the acts of its officers, and that the suit no& stands .ust as it &ould stand bet&een private parties. 2t is difficult to see ho& the act does, or &as intended to do, more than remove the state>s immunity from suit. 2t simply *ives authority to commence suit for the purpose of settlin* plaintiff>s controversies &ith the estate. $o&here in the act is there a &hisper or su**estion that the court or courts in the disposition of the suit shall depart from &ell established principles of la&, or that the amount of dama*es is the only 4uestion to be settled. %he act opened the door of the court to the plaintiff. 2t did not pass upon the 4uestion of liability, but left the suit .ust &here it &ould be in the absence of the state>s immunity from suit. 2f the 'e*islature had intended to chan*e the rule that obtained in this state so lon* and to declare liability on the part of the state, it &ould not have left so important a matter to mere inference, but &ould have done so in eApress terms. B+urdoc/ #rate Co. vs. Common&ealth, 152 +ass., 2 D 25 $.9., 55D '. @. A., E99.C 2n Denning vs. State B12E Cal., E1FC, the provisions of the Act of 1 9E, relied upon and considered, are as follo&s! All persons &ho have, or shall hereafter have, claims on contract or for ne*li*ence a*ainst the state not allo&ed by the state board of eAaminers, are hereby authori-ed, on the terms and conditions herein contained, to brin* suit thereon a*ainst the state in any of the courts of this state of competent .urisdiction, and prosecute the same to final .ud*ment. %he rules of practice in civil cases shall apply to such suits, eAcept as herein other&ise provided. And the court said! %his statute has been considered by this court in at least t&o cases, arisin* under different facts, and in both it &as held that said statute did not create any liability or cause of action a*ainst the state &here none eAisted before, but merely *ave an additional remedy to enforce such liability as &ould have eAisted if the statute had not been enacted. BChapman vs. ;tate, 1"5 Cal., F9"D 5E Am. ;t. @ep., 15 D +elvin vs. ;tate, 121 Cal., 1F.C A statute of +assachusetts enacted in 1 7 *ave to the superior court ,.urisdiction of all claims a*ainst the common&ealth, &hether at la& or in e4uity,, &ith an eAception not necessary to be here mentioned. 2n construin* this statute the court, in Murdoc" 4rate Co. vs. Co$$on!ealth B152 +ass., 2 C, said! %he statute &e are discussin* disclose no intention to create a*ainst the state a ne& and heretofore unreco*ni-ed class of liabilities, but only an intention to provide a .udicial tribunal &here &ell reco*ni-ed eAistin* liabilities can be ad.udicated. 2n Sipple vs. State B99 $. =., 2 5C, &here the board of the canal claims had, by the terms of the statute of $e& =or/, .urisdiction of claims for dama*es for in.uries in the mana*ement of the canals such as the plaintiff had sustained, Chief Justice @u*er remar/s! ,2t must be conceded that the state can be made liable for in.uries arisin* from the ne*li*ence of its a*ents or servants, only by force of some positive statute assumin* such liability., 2t bein* 4uite clear that Act $o. 2557 does not operate to eAtend the #overnment>s liability to any cause not previously reco*ni-ed, &e &ill no& eAamine the substantive la& touchin* the defendant>s liability for the ne*li*ent acts of its officers, a*ents, and employees. (ara*raph 5 of article 19"E of the Civil Code reads! %he state is liable in this sense &hen it acts throu*h a special a*ent, but not &hen the dama*e should have been caused by the official to &hom properly it pertained to do the act performed, in &hich case the provisions of the precedin* article shall be applicable. %he supreme court of ;pain in definin* the scope of this para*raph said!

%hat the obli*ation to indemnify for dama*es &hich a third person causes to another by his fault or ne*li*ence is based, as is evidenced by the same 'a& E, %itle 15, (artida 7, on that the person obli*ated, by his o&n fault or ne*li*ence, ta/es part in the act or omission of the third party &ho caused the dama*e. 2t follo&s therefrom that the state, by virtue of such provisions of la&, is not responsible for the dama*es suffered by private individuals in conse4uence of acts performed by its employees in the dischar*e of the functions pertainin* to their office, because neither fault nor even ne*li*ence can be presumed on the part of the state in the or*ani-ation of branches of public service and in the appointment of its a*entsD on the contrary, &e must presuppose all foresi*ht humanly possible on its part in order that each branch of service serves the *eneral &eal an that of private persons interested in its operation. )et&een these latter and the state, therefore, no relations of a private nature *overned by the civil la& can arise eAcept in a case &here the state acts as a .udicial person capable of ac4uirin* ri*hts and contractin* obli*ations. B;upreme Court of ;pain, January 7, 1 9 D E Jur. Civ., 25.C %hat the Civil Code in chapter 2, title 1F, boo/ 5, re*ulates the obli*ations &hich arise out of fault or ne*li*enceD and &hereas in the first article thereof. $o. 19"2, &here the *eneral principle is laid do&n that &here a person &ho by an act or omission causes dama*e to another throu*h fault or ne*li*ence, shall be obli*ed to repair the dama*e so done, reference is made to acts or omissions of the persons &ho directly or indirectly cause the dama*e, the follo&in* articles refers to this persons and imposes an identical obli*ation upon those &ho maintain fiAed relations of authority and superiority over the authors of the dama*e, because the la& presumes that in conse4uence of such relations the evil caused by their o&n fault or ne*li*ence is imputable to them. %his le*al presumption *ives &ay to proof, ho&ever, because, as held in the last para*raph of article 19"E, responsibility for acts of third persons ceases &hen the persons mentioned in said article prove that they employed all the dili*ence of a *ood father of a family to avoid the dama*e, and amon* these persons, called upon to ans&er in a direct and not a subsidiary manner, are found, in addition to the mother or the father in a proper case, *uardians and o&ners or directors of an establishment or enterprise, the state, but not al&ays, eAcept &hen it acts throu*h the a*ency of a special a*ent, doubtless because and only in this case, the fault or ne*li*ence, &hich is the ori*inal basis of this /ind of ob.ections, must be presumed to lie &ith the state. %hat althou*h in some cases the state mi*ht by virtue of the *eneral principle set forth in article 19"2 respond for all the dama*e that is occasioned to private parties by orders or resolutions &hich by fault or ne*li*ence are made by branches of the central administration actin* in the name and representation of the state itself and as an eAternal eApression of its soverei*nty in the eAercise of its eAecutive po&ers, yet said article is not applicable in the case of dama*es said to have been occasioned to the petitioners by an e1ecutive official, actin* in the eAercise of his po&ers, in proceedin*s to enforce the collections of certain property taAes o&in* by the o&ner of the property &hich they hold in sublease. %hat the responsibility of the state is limited by article 19"E to the case &herein it acts through a special agent Band a special a*ent, in the sense in &hich these &ords are employed, is one &ho receives a definite and fiAed order or commission, forei*n to the eAercise of the duties of his office if he is a special officialC so that in representation of the state and bein* bound to act as an a*ent thereof, he eAecutes the trust confided to him. %his concept does not apply to any eAecutive a*ent &ho is an employee of the actin* administration and &ho on his o&n responsibility performs the functions &hich are inherent in and naturally pertain to his office and &hich are re*ulated by la& and the re*ulations., B;upreme Court of ;pain, +ay 1 , 19"5D 9 Jur. Civ., E 9, E9".C %hat accordin* to para*raph 5 of article 19"E of the Civil Code and the principle laid do&n in a decision, amon* others, of the 1 th of +ay, 19"5, in a dama*e case, the responsibility of the state is limited to that &hich it contracts throu*h a special a*ent, duly empo&ered by a definite order or co$$ission to perfor$ so$e act or charged !ith so$e definite purpose !hich gives rise to the clai$ , and not &here the claim is based on acts or omissions imputable to a public official char*ed &ith some administrative or technical office &ho can be held to the proper responsibility in the manner laid do&n by the la& of civil responsibility. Conse4uently, the trial court in not so decidin* and in sentencin* the said entity to the payment of dama*es, caused by an official of the second class referred to, has by erroneous interpretation infrin*ed the provisions of articles 19"2 and 19"E of the Civil Code. B;upreme Court of ;pain, July E", 1911D 122 Jur. Civ., 15F.C 2t is, therefore, evidence that the ;tate Bthe #overnment of the (hilippine 2slandsC is only liable, accordin* to the above 4uoted decisions of the ;upreme Court of ;pain, for the acts of its a*ents, officers and employees &hen they act as special a*ents &ithin the meanin* of para*raph 5 of article 19"E, supra, and that the chauffeur of the ambulance of the #eneral 1ospital &as not such an a*ent. 6or the fore*oin* reasons, the .ud*ment appealed from must be reversed, &ithout costs in this instance. <hether the #overnment intends to ma/e itself le*ally liable for the amount of dama*es above set forth, &hich the plaintiff has sustained by reason of the ne*li*ent acts of one of its employees, by le*islative enactment and by appropriatin* sufficient funds therefor, &e are not called upon to determine. %his matter rests solely &ith the 'e*islature and not &ith the courts. Arellano, C. ,., Torres, ,ohnson, and Moreland, ,,., concur.

G.R. No. L-521(9 A3r45 8, 1991 M"NICI#ALITY OF $AN F RNAN+O, LA "NION, petitioner vs. 0ON. J"+G ROM O N. FIRM , J"ANA RIMAN+O-*ANI6A, IA"R ANO *ANI6A, JR., $OR MARI TA *ANI6A, MONTANO *ANI6A, ORJA *ANI6A, AN+ LY+IA R. *ANI6A, respondents.

Mauro C. Cabading, ,r. for petitioner. Si$eon 4. 8ipol for private respondent.

M +IAL+ A, J.:p %his is a petition for certiorari &ith prayer for the issuance of a &rit of preliminary mandatory in.unction see/in* the nullification or modification of the proceedin*s and the orders issued by the respondent Jud*e @omeo $. 6irme, in his capacity as the presidin* .ud*e of the Court of 6irst 2nstance of 'a 8nion, ;econd Judicial 0istrict, )ranch 2:, )auan*, 'a 8nion in Civil Case $o. 1"73)#, entitled ,Juana @imando )aniOa, et al. vs. +acario $ieveras, et al., dated $ovember 5, 1975D July 1E, 197FD Au*ust 2E,197FD 6ebruary 2E, 1977D +arch 1F, 1977D July 2F, 1979D ;eptember 7, 1979D $ovember 7, 1979 and 0ecember E, 1979 and the decision dated October 1", 1979 orderin* defendants +unicipality of ;an 6ernando, 'a 8nion and Alfredo )isli* to pay, .ointly and severally, the plaintiffs for funeral eApenses, actual dama*es consistin* of the loss of earnin* capacity of the deceased, attorney>s fees and costs of suit and dismissin* the complaint a*ainst the 9state of +acario $ieveras and )ernardo )ala*ot. %he antecedent facts are as follo&s! (etitioner +unicipality of ;an 6ernando, 'a 8nion is a municipal corporation eAistin* under and in accordance &ith the la&s of the @epublic of the (hilippines. @espondent 1onorable Jud*e @omeo $. 6irme is impleaded in his official capacity as the presidin* .ud*e of the Court of 6irst 2nstance of 'a 8nion, )ranch 2:, )auan*, 'a 8nion. <hile private respondents Juana @imando3)aniOa, 'aureano )aniOa, Jr., ;or +arietta )aniOa, +ontano )aniOa, Or.a )aniOa and 'ydia @. )aniOa are heirs of the deceased 'aureano )aniOa ;r. and plaintiffs in Civil Case $o. 1"73)* before the aforesaid court. At about 7 o>cloc/ in the mornin* of 0ecember 1F, 19F5, a collision occurred involvin* a passen*er .eepney driven by )ernardo )ala*ot and o&ned by the 9state of +acario $ieveras, a *ravel and sand truc/ driven by Jose +anande* and o&ned by %an4uilino :elas4ue- and a dump truc/ of the +unicipality of ;an 6ernando, 'a 8nion and driven by Alfredo )isli*. 0ue to the impact, several passen*ers of the .eepney includin* 'aureano )aniOa ;r. died as a result of the in.uries they sustained and four B5C others suffered varyin* de*rees of physical in.uries. On 0ecember 11, 19FF, the private respondents instituted a compliant for dama*es a*ainst the 9state of +acario $ieveras and )ernardo )ala*ot, o&ner and driver, respectively, of the passen*er .eepney, &hich &as doc/eted Civil Case $o. 21 E in the Court of 6irst 2nstance of 'a 8nion, )ranch 2, ;an 6ernando, 'a 8nion. 1o&ever, the aforesaid defendants filed a %hird (arty Complaint a*ainst the petitioner and the driver of a dump truc/ of petitioner. %hereafter, the case &as subse4uently transferred to )ranch 2:, presided over by respondent .ud*e and &as subse4uently doc/eted as Civil Case $o. 1"73)*. )y virtue of a court order dated +ay 7, 1975, the private respondents amended the complaint &herein the petitioner and its re*ular employee, Alfredo )isli* &ere impleaded for the first time as defendants. (etitioner filed its ans&er and raised affirmative defenses such as lac/ of cause of action, non3suability of the ;tate, prescription of cause of action and the ne*li*ence of the o&ner and driver of the passen*er .eepney as the proAimate cause of the collision. 2n the course of the proceedin*s, the respondent .ud*e issued the follo&in* 4uestioned orders, to &it! B1C Order dated $ovember 5, 1975 dismissin* the cross3claim a*ainst )ernardo )ala*otD B2C Order dated July 1E, 197F admittin* the Amended Ans&er of the +unicipality of ;an 6ernando, 'a 8nion and )isli* and settin* the hearin* on the affirmative defenses only &ith respect to the supposed lac/ of .urisdictionD BEC Order dated Au*ust 2E, 197F deferrin* there resolution of the *rounds for the +otion to 0ismiss until the trialD B5C Order dated 6ebruary 2E, 1977 denyin* the motion for reconsideration of the order of July 1E, 197F filed by the +unicipality and )isli* for havin* been filed out of timeD B5C Order dated +arch 1F, 1977 reiteratin* the denial of the motion for reconsideration of the order of July 1E, 197FD BFC Order dated July 2F, 1979 declarin* the case deemed submitted for decision it appearin* that parties have not yet submitted their respective memoranda despite the court>s directionD and B7C Order dated ;eptember 7, 1979 denyin* the petitioner>s motion for reconsideration andNor order to recall prosecution &itnesses for cross eAamination. On October 1", 1979 the trial court rendered a decision, the dispositive portion is hereunder 4uoted as follo&s!

2$ :29< O6 A'' O6 BsicC %19 6O@9#O2$#, .ud*ment is hereby rendered for the plaintiffs, and defendants +unicipality of ;an 6ernando, 'a 8nion and Alfredo )isli* are ordered to pay .ointly and severally, plaintiffs Juana @imando3)aniOa, +rs. (riscilla ). ;urell, 'aureano )aniOa Jr., ;or +arietta )aniOa, +rs. 6e ). ;oriano, +ontano )aniOa, Or.a )aniOa and 'ydia ). )aniOa the sums of (1,5""."" as funeral eApenses and (25,755.25 as the lost eApected earnin*s of the late 'aureano )aniOa ;r., (E","""."" as moral dama*es, and (2,5""."" as attorney>s fees. Costs a*ainst said defendants. %he Complaint is dismissed as to defendants 9state of +acario $ieveras and )ernardo )ala*ot. ;O O@09@90. BRollo, p. E"C (etitioner filed a motion for reconsideration and for a ne& trial &ithout pre.udice to another motion &hich &as then pendin*. 1o&ever, respondent .ud*e issued another order dated $ovember 7, 1979 denyin* the motion for reconsideration of the order of ;eptember 7, 1979 for havin* been filed out of time. 6inally, the respondent .ud*e issued an order dated 0ecember E, 1979 providin* that if defendants municipality and )isli* further &ish to pursue the matter disposed of in the order of July 2F, 1979, such should be elevated to a hi*her court in accordance &ith the @ules of Court. 1ence, this petition. (etitioner maintains that the respondent .ud*e committed *rave abuse of discretion amountin* to eAcess of .urisdiction in issuin* the aforesaid orders and in renderin* a decision. 6urthermore, petitioner asserts that &hile appeal of the decision maybe available, the same is not the speedy and ade4uate remedy in the ordinary course of la&. On the other hand, private respondents controvert the position of the petitioner and alle*e that the petition is devoid of merit, utterly lac/in* the *ood faith &hich is indispensable in a petition for certiorari and prohibition. BRollo, p. 52.C 2n addition, the private respondents stress that petitioner has not considered that every court, includin* respondent court, has the inherent po&er to amend and control its process and orders so as to ma/e them conformable to la& and .ustice. B Rollo, p. 5E.C %he controversy boils do&n to the main issue of &hether or not the respondent court committed *rave abuse of discretion &hen it deferred and failed to resolve the defense of non3suability of the ;tate amountin* to lac/ of .urisdiction in a motion to dismiss. 2n the case at bar, the respondent .ud*e deferred the resolution of the defense of non3suability of the ;tate amountin* to lac/ of .urisdiction until trial. 1o&ever, said respondent .ud*e failed to resolve such defense, proceeded &ith the trial and thereafter rendered a decision a*ainst the municipality and its driver. %he respondent .ud*e did not commit *rave abuse of discretion &hen in the eAercise of its .ud*ment it arbitrarily failed to resolve the vital issue of non3suability of the ;tate in the *uise of the municipality. 1o&ever, said .ud*e acted in eAcess of his .urisdiction &hen in his decision dated October 1", 1979 he held the municipality liable for the 4uasi3delict committed by its re*ular employee. %he doctrine of non3suability of the ;tate is eApressly provided for in Article G:2, ;ection E of the Constitution, to &it! ,the ;tate may not be sued &ithout its consent., ;tated in simple parlance, the general rule is that the State $ay not be sued e1cept !hen it gives consent to be sued. Consent ta/es the form of eApress or implied consent. 9Apress consent may be embodied in a *eneral la& or a special la&. %he standin* consent of the ;tate to be sued in case of money claims involvin* liability arisin* from contracts is found in Act $o. E" E. A special la& may be passed to enable a person to sue the *overnment for an alle*ed 4uasi3 delict, as in +erritt v. #overnment of the (hilippine 2slands BE5 (hil E11C. Bsee 8nited ;tates of America v. #uinto, #.@. $o. 7FF"7, 6ebruary 2F, 199", 1 2 ;C@A F55, F55.C Consent is implied &hen the *overnment enters into business contracts, thereby descendin* to the level of the other contractin* party, and also &hen the ;tate files a complaint, thus openin* itself to a counterclaim. B 0bidC +unicipal corporations, for eAample, li/e provinces and cities, are a*encies of the ;tate &hen they are en*a*ed in *overnmental functions and therefore should en.oy the soverei*n immunity from suit. $evertheless, they are sub.ect to suit even in the performance of such functions because their charter provided that they can sue and be sued. BCru-, .hilippine .olitical %a!, 19 7 9dition, p. E9C A distinction should first be made bet&een suability and liability. ,;uability depends on the consent of the state to be sued, liability on the applicable la& and the established facts. %he circumstance that a state is suable does not necessarily mean that it is liableD on the other hand, it can never be held liable if it does not first consent to be sued. 'iability is not conceded by the mere fact that the state has allo&ed itself to be sued. <hen the state does &aive its soverei*n immunity, it is only *ivin* the plaintiff the chance to prove, if it can, that the defendant is liable., B8nited ;tates of America vs. #uinto, supra, p. F593FF"C Anent the issue of &hether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on &hether or not the driver, actin* in behalf of the municipality, is performin* *overnmental or proprietary functions. As emphasi-ed in the case of

%orio vs. 6ontanilla B#. @. $o. '32999E, October 2E, 197 . 5 ;C@A 599, F"FC, the distinction of po&ers becomes important for purposes of determinin* the liability of the municipality for the acts of its a*ents &hich result in an in.ury to third persons. Another statement of the test is *iven in City of ?o/omo vs. 'oy, decided by the ;upreme Court of 2ndiana in 191F, thus! +unicipal corporations eAist in a dual capacity, and their functions are t&ofold. 2n one they eAercise the ri*ht sprin*in* from soverei*nty, and &hile in the performance of the duties pertainin* thereto, their acts are political and *overnmental. %heir officers and a*ents in such capacity, thou*h elected or appointed by them, are nevertheless public functionaries performin* a public service, and as such they are officers, a*ents, and servants of the state. 2n the other capacity the municipalities eAercise a private, proprietary or corporate ri*ht, arisin* from their eAistence as le*al persons and not as public a*encies. %heir officers and a*ents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or soverei*n po&er., B112 $.9., 9953995C B0bid, pp. F"53F"F.C 2t has already been remar/ed that municipal corporations are suable because their charters *rant them the competence to sue and be sued. $evertheless, they are *enerally not liable for torts committed by them in the dischar*e of *overnmental functions and can be held ans&erable only if it can be sho&n that they &ere actin* in a proprietary capacity. 2n permittin* such entities to be sued, the ;tate merely *ives the claimant the ri*ht to sho& that the defendant &as not actin* in its *overnmental capacity &hen the in.ury &as committed or that the case comes under the eAceptions reco*ni-ed by la&. 6ailin* this, the claimant cannot recover. BCru-, supra, p. 55.C 2n the case at bar, the driver of the dump truc/ of the municipality insists that ,he &as on his &ay to the $a*uilian river to *et a load of sand and *ravel for the repair of ;an 6ernando>s municipal streets., B Rollo, p. 29.C 2n the absence of any evidence to the contrary, the re*ularity of the performance of official duty is presumed pursuant to ;ection EBmC of @ule 1E1 of the @evised @ules of Court. 1ence, <e rule that the driver of the dump truc/ &as performin* duties or tas/s pertainin* to his office. <e already stressed in the case of .alafo1, et. al. vs. .rovince of 0locos 5orte, the 0istrict 9n*ineer, and the (rovincial %reasurer B1"2 (hil 11 FC that ,the construction or maintenance of roads in &hich the truc/ and the driver &or/ed at the time of the accident are admittedly *overnmental activities., After a careful eAamination of eAistin* la&s and .urisprudence, <e arrive at the conclusion that the $unicipality cannot be held liable for the torts co$$itted by its regular e$ployee, !ho !as then engaged in the discharge of govern$ental functions . 1ence, the death of the passen*er PP tra*ic and deplorable thou*h it may be PP imposed on the municipality no duty to pay monetary compensation. All premises considered, the Court is convinced that the respondent .ud*e>s dereliction in failin* to resolve the issue of non3suability did not amount to *rave abuse of discretion. )ut said .ud*e eAceeded his .urisdiction &hen it ruled on the issue of liability. ACCO@02$#'=, the petition is #@A$%90 and the decision of the respondent court is hereby modified, absolvin* the petitioner municipality of any liability in favor of private respondents. ;O O@09@90. 5arvasa, Cruz, 4ancayco and 4ri*o A<uino, ,,., concur. G.R. No. L-29993 O.%o7&r 23, 19(8 LA"+ NCIO TORIO, G"ILL RMO 1ANG LI$TA, MAN" L + G",MAN, ALFON$O R. MAG$ANOC, J $"$ MACARANA$, MA8IMO MANANGAN, FI+ L MONT MAYOR, M LC0OR 1IRAY, RAMON T"LAGAN, a55 M&97&r' o: %/& Mun4.43a5 Coun.45 o: Ma5a'4;u4 4n 1959, Ma5a'4;u4, #an<a'4nan, petitioners, vs. RO$ALINA, ANG LINA, L ONAR+O, +"AR+O, ART MIO, ANG LITA, ANITA, RN $TO, NORMA, 1IRGINIA, R M +IO$ an! RO* RTO, a55 'urna9&! FONTANILLA, an! T0 0ONORA*L CO"RT OF A## AL$, respondents. G.R. No. L-30183 O.%o7&r 23, 19(8 M"NICI#ALITY OF MALA$I="I, petitioner, vs. RO$ALINA, ANG LINA, L ONAR+O, +"AR+O, ART MIO, ANG LITA, ANITA, RN $TO, NORMA, 1IRGINIA, R M +IO$ an! RO* RTO, a55 'urna9&! FONTANILLA, an! %/& 0onora75& CO"RT OF A## AL$, respondents. ,ulian M. Ar$as, Assistant .rovincial Fiscal for petitioners. 0sidro %. .adilla for respondents.

M"6O, #ALMA, J.2 %hese (etitions for revie& present the issue of &hether or not the celebration of a to&n fiesta authori-ed by a municipal council under ;ec. 22 2 of the +unicipal 'a& as embodied in the @evised Administrative Code is a *overnmental or a corporate or proprietary function of the municipality. A resolution of that issue &ill lead to another, vi- the civil liability for dama*es of the +unicipality of +alasi4ui, and the members of the +unicipal Council of +alasi4ui, province of (an*asinan, for a death &hich occurred durin* the celebration of the to&n fiesta on January 22, 1959, and &hich &as attributed to the ne*li*ence of the municipality and its council members. %he follo&in* facts are not in dispute! On October 21, 195 , the +unicipal Council of +alasi4ui, (an*asinan, passed @esolution $o. 159 &hereby ,it resolved to mana*e the 1959 +alasi4ui to&n fiesta celebration on January 21, 22, and 2E, 1959., @esolution $o. 1 2 &as also passed creatin* the ,1959 +alasi4ui >%o&n 6iesta 9Aecutive Committee, &hich in turn or*ani-ed a sub3committee on entertainment and sta*e, &ith Jose +acarae* as Chairman. the council appropriated the amount of (1""."" for the construction of 2 sta*es, one for the ,-ar-uela, and another for the cancionan Jose +acarae* supervised the construction of the sta*e and as constructed the sta*e for the ,-ar-uela, &as ,53Q meters by meters in si-e, had a &ooden floor hi*h at the rear and &as supported by 25 bamboo posts 7 5 in a ro& in front, 5 in the rear and 5 on each side 7 &ith bamboo braces., 1 %he ,-ar-uela, entitled ,+idas 9Atrava*an-a, &as donated by an association of +alasi4ui employees of the +anila @ailroad Company in Caloocan, @i-al. %he troupe arrived in the evenin* of January 22 for the performance and one of the members of the *roup &as :icente 6ontanilla. %he pro*ram started at about 1"!15 o>cloc/ that evenin* &ith some speeches, and many persons &ent up the sta*e. %he ,-ar-uela, then be*an but before the dramatic part of the play &as reached, the sta*e collapsed and :icente 6ontanilla &ho &as at the rear of the sta*e &as pinned underneath. 6ontanilia &as ta/en to tile ;an Carlos #eneral 1ospital &here he died in the afternoon of the follo&in* day. %he heirs of :icente 6ontanilia filed a complaint &ith the Court of 6irst 2nstance of +anila on ;eptember 11, 1959 to recover dama*es. $amed party3defendants &ere the +unicipality of +alasi4ui, the +unicipal Council of +alasi4ui and all the individual members of the +unicipal Council in 1959. Ans&erin* the complaint defendant municipality invo/ed inter alia the principal defense that as a le*ally and duly or*ani-ed public corporation it performs soverei*n functions and the holdin* of a to&n fiesta &as an eAercise of its *overnmental functions from &hich no liability can arise to ans&er for the ne*li*ence of any of its a*ents. %he defendant councilors inturn maintained that they merely acted as a*ents of the municipality in carryin* out the municipal ordinance providin* for the mana*ement of the to&n fiesta celebration and as such they are li/e&ise not liable for dama*es as the underta/in* &as not one for profitD furthermore, they had eAercised due care and dili*ence in implementin* the municipal ordinance. 2 After trial, the (residin* Jud*e, 1on. #re*orio %. 'antin narro&ed the issue to &hether or not the defendants eAercised due dili*ence >m the construction of the sta*e. 6rom his findin*s he arrived at the conclusion that the 9Aecutive Committee appointed by the municipal council had eAercised due dili*ence and care li/e a *ood father of the family in selectin* a competent man to construct a sta*e stron* enou*h for the occasion and that if it collapsed that &as due to forces beyond the control of the committee on entertainment, conse4uently, the defendants &ere not liable for dama*es for the death of :icente 6ontanilla. %he complaint &as accordin*ly dismissed in a decision dated July 1", 19F2. 3 %he 6ontanillas appealed to the Court of Appeals. 2n a decision (romul*ated on October E1, 19F , the Court of Appeals throu*h its 6ourth 0ivision composed at the time of Justices ;alvador :. 9s*uerra, $icasio A. =atco and 9ulo*io ;. ;errano reversed the trial court>s decision and ordered all the defendants3appellees to pay .ointly and severally the heirs of :icente 6ontanilla the sums of (12,"""."" by &ay of moral and actual dama*es! (12""."" its attorney>s feesD and the costs. ) %he case is no& before 8s on various assi*nments of errors all of &hich center on the proposition stated at the sentence of this Opinion and &hich <e repeat! 2s the celebration of a to&n fiesta an underta/in* in the eAcercise of a municipality>s *overnmental or public function or is it or a private or proprietary characterJ 1. 8nder (hilippine la&s municipalities are political bodies corporate and as such a* endo&ed &ith the faculties of municipal corporations to be eAercised by and throu*h their respective municipal *overnments in conformity &ith la&, and in their proper corporate name, they may inter alia sue and be sued, and contract and be contracted &ith. 5 %he po&ers of a municipality are t&ofold in character public, *overnmental or political on the one hand, and corporate, private, or proprietary on the other. #overnmental po&ers are those eAercised by the corporation in administerin* the po&ers of the state and promotin* the public &elfare and they include the le*islative, .udicial public, and political +unicipal po&ers on the other hand are eAercised for the special benefit and advanta*e of the community and include those &hich are ministerial private and corporate. 6

As to &hen a certain activity is *overnmental and &hen proprietary or private, that is *enerally a difficult matter to determine. %he evolution of the municipal la& in American Jurisprudence, for instance, has sho&n thatD none of the tests &hich have evolved and are stated in teAtboo/s have set do&n a conclusive principle or rule, so that each case &ill have to be determined on the basis of attendin* circumstances. 2n +cKuillin on +unicipal Corporations, the rule is stated thus! ,A municipal corporation proper has ... a public character as re*ards the state at lar*e insofar as it is its a*ent in *overnment, and private Bso3calledC insofar as it is to promote local necessities and conveniences for its o&n community. ( Another statement of the test is *iven in City of =o"o$o v. %oy, decided by the ;upreme Court of 2ndiana in 191F, thus! +unicipal corporations eAist in a dual capacity, and their functions are t&o fold. 2n one they eAercise the ri*ht sprin*in* from soverei*nty, and &hile in the performance of the duties pertainin* thereto, their acts are political and *overnmental %heir officers and a*ents in such capacity, thou*h elected or appointed by the are nevertheless public functionaries performin* a public service, and as such they are officers, a*ents, and servants of the state. 2n the other capacity the municipalities eAercise a private. proprietary or corporate ri*ht, arisin* from their eAistence as le*al persons and not as public a*encies. %heir officers and a*ents in the performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and not for the state or soverei*n po&er. B112 $. 9 9953995C 2n the early (hilippine case of Mendoza v. de %eon 191F, the ;upreme Court, throu*h Justice #rant %. %rent, relyin* mainly on American Jurisprudence classified certain activities of the municipality as *overnmental, e.*.! re*ulations a*ainst fire, disease, preservation of public peace, maintenance of municipal prisons, establishment of schools, post3offices, etc. &hile the follo&in* are corporate or proprietary in character, vi-! municipal &ater&or/, slau*hter houses, mar/ets, stables, bathin* establishments, &harves, ferries, and fisheries. 8 +aintenance of par/s, *olf courses, cemeteries and airports amon* others, are also reco*ni-ed as municipal or city activities of a proprietary character. 9 2. %his distinction of po&ers becomes important for purposes of determinin* the liability of the municipality for the acts of its a*ents &hich result in an in.ury to third persons. 2f the in.ury is caused in the course of the performance of a *overnmental function or duty no recovery, as a rule, can be. had from the municipality unless there is an eAistin* statute on the matter, 10 nor from its officers, so lon* as they performed their duties honestly and in *ood faith or that they did not act &antonly and maliciously. 11 2n .alafo1, et al., v. .rovince of 0locos 5orte, et al., 195 , a truc/ driver employed by the provincial *overnment of 2locos $orte ran over (roceto (alafoA in the course of his &or/ at the construction of a road. %he ;upreme Court in affirmin* the trial court>s dismissal of the complaint for dama*es held that the province could not be made liable because its employee &as in the performance of a *overnmental function 7 the construction and maintenance of roads 7 and ho&ever tra*ic and deplorable it may be, the death of (alafoA imposed on the province no duty to pay monetary consideration. 12 <ith respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons e1 contract 13 or e1 delicto. 1) +unicipal corporations are sub.ect to be sued upon contracts and in tort. ... AAA AAA AAA %he rule of la& is a *eneral one, that the superior or employer must ans&er civilly for the ne*li*ence or &ant of s/ill of its a*ent or servant in the course or fine of his employment, by &hich another, &ho is free from contributory fault, is in.ured. +unicipal corporations under the conditions herein stated, fall &ithin the operation of this rule of la&, and are liable, accordin*ly, to civil actions for dama*es &hen the re4uisite elements of liability co3eAist. ... B0illon on +unicipal Corporations, 5th ed. ;ec. 1F1",1F57, cited in +endo-a v. de 'eon, supra. 515C E. Comin* to the cam before 8s, and applyin* the *eneral tests *iven above, <e hold that the ho of the to&n fiesta in 1959 by the municipality of +alsi4ui (an*asinan &as an eAercise of a private or proprietary function of the municipality. ;ection 22 2 of the Chatter on +unicipal 'a& of the @evised Administrative Code provides! ;ection 22 2. Celebration of fiesta. > fiesta may be held in each municipality not oftener than once a year upon a date fiAed by the municipal council A fiesta s not be held upon any other date than that la&fully fiAed therefor, eAcept &hen, for &ei*hty reasons, such as typhoons, foundations, earth4ua/es, epidemics, or other public ties, the fiesta cannot be hold in the date fiAed in &hich case it may be held at a later date in the same year, by resolution of the council. %his provision simply *ives authority to the municipality to accelebrate a yearly fiesta but it does not impose upon it a duty to observe one. 1oldin* a fiesta even if the purpose is to commemorate a reli*ious or historical event of the to&n is in essence an act for the special benefit of the community and not for the *eneral &elfare of the public performed in pursuance of a policy of the state. %he mere fact that the celebration, as claimed &as not to secure profit or *ain but merely to provide entertainment to the to&n inhabitants is not a conclusive test. 6or instance, the maintenance of par/s is not a source of income for the nonetheless it is private underta/in* as distin*uished from the maintenance of public schools, .ails, and the li/e &hich are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determinin* the true nature of an underta/in* or function of a municipalityD the surroundin* circumstances of a particular case are to be considered and &ill be decisive. %he basic element, ho&ever beneficial to the public the underta/in* may be, is that it is *overnmental in essence, other&ise. the function becomes private or proprietary in character. 9asily, no overnmental or public policy of the state is involved in the celebration of a to&n fiesta. 15 5. 2t follo&s that under the doctrine of respondent superior, petitioner3municipality is to be held liable for dama*es for the death of :icente 6ontanilia if that &as at3 tributable to the ne*li*ence of the municipality>s officers, employees, or a*ents. Art. 217F, Civil Code! <hoever by act or omission causes dama*e to another, there bein* fault or ne*li*ence, is obli*ed to pay for the dama*e done. . . Art. 21 ", Civil Code! %he obli*ation imposed by article 217F is demandable not only for one>s o&n acts or omission, but also for those of persons for &hom one is responsible. . . On this point, the Court of Appeals found and held that there &as ne*li*ence. %he trial court *ave credence to the testimony of An*el $ovado, a &itness of the defendants Bno& petitionersC, that a member of the ,eAtrava*an-a troupe removed t&o principal braces located on the front portion of the sta*e and u them to han* the screen or ,telon,, and that &hen many people &ent up the sta*e the latter collapsed. %his testimony &as not believed ho&ever by respondent appellate court, and ri*htly so. Accordin* to said defendants, those t&o braces &ere ,mother, or ,principal, braces located semi3dia*onally from the front ends of the sta*e to the front posts of the tic/et booth located at the rear of the sta*e and &ere fastened &ith a bamboo t&ine. 16 %hat bein* the case, it becomes incredible that any person in his ri*ht mind &ould remove those principal braces and leave the front portion of the sta*e practically unsuported +oreover, if that did happen, there &as indeed ne*li*ence as there &as lac/ of suspension over the use of the sta*e to prevent such an occurrence. At any rate, the *uitarist &ho &as pointed to by $ovado as the person &ho removed the t&o bamboo braces denied havin* done *o. %he Court of Appeals said ,Amor by himself alone could not have removed the t&o braces &hich must be about ten meters lon* and fastened them on top of the sta*s for the curtain. %he sta*e &as only five and a half meters &ide. ;urely, it, &ould be impractical and un&ieldy to use a ten meter bamboo pole, much more t&o poles for the sta*e curtain. 1( %he appellate court also found that the sta*e &as not stron* enou*h considerin* that only (1""."" &as appropriate for the construction of t&o sta*es and &hile the floor of the ,-ar-uela, sta*e &as of &ooden plan/s, the (ost and braces used &ere of bamboo material <e li/e&ise observe that althou*h the sta*e &as described by the (etitioners as bein* supported by ,25, posts, nevertheless there &ere only 5 in front, 5 at the rear, and 5 on each side. <here &ere the restJ %he Court of Appeals thus concluded %he court a <uo itself attributed the collapse of the sta*e to the *reat number of onloo/ers &ho mounted the sta*e. %he municipality andNor its a*ents had the necessary means &ithin its command to prevent such an occurrence. 1avin* filed to ta/e the necessary steps to maintain the safety of the sta*e for the use of the participants in the sta*e presentation prepared in connection &ith the celebration of the to&n fiesta, particularly, in preventin* non participants or spectators from mountin* and accumulatin* on the sta*e &hich &as not constructed to meet the additional &ei*ht3 the defendant3appellees &ere ne*li*ent and are liable for the death of :icente 6ontanilla . Bpp. E"3E1, rollo, '32999EC %he findin*s of the respondent appellate court that the facts as presented to it establish ne*li*ence as a matter of la& and that the +unicipality failed to eAercise the due dili*ence of a *ood father of the family, &ill not disturbed by 8s in the absence of a clear sho&in* of an abuse of discretion or a *ross misapprehension of facts., 18 'iability rests on ne*li*ence &hich is ,the &ant of such care as a person of ordinary prudence &ould eAercise under the circumstances of the case., %hus, private respondents ar*ue that the ,+idas 9Atrava*an-a, &hich &as to be performed durin* the to&n fiesta &as a ,donation, offered by an association of +alasi4ui employees of the +anila @ailroad Co. in Caloocan, and that &hen the +unicipality of +alasi4ui accepted the donation of services and constructed precisely a ,-ar-uela sta*e, for the purpose, the participants in the sta*e sho& had the ri*ht to eApect that the +unicipality throu*h its ,Committee on entertainment and sta*e, &ould build or put up a sta*e or platform stron* enou*h to sustain the &ei*ht or burden of the performance and ta/e the necessary measures to insure the personal safety of the participants. 20 <e a*ree. Kuite relevant to that ar*ument is the American case of Sanders v. City of %ong -each, 1952, &hich &as an action a*ainst the city for in.uries sustained from a fall &hen plaintiff &as descendin* the steps of the city auditorium. %he city &as conductin* a ,?no& your City <ee/, and one of the features &as the sho&in* of a motion picture in the city auditorium to &hich the *eneral public &as invited and plaintiff ;anders &as one of those &ho attended. 2n sustainin* the a&ard for 0ama*es in favor of plaintiff, the 0istrict Court of Appeal, ;econd district, California, held inter alia that the ,?no& your City <ee/, &as a ,proprietary activity, and not a ,*overnmental one, of the city, that defendant o&ed to plaintiff, an invitee the duty of eAercisin* ordinary care for her safety, and plaintiff &as entitled to assume that she &ould not be eAposed to a dan*er B&hich in this case consisted of lac/ of sufficient illumination of the premisesC that &ould come to her throu*h a violation of defendant duty. 21
19

<e can say that the deceased :icente 6ontanilla &as similarly situated as ;ander %he +unicipality of +alasi4ui resolved to celebrate the to&n fiesta in January of 1959D it created a committee in char*e of the entertainment and sta*eD an association of +alasi4ui residents responded to the call for the festivities and volunteered to present a sta*e sho&D :icente 6ontanilla &as one of the participants &ho li/e ;anders had the ri*ht to eApect that he &ould be eAposed to dan*er on that occasion. 'astly, petitioner or appellant +unicipality cannot evade ability andNor liability under the c that it &as Jose +acarae* &ho constructed the sta*e. %he municipality actin* throu*h its municipal council appointed +acarae* as chairman of the sub3committee on entertainment and in char*e of the construction of the ,-ar-uela, sta*e. +acarae* acted merely as an a*ent of the +unicipality. 8nder the doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the ne*li*ence of its a*ent actin* &ithin his assi*ned tas/s. 22 ... &hen it is sou*ht to render a municipal corporation liable for the act of servants or a*ents, a cardinal in4uiry is, &hether they are the servants or a*ents of the corporation. 2f the corporation appoints or elects them, can control them in the dischar*e of their duties, can continue or remove the can hold them responsible for the manner in &hich they dischar*e their trust, and if those duties relate to the eAercise of corporate po&ers, and are for the benefit of the corporation in its local or special interest, they may .ustly be re*arded as its a*ents or servants, and the maAim of respondent superior applies., ... B0illon on +unicipal Corporations, 5th 9d., :ol 2:, p. 2 79C 5. %he remainin* 4uestion to be resolved centers on the liability of the municipal councilors &ho enacted the ordinance and created the fiesta committee. %he Court of Appeals held the councilors .ointly and solidarity liable &ith the municipality for dama*es under Article 27 of the Civil Code &hich provides that d any person sufferin* in* material or moral loss because a public servant or employee refuses or ne*lects, &ithout .ust cause to perform his official duty may file an action for dama*es and other relief at the latter. 23 2n their (etition for revie& the municipal councilors alle*e that the Court of Appeals erred in rulin* that the holdin* of a to&n fiesta is not a *overnmental function and that there &as ne*li*ence on their part for not maintainin* and supervisin* the safe use of the sta*e, in applyin* Article 27 of the Civil Code a*ainst them and in not holdin* Jose +acarae* liable for the collapse of the sta*e and the conse4uent death of :icente 6ontanilla. 2) <e a*ree &ith petitioners that the Court of Appeals erred in applyin* Article 27 of the Civil Code a*ainst the for this particular article covers a case of nonfeasance or non3performance by a public officer of his official dutyD it does not apply to a case of ne*li*ence or misfeasance in carryin* out an official duty. 2f <e are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned, it is because of a plain error committed by respondent court &hich ho&ever is not invo/ed in petitioners> brief. 2n Miguel v. The Court of appeal. et al., the Court, throu*h Justice, no& Chief Justice, 6red @ui- Castro, held that the ;upreme Court is vested &ith ample authority to revie& matters not assi*ned as errors in an appeal if it finds that their consideration and resolution are indispensable or necessary in arrivin* at a .ust decision in a *iven case, and that tills is author under ;ec. 7, @ule 51 of the @ules of Court. 25 <e believe that this pronouncement can &ell be applied in the instant case. %he Court of Appeals in its decision no& under revie& held that the celebration of a to&n fiesta by the +unicipality of +alasi4ui &as not a *overnmental function. <e upheld that rulin*. %he le*al conse4uence thereof is that the +unicipality stands on the same footin* as an ordinary private corporation &ith the municipal council actin* as its board of directors. 2t is an elementary principle that a corporation has a personality, separate and distinct from its officers, directors, or persons composin* it 26 and the latter are not as a rule co3responsible in an action for dama*es for tort or ne*li*ence culpa a4uilla committed by the corporation>s employees or a*ents unless there is a sho&in* of bad faith or *ross or &anton ne*li*ence on their part. 2( AAA AAA AAA %he ordinary doctrine is that a director, merely by reason of his office, is not personally ;table for the torts of his corporationD he +ust be sho&n to have personally voted for or other&ise participated in them ... 6letcher 9ncyclopedia Corporations, :ol EA Chapt 11, p. 2"7C Officers of a corporation >are not held liable for the ne*li*ence of the corporation merely because of their official relation to it, but because of some &ron*ful or ne*li*ent act by such officer amountin* to a breach of duty &hich resulted in an in.ury ... %o ma/e an officer of a corporation liable for the ne*li*ence of the corporation there must have been upon his part such a breach of duty as contributed to, or helped to brin* about, the in.uryD that is to say, he must be a participant in the &ron*ful act. ... Bpp. 2"73 2" , 0bid.C AAA AAA AAA 0irectors &ho merely employ one to *ive a fire&or/s Ambition on the corporate are not personally liable for the ne*li*ent acts of the eAhibitor. Bp. 211, 0bid.C

On these people <e absolve 8se municipal councilors from any liability for the death of :icente 6ontanilla. %he records do not sho& that said petitioners directly participated in the defective construction of the ,-ar-uela, sta*e or that they personally permitted spectators to *o up the platform. F. One last point <e have to resolve is on the a&ard of attorney>s fees by respondent court. (etitioner3municipality assails the a&ard. 8nder para*raph 11, Art. 22" of the Civil Code attorney>s fees and eApenses of liti*ation may be *ranted &hen the court deems it .ust and e4uitable. 2n this case of :icente 6ontanilla, althou*h respondent appellate court failed to state the *rounds for a&ardin* attorney>s fees, the records sho& ho&ever that attempts &ere made by plaintiffs, no& private respondents, to secure an eAtra.udicial compensation from the municipality! that the latter *ave prorases and assurances of assistance but failed to complyD and it &as only ei*ht month after the incident that the bereaved family of :icente 6ontanilla &as compelled to see/ relief from the courts to ventilate &hat &as believed to be a .ust cause. 28 <e hold, therefore, that there is no error committed in the *rant of attorney>s fees &hich after all is a matter of .udicial discretion. %he amount of (1,2""."" is fair and reasonable. (@9+2;9; CO$;209@90, <e A662@+ in toto the decision of the Court of Appeals insofar as the +unicipality of +alasi4ui is concerned B'3 E"1 EC, and <e absolve the municipal councilors from liability and ;9% A;209 the .ud*ment a*ainst them B'3999EC. <ithout pronouncement as to costs. ;O O@09@90, Teehan"ee 2Chair$an3, Ma"asiar, Fernandez, and 4uerrero, ,,., concur. G.R. No. L-9596 F&7ruary 11, 1916

MARCO$ M N+O,A, plaintiff3appellee, vs. FRANCI$CO + L ON, T AL., defendants3appellants. %uis Morales for appellant. 8ugo Sansano for appellee. TR NT, J.2 %his is an action for dama*es a*ainst the individual members of the municipal council of the municipality of :illasis, (an*asinan, for the revocation of the lease of an eAclusive ferry privile*e duly a&arded to the plaintiff under the provisions of Act $o. 1F5E of the (hilippine Commission. After use of a little more than one year, the plaintiff &as forcibly e.ected under and pursuance of a resolution adopted by the herein defendants, a&ardin* a franchise for the same ferry to another person. +unicipalities of the (hilippine 2slands or*ani-ed under the +unicipal Code have both *overnmental and corporate or business functions. Of the first class are the adoption of re*ulation a*ainst fire and disease, preservation of the public peace, maintenance of municipal prisons, establishment of primary schools and post3offices, etc. Of the latter class are the establishment of municipal &ater&or/s for the use of the inhabitants, the construction and maintenance of municipal slau*hterhouses, mar/ets, stables, bathin* establishments, &harves, ferries, and fisheries. Act $o. 1F5E provides that the use of each fishery, fish3breedin* *round, ferry, stable, mar/et, and slau*hterhouse belon*in* to any municipality or to&nship shall be let to the hi*hest bidder annually or for such lon*er period not eAceedin* five years as may have been previously approved by the provincial board of the province in &hich the municipality or to&nship is located. %he t&o fold character of the po&ers of a municipality under our +unicipal Code BAct $o. 2C is so apparent and its private or corporate po&ers so numerous and important that &e find no difficulty in reachin* the conclusion that the *eneral principles *overnin* the liability of such entities to applicable to it. %he distinction bet&een *overnmental po&ers on the one hand, and corporate or proprietary or business po&ers on the other, as the latter class is variously described in the reported cases, has been lon* reco*ni-ed in the 8nited ;tates and there is no dissent from the doctrine. 2n <ilcoA vs. City of @ochester B19" $. =., 1E7C, it &as said! %he broad *eneral doctrine of the +aAmilian case B+aAmilian vs. +ayor, etc., $e& =or/, F2 $. =. 1F"C, &hich is certainly not no& open to 4uestion in the courts of this ;tate, is that ,t&o /inds of duties are imposed on municipal corporations, the one *overnmental and a branch of the *eneral administration of the state, the other <uasi private or corporateD, and ,that in the eAercise of the latter duties the municipality is liable for the acts of its officers and a*ents, &hile in the former it is not., BCullen, J., in 'efrois vs. Co. of +onroe, 1F2 $. =., 5FE, 5F7.C %he +aAmilian case is 4uoted &ith approval in )ond vs. @oyston B1E" #a., F5FC. 2n Co. Comm>s of Anne Arundel Co. vs. 0uc/ett B2" +d., 5F , 57FD E Am. 0ec., 557C, it &as said!

<ith re*ard to the liability of a public municipal corporation for the acts of its officers, the distinction is bet&een an eAercise of those le*islative po&ers &hich it holds for public purposes, and as part of the *overnment of the country, and those private franchise &hich belon* to it, as a creation of the la&D &ithin the sphere of the former, it en.oys, the eAemption of the *overnment, from responsibility for its o&n acts, and for the acts of those &ho are independent corporate officers, derivin* their ri*hts and duties from the soverei*n po&er. )ut in re*ard to the latter, it is responsible for the acts of those &ho are in la& its a*ents, thou*h they may not be appointed by itself. %his case &as 4uoted &ith approval in %rammell vs. @ussellville BE5 Ar/., 1"5D EF Am. @ep., 1CD and in +c2lhenney vs. <ilmin*ton B127 $. C., 15FD 5" '. @. A. 57"C. 2n Cummin*s vs. 'obsit- B52 O/la., 7"5D '. @. A., $. ;., 1915 ), p. 515C, it &as said! A distinction is made bet&een the liability of a municipal corporation for the acts of its officers in the eAercise of po&ers &hich it possesses for public purpose and &hich it holds as a*ent of the state, and those po&ers &hich embrace private or corporate duties and are eAercised for the advanta*e of the municipality and its inhabitants. <hen the acts of its officers come &ithin the po&ers &hich it has as a*ent of the state, it is eAempt from liability for its o&n acts and the acts of its officersD if the acts of the officer or a*ent of the city are for the special benefits of the corporation in its private or corporate interest, such officer is deemed the a*ent or servant of the city, but &here the act is not in relation to a private or corporate interest of the municipality, but for the benefit of the public at lar*e, such acts by the a*ents and servants are deemed to be acts by public or state officers, and for the public benefit. %he distinction is also reco*ni-ed by 0illon in his &or/ on +unicipal Corporations B5th ed.C section E and E9. As is indicated in some of the above 4uoted cases, the municipality is not liable for the acts of its officers or a*ents in the performance of its *overnmental functions. #overnmental affairs do not lose their *overnmental character by bein* dele*ated to the municipal *overnments. $or of the municipality &hich, for convenience the state allo&s the municipality to select, chan*e their character. %o preserve the peace, protect the morals and health of the community and so on to administer *overnment, &hether it be done by the central *overnment itself or is shifted to a local or*ani-ation. And the state bein* immune for in.uries suffered by private individuals in the administration of strictly *overnmental functions, li/e immunity is en.oyed by the municipality in the performance of the same duties, unless it is eApressly made liable by statute. %he state cannot, &ithout its consent eApressed throu*h le*islation, be sued for in.uries resultin* from an act done in the eAercise of its la&ful *overnmental po&ers and pertainin* to the administration of *overnment. ... +unicipal corporations are a*ents of the state in the eAercise of certain *overnmental po&ers. %he preservation of the health and peace of its inhabitants and fire protection afforded the property o&ner, are *overnmental functions. B)ur/e vs. City of ;outh Omaha, 79 $eb., 79E.C 2n $icholson vs. 0etroit B129 +ich., 25FD 5F '. @. A., F"1C, it &as said! 2t is the &ell3settled rule that the state is not liable to private persons &ho suffer in.uries throu*h the ne*li*ence of its officers 7 and the rule eAtends to to&nship and cities 7 &hile in the performance of state functions, imposed upon them by la&. %his sub.ect is fully discussed in 0etroit vs. )lac/eby B21 +ich., 5D 5 Am. @ep., 55"C. 2t &as there held that cities are *overnmental a*encies, and that their ,officers are in no such sense municipal a*entsD that their ne*li*ence is the ne*lect of the municipalityD nor &ill their misconduct be char*eable a*ainst them, unless act complained of the either authori-ed or ratified., And in a lar*e number of cases it has been held that there is no such liability on the part of such *overnmental a*ency unless it has been imposed by statute, and in such case it is necessarily limited by the statute. 2n Claussen vs. City of 'uverne B1"E +inn., 591D 15 '. @. A., $. ;., F9 C, it &as said! 2t is elementary that neither the state nor any of the subdivisions, li/e a municipality, throu*h &hich it operates, is liable for torts committed by public officers, save in definitely eAcepted classes of cases. %he eAemption is based upon the soverei*n character of the state and its a*encies, and upon the absence of obli*ation, and not on the *round that no means for remedy have been provided. ,%he *overnment,, said +r. Justice ;tory, ,does not underta/e to *uarantee to any person the fidelity of the officers or a*ents &hom it employs, since that &ould involve in all its operations in endless embarrassments, difficulties and losses, &hich &ould be subversive of the public interest., B8.;. vs. ?ir/patric/, 9 <heat., 72"D F '. ed., 199D )eers vs. Ar/ansas, 2" 1o&., 527D 15 '. ed., 991.C %his *eneral eAemption has been applied to municipal corporations in so far as the acts complained of &ere, in the lan*ua*e of the memorandum of the trial court, ,done in eAercisin* po&ers for the public at lar*e as a *overnin* a*ency., <hile so actin*, the city cannot be held liable for misfeasanceD and ... the rule of respondeat superior has no application. $or are officers or a*ents of the #overnment char*ed &ith the performance of *overnmental duties &hich are in their nature le*islative, or 4uasi .udicial, liable for the conse4uences of their official acts, unless it be sho&n that they act &illfully and maliciously, and &ith the eApress purpose of inflictin* in.ury upon the plaintiff. 2f they eAercise their honest .ud*ment in the performance of their duties, their errors cannot be char*ed a*ainst them. B(eople vs. +ay, 251 2ll., 55D ;alt 'a/e County vs. Clinton H8tah, 1911I, 117 (ac., 1"75D Comanche County vs. )ur/s B%eA. Civ. App., 1915C, 1FF ;. <., 57"D +onnier vs. #odbold, 11F 'a., 1F5D 5 '. @. A., $. ;., 5FED @ay vs. 0odd, 1E2 +o. App., 555D Johnson vs. +arsh, 2 $. J. '.+, 5D #re*ory vs. )roo/s, E7 Conn., EF55D 'ecourt vs. #aster, 5" 'a. Ann., 521.C ;o it may be said that in so far as its *overnmental functions are concerned, a municipality is not liable at all, unless eApressly made so by statuteD nor are its officers, so lon* as they perform their duties honestly and in *ood faith. %he most common illustration of both phrases of this rule is the action for false imprisonment so often brou*ht either a*ainst a municipality or a municipal police officer. B)artlett vs. City of Columbus, 1"1 #a., E""D 55 '. @. A., 795D (eter vs. City of 'indbor*, 5" ?an., F55.C

;o, in 6ield vs. City of 0es +oines BE9 2o&a, 575C, it &as held that a municipality, actin* under authority *iven it by the central *overnment to destroy houses in the path of a confla*ration, &as not liable in dama*es in the absence of a statute eApressly ma/in* it so. 6rom &hat has already been said, it should be clear that a municipality is not eAempt from liability for the ne*li*ent performance of its corporate or proprietary or business functions. 2n the administration of its patrimonial property, it is to be re*arded as a private corporation or individual so far as its liability to third persons on contract or in tort is concerned. 2ts contracts, validly entered into, may be enforced and dama*es may be collected from it for the torts of its officers or a*ents &ithin the scope of their employment in precisely the same manner and to the same eAtent as those of private corporations or individuals. As to such matters the principles of respondeat superior applies. 2t is for these purposes that the municipality is made liable to suits in the courts. +unicipal corporations are sub.ect to be sued upon contracts and in tort. 2n a previous chapter &e have considered at len*th the authority of such corporations to ma/e contracts, the mode of eAercisin*, and the effect of transcendin* the po&er. %his leaves but little to add in this place respectin* their liability in actions e1 contractu. 8pon an authori-ed contract 7 that is, upon a contract &ithin the scope of the charter or le*islative po&ers of the corporation and duly made by the proper officers or a*ents 7 they are liable in the same manner and to the same eAtent as private corporations or natural persons. B0illon on +unicipal Corporations, 5th ed., sec. 1F1".C %he same author says in section 1F57! %he rule of la& is a *eneral one, that the superior or employer must ans&er civilly of the ne*li*ence or &ant of s/ill of his a*ent or servant in the course or line of his employment, by &hich another, &ho is free from contributory fault, is in.ured. +unicipal corporations, under the conditions herein stated, fall &ithin the operation of this rule of la&, and are liable, accordin*ly, to civil actions for dama*es &hen the re4uisite elements of liability coeAist. %o create such liability, it is fundamentally necessary that the act done &hich is in.urious to others must be &ithin the scope of the corporate po&ers as prescribed by charter or positive enactment Bthe eAtent of &hich po&ers all persons are bound, at their peril, /no&CD in other &ords, it must not be ultra vires in the sense that it is not &ithin the po&er or authority of the corporation to act in reference to it under any circumstances. 2f the act complained of necessarily lies &holly outside of the *eneral or special po&ers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable to an action for dama*es, &hether it directly commanded the performance of the act &hether it be done by its officers &ithout its eApress commandD for a corporation cannot of course be impliedly liable to a *reater eAtent than it could ma/e itself by eApress corporate vote or action. 2t often happens that the same a*ent or a*ency has both a *overnmental and a corporate character. ;uch, for instance, are a municipal &ater system desi*ned both for protection a*ainst fire Ba *overnmental functionC and to supply &ater to the inhabitants for profit Ba corporate functionC BOmaha <ater Co. vs. Omaha, 12 '.@.A., $. ;., 7EFl 77 C.C.A., 2F7D 157 6ed., 1D Judson vs. )orou*h of <insted, " Conn., E 51 15 '. @. A., $. ;., 91CD a municipal li*ht plant both for li*htin* the streets Ba *overnmental functionC and for furnishin* li*ht to the inhabitants at a profit Ba corporate functionC B6isher vs. $e&)ern, 15" $. C., 5"FD 111 Am. ;t. @ep., 57CD an a*ent &ho is at the same time a police officer and a careta/er of a municipal toll brid*e B<oodhull vs. +ayor, etc., of $e& =or/, 15" $. =., 55"C. 2t is, also, sometimes the case that considerable difficulty is eAperienced in determinin* &hether a particular municipal duty is *overnmental or corporate. )ut 4uestions such as these do not arise in the case at bar. 1ere is it clear that the leasin* of a municipal ferry to the hi*hest bidder for a specified period of time is not a *overnmental but a corporate function. ;uch a lease, &hen validly entered into, constitutes a contract &ith the lessee &hich the municipality is bound to respect. %he matter is thus summed up by 0illon on +unicipal Corporations B5th ed., sec. 1E"FC! Ordinances made by municipalities under charter or le*islative authority, containin* *rants to &ater and li*ht companies and other public service corporations of the ri*ht to use the streets for pipes, mains, etc., upon the condition of the performance of service by the *rantee, are, after acceptance and performance by the *rantee, contracts protected by the prohibition of the 6ederal Constitution a*ainst the enactment of any ;tate la& impairin* the obli*ation of contracts. A*ain, this author, adoptin* the lan*ua*e of the court in 0n re 6ay B15 (ic/. H+ass.I, 25EC, says, in section 277! 2f a municipal corporation, sei-ed of a ferry, lease the same, throu*h the a*ency of the mayor and aldermen, &ith a covenant of 4uiet en.oyment, this covenant &ill not restrain in them by statute, to license another ferry over the same &aters, if in their .ud*ment B&hich cannot be revie&ed by the courtsC the public necessity and convenience re4uire it. On such a covenant the city may be liable to the covenanteesD but the po&ers vested in the city officers as trustees for the public cannot be thus abro*ated. 2f, ho&ever, city in its corporate capacity is the le*al o&ner of an eAclusive franchise, its *rantees or lessees &ould hold it, not&ithstandin* any license to others, &hether *ranted by the mayor and aldermen or any other tribunal. 2t seems clear, therefore, that under the provisions of +unicipal Code and Act $o. 1FE5, above referred to, the plaintiff had a vested ri*ht to the eAclusive operation of the ferry in 4uestion for the period of his lease. <ere the municipality a party to this action, it &ould be patent that a .ud*ment for dama*es a*ainst it for the rescission of the contract &ould be proper. %his, be it said, is the usual method of eAactin* dama*es, either e1 contractu or e1 delicto arisin* from the eAercise of corporate po&ers of municipalities. )ut the present action is a*ainst the members of the municipal council personally, and the 4uestion arises! Are they liableJ 2n administerin* the patrimonial property of municipalities, the municipal council occupies, for most purposes, the position of a board of directors of a private corporation. 2n disposin* of the local public utilities, if the term may be used, such as the fishin* and ferry ri*hts, etc., they must eAercise considerable .ud*ment. 2t re4uired some considerable amount of business acumen to compel performance on the part of lessees of these privile*es in accordance &ith the terms of their leases and in a manner &hich &ill not cause the property to deteriorate. Kuestions must continually arise &hich are not eApressly provided for in contracts and &hich must be settled, if possible, in a manner that &ill preserve the .ust claims of the municipality. 2ndeed, it is not at all improbable that on occasion the councilors may have reason to believe that a particular contract has been rescinded by the other party or has never been le*ally entered into, in both of &hich cases, decisive steps must be

ta/en to safe*uard the interest of the municipality. %hus, in Municipality of Moncada vs. Ca&uigan B21 (hil. @ep., 1 5C, the lessee of a municipal fishery &as evicted for failin* to pay his 4uarterly rents. %he municipal authorities ri*htly held that the contract &as rescinded but forcibly evicted the lessee instead of resortin* to the courts. 1ence, in an action by the municipality a*ainst the lessee and his bondsmen to recover rent arrears, dama*es &ere allo&ed the lessee on his counterclaim for the loss caused by the forcible eviction. $evertheless, &e do not thin/ the councilors could have been held personally liable for their error in resortin* to forcible eviction of the lessee. %heirs &as an error of .ud*ment, and honest mista/e on their part as to the ri*hts of the municipality in the premises. <e thin/ the rule of personal liability should be &ith municipal councilors in such matters as it is &ith the directors or mana*ers of an ordinary private corporation. 8nder the rule that directors are not liable for mista/es of .ud*ment, it follo&s naturally that they are not liable for the mismana*ement of the corporate affairs &here such mismana*ement is a mista/e of .ud*ment. %he &isdom of this rule is not only approved by common eAperience but by la& &riters and all courts. A rule so ri*id as to hold directors personally liable for honest mista/es in corporate mana*ement &ould deter all prudent business men from acceptin* such positions. %he remedy of stoc/holders in all such cases is by a chan*e in the directory. ... %he rule is that courts &ill not interfere even in the doubtful cases. )ut directors and mana*in* officers may be liable for mismana*ement to &arrant the interposition of a court either as a*ainst the contemplated action of the directors, or a ma.ority of the stoc/holders, or to *ive relief by &ay of dama*es after the action as been ta/enD a case must be made out &hich plainly sho&s that such action is so far opposed to the true interests of the corporation itself as to lead to clear inference that no one thus actin* could have been influenced by any honest desire to secure such interests, but that he must have acted &ith an intent to subserve some outside purpose, re*ardless of the conse4uences to the corporation, and in a manner inconsistent &ith its interests. B%hompson on Corporations, sec. 129 .C 2n the case at bar, there is not a scintilla of evidence that there &as any .ustifiable reason for forcibly evictin* the plaintiff from the ferry &hich he had leased. On the contrary, the defendant councilors attempted to .ustify their action on the *round that the ferry &hich he &as operatin* &as not the one leased to himD this, in spite of the fact that the vice3president had personally placed him in possession of it more than a year before, and the fact that he had operated this ferry for over year, evidently &ith the /no&led*e of the defendants. %he evidence is so clear that the ferry of &hich the plaintiff &as dispossessed &as the one &hich he leased that no reasonable man &ould entertain any doubt &hatever upon the 4uestion. 1ence, &e cannot say that in rescindin* the contract &ith the plaintiff, thereby ma/in* the municipality liable to an action for dama*es for no valid reason at all, the defendant councilors &ere honestly actin* for the interests of the municipality. <e are, therefore, of the opinion that the defendants are liable .ointly and severally for the dama*es sustained by the plaintiff from the rescission of his contract of lease of the ferry privile*e in 4uestion. 2n reachin* this conclusion, &e have not failed to ta/e into consideration the rule enunciated in 0ennison vs. %he +oro (rovince B@.#. $o. 17E, +arch 2 , 1915D not reportedC, nor the distinction made by the courts in the 8nited ;tates bet&een the liability of a municipal corporation, made such acceptance of a villa*e or city charter, and the involuntary 4uasi corporations /no&n as counties, to&ns, school districts, and especially the to&nships of $e& 9n*land. 8pon the 4uestion of the amount of dama*es sustained, &e accept the findin*s of the lo&er court. 6or the fore*oin* reasons, the .ud*ment appealed from is affirmed, &ith cost. ;o ordered. Arellano, C.,., Torres, ,ohnson and Araullo, ,,., concur. Moreland, ,., concurs in the result. G.R. No. L-29993 O.%o7&r 23, 19(8 LA"+ NCIO TORIO, G"ILL RMO 1ANG LI$TA, MAN" L + G",MAN, ALFON$O R. MAG$ANOC, J $"$ MACARANA$, MA8IMO MANANGAN, FI+ L MONT MAYOR, M LC0OR 1IRAY, RAMON T"LAGAN, a55 M&97&r' o: %/& Mun4.43a5 Coun.45 o: Ma5a'4;u4 4n 1959, Ma5a'4;u4, #an<a'4nan, petitioners, vs. RO$ALINA, ANG LINA, L ONAR+O, +"AR+O, ART MIO, ANG LITA, ANITA, RN $TO, NORMA, 1IRGINIA, R M +IO$ an! RO* RTO, a55 'urna9&! FONTANILLA, an! T0 0ONORA*L CO"RT OF A## AL$, respondents. G.R. No. L-30183 O.%o7&r 23, 19(8 M"NICI#ALITY OF MALA$I="I, petitioner, vs. RO$ALINA, ANG LINA, L ONAR+O, +"AR+O, ART MIO, ANG LITA, ANITA, RN $TO, NORMA, 1IRGINIA, R M +IO$ an! RO* RTO, a55 'urna9&! FONTANILLA, an! %/& 0onora75& CO"RT OF A## AL$, respondents. ,ulian M. Ar$as, Assistant .rovincial Fiscal for petitioners. 0sidro %. .adilla for respondents.

M"6O, #ALMA, J.2 %hese (etitions for revie& present the issue of &hether or not the celebration of a to&n fiesta authori-ed by a municipal council under ;ec. 22 2 of the +unicipal 'a& as embodied in the @evised Administrative Code is a *overnmental or a corporate or proprietary function of the municipality.

A resolution of that issue &ill lead to another, vi- the civil liability for dama*es of the +unicipality of +alasi4ui, and the members of the +unicipal Council of +alasi4ui, province of (an*asinan, for a death &hich occurred durin* the celebration of the to&n fiesta on January 22, 1959, and &hich &as attributed to the ne*li*ence of the municipality and its council members. %he follo&in* facts are not in dispute! On October 21, 195 , the +unicipal Council of +alasi4ui, (an*asinan, passed @esolution $o. 159 &hereby ,it resolved to mana*e the 1959 +alasi4ui to&n fiesta celebration on January 21, 22, and 2E, 1959., @esolution $o. 1 2 &as also passed creatin* the ,1959 +alasi4ui >%o&n 6iesta 9Aecutive Committee, &hich in turn or*ani-ed a sub3committee on entertainment and sta*e, &ith Jose +acarae* as Chairman. the council appropriated the amount of (1""."" for the construction of 2 sta*es, one for the ,-ar-uela, and another for the cancionan Jose +acarae* supervised the construction of the sta*e and as constructed the sta*e for the ,-ar-uela, &as ,53Q meters by meters in si-e, had a &ooden floor hi*h at the rear and &as supported by 25 bamboo posts 7 5 in a ro& in front, 5 in the rear and 5 on each side 7 &ith bamboo braces., 1 %he ,-ar-uela, entitled ,+idas 9Atrava*an-a, &as donated by an association of +alasi4ui employees of the +anila @ailroad Company in Caloocan, @i-al. %he troupe arrived in the evenin* of January 22 for the performance and one of the members of the *roup &as :icente 6ontanilla. %he pro*ram started at about 1"!15 o>cloc/ that evenin* &ith some speeches, and many persons &ent up the sta*e. %he ,-ar-uela, then be*an but before the dramatic part of the play &as reached, the sta*e collapsed and :icente 6ontanilla &ho &as at the rear of the sta*e &as pinned underneath. 6ontanilia &as ta/en to tile ;an Carlos #eneral 1ospital &here he died in the afternoon of the follo&in* day. %he heirs of :icente 6ontanilia filed a complaint &ith the Court of 6irst 2nstance of +anila on ;eptember 11, 1959 to recover dama*es. $amed party3defendants &ere the +unicipality of +alasi4ui, the +unicipal Council of +alasi4ui and all the individual members of the +unicipal Council in 1959. Ans&erin* the complaint defendant municipality invo/ed inter alia the principal defense that as a le*ally and duly or*ani-ed public corporation it performs soverei*n functions and the holdin* of a to&n fiesta &as an eAercise of its *overnmental functions from &hich no liability can arise to ans&er for the ne*li*ence of any of its a*ents. %he defendant councilors inturn maintained that they merely acted as a*ents of the municipality in carryin* out the municipal ordinance providin* for the mana*ement of the to&n fiesta celebration and as such they are li/e&ise not liable for dama*es as the underta/in* &as not one for profitD furthermore, they had eAercised due care and dili*ence in implementin* the municipal ordinance. 2 After trial, the (residin* Jud*e, 1on. #re*orio %. 'antin narro&ed the issue to &hether or not the defendants eAercised due dili*ence >m the construction of the sta*e. 6rom his findin*s he arrived at the conclusion that the 9Aecutive Committee appointed by the municipal council had eAercised due dili*ence and care li/e a *ood father of the family in selectin* a competent man to construct a sta*e stron* enou*h for the occasion and that if it collapsed that &as due to forces beyond the control of the committee on entertainment, conse4uently, the defendants &ere not liable for dama*es for the death of :icente 6ontanilla. %he complaint &as accordin*ly dismissed in a decision dated July 1", 19F2. 3 %he 6ontanillas appealed to the Court of Appeals. 2n a decision (romul*ated on October E1, 19F , the Court of Appeals throu*h its 6ourth 0ivision composed at the time of Justices ;alvador :. 9s*uerra, $icasio A. =atco and 9ulo*io ;. ;errano reversed the trial court>s decision and ordered all the defendants3appellees to pay .ointly and severally the heirs of :icente 6ontanilla the sums of (12,"""."" by &ay of moral and actual dama*es! (12""."" its attorney>s feesD and the costs. ) %he case is no& before 8s on various assi*nments of errors all of &hich center on the proposition stated at the sentence of this Opinion and &hich <e repeat! 2s the celebration of a to&n fiesta an underta/in* in the eAcercise of a municipality>s *overnmental or public function or is it or a private or proprietary characterJ 1. 8nder (hilippine la&s municipalities are political bodies corporate and as such a* endo&ed &ith the faculties of municipal corporations to be eAercised by and throu*h their respective municipal *overnments in conformity &ith la&, and in their proper corporate name, they may inter alia sue and be sued, and contract and be contracted &ith. 5 %he po&ers of a municipality are t&ofold in character public, *overnmental or political on the one hand, and corporate, private, or proprietary on the other. #overnmental po&ers are those eAercised by the corporation in administerin* the po&ers of the state and promotin* the public &elfare and they include the le*islative, .udicial public, and political +unicipal po&ers on the other hand are eAercised for the special benefit and advanta*e of the community and include those &hich are ministerial private and corporate. 6 As to &hen a certain activity is *overnmental and &hen proprietary or private, that is *enerally a difficult matter to determine. %he evolution of the municipal la& in American Jurisprudence, for instance, has sho&n thatD none of the tests &hich have evolved and are stated in teAtboo/s have set do&n a conclusive principle or rule, so that each case &ill have to be determined on the basis of attendin* circumstances. 2n +cKuillin on +unicipal Corporations, the rule is stated thus! ,A municipal corporation proper has ... a public character as re*ards the state at lar*e insofar as it is its a*ent in *overnment, and private Bso3calledC insofar as it is to promote local necessities and conveniences for its o&n community. (

Another statement of the test is *iven in City of =o"o$o v. %oy, decided by the ;upreme Court of 2ndiana in 191F, thus! +unicipal corporations eAist in a dual capacity, and their functions are t&o fold. 2n one they eAercise the ri*ht sprin*in* from soverei*nty, and &hile in the performance of the duties pertainin* thereto, their acts are political and *overnmental %heir officers and a*ents in such capacity, thou*h elected or appointed by the are nevertheless public functionaries performin* a public service, and as such they are officers, a*ents, and servants of the state. 2n the other capacity the municipalities eAercise a private. proprietary or corporate ri*ht, arisin* from their eAistence as le*al persons and not as public a*encies. %heir officers and a*ents in the performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and not for the state or soverei*n po&er. B112 $. 9 9953995C 2n the early (hilippine case of Mendoza v. de %eon 191F, the ;upreme Court, throu*h Justice #rant %. %rent, relyin* mainly on American Jurisprudence classified certain activities of the municipality as *overnmental, e.*.! re*ulations a*ainst fire, disease, preservation of public peace, maintenance of municipal prisons, establishment of schools, post3offices, etc. &hile the follo&in* are corporate or proprietary in character, vi-! municipal &ater&or/, slau*hter houses, mar/ets, stables, bathin* establishments, &harves, ferries, and fisheries. 8 +aintenance of par/s, *olf courses, cemeteries and airports amon* others, are also reco*ni-ed as municipal or city activities of a proprietary character. 9 2. %his distinction of po&ers becomes important for purposes of determinin* the liability of the municipality for the acts of its a*ents &hich result in an in.ury to third persons. 2f the in.ury is caused in the course of the performance of a *overnmental function or duty no recovery, as a rule, can be. had from the municipality unless there is an eAistin* statute on the matter, 10 nor from its officers, so lon* as they performed their duties honestly and in *ood faith or that they did not act &antonly and maliciously. 11 2n .alafo1, et al., v. .rovince of 0locos 5orte, et al., 195 , a truc/ driver employed by the provincial *overnment of 2locos $orte ran over (roceto (alafoA in the course of his &or/ at the construction of a road. %he ;upreme Court in affirmin* the trial court>s dismissal of the complaint for dama*es held that the province could not be made liable because its employee &as in the performance of a *overnmental function 7 the construction and maintenance of roads 7 and ho&ever tra*ic and deplorable it may be, the death of (alafoA imposed on the province no duty to pay monetary consideration. 12 <ith respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons e1 contract 13 or e1 delicto. 1) +unicipal corporations are sub.ect to be sued upon contracts and in tort. ... AAA AAA AAA %he rule of la& is a *eneral one, that the superior or employer must ans&er civilly for the ne*li*ence or &ant of s/ill of its a*ent or servant in the course or fine of his employment, by &hich another, &ho is free from contributory fault, is in.ured. +unicipal corporations under the conditions herein stated, fall &ithin the operation of this rule of la&, and are liable, accordin*ly, to civil actions for dama*es &hen the re4uisite elements of liability co3eAist. ... B0illon on +unicipal Corporations, 5th ed. ;ec. 1F1",1F57, cited in +endo-a v. de 'eon, supra. 515C E. Comin* to the cam before 8s, and applyin* the *eneral tests *iven above, <e hold that the ho of the to&n fiesta in 1959 by the municipality of +alsi4ui (an*asinan &as an eAercise of a private or proprietary function of the municipality. ;ection 22 2 of the Chatter on +unicipal 'a& of the @evised Administrative Code provides! ;ection 22 2. Celebration of fiesta. > fiesta may be held in each municipality not oftener than once a year upon a date fiAed by the municipal council A fiesta s not be held upon any other date than that la&fully fiAed therefor, eAcept &hen, for &ei*hty reasons, such as typhoons, foundations, earth4ua/es, epidemics, or other public ties, the fiesta cannot be hold in the date fiAed in &hich case it may be held at a later date in the same year, by resolution of the council. %his provision simply *ives authority to the municipality to accelebrate a yearly fiesta but it does not impose upon it a duty to observe one. 1oldin* a fiesta even if the purpose is to commemorate a reli*ious or historical event of the to&n is in essence an act for the special benefit of the community and not for the *eneral &elfare of the public performed in pursuance of a policy of the state. %he mere fact that the celebration, as claimed &as not to secure profit or *ain but merely to provide entertainment to the to&n inhabitants is not a conclusive test. 6or instance, the maintenance of par/s is not a source of income for the nonetheless it is private underta/in* as distin*uished from the maintenance of public schools, .ails, and the li/e &hich are for public service. As stated earlier, there can be no hard and fast rule for purposes of determinin* the true nature of an underta/in* or function of a municipalityD the surroundin* circumstances of a particular case are to be considered and &ill be decisive. %he basic element, ho&ever beneficial to the public the underta/in* may be, is that it is *overnmental in essence, other&ise. the function becomes private or proprietary in character. 9asily, no overnmental or public policy of the state is involved in the celebration of a to&n fiesta. 15 5. 2t follo&s that under the doctrine of respondent superior, petitioner3municipality is to be held liable for dama*es for the death of :icente 6ontanilia if that &as at3 tributable to the ne*li*ence of the municipality>s officers, employees, or a*ents.

Art. 217F, Civil Code! <hoever by act or omission causes dama*e to another, there bein* fault or ne*li*ence, is obli*ed to pay for the dama*e done. . . Art. 21 ", Civil Code! %he obli*ation imposed by article 217F is demandable not only for one>s o&n acts or omission, but also for those of persons for &hom one is responsible. . . On this point, the Court of Appeals found and held that there &as ne*li*ence. %he trial court *ave credence to the testimony of An*el $ovado, a &itness of the defendants Bno& petitionersC, that a member of the ,eAtrava*an-a troupe removed t&o principal braces located on the front portion of the sta*e and u them to han* the screen or ,telon,, and that &hen many people &ent up the sta*e the latter collapsed. %his testimony &as not believed ho&ever by respondent appellate court, and ri*htly so. Accordin* to said defendants, those t&o braces &ere ,mother, or ,principal, braces located semi3dia*onally from the front ends of the sta*e to the front posts of the tic/et booth located at the rear of the sta*e and &ere fastened &ith a bamboo t&ine. 16 %hat bein* the case, it becomes incredible that any person in his ri*ht mind &ould remove those principal braces and leave the front portion of the sta*e practically unsuported +oreover, if that did happen, there &as indeed ne*li*ence as there &as lac/ of suspension over the use of the sta*e to prevent such an occurrence. At any rate, the *uitarist &ho &as pointed to by $ovado as the person &ho removed the t&o bamboo braces denied havin* done *o. %he Court of Appeals said ,Amor by himself alone could not have removed the t&o braces &hich must be about ten meters lon* and fastened them on top of the sta*s for the curtain. %he sta*e &as only five and a half meters &ide. ;urely, it, &ould be impractical and un&ieldy to use a ten meter bamboo pole, much more t&o poles for the sta*e curtain. 1( %he appellate court also found that the sta*e &as not stron* enou*h considerin* that only (1""."" &as appropriate for the construction of t&o sta*es and &hile the floor of the ,-ar-uela, sta*e &as of &ooden plan/s, the (ost and braces used &ere of bamboo material <e li/e&ise observe that althou*h the sta*e &as described by the (etitioners as bein* supported by ,25, posts, nevertheless there &ere only 5 in front, 5 at the rear, and 5 on each side. <here &ere the restJ %he Court of Appeals thus concluded %he court a <uo itself attributed the collapse of the sta*e to the *reat number of onloo/ers &ho mounted the sta*e. %he municipality andNor its a*ents had the necessary means &ithin its command to prevent such an occurrence. 1avin* filed to ta/e the necessary steps to maintain the safety of the sta*e for the use of the participants in the sta*e presentation prepared in connection &ith the celebration of the to&n fiesta, particularly, in preventin* non participants or spectators from mountin* and accumulatin* on the sta*e &hich &as not constructed to meet the additional &ei*ht3 the defendant3appellees &ere ne*li*ent and are liable for the death of :icente 6ontanilla . Bpp. E"3E1, rollo, '32999EC %he findin*s of the respondent appellate court that the facts as presented to it establish ne*li*ence as a matter of la& and that the +unicipality failed to eAercise the due dili*ence of a *ood father of the family, &ill not disturbed by 8s in the absence of a clear sho&in* of an abuse of discretion or a *ross misapprehension of facts., 18 'iability rests on ne*li*ence &hich is ,the &ant of such care as a person of ordinary prudence &ould eAercise under the circumstances of the case., %hus, private respondents ar*ue that the ,+idas 9Atrava*an-a, &hich &as to be performed durin* the to&n fiesta &as a ,donation, offered by an association of +alasi4ui employees of the +anila @ailroad Co. in Caloocan, and that &hen the +unicipality of +alasi4ui accepted the donation of services and constructed precisely a ,-ar-uela sta*e, for the purpose, the participants in the sta*e sho& had the ri*ht to eApect that the +unicipality throu*h its ,Committee on entertainment and sta*e, &ould build or put up a sta*e or platform stron* enou*h to sustain the &ei*ht or burden of the performance and ta/e the necessary measures to insure the personal safety of the participants. 20 <e a*ree. Kuite relevant to that ar*ument is the American case of Sanders v. City of %ong -each, 1952, &hich &as an action a*ainst the city for in.uries sustained from a fall &hen plaintiff &as descendin* the steps of the city auditorium. %he city &as conductin* a ,?no& your City <ee/, and one of the features &as the sho&in* of a motion picture in the city auditorium to &hich the *eneral public &as invited and plaintiff ;anders &as one of those &ho attended. 2n sustainin* the a&ard for 0ama*es in favor of plaintiff, the 0istrict Court of Appeal, ;econd district, California, held inter alia that the ,?no& your City <ee/, &as a ,proprietary activity, and not a ,*overnmental one, of the city, that defendant o&ed to plaintiff, an invitee the duty of eAercisin* ordinary care for her safety, and plaintiff &as entitled to assume that she &ould not be eAposed to a dan*er B&hich in this case consisted of lac/ of sufficient illumination of the premisesC that &ould come to her throu*h a violation of defendant duty. 21 <e can say that the deceased :icente 6ontanilla &as similarly situated as ;ander %he +unicipality of +alasi4ui resolved to celebrate the to&n fiesta in January of 1959D it created a committee in char*e of the entertainment and sta*eD an association of +alasi4ui residents responded to the call for the festivities and volunteered to present a sta*e sho&D :icente 6ontanilla &as one of the participants &ho li/e ;anders had the ri*ht to eApect that he &ould be eAposed to dan*er on that occasion. 'astly, petitioner or appellant +unicipality cannot evade ability andNor liability under the c that it &as Jose +acarae* &ho constructed the sta*e. %he municipality actin* throu*h its municipal council appointed +acarae* as chairman of the sub3committee on entertainment and in char*e of the construction of the ,-ar-uela, sta*e. +acarae* acted merely as an a*ent of the +unicipality. 8nder the doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the ne*li*ence of its a*ent actin* &ithin his assi*ned tas/s. 22
19

... &hen it is sou*ht to render a municipal corporation liable for the act of servants or a*ents, a cardinal in4uiry is, &hether they are the servants or a*ents of the corporation. 2f the corporation appoints or elects them, can control them in the dischar*e of their duties, can continue or remove the can hold them responsible for the manner in &hich they dischar*e their trust, and if those duties relate to the eAercise of corporate po&ers, and are for the benefit of the corporation in its local or special interest, they may .ustly be re*arded as its a*ents or servants, and the maAim of respondent superior applies., ... B0illon on +unicipal Corporations, 5th 9d., :ol 2:, p. 2 79C 5. %he remainin* 4uestion to be resolved centers on the liability of the municipal councilors &ho enacted the ordinance and created the fiesta committee. %he Court of Appeals held the councilors .ointly and solidarity liable &ith the municipality for dama*es under Article 27 of the Civil Code &hich provides that d any person sufferin* in* material or moral loss because a public servant or employee refuses or ne*lects, &ithout .ust cause to perform his official duty may file an action for dama*es and other relief at the latter. 23 2n their (etition for revie& the municipal councilors alle*e that the Court of Appeals erred in rulin* that the holdin* of a to&n fiesta is not a *overnmental function and that there &as ne*li*ence on their part for not maintainin* and supervisin* the safe use of the sta*e, in applyin* Article 27 of the Civil Code a*ainst them and in not holdin* Jose +acarae* liable for the collapse of the sta*e and the conse4uent death of :icente 6ontanilla. 2) <e a*ree &ith petitioners that the Court of Appeals erred in applyin* Article 27 of the Civil Code a*ainst the for this particular article covers a case of nonfeasance or non3performance by a public officer of his official dutyD it does not apply to a case of ne*li*ence or misfeasance in carryin* out an official duty. 2f <e are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned, it is because of a plain error committed by respondent court &hich ho&ever is not invo/ed in petitioners> brief. 2n Miguel v. The Court of appeal. et al., the Court, throu*h Justice, no& Chief Justice, 6red @ui- Castro, held that the ;upreme Court is vested &ith ample authority to revie& matters not assi*ned as errors in an appeal if it finds that their consideration and resolution are indispensable or necessary in arrivin* at a .ust decision in a *iven case, and that tills is author under ;ec. 7, @ule 51 of the @ules of Court. 25 <e believe that this pronouncement can &ell be applied in the instant case. %he Court of Appeals in its decision no& under revie& held that the celebration of a to&n fiesta by the +unicipality of +alasi4ui &as not a *overnmental function. <e upheld that rulin*. %he le*al conse4uence thereof is that the +unicipality stands on the same footin* as an ordinary private corporation &ith the municipal council actin* as its board of directors. 2t is an elementary principle that a corporation has a personality, separate and distinct from its officers, directors, or persons composin* it 26 and the latter are not as a rule co3responsible in an action for dama*es for tort or ne*li*ence culpa a4uilla committed by the corporation>s employees or a*ents unless there is a sho&in* of bad faith or *ross or &anton ne*li*ence on their part. 2( AAA AAA AAA %he ordinary doctrine is that a director, merely by reason of his office, is not personally ;table for the torts of his corporationD he +ust be sho&n to have personally voted for or other&ise participated in them ... 6letcher 9ncyclopedia Corporations, :ol EA Chapt 11, p. 2"7C Officers of a corporation >are not held liable for the ne*li*ence of the corporation merely because of their official relation to it, but because of some &ron*ful or ne*li*ent act by such officer amountin* to a breach of duty &hich resulted in an in.ury ... %o ma/e an officer of a corporation liable for the ne*li*ence of the corporation there must have been upon his part such a breach of duty as contributed to, or helped to brin* about, the in.uryD that is to say, he must be a participant in the &ron*ful act. ... Bpp. 2"73 2" , 0bid.C AAA AAA AAA 0irectors &ho merely employ one to *ive a fire&or/s Ambition on the corporate are not personally liable for the ne*li*ent acts of the eAhibitor. Bp. 211, 0bid.C On these people <e absolve 8se municipal councilors from any liability for the death of :icente 6ontanilla. %he records do not sho& that said petitioners directly participated in the defective construction of the ,-ar-uela, sta*e or that they personally permitted spectators to *o up the platform. F. One last point <e have to resolve is on the a&ard of attorney>s fees by respondent court. (etitioner3municipality assails the a&ard. 8nder para*raph 11, Art. 22" of the Civil Code attorney>s fees and eApenses of liti*ation may be *ranted &hen the court deems it .ust and e4uitable. 2n this case of :icente 6ontanilla, althou*h respondent appellate court failed to state the *rounds for a&ardin* attorney>s fees, the records sho& ho&ever that attempts &ere made by plaintiffs, no& private respondents, to secure an eAtra.udicial compensation from the municipality! that the latter *ave prorases and assurances of assistance but failed to complyD and it &as only ei*ht month after the incident that the bereaved family of :icente 6ontanilla &as compelled to see/ relief from the courts to ventilate &hat &as believed to be a .ust cause. 28

<e hold, therefore, that there is no error committed in the *rant of attorney>s fees &hich after all is a matter of .udicial discretion. %he amount of (1,2""."" is fair and reasonable. (@9+2;9; CO$;209@90, <e A662@+ in toto the decision of the Court of Appeals insofar as the +unicipality of +alasi4ui is concerned B'3 E"1 EC, and <e absolve the municipal councilors from liability and ;9% A;209 the .ud*ment a*ainst them B'3999EC. <ithout pronouncement as to costs. ;O O@09@90, Teehan"ee 2Chair$an3, Ma"asiar, Fernandez, and 4uerrero, ,,., concur. G.R. No. (1159 No>&97&r 15, 1989 CITY OF MANILA, an! 1ANG LIN $"1A, petitioners, vs. 0ON. INT RM +IAT A## LLAT CO"RT, IR N $TO. +OMINGO an! :or an! 4n 7&/a5: o: /&r 94nor ./45!r&n, 1I1 NCIO, JR., IRI$, 1 RG L an! IM L+A, a55 'urna9&! $TO. +OMINGO, respondents. The City %egal 7fficer for petitioners. ,ose M. Castillo for respondents.

#ARA$, J.: %his is a petition for revie& on certiorari see/in* to reverse and set aside! BaC the 0ecision of the 2ntermediate Appellate Court no& Court of Appeals 1 promul*ated on +ay E1, 19 5 in AC3#.@. C: $o. ""F1E3@ entitled 0rene Sto. Do$ingo et al., v. City Court of Manila et al., modifyin* the decision of the then Court of 6irst 2nstance of +anila, )ranch :222 2 in Civil Case $o. 121921 orderin* the defendants Bherein petitioners,C to *ive plaintiffs Bherein private respondentsC the ri*ht to use a burial lot in the $orth Cemetery correspondin* to the uneApired term of the fully paid lease sued upon, to search the remains of the late :ivencio ;to. 0omin*o, ;r. and to bury the same in a substitute lot to be chosen by the plaintiffsD and BbC the @esolution of the Court of Appeals dated +ay 2 , 19 5 denyin* petitioner>s motion for reconsideration. As found by the Court of Appeals and the trial court, the undisputed facts of the case are as follo&s! )rou*ht on 6ebruary 22, 1979 by the &ido& and children of the late :ivencio ;to. 0omin*o, ;r. &as this action for dama*es a*ainst the City of +anilaD 9van*eline ;uva of the City 1ealth OfficeD ;er*io +allari, officer3in3char*e of the $orth CemeteryD and Joseph 1elmuth, the latter>s predecessor as officer3in3char*e of the said burial *rounds o&ned and operated by the City #overnment of +anila. :ivencio ;to. 0omin*o, ;r. deceased husband of plaintiff 2rene ;to. 0omin*o and father of the liti*atin* minors, died on June 5,1971 and buried on June F,1971 in 'ot $o. 159, )loc/ $o. 195 of the $orth Cemetery &hich lot &as leased by the city to 2rene ;to. 0omin*o for the period from June F, 1971 to June F, 2"21 per Official @eceipt $o. F1E"7 dated June F, 1971 Bsee 9Ah. AC &ith an eApiry date of June F, 2"21 Bsee 9Ah. A31C. 6ull payment of the rental therefor of (5"."" is evidenced by the said receipt &hich appears to be re*ular on its face. Apart from the aforementioned receipt, no other document &as eAecuted to embody such lease over the burial lot in 4uestion. 2n fact, the burial record for )loc/ $o. 195 of +anila $orth Cemetery Bsee 9Ah. 2C in &hich sub.ect 'ot $o. 159 is situated does not reflect the term of duration of the lease thereover in favor of the ;to. 0omin*os. )elievin* in *ood faith that, in accordance &ith Administrative Order $o. 5, ;eries of 1975, dated +arch F, 1975, of the City +ayor of +anila B;ee 9Ah. 1C prescribin* uniform procedure and *uidelines in the processin* of documents pertainin* to and for the use and disposition of burial lots and plots &ithin the $orth Cemetery, etc., sub.ect 'ot $o. 159 of )loc/ 195 in &hich the mortal remains of the late :ivencio ;to. 0omin*o &ere laid to rest, &as leased to the bereaved family for five B5C years only, sub.ect lot &as certified on January 25, 197 as ready for eAhumation. On the basis of such certification, the authorities of the $orth Cemetery then headed by defendant Joseph 1elmuth authori-ed the eAhumation and removal from sub.ect burial lot the remains of the late :ivencio ;to. 0omin*o, ;r., placed the bones and s/ull in a ba* or sac/ and /ept the same in the depository or bode*a of the cemetery y ;ubse4uently, the same lot in 4uestion &as rented out to another lessee so that &hen the plaintiffs herein &ent to said lot on All ;ouls 0ay in their shoc/, consternation and dismay, that the restin* place of their dear departed did not anymore bear the stone mar/er &hich they lovin*ly placed on the tomb. 2ndi*nant and dis*usted over such a sorro&ful findin*, 2rene ;to. 0omin*o lost no time in in4uirin* from the officer3in3char*e of the $orth Cemetery, defendant ;er*io +allari, and &as told that the remains of her late husband had been ta/en from the burial lot in 4uestion &hich &as *iven to another lessee.

2rene ;to. 0omin*o &as also informed that she can loo/ for the bones of her deceased husband in the &arehouse of the cemetery &here the eAhumed remains from the different burial lots of the $orth Cemetery are bein* /ept until they are retrieved by interested parties. )ut to the bereaved &ido&, &hat she &as advised to do &as simply unacceptable. Accordin* to her, it &as .ust impossible to locate the remains of her late husband in a depository containin* thousands upon thousands of sac/s of human bones. ;he did not &ant to run the ris/ of claimin* for the &ron* set of bones. ;he &as even offered another lot but &as never appeased. ;he &as too a**rieved that she came to court for relief even before she could formally present her claims and demands to the city *overnment and to the other defendants named in the present complaint. B0ecision, Court of Appeals, pp. 23ED @ollo, pp. E5355C %he trial court, on Au*ust 5, 19 1, rendered its 0ecision, the dispositive portion of &hich states! <19@96O@9, .ud*ment is hereby rendered, orderin* the defendants to *ive plaintiffs the ri*ht to ma/e use of another sin*le lot &ithin the $orth Cemetery for a period of forty3three B5EC years four B5C months and eleven B11C days, correspondin* to the uneApired term of the fully paid lease sued uponD and to search &ithout let up and &ith the use of all means humanly possible, for the remains of the late :ivencio ;to. 0omin*o, ;r. and thereafter, to bury the same in the substitute lot to be chosen by the plaintiffs pursuant to this decision. 6or &ant of merit, defendant>s counterclaim is 02;+2;;90. $o pronouncement as to costs. ;O O@09@90. B@ollo, p. E1C %he decision &as appealed to the Court of Appeals &hich on +ay E1, 19 5 rendered a decision B@ollo, pp. EE35"C modifyin* the decision appealed from, the dispositive portion of &hich reads! <19@96O@9, (@9+2;9; CO$;209@90, the decision appealed from is hereby @9:9@;90 Bis hereby modifiedC and another one is hereby entered! 1. @e4uirin* in full force the defendants to loo/ in earnest for the bones and s/ull of the late :ivencio ;to. 0omin*o, ;r., and to bury the same in the substitute lot ad.ud*ed in favor of plaintiffs hereunderD 2. Orderin* defendants to pay plaintiffs3appellants .ointly and severally (1","""."" for breach of contractD E. Orderin* defendants to pay plaintiffs3appellants, .ointly and severally, (2","""."" for moral dama*esD 5. Orderin* defendants to pay plaintiffs3appellants .ointly and severally, (2","""."" for eAemplary dama*esD 5. Orderin* defendants to pay plaintiffs3appellants, .ointly and severally, (1","""."" as and for attorney>s feesD F. Orderin* defendants, to pay plaintiffs3appellants, .ointly and severally, on the fore*oin* amounts le*al rate of interest computed from filin* hereof until fully paidD and 7. Orderin* defendants, to pay plaintiffs3appellants, .ointly and severally, the cost of suit. ;O O@09@90. B@ollo, p. 5"C %he petitioners> motion for reconsideration &as li/e&ise denied. 1ence, this instant petition B@ollo, pp. 7327C filed on July 27, 19 5. %he *rounds relied upon for this petition are as follo&s! 2 %19 1O$O@A)'9 2$%9@+902A%9 A((9''A%9 CO8@% 9@@90 2$ A<A@02$# 0A+A#9; A#A2$;% %19 (9%2%2O$9@; 19@92$, $O%<2%1;%A$02$# %192@ #OO0 6A2%1 A$0 %192@ 'AC? O6 ?$O<'90#9 O@ CO$;9$% %O %19 @9+O:A' O6 %19 ;?9'9%A' @9+A2$; O6 %19 'A%9 :2:9$C2O ;%O. 0O+2$#O, ;@. 6@O+ %19 ;8)J9C% )8@2A' 'O%. 22

%19 1O$. 2$%9@+902A%9 A((9''A%9 CO8@% 9@@90 2$ 1O'02$# (9%2%2O$9@; 19@92$ @9;(O$;2)'9 6O@ %19 A''9#90 %O@%; O6 %192@ ;8)O@02$A%9 O662C2A'; A$0 9+('O=99;, 2$;(2%9 O6 %19 (@O:2;2O$; O6 ;9C%2O$ 5 O6 %19 @9(8)'2C AC% $O. 5"9 B@9:2;90 C1A@%9@ O6 +A$2'AC A$0 O%19@ A(('2CA)'9 J8@2;(@809$C9 O$ %19 ;8)J9C% 9G9+(%2$# %19 (9%2%2O$9@; 6@O+ 0A+A#9; 6@O+ %19 +A'69A;A$C9 O@ +2;69A;A$C9 O6 %192@ O662C2A'; A$0 9+('O=99;, 26 %19@9 )9 A$= 2$ %12; CA;9. B)rief for (etitioners, @ollo, pp. 9E395C 2n the resolution dated $ovember 1E, 19 5 B,@ollo, p. 5C, the petition &as *iven due course. %he pivotal issue of this case is &hether or not the operations and functions of a public cemetery are a *overnmental, or a corporate or proprietary function of the City of +anila. %he resolution of this issue is essential to the determination of the liability for dama*es of the petitioner city. (etitioners alle*ed in their petition that the $orth Cemetery is eAclusively devoted for public use or purpose as stated in ;ec. E1F of the Compilation of the Ordinances of the City of +anila. %hey conclude that since the City is a political subdivision in the performance of its *overnmental function, it is immune from tort liability &hich may be caused by its public officers and subordinate employees. 6urther ;ection 5, Article 2 of the @evised Charter of +anila eAempts the city from liability for dama*es or in.uries to persons or property arisin* from the failure of the +ayor, the +unicipal )oard, or any other city officer, to enforce the provision of its charter or any other la&s, or ordinance, or from ne*li*ence of said +ayor, +unicipal )oard or any other officers &hile enforcin* or attemptin* to enforce said provisions. %hey alle*e that the @evised Charter of +anila bein* a special la& cannot be defeated by the 1uman @elations provisions of the Civil Code bein* a *eneral la&. (rivate respondents on the other hand maintain that the City of +anila entered into a contract of lease &hich involve the eAercise of proprietary functions &ith private respondent 2rene ;to. 0omin*o. %he city and its officers therefore can be sued for any3violation of the contract of lease. (rivate respondents> contention is &ell3ta/en. 8nder (hilippine la&s, the City of +anila is a political body corporate and as such endo&ed &ith the faculties of municipal corporations to be eAercised by and throu*h its city *overnment in conformity &ith la&, and in its proper corporate name. 2t may sue and be sued, and contract and be contracted &ith. 2ts po&ers are t&ofold in character3public, *overnmental or political on the one hand, and corporate, private and proprietary on the other. #overnmental po&ers are those eAercised in administerin* the po&ers of the state and promotin* the public &elfare and they include the le*islative, .udicial, public and political. +unicipal po&ers on the one hand are eAercised for the special benefit and advanta*e of the community and include those &hich are ministerial, private and corporate. 2n +cKuillin on +unicipal Corporation, the rule is stated thus! ,A municipal corporation proper has ... a public character as re*ards the state at lar*e insofar as it is its a*ent in *overnment, and private Bso calledC insofar as it is to promote local necessities and conveniences for its o&n community B%orio v. 6ontanilla, 5 ;C@A 599 H197 IC. 2n connection &ith the po&ers of a municipal corporation, it may ac4uire property in its public or *overnmental capacity, and private or proprietary capacity. %he $e& Civil Code divides such properties into property for public use and patrimonial properties BArticle 52EC, and further enumerates the properties for public use as provincial roads, city streets, municipal streets, the s4uares, fountains, public &aters, promenades, and public &or/s for public service paid for by said provisions, cities or municipalities, all other property is patrimonial &ithout pre.udice to the provisions of special la&s BArticle 525D (rovince of Mamboan*a del $orte v. City of Mamboan*a, et al., 22 ;C@A 1EE5 H19F IC. %hus in Torio v. Fontanilla, supra, the Court declared that &ith respect to proprietary functions the settled rule is that a municipal corporation can be held liable to third persons e1 contractu B+unicipality of +oncada v. Ca.ui*an, et al., 21 (hil. 1 5 B1912C or e1 delicto B+endo-a v. de 'eon, EE (hil. 5" B191FC. %he Court further stressed! +unicipal corporations are sub.ect to be sued upon contracts and in tort.... AAA AAA AAA %he rule of la& is a *eneral one, that the superior or employer must ans&er civilly for the negligence or !ant of s"ill of its agent or servant in the course or line of his e$ploy$ent, by !hich another !ho is free fro$ contributory fault, is in&ured. Municipal corporations under the conditions herein stated, fall !ithin tile operation of this rule of la!, and are liable accordingly, to civil actions for da$ages !hen the re<uisite ele$ents of liability co e1ist . ... B9mphasis suppliedC %he Court added! ... &hile the follo&in* are corporate or proprietary in character, vi-! municipal &ater&or/s, slau*hter houses, mar/ets, stables, bathin* establishments, &harves, ferries and fisheries. Maintenance of par"s, golf courses, ce$eteries and airports a$ong others, are also recognized as $unicipal or city activities of a proprietary character . B0ept. of %reasury v. City of 9vansvulle, ;up. Ct. of 2ndiana, F" $.9. 2nd 952, 955 cited in %orio v. 6ontanilla, supraC B9mphasis suppliedC 8nder the fore*oin* considerations and in the absence of a special la&, the $orth Cemetery is a patrimonial property of the City of +anila &hich &as created by resolution of the +unicipal )oard of Au*ust 27, 19"E and January 7, 19"5 B(etition, @ollo pp. 2"321 Compilation of the Ordinances of the City of +anilaC. %he administration and *overnment of the cemetery are under the City 1ealth Officer B 0bid., ;ec. E1 9C, the order and police of the

cemetery B0bid., ;ee. E19C, the openin* of *raves, niches, or tombs, the eAhumin* of remains, and the purification of the same B 0bid., ;ec. E27C are under the char*e and responsibility of the superintendent of the cemetery. %he City of +anila furthermore prescribes the procedure and *uidelines for the use and dispositions of burial lots and plots &ithin the $orth Cemetery throu*h Administrative Order $o. 5, s. 1975 B@ollo, p. 55C. <ith the acts of dominion, there is, therefore no doubt that the $orth Cemetery is &ithin the class of property &hich the City of +anila o&ns in its proprietary or private character. 6urthermore, there is no dispute that the burial lot &as leased in favor of the private respondents. 1ence, obli*ations arisin* from contracts have the force of la& bet&een the contractin* parties. %hus a lease contract eAecuted by the lessor and lessee remains as the la& bet&een them. B1enson v. 2ntermediate Appellate Court, 15 ;C@A 11 H1 9 7IC. %herefore, a breach of contractual provision entitles the other party to dama*es even if no penalty for such breach is prescribed in the contract. B)oysa& v. 2nterphil (romotions, 2nc., 15 ;C@A FE5 H19 7IC. $ote&orthy are the findin*s of the Court of Appeals as to the harro&in* eAperience of private respondents and their &ounded feelin*s upon discovery that the remains of their loved one &ere eAhumed &ithout their /no&led*e and consent, as said Court declared! 2t has been fully established that the appellants, in spite or perhaps because, of their lo&ly station in life have found *reat consolation in their bereavement from the loss of their family head, by visitin* his *rave on special or even ordinary occasions, but particularly on All ;aints 0ay, in /eepin* &ith the deep, beautiful and Catholic 6ilipino tradition of reverin* the memory of their dead. 2t &ould have been but fair and e4uitable that they &ere notified of the intention of the city *overnment to transfer the s/eletal remains of the late :ivencio ;to. 0omin*o to *ive them an opportunity to demand the faithful fulfillment of their contract, or at least to prepare and ma/e provisions for said transfer in order that they &ould not lose trac/ of the remains of their beloved dead, as &hat has actually happened on this case. <e understand fully &hat the family of the deceased must have felt &hen on All ;aints 0ay of 197 , they found a ne& mar/er on the *rave they &ere to visit, only to be told to locate their beloved dead amon* thousands of s/eletal remains &hich to them &as desecration and an impossible tas/. 9ven the lo&er court reco*ni-ed this &hen it stated in its decision thus! All thin*s considered, even as the Court commiserates &ith plaintiffs for the unfortunate happenin* complained of and untimely desecration of the restin* place and remains of their deceased dearly beloved, it finds the reliefs prayed for by them lac/in* in le*al and factual basis. 8nder the aforementioned facts and circumstances, the most that plaintiffs ran as/ for is the replacement of sub.ect lot &ith another lot of e4ual si-e and similar location in the $orth Cemetery &hich substitute lot plaintiffs can ma/e use of &ithout payin* any rental to the city *overnment for a period of forty3three B5EC years, four B5C months and eleven B11C days correspondin* to the uneApired portion of the term of the lease sued upon as of January 25, 197 &hen the remains of the late :ivencio ;to. 0omin*o, ;r. &ere prematurely removed from the disputed lotD and to re4uire the defendants to loo/ in earnest for the bones and s/ull of the late :ivencio ;to. 0omin*o ;r. and to bury the same in the substitute lot ad.ud*ed in favor of plaintiffs hereunder. B0ecision, 2ntermediate Appellate Court, p. 7, @ollo, p. E9C As re*ards the issue of the validity of the contract of lease of *rave lot $o. 159, )loc/ $o. 195 of the $orth Cemetery for 5" years be*innin* from June F, 1971 to June F, 2"21 as clearly stated in the receipt duly si*ned by the deputy treasurer of the City of +anila and sealed by the city *overnment, there is nothin* in the record that .ustifies the reversal of the conclusion of both the trial court and the 2ntermediate Appellate Court to the effect that the receipt is in itself a contract of lease. B0ecision, 2ntermediate Appellate Court, p. E, @ollo, pp. 53FC. 8nder the doctrine of respondent superior, B%orio v. 6ontanilla, supraC, petitioner City of +anila is liable for the tortious act committed by its a*ents &ho failed to verify and chec/ the duration of the contract of lease. %he contention of the petitioner3city that the lease is covered by Administrative Order $o. 5, series of 1975 dated +arch F, 1975 of the City of +anila for five B5C years only be*innin* from June F, 1971 is not meritorious for the said administrative order covers ne& leases. <hen sub.ect lot &as certified on January 25, 197 as ready for eAhumation, the lease contract for fifty B5"C years &as still in full force and effect. (@9+2;9; CO$;209@90, the 0ecision of the 2ntermediate Appellate Court is hereby A662@+90. ;O O@09@90. .adilla, Sar$iento and Regalado, ,,., concur. Melencio 8errera 2Chairperson3, ,., is on leave. G.R. No'. L-13012 an! L-1)(86 +&.&97&r 31, 1960

T0 CITY OF C *", petitioner, vs. J"+G +M"N+O $. #ICCIO, o: %/& Cour% o: F4r'% In'%an.& o: C&7u, an! ANACL TO CA*ALL RO, respondents. 33333333333333333333333333333333333333

T0 CITY OF C *", plaintiff3appellant, vs. ANACL TO CA*ALL RO, defendant3appellee. 6$ilio A. Matheu for respondent and appellee A. Caballero.

#AR + $, J.: On April 11, 1955, Anacleto Caballero filed &ith the C62 of Cebu BCivil Case $o. @3E951C, a petition for Manda$us a*ainst the City +ayor, the +unicipal )oard, the City, for reinstatement to his former position of Careta/er, Operation of Cemeteries, and for the payment of his bac/ salaries from April 15, 195E. On Au*ust F, 1955, the 1on. 9dmundo (iccio, rendered the follo&in* .ud*ement! 2$ :29< %19@9O6, this Court hereby decides that this petition is in order and conse4uently orders for the reinstatement of petitioner Caballero to his former position from &hich he has been separated &ithout benefit of an investi*ation and determination of sufficient cause, and &as thus contrary to the eAistin* la& and re*ulations, such reinstatement to be affected &ithin E" days from receipt of this order plus the payment of his bac/ salaries from April 15, 195E. $o appeal had been ta/en by the respondent therein and the above .ud*ment became final. 8pon motion of petitioner therein BCaballeroC, a &rit of eAecution &as issued. (ursuant to the &rit, the municipal board of Cebu City passed a resolution, appropriatin* the amount of (E,225."" for the payment of the bac/ salaries of Caballero. @espondent City +ayor Jose :. @odri*ue- approved the resolution and the amount &as paid to Caballero. Caballero not havin* been reinstated, not&ithstandin* the abolition of his position, Jud*e (iccio issued an order dated Au*ust 27, 195 , directin* the municipal board to recreate Caballero>s position as Careta/er, &ith compensation of (5."" per day. As the municipal board did not comply &ith order, on ;eptember 11, 1957, Caballero filed a motion, as/in* for an order to compel the members of the board to do so. %he City +ayor, members of the board, the treasure and the Auditor, ans&erin* the motion for compliance, alle*ed that the City of Cebu, not havin* been made a party to the case BManda$usC, compulsion &ould be ille*al and un&arranted under the facts obtainin*. %he lo&er court entered, on October 11, 1957, the follo&in* Order! 2$ :29< %19@9O6, the Court, amendin* its ori*inal order of reinstatement by eAcludin* therefrom petitioner>s ri*ht to reimbursement of his bac/ salaries from June E", 1955 to the date of his reinstatement, hereby directs that its order of Au*ust 2 , 1957, directin* respondent +unicipal )oard to recreate the petitioner>s position as careta/er of the cemetery of Cebu, Cebu City, &ith compensation at the rate of (5."" a day includin* ;undays and holidays be carried out &ithin 5 days from receipt of this order, or the Court shall avail itself of its coercive po&ers to enforce said directive until it is obeyed. %he City of Cebu eAception from the above order and on October 1 , 1957, filed a petition for Certiorari &ith this Court B#.@. $o. '31E"12C, to restrain Caballero and .ud*ment. )efore the termination of the +andamus proceedin*s, on October 2, 1957, the City of Cebu, claimin* that the payment of the sum of (E,225."" to Caballero &as &ron*ful and ille*al, since it &as not a party to the case, instituted an action BCivil Case $o. @3525EC a*ainst said Caballero, for the recovery of the same amount, plus (25,"""."" by &ay of compensatory, moral and eAemplary dama*es. 2nstead of ans&erin*, Caballero on October 29, 1957, moved to dismiss the complaint for alle*ed failure to state a cause of action. %o buttress his motion, Caballero cited a number of cases decided by this Court, orderin* the payment of bac/ salaries of employees ille*ally ousted, even thou*h the municipality andNor city concerned &as not impleaded.B+ission et al. vs. 0el @osario, et al., 95 (hil., 5 ED 5" Off., #a-., $o. 5,1571D 8y vs. @odri*ue-, 95 (hil., 59ED 5" Off. #a-., $o. , E575D @odri*ue- vs. 0el @osario et al., 9E (hil., 1"7"D 59 Off. #a-., H12I 5527D +anuel vs. 0e la 6uente, 92 (hil., E"2D 5 Off. #a-., $o. 11, 5 293 E2C. An ans&er to the +otion to 0ismiss &as presented by the City of Cebu on October E", 1957, invo/in* ;ection 5 of the Charter for the said City, eAemptin* the City #overnment from any liability for dama*es or in.uries to person or property arisin* from the failure of the +ayor, the +unicipal )oard, or any other city officer, to enforce the provisions of the Charter, or any other la& or ordinance, or from ne*li*ence of the said officials andNor officers &hile enforcin* or attemptin* to enforce the said provisions. Cited in support of this Ans&er &ere cases decided by this Court, dismissin* them for failure to include the municipal corporations concerned BCabanes, et al. vs. @odri*ue-, et al., #.@. $o. '39799, +ay E1, 1957D Cabo ?ho vs. @odri*ue-, et al., #.@. $o. '39"E2, ;ept. 2 , 1957D City of )acolod vs. 9nri4ue-, et al., 1"1 (hil., F55D 55 Off. #a-., H51I 1"555D An*ara vs. #orospe, 1"1 (hil., 79D 5E Off. #a-. H15I 55 "C.la!phil.net On 0ecember E, 1957, the C62 of Cebu, presided by Jud*e @odri*ue- entered an order dismissin* the complaint. %he City of Cebu appealed the order directly to this Court, Bno& #.@. $o. '315 7FC, claimin* that the lo&er court erredDB1C in overloo/in* the fact that the City of Cebu &as never made a party in the mandamus case BCivil $o. @3E951C, so that it could not be bound by the .ud*ment therein enteredD B2C in i*norin* the provisions of section 5 of the Charter of the City of Cebu, as interpreted and applied in the case of 6aunillan vs. 0el @osario, et al, 99 (hil., 75 D Off. #a-. HE1I 5 15D andBEC in dismissin* the case. %he issues involved in the petition for certiorari and the appeal are identical. )oth cases pose the follo&in* 4uestions! B1C 0oes the non3inclusion of the City of Cebu in the +andamus case, ma/e the payment of the bac/ salaries of Caballero &ron*ful or ille*al and not bindin* on said CityD and B2C 2s the dismissal of the recovery case, &ell ta/enJ

<hile the petition is desi*nated as certiorari, there is, ho&ever, no alle*ation therein re*ardin* the lac/ or eAcess of .urisdiction or *rave abuse of discretion, committed by the respondent court &hich constitute precisely the basis of this /ind of action. 6urthermore, the appropriate remedy a*ainst the decision andNor orders complained of is appeal, if properly and timely, &hich petitioners herein did not interpose. 2t seems that the complaint to refund is predicated upon the follo&in* provisions of the Civil Code! Art. 2155. 2f somethin* is received &hen there is no ri*ht to demand it, and it &as unduly delivered throu*h mista/e, the obli*ation to return it arises. Considerin* that the indispensable re4uisites of this .uridical relation, /no&n as solutio indebiti, are BaC that he &ho paid &as not under obli*ation to do soD and BbC that the payment &as made by reason of an essential mista/e of fact B1os/yn vs. %he #oodyear %ire, etc., CA, 5" Off. #a-., ;upp. 11, 255D :ele- vs. )al-ar-a, 7E (hil., FE"C, &e are of the belief that the complaint &as correctly dismissed. 2t is fully established that Caballero had the perfect ri*ht to demand for the payment of his bac/ salaries durin* his ille*al dismissal, that the sum of (E,225."" &as paid to Caballero by virtue of a &rit of eAecution la&fully issuedD and that the payment &as not made throu*h mista/e. On this score, alone, it &ould appear manifest that the complaint does not state a cause of action. %he 4uestion of &hether the City of Cebu &as a party or not in the mandamus case becomes unimportant, as it is immaterial. 2t is true that in the mandamus case, only, the City +ayor, the +unicipal )oard, the City %reasurer, and the City Auditor, of Cebu City &ere included in the order of the eAecution of the .ud*ment, but &e have declared that a municipal corporation &hether included or not in the complaint for the recovery of bac/ salaries due to &ron*ful removal from office, is liable. 2n the case of +an*ubat vs. OsmeOa, #.@. $o. '312 E7, April E", 1959, a rulin* &as enunciated, thus! %he necessity of ma/in* the City a respondent herein is based upon its ri*ht to defend itself, as demanded by the re4uirements of due process. 1o&ever, these re4uirements have been substantially complied &ith in the case at bar. %he parties herein have handled the case, and the same &as heard and decided in the lo&er court, as if the City had been named respondent in the pleadin*s. %he officer re4uired by la& ,to cause to be defended all suits a*ainst the City,, its +ayor B;ec. , Common&ealth Act $o. 5 C, is respondent in his official capacity. %he officer char*ed &ith the duty to represent the City ,in all civil cases &herein the City . . . is a party, 7 to &it, its city attorney B;ec. 17, Common&ealth Act $o. 5 C 7 counsel for respondents herein. 2n addition thereto, the auditor, the treasurer, and even the municipal board of the City of Cebu, are parties respondents. %here is no reason to believe that these officers and the City +ayor &ould have eAerted *reater effort, than those already displayed by them, in protectin* the interests of the City of Cebu, &here it formally a respondent therein. 2ndeed, it is only lo*ical to eApect that, havin* been individually named as respondents, said officers, must have ta/en as much concern if not more, in &ardin* off petitioner>s claim. 8nder the fore*oin* circumstances, &e &ould be subordinatin* the substance to the form if the action for mandamus 7 insofar as the claim for bac/ salaries is concerned 7 &ere, either dismissed, or remanded to the lo&er court, for the correspondin* amendment of the pleadin* and a repetition of the proceedin*s held for the last five B5C years, in order to reach the same decision rendered by the lo&er court and the same conclusions set forth in this decision, as re*ards the substansive ri*hts of the parties. 0t is our considered opinion, therefore, that the ends of &ustice and e<uity !ould be served best if the inclusion of the City of Cebu, as one of the respondents herein, !ere considered a $ere for$ality and dee$ed effective, as if a for$al a$end$ent of the pleadings had been $ade . B9mphasis suppliedC &hich &as reiterated in the case of Discano, et al. vs. 4at$aitan, et al., 1"9 (hil., 91 D F" Off. #a-., H52I F7 F. <e find no plausible reason for disre*ardin* the above rulin* on a procedural matter, /no&in* as &e do, that after all, the obli*ation to pay the bac/ salary of Caballero, cannot be eluded and the officer concerned in the City of Cebu &ill have to pay it anyho&, in his official capacity. <hen a .ud*ment is rendered a*ainst an officer of a municipal corporation &ho sues or is sued in his official capacity, the .ud*ment is bindin* upon the corporation, upon the other officers of the municipal corporation &ho represent the same interest and the effect of .ud*ment a*ainst a municipal officer is not lost by a chan*e in the occupant of the office. BE Am. Jur. sec. 727, pp. 5E13E2C. <e are not unmindful of the pronouncement in the 6aunillan case BsupraC but the same is evidently predicated upon a different set of facts. 6urthermore, it &ould seem that the City of Cebu in the case at bar, had already &aived the ri*hts and benefits afforded by section 5 of the Cebu City Charter, by and throu*h the acts of its a*ents, the officers3 respondents in the mandamus case, by appropriatin* funds and payin* Caballero &ith them. %he la&ful act of these officers &ithin the scope of their authority is deemed the act of the principal, the City of Cebu. 2n vie& hereof, the petition for certiorari is dismissed for lac/ of merits and the order of dismissal of the complaint, ob.ect of the appeal, is affirmed. Costs is taAed a*ainst the petitioners and the appellant City of Cebu, in both cases and in both instances. ;o ordered. -engzon, .adilla, -autista Angelo, Reyes, ,. -. %., -arrera, and 4utierrez David, ,,., concur. G.R. No. L-28353 $&3%&97&r 30, 198( $OLANO LAGANA#AN, petitioner, vs. Mayor L#I+IO A$ +ILLO, M"NICI#ALITY OF ?ALAYAAN, LAG"NA, an! #IFANIO RAGOT RO, respondents.

#A+ILLA, J.: %his is an appeal from the .ud*ment, - dated 1F October 19F7, of the Court of 6irst 2nstance of 'a*una in Civil Case $o. ;C3719, &hich ordered the respondents to reinstate the petitioner to his former position of chief of police of ?alayaan, 'a*una, &ith bac/ salaries from his dismissal up to his actual reinstatement. %he facts are not disputed. %he petitioner ;olano 'a*anapan &as appointed chief of police of the municipality of ?alayaan, 'a*una on 5 January 19F", &ith a compensation of (FF"."" per annum, by the respondent +ayor Asedillo. On 1 July 19F", his salary &as increased to (72"."" per annum, and he &as eAtended an appointment &hich &as approved as provisional under ;ec. 25BcC of @epublic Act $o. 22F" by the Commissioner of Civil ;ervice. 1 On 1 April 19F2, the petitioner &as *iven another increase in salary and a correspondin* appointment &as made &hich the Commissioner of Civil ;ervice ,approved under ;ec. 25BcC of @epublic Act $o. 22F", to continue until replaced by an eli*ible but not beyond thirty BE"C days from receipt of certification of eli*ibles by the (rovincial %reasurer of 'a*una., 2 %hen, on 1 July 19FE, 1 July 19F5, and 1 July 19F5, he &as a*ain *iven salary increases, and ne& appointments &ere eAtended to him, &hich appointments &ere also approved under ;ection 25BcC of @epublic Act $o. 22F" by the Commissioner ofCivil ;ervice. 3 1o&ever, on 1F 6ebruary 19F7, the petitioner &as summarily dismissed from his position by respondent +ayor 9lpidio Asedillo, on the *round that his appointment &as provisional and that he has no civil service eli*ibility. %he petitioner &as told to surrender his firearm and other office e4uipment to the +unicipal %reasurer of ?alayaan, 'a*una ) &ho &as also informed of petitioner>s dismissal on the same day. 5 @espondent 9pifanio @a*otero &as appointed actin* chief of police of ?alayaan, 'a*una on the same day, in place of the petitioner. 6 ;ubse4uently, or on 21 6ebruary 19F7, the +unicipal Council of ?alayaan, 'a*una abolished the appropriation for the salary of the chief of police of ?alayaan, 'a*una. ( 2n vie& thereof, the petitioner complained to the (olice Commission &hich advised him to file an in.unction suit a*ainst +ayor Asedillo. 8 1ence, on 1F +arch 19F7, the petitioner filed a petition for mandamus, 4uo &arranto &ith preliminary mandatory in.unction a*ainst respondents +ayor 9lpidio Asedillo, the +unicipality of ?alayaan, 'a*una, and 9pifanio @a*otero, before the Court of 6irst 2nstance of 'a*una, doc/eted therein as Civil Case $o. ;C3719, see/in* his reinstatement to the position of chief of police of ?alayaan, 'a*una, &ith bac/ salaries and dama*es. 2n ans&er, respondents +ayor 9lpidio Asedillo and 9pifanio @a*otero claimed that the appointment of the petitioner, bein* merely temporary in character, and the petitioner havin* no civil service eli*ibility, his services could be terminated &ith or &ithout cause, at the pleasure of the appoint po&erD and that the petitioner failed to eAhaust all administrative remedies. 10 %he respondent +unicipality of ?alayaan, 'a*una, for its part, alle*ed that the petitioner has no cause of action a*ainst itD and that, if the acts of the respondent mayor are patently irre*ular, the said mayor should be held solely liable therefor. 11 After due hearin*, .ud*ment &as rendered, as follo&s! <19@96O@9, the Court hereby renders .ud*ment 7 BaC 0eclarin* the summary dismissal of the petitioner on 6ebruary 1F,19F7, ille*alD BbC Orderin* the respondent +ayor 9lpidio Asedillo to forth&ith recall his desi*nation of respondent 9pifanio @a*otero as Actin* Chief of (olice of ?alayaanD BcC Orderin* the respondent +ayor 9lpidio Asedillo and the respondent +unicipality of ?alayaan to forth&ith reinstate the petitioner to his former position of Chief of (olice of ?alayaan, 'a*una, restore the appropriation for his salary and pay him his bac/ salaries from 6ebruary 1F, 19F7, until reinstatedD and BdC Orderin* the respondent +ayor and respondent +unicipality to *ive the petitioner a period of not less than thirty days from the date this decision becomes final &ithin &hich to file his application for Civil ;ervice eli*ibility under ;ec. 9 of @epublic Act $o. 5 F5. <ithout pronouncement as to costs. 12 6rom this .ud*ment, the respondents appealed directly to this Court, claimin* that the lo&er court erred! B1C in holdin* that petitioner need not eAhaust administrative remedies before brin*in* the action for 4uo &arranto and mandamus in court, as the action prescribes in one year and an administrative appeal does not interrupt the runnin* of the periodD B2C in holdin* that the summary dismissal of the petitioner3appellee &as ille*alD BEC in orderin* the respondents3appellants +ayor and +unicipality to *ive the petitioner a period of not less than thirty BE"C days from the date the decision becomes final &ithin &hich to file his application for civil service eli*ibility under ;ec. 9 of @epublic Act $o. 5 F5D and B5C in not fiAin*

and orderin* the petitioner to pay the respondents reasonable eApenses incurred by them by reason of the false alle*ations in the verified petition for mandamus and 4uo &arranto. %he appellant +unicipality of ?alayaan, 'a*una additionally claims that the lo&er court erred in not holdin* respondent3appellant +ayor 9lpidio Asedillo personally liable for his ille*al act. <e have carefully eAamined the records of the case and find no co*ent reason to disturb the findin*s of the trial court, &hich are supported by the evidence and la&. %hus, the appellants contend that the appellee should have first eAhausted all administrative remedies before he reported to the courts. %hey su**ested that the appellee should have appealed the order of dismissal to the Commissioner of Civil ;ervice in vie& of the provisions of ;ec. 1FBiC and ;ec. 1F of @epublic Act $o. 22F" &hich *rant the Commissioner of Civil ;ervice the final authority to pass upon the removal, separation and suspension of all permanent officers and employees in the competitive or classified serviceD and to hear and determine appeals instituted by any person believin* himself to be a**rieved by an action or determination of any appointin* authority contrary to the provisions of the Civil ;ervice 'a& and rules. <hile there are precedents &hich hold that before a liti*ant can brin* a matter to court, it is necessary that he first eAhaust all the remedies in the administrative branch of the *overnment, the doctrine of eAhaustion of administrative remedies is not a hard and fast rule. 2t has been repeatedly held that the principle re4uirin* previous eAhaustion of administrative remedies is not applicable &here the 4uestion in dispute is purely a le*al oneD &here the controverted act is patently ille*al or &as performed &ithout .urisdiction or in eAcess of .urisdictionD &here the respondent is a department secretary, &hose acts as an alter ego of the (resident, bear the implied or assumed approval of the latterD &here there are circumstances indicatin* the ur*ency of .udicial interventionD or &here the respondent has acted in utter disre*ard of due process. 13 %he rule does not also apply &here insistence on its observance &ould result in nullification of the claim bein* assertedD and &hen the rule does not provide a plain, speedy and ade4uate remedy. 1) 2n the instant case, there is no doubt that, in terminatin* the services of the appellee, the appellant +ayor 9lpidio Asedillo acted summarily &ithout any semblance of compliance or even an attempt to comply &ith the elementary rules of due process. $o char*es &ere filedD nor &as a hearin* conducted in order to *ive the appellee an opportunity to defend himself, despite the provisions of ;ec. 15 of @epublic Act $o. 5 F5, other&ise /no&n as the (olice Act of 19FF, &hich too/ effect on ;eptember 19FF, that ,+embers of the local police a*ency shall not be suspended or removed eAcept upon &ritten complaint filed under oath &ith the )oard of 2nvesti*ators herein provided for misconduct or incompetence, dishonesty, disloyalty to the #overnment, serious irre*ularities in the performance of their duties, and violation of la&., 6ollo&in* the rule, there &as no need for eAhaustion of administrative remedies before appellee could come to court for the protection of his ri*hts. )esides, it appears that the order &as immediately eAecuted and the appellee &as immediately removed from office and replaced by the appellant 9pifanio @a*otero on the same day, so that appeal to the Commissioner of Civil ;ervice, even if available to the appellee, &as not an ade4uate remedy in the ordinary course of la&. 6urthermore, appeal to the Commissioner of Civil ;ervice is not a pre3re4uisite to, nor a bar to the institution of <uo !arranto proceedin*s, 15 so that, as pointed out by the trial court, to re4uire the appellee to eAhaust administrative remedies before brin*in* this action, could easily result in a *rave in.ustice of barrin* him forever from brin*in* the matter to the courts of .ustice for .udicial determination. <e also find no merit in the appellants> contention that, since the appointments eAtended to the appellee as chief of police of ?alayaan, 'a*una &ere all provisional in nature, and not permanent, his services could be terminated &ith or &ithout cause, at the pleasure of the appointin* officer. <hile it may be true that the appellee &as holdin* a provisional appointment at the time of his dismissal, he &as not a temporary official &ho could be dismissed at any time. 1is provisional appointment could only be terminated thirty BE"C days after receipt by the appointin* officer of a list of eli*ibles from the Civil ;ervice Commission. 16 1ere, no such certification &as received by +ayor 9lpidio Asedillo thirty BE"C days prior to his dismissal of the appellee. %he appellants have also assailed the trial court for orderin* them to *ive the appellee a period of not less than thirty BE"C days &ithin &hich to file an application for civil service eli*ibility under ;ec. 9 of @epublic Act $o. 5 F5, claimin* that the appellee had not as/ed for such relief in his petition. <hether or not such relief &as as/ed ,for in the petition or included in the petitioner>s *eneral prayer for such relief and remedies that may be .ust and e4uitable in the premises,, as the appellee claims, is no& of little importance, in vie& of our findin* that the appellee>s provisional appointment could only be terminated thirty BE"C days after receipt by the appointin* officer of a list of eli*ibles from the Civil ;ervice Commission. <ith such a posture, the appellee had ample time to as/ the Civil ;ervice Commission for a certification of civil service eli*ibility under the la&. <e, li/e&ise, find no merit in the contention of the respondent +unicipality of ?alayaan, 'a*una that +ayor 9lpidio Asedillo alone should be held liable for the bac/ salaries of the petitioner, because the records sho& that the action &as instituted a*ainst +ayor Asedillo, not personally, but in his capacity as +unicipal +ayor of ?alayaan, 'a*una, and he appeared and defended the action in such capacity. 6urthermore, it is of record that, after the summary dismissal of the petitioner by respondent +ayor Asedillo on 1F 6ebruary 19F7, the +unicipal Council of ?alayaan instead of opposin* or at least protestin* the petitioner>s summary dismissal from his position, even abolished the appropriation for the salary of the Chief of (olice of ?alayaan, 'a*una, <e consider this act of the +unicipal Council of ?alayaan as an approval or confirmation of the act of respondent +ayor in summarily dismissin* the petitioner, as to ma/e said municipality e4ually liable, as held by the trial court, as respondent +ayor for the reinstatement of petitioner and for the payment of his bac/ salaries.

A number of cases decided by the Court &here the municipal mayor alone &as held liable for bac/ salaries of, or dama*es to dismissed municipal employees, to the eAclusion of the municipality, are not applicable in this instance. 2n Salcedo vs. Court of Appeals, 1( for instance, the municipal mayor &as held liable for the bac/ salaries of the Chief of (olice he had dismissed, not only because the dismissal &as arbitrary but also because the mayor refused to reinstate him in defiance of an order of the Co$$issioner of Civil Service to reinstate. 2n 5e$enzo vs. Sabillano, 18 the municipal mayor &as held personally liable for dismissin* a police corporal !ho possessed the necessary civil service eligibility, the dismissal bein* done &ithout .ustifiable cause and &ithout any administrative investi*ation. 2n Ra$a vs. Court of Appeals, 19 the *overnor, vice3*overnor, members of the ;an**unian* (anlala&i*an, provincial auditor, provincial treasurer and provincial en*ineer &ere ordered to pay .ointly and severally in their individual and personal capacity dama*es to some 2"" employees of the province of Cebu &ho &ere eased out from their positions because of their party affiliations. %he trial court, therefore, did not commit error in findin* that the summary dismissal of the petitioner &as ille*al and in orderin* the respondent +ayor and respondent +unicipality to reinstate him &ith bac/ salaries from the time of his dismissal. %he appealed .ud*ment, ho&ever, needs some modification in the li*ht of supervenin* events. 2t &ould appear that the reinstatement of the petitioner3appellee to his former position of chief of police of ?alayaan, 'a*una, as ordered in the appealed .ud*ment, is no lon*er feasible and hence, it cannot be enforced, in vie& of the appointment of a permanent chief of police Bno& called ;tation CommanderC in accordance &ith (0 5 2, issued on 1E June 1975, &hich provides for the inte*ration of police and fire departments and .ails in certain provinces, includin* the province of 'a*una. 2n the Court>s @esolution, dated 1 +ay 19 7, the parties &ere re4uired ,to +O:9 in the premises &ithin ten B1"C days from notice, considerin* the supervenin* events, includin* the chan*e of administration that has transpired since the promul*ation of the 6reedom Constitution by virtue of (roclamation $o. E, dated 25 +arch 19 F as &ell as the ratification of the 19 7 Constitution and pursuant to the provision of ;ection 1 of @ule E, insofar as the public respondents are concerned B&hich re4uires the successor official to state &hether or not he maintains the action and position ta/en by his predecessor in officeC., 20 (ursuant thereto, respondents3appellants filed a +otion to 0ismiss 21 &hich states, amon* others, that 7 E. 8pon the or*ani-ation of 2nte*rated $ational (olice, respondent 9pifanio @a*otero, &ho &as desi*nated Actin* Chief of (olice of ?alayaan, &as replaced by a permanent ;tation Commander, Antonio de la (a-, &ho holds said position until no&D 5. %hat respondent +ayor 9lpidio Asedillo has lon* been dead since April 2F, 197 , but even before he died he had been succeeded as +ayor of ?alayaan, 'a*una, by +ayor $orma +acarae*, then after his death by +ayor #erardo ?abamalan, &ho &as elected in 19 ", and finally by O2C %uriano +ontes, Jr., &ho &as appointed on April E, 19 F after the 90;A revolutionD 5. %hat petitioner3appellee ;olano 'a*anapan himself &as appointed as +unicipal ;ecretary of the ;an**unian* )ayan of ?alayaan, 'a*una on April 7, 19 F after the 90;A revolution but his services &ere terminated on April 7, 19 7, as he is not a civil service eli*ible. 22 ;uch bein* the case, the petitioner3appellee is entitled only to bac/salaries &hich, ho&ever, should be limited to a period of five B5C years.
23

2n addition, respondent +ayor Asedillo &ho &as sued in his official capacity as municipal mayor, havin* passed a&ay, the liability to pay petitioner his bac/ salaries must no& devolve upon the respondent municipality alone. <19@96O@9, &ith the modification that the petitioner3appellee is entitled only to the payment of five B5C years bac/ salaries to be paid by respondent municipality, the .ud*ment appealed from is hereby affirmed. <ithout pronouncement as to costs. ;O O@09@90. ?ap 2Chair$an3, Melencio 8errera, .aras and Sar$iento, ,,., concur. G.R. No. L-)))8) Mar./ 16, 198( O$M"N+O G. RAMA, petitioner, vs. CO"RT OF A## AL$, JO$ A*ALA, M LC0OR A*ANGAN, "TI="IO AL GRA+O, MIG+IO *LANCO, I$A* LO CA*" NA$, C $AR CAMILLO, JO$ C NI,A, AN+R $ CAM#ANA, FI+ L CORON L, MARCIANO C" $TA$, IGNACIO +ACLI,ON, ROLAN+ NRI=" ,, +IONI$IO FLOR $, #AT RNO FLOR $, MO+ $TO G RAL+ , C NON G $IN, L ONCIO G"M*OC, CLA"+IO L GA$#I, INOC NCIO LLANO$, 0I#OLITO MAN"*AG, MA"RICIO MANACA#, CON$TANCIO MAMAYAGA, *I N1 NI+O MATI$, MO+ $TO NAMONG, CATALINO OC0IA, C CILIO ="IJANO, 0ILARIO + LO$ $ANTO$, F LICIANO $ACAR $, NRI=" $AROMIN $, ALFON$O TA*AY, ANG L T 1 $, $R., JAIM TRANI, RO+"LFO 1 RANO, 1IC NT 1ILLARCA, +OROT O ARMA$, I$A* LO A*A#O, GR GORIO A*A$TILLA$, RAFA L A*A$TILLA$, LOR TO ALICA@AY, CIRIACO *ARILLO, MIG" L *INOLINAO, C L RINO *"TAY, IGNACIO * LL ,A, ANATOLIO *INOYA, ,ACARIA$ *"CARI,A, F RNAN+O CA$TRO, MARCIANO + LA C RNA, 1 RANO *A+ANA, +ONATO CA*AN RO, AN CITO + LA C RNA, +IO$+A+O CA6 T , GA*RI L CA6 T , RI* RTO +ACALO$, NONILO + CA$TILLA, $ RGIO

+AYANAN, FLA1IANO + I#ARIN , * RNAR+O GAM*OA, I$MA L GANT"ANGCO, C $AR 0 RNAN+ ,, JORG JACA, GORGONIO JACALAN, $ 1 RIANO LANG*I+, TOMA$ LANG*I+, +IO$+A+O LA$TIMA+O, #A*LO L"NA, MA8IMO LARIO$A, 1IC NT LA#A,, RICAR+O MAGALLON, MILIANO MATARIO, RAMON #A+RIGA, NICANOR O#"RA, AL* RTO MINTILLO$A, R"FINO R #ONT , *LA$ #AR+ILLO, $MA L R G"+"$, MARC LIANO + LO$ $ANTO$, CAN+I+O R"FLO, L"I$ $ALA#A, # +RO $AC L, FRI$CO $AC L, MIG" L $ARAMO$ING, J"LIAN 1 LO$O, * RNAR+O TALLO, AR="I#O YRAY, #ATRICIO 1ILLARMIA, 1IC NT 1ILLAMORA an! L ONCIO ,A*ALA, respondents. No. L-))8)2 Mar./ 16, 198( R N $#INA, #A*LO #, GARCIA, R YNAL+O M. M N+IOLA an! 1AL RIANO $. CARILLO, petitioners, vs. CO"RT OF A## AL$, FROILAN FRON+O$O an! J R MIA$ L"NA, respondents. No. L-))591 Mar./ 16, 198( R N $#INA, #A*LO #. GARCIA, R YNAL+O M. M N+IOLA an! 1AL RIANO $. CARILLO, petitioners, vs. CO"RT OF A## AL$ an! A'a9& r&'3on!&n%' a' 4n L-)))8)B, respondents. No. L-))89) Mar./ 16, 198( #RO1INC OF C *" an! 4%' $ANGG"NIANG #ANLALA@IGAN, petitioner, vs. CO"RT OF A## AL$, FROILAN FRON+O$O an! J R MIA$ L"NA, respondents. Cecilio @. 4uaren for private respondents in % AABCA. ,ustino 8er$osisi$a for .rovince of Cebu in % AABCA. .ablo .. 4arcia D @aleriano S. Carillo for petitioners in % AEEEB D AABAF. 4abriel Ca*ete for private respondents.

ALAM#AY, J.: 0urin* the incumbency of @ene 9spina as provincial *overnor of Cebu, Osmundo #. @ama as vice3*overnor and (ablo (. #arcia, @eynaldo +. +endiola and :alerians ;. Carillo as members of the ;an**unian* (anlala&i*an, said officials adopted @esolution $o. 99" &hich appropriated funds ,for the maintenance and repair of provincial roads and brid*es and for the operation and maintenance of the office of the provincial en*ineer and for other purposes., B'355591, @ollo, pp. E53E7C. 2n said resolution, the provincial *overnment of Cebu under the aforementioned officials, declared its policy ,to mechani-e the maintenance and repair of all roads and brid*es of the province Bincludin* provincial roads and brid*es receivin* national aid ,JJ,C, to economi-e in the eApenditure of its @oad and )rid*e 6und for the maintenance and repair of provincial roads and brid*es receivin* national aid ,JJ, and to adopt a more comprehensive, systematic, efficient, pro*ressive and orderly operation and maintenance of the Office of the (rovincial 9n*ineer., %o implement said policy, the provincial board resolved to abolish around thirty positions - the salaries of &hich &ere paid from the ,JJ, @oad and )rid*e 6und thus doin* a&ay &ith the ca$inero Bpic/3shovel3&heelbarro&C system Conse4uently around 2"" employees of the province &ere eased out of their respective .obs and, to implement the mechani-ation pro*ram in the maintenance of roads and brid*es, the provincial *overnment purchased heavy e4uipment &orth (5,""","""."". 1o&ever, contrary to its declared policy to economi-e the provincial administration later on hired around one thousand ne& employees, renovated the office of the provincial en*ineer and provided the latter &ith a +ercedes3)en- car B0ecision in CA3#.@. $o. 59E2 3@, '355591, @ollo, p. E7C. A**rieved by these turn of events, the employees &hose positions &ere abolished filed separate petitions for mandamus, dama*es and attorneys fees aimed at the annulment of @esolution $o. 99", their reinstatement and the recovery of dama*es %he aforementioned provincial officials &ho, to*ether &ith the provincial auditor, provincial treasurer, provincial en*ineer and the province of Cebu, &ere named respondents in said action, &ere sued ,both in their official and personal, capacities as a result of their alle*ed ,un.ust, oppressive, ille*al and malicious> acts B(etition, @ecord in Civil Case $o. @31"7"5, p. EC. 2n Civil Case $o. @31"7"5, the Court of 6irst 2nstance of Cebu declared @esolution $o. 99" nun and void and ordered the respondent officials to re3 create the positions abolished, to provide funds therefore, to reinstate the 5F petitioners headed by Jose Abala, and to pay them bac/ salaries. 6or

,lac/ of le*al and factual basis,, no dama*es &ere a&arded to petitioners and no pronouncement as to attorney>s fees &ere made as the petitioners had a*reed to pay their la&yers E"R of &hatever amount they &ould receive as bac/ salaries B'355591, @ollo, pp. EE3E5C. All the parties appealed to the Court of Appeals BCA3#.@. $o. 59E2 3@C. 9ventually, said appellate court, throu*h its 6irst 0ivision, affirmed the lo&er court>s decision &ith the modification that respondents &ere ordered to pay .ointly and severally in their ,individual and personal capacity, (1,"""."" moral dama*es to each of the petitioners considerin* that the case involved a <uasi delict B'355591 @ollo, p. 55C. 6rom that decision, Osmundo #. @ama, interposed an appeal> to this Court B#.@. $o. '3555 5C. 9spina, #arcia,> +endiola and Carillo then filed their o&n petition for revie& B#.@. $o. '355591C. )ut before 9spina, et al. could file said petition, the province of Cebu and its ;an**unian* (anlala&i*an filed their o&n petition for revie& 4uestionin* that portion of the appellate court>s decision &hich ordered the reinstatement &ith bac/ salaries of the dismissed employees. ;aid petition, &hich &as doc/eted as #.@. $o. '355572, &as dismissed by this Court for lac/ of merit in the resolution of October 25, 197F. 9ntry of .ud*ment &as made on $ovember 25, 197F. +ean&hile, dismissed employees 6roilan 6rondoso and Jeremias 'una, &ho also had filed their o&n petition for mandamus in the Court of 6irst 2nstance of Cebu, elevated their case to the Court of Appeals BCA3#.@. $o. ;(3"5F59C. 2n its decision, the Court of Appeals> $inth 0ivision follo&ed the rulin* of its 6irst 0ivision in CA3#. @. $o. 5 E2 3@, held that the &ron* committed by the respondent (ublic officials &as a <uasi delict and ordered the reinstatement &ith bac/ salaries of 6rondoso and 'una and the payment in solidum by respondent public officials of (1,"""."" each to 6rondoso and 'una as moral dama*es plus (1,"""."" as attorney>s fees. <ith the eAception of @ama, the respondent public officials appealed to the Court B#.@. $o. '355 52C. ;ubse4uently, the Cebu Assistant (rovincial Attorney, representin* the (rovince of Cebu and its ;an**unian* (anlala&i*an, also appealed to this Court from that decision B#.@. $o. '355 95C. On +arch 2 , 1977, this Court resolved to consolidate #.@. $os. '3 555 5, '355 52, '355591 and '355 95 considerin* that said cases involve the same issues and factual bac/*round B'55591, @ollo, p. E55C. %hereafter, 6rondoso and 'una filed a motion to dismiss '355 95 and '355 52. %hey alle*ed that as the petition in '55572 had been dismissed on October 25, 197FD said t&o cases should li/e&ise be dismissed because they, to*ether &ith the private respondents in '355572 &ho, li/e them, &ere also permanent appointees to their respective positions, ,&ere separated from the service on the sa$e date by the sa$e petitioners, '355 95 @ollo, p. 15"C and therefore, the petitions in '355 95 and '355 52 &ere barred by the rule of stare decision %he motion to dismiss, ho&ever, &as noted in the resolution of 6ebruary 17, 197 , it appearin* that said t&o cases had already been submitted for decision B'355 95 @ollo, p. 15 D '355 52 @ollo, p. 1E9C. 6rondoso and 'una filed another motion to dismiss '355 95 but after the petitioners had filed their comment thereon, said motion to dismiss &as also noted in the resolution of 6ebruary 22, 19 1 B'355 95 @ollo, p. 1 FC. <e find, ho&ever, that 6rondoso>s and 'una>s contention that '355 95 should be dismissed is meritorious. %he issues raised in '355 95 and '3 55572 are the same. 2n fact, the prayer in the petition in '355 95 is virtually a verbatim reiteration of that in '355572. %he alle*ation of petitioner province of Cebu and its ;an**unian* (anlala&i*an that the 4uestion of .urisdiction &as not raised in '355572 B'355 95 @ollo, p. 15"C cannot successfully save '355 95 from dismissal. 2n their petition, the province of Cebu and its ;an**unian* (anlala&i*an merely ar*ued that the Court of Appeals did not ac4uire .urisdiction over the case, considerin* that 6rondoso and 'una>s appeal &as perfected after the eApiration of the re*lementary period and that their brief &as filed one month too late. 1o&ever, the trend of the rulin*s of this Court in matters pertainin* to the timeliness of the perfection of an appeal is to afford every party3liti*ant amplest opportunity to present their case ,for the proper and .ust determination of his cause, freed from the constraints of technicalities., B@odri*uevs. Court of Appeals, '3E7522, $ovember 2 , 1975, F ;C@A 2F2C. Applyin* the above rulin* to this case, the Court of Appeals may not, therefore, be faulted for assumin* .urisdiction over the appeal of 6rondoso and 'una. 1ence, &ith respect to '355 95, this Court is bound by the dismissal of '3 55572 and so '355 95 should li/e&ise be dismissed, as it is hereby dismissed. (roceedin* no& to resolve the issue, common to '3555 5, '355591 and '355 52, &hich is &hether or not 9spina, @ama, #arcia, +endiola and Carillo are personally liable for dama*es for adoptin* a resolution &hich abolished positions to the detriment of the occupants thereof, this Court has held that, at least, in principle, a public officer by virtue of his office alone, is not immune from dama*es in his personal capacity arisin* from ille*al acts done in bad faith. A different rule &ould sanction the use of public office as a tool of oppression B%abuena vs. Court of Appeals, '31F29", October E1, 19F1, E ;C@A 51EC. %hus, in Correa vs. CF0 of -ulacan, '35F"9F, July E", 1979, 92 ;C@A E12, <e held personally liable a mayor &ho ille*ally dismissed policemen even if he had relin4uished his position. %herein, <e held that! A public officer &ho commits a tort or other &ron*ful act, done in eAcess or beyond the scope of his duty, is not protected by +s office and is personally liable therefor li/e any private individual B(alma vs. #raciano, 99 (hil. 72, 75D Carreon vs. (rovince of (ampan*a, 99 (hil. " C. %his principle of personal liability has been applied to cases &here a public officer removes another officer or dischar*es an employee &ron*fully, the reported cases sayin* that by reason of non3compliance &ith the re4uirements of la& in respect to removal from office, the officials &ere actin* outside of their official authority B;tiles vs. 'o&ell 2EE +ass. 175, 12E $9 F15, 5 A'@ 1EF5, cited in FE Am. Jur. 2d. 77"C.

<e hold that the petitioners in the instant three cases are personally liable for dama*es because of their precipitate dismissal of provincial employees throu*h an ostensibly le*al means. %he Court of Appeals, &hose factual findin*s are bindin* on this Court, found that the provincial employees concerned &ere ,eased out because of their party affiliation., i.e., they belon*ed to the 'iberal (arty &hose presidential candidate then &as ;er*io Osmena Jr. BCA 0ecision in #.@. $o. 59E2 3@, p. F, '355591, @ollo, p. E C. ;uch act of the petitioners reflected their malicious intent to do a&ay &ith the follo&ers of the rival political party so as to accommodate their o&n prote*es &ho, it turned out, even outnumbered the dismissed employees. 2ndeed, municipal officers are liable for dama*es if they act maliciously or &antonly and if the &or/ &hich they perform is done rather to in.ure an individual than to dischar*e a public duty B5F Am. Jur. 2d EE5, citin* =early :. 6in/ 5E (a 212C. As &e have held in @da de %aig vs. Court of Appeals, '32F 2, April 5, 197 , 2 ;C@A 295, E"73E" , a public officer is civilly liable for failure to observe honesty and *ood faith in the performance of their duties as public officers or for &ilfully or ne*li*ently causin* dama*e to another BArticle 2", Civil CodeC or for &ilfully causin* loss or in.ury to another in a manner that is contrary to morals, *ood customs andNor public policy BArticle 21, $e& Civil CodeC. $either can petitioners shield themselves from liability by invo/in* the rulin* in the cases of Carino vs. Agricultural Credit and Cooperative Financing Ad$inistration '32E9FF, +ay 22, 19F9, 2 ;C@A 2F . 2n those cases, the errin* public officials &ere sued in their official capacities &hereas in the instant cases, petitioners &ere specifically sued in their personal capacities. 6or their part, the dismissed employees are entitled to dama*es because they have suffered a special and peculiar in.ury from the &ron*ful act of &hich they complain +echem, A %reatise on the 'a& of (ublic Offices and Officers, p. E91C. 2t is an undeniable fact that the dismissed employees &ho &ere holdin* such positions as foremen, &atchmen and drivers, suffered the uncertainties of the unemployed &hen they &ere pluc/ed out of their positions. %hat not all of them testified as to the eAtent of dama*es they sustained on account of their separation from their *overnment .obs, cannot be used as a defense by the petitioners. ;uffice it to state that considerin* the positions they &ere holdin*, the dismissed employees concerned belon* to a lo&3salaried *roup, &ho, if deprived of &a*es &ould *enerally incur considerable economic hardships. Justice demands that they be recompensed for the predicament they &ere placed in, apart from the bac/ salaries &hich they are entitled to as a matter of ri*ht. <e are inclined to a*ree that the amount of (1,"""."" dama*es *ranted to each of them by the Court of Appeals &as fiAed by that court .udiciously and is a reasonable sum BArticle 221F, Civil CodeC. (etitioner @ama>s protestations that &hen he eventually became the *overnor of Cebu, he reinstated most of the dismissed employees throu*h provincial board @esolution $o. E92 B'3555 5 @ollo, p. 1FC cannot erase the fact that he had a hand in the adoption of @esolution $o. 99". 1is subse4uent benevolent act cannot sufficiently ma/e up for the dama*e suffered by the dismissed employees durin* their period of unemployment. Apropos the practice of victorious politicians to remove *overnment employees &ho did not support them in their campai*n for office, this Court has said! ,%here are alto*ether too many cases of this nature, &herein local elective officials, upon assumption to office, &ield their ne&3found po&er indiscriminately by replacin* employees &ith their o&n prote*es re*ardless of the la&s and re*ulations *overnin* the civil service. :ictory at the polls should not be ta/en as authority for the commission of such ille*al acts., B$emen-o vs. ;abillano, '32"977, ;eptember 7, 19F , 25 ;C@A 1.C <19@96O@9, in '355 95, the petition for revie& on certiorari is hereby dismissed for lac/ of merit. 2n '3555 5, '355591 and '355 52, the decision of the 6irst and $inth 0ivisions of the Court of Appeals are hereby A662@+90 &ith costs a*ainst the petitioners. ;O O@09@90. Fernan, 4utierrez, ,r., .aras, .adilla, -idin and Cortes, ,,., concur. G.R. No. L-)6096 Ju5y 30, 19(9 "F MIO T. CORR A, petitioner, vs. CO"RT OF FIR$T IN$TANC OF *"LACAN A*RANC0 11B, CITY $0 RIFF OF =" ,ON CITY, M"NICI#ALITY OF NOR,AGARAY, *"LACAN, 0ON. ARMAN+O NRI=" ,, a' %/& In.u97&n% Mayor o: NorCa<aray, *u5a.an, CAN+I+O #. CR",, I$A* LO $A#LALA, TOMA$ #ALA+, ANTONIO $IL1 RIO, M LANIO $T *AN, LIGIO #"N,AL, C L +ONIO #RINCI# , ANTONIO ANC0 TA, an! J"ANITO $ARMI NTO, respondents. Magtanggol C. 4unigundo for petitioner. .onciano 4. 8ernandez for private respondents.

ANTONIO, J.:1wph1.t

(etition for certiorari, prohibition and declaratory relief assailin* the Order dated April 22, 1977 of respondent Court of 6irst 2nstance of )ulacan, )ranch 22, denyin* petitioner>s +otion to Kuash <rit of 9Aecution issued in Civil Case $o. EF213 +. %he follo&in* are the relevant facts! On 0ecember 1E, 19F , respondent Court rendered .ud*3 ment in Civil Case $o. EF213+ in favor of therein plaintiffs Bprivate respondents hereinC and adversely a*ainst therein defendants 9ufemio %. Correa Bpetitioner hereinC and :ir*ilio ;armiento. %he pertinent portions of the decision read as follo&s! tG*.HIh<!JH %his Court finds that defendants 9ufemio %. Correa and :ir*ilio ;armiento, municipal mayor and municipal treasurer of $or-a*aray, )ulacan respectively, should be ordered personally to pay the salaries &hich the plaintiffs failed to receive by reason of their ille*al removal from office until they are actually reinstated. AAA AAA AAA <19@96O@9, .ud*ment is hereby rendered! 1. (ermanently en.oinin* the defendants from enforcin* andNor implementin* the Administrative Order $o. 1, ;eries of 19F D 2. 0eclarin* the termination of the services of the plaintiffs ille*al and of no le*al effectD E. Orderin* the defendant 9ufemio %. Correa to reinstate the plaintiffs to their former position as policemen in the (olice 6orce of $or-a*aray, )ulacanD 5. Orderin* the defendants 9ufemio %. Correa and :ir*ilio ;armiento to pay, .ointly and severally to the plaintiff Juanito ;armiento his salary for the period be*innin* January 15, 19F , plaintiff +elanio 9steban his said for the period be*innin* 6ebruary 1, 19F D and plaintiffs Candido Cru-, 2sabelo ;aplala, %omas (aladD Antonio Ancheta, Antonio ;ilverio, 9li*io (un-al and Celedonio (rincipe their salaries for the period be*innin* January 2E, 19F , until they are actually reinstated to their former positionsD 5. Orderin* defendant 9ufemio %. Correa and :ir*ilio ;armiento to pay, .ointly and severally, the costs of this suit. ;O O@09@90. %he aforesaid decision &as affirmed by the Court of Appeals on +arch 22, 197F, and the motion for reconsideration of the Appellate Court>s decision &as denied on +ay 11, 197F. On Au*ust 25, 197F, the decision of the Court of Appeals became final and eAecutory. 1 2t is in connection &ith the efforts of the petitioner to 4uash the &rit of eAecution issued to enforce the aforestated final .ud*ment that the present proceedin*s arose. %hus, on +arch , 1977, petitioner filed a +otion to Kuash the <rit of 9Aecution and to 0irect 9Aecution to the +unicipality of $or-a*aray, )ulacan, alle*in* that at the time the &rit &as served on him, he &as no lon*er mayor of $or-a*aray, )ulacan. (etitioner invo/ed the principle that &hen .ud*ment is rendered a*ainst an officer of the municipal corporation &ho is sued in his official capacity for the payment of bac/ salaries of officers ille*ally removed, the .ud*ment is bindin* upon the corporation, &hether or not the same is included as party to the action. 2 On April 22, 1977, respondent Court issued the Order denyin* the +otion to Kuash <rit of 9Aecution. (etitioner thus came to this Court, maintainin* that he could no lon*er be re4uired to pay the bac/ salaries of the private respondents because payment on his part presupposes his continuance in office, &hich is not the case. 1e contends that it is the +unicipality of $or-a*aray that is liable for said payment, invo/in* Aguador v. 6nerio. 3 and Sison v. .a&o ) 6urther, petitioner alle*es that the fact that he is no lon*er municipal mayor of $or-a*aray, constitutes a substantial chan*e in the situation of the parties &hich ma/es the issuance of the &rit of eAecution ine4uitable. (etitioner prays, amon* others, that .ud*ment be rendered declarin* that the payment of bac/ salaries of private respondents should be made by the incumbent mayor and by the municipality of $or-a*aray, )ulacan, and that petitioner is no lon*er liable for the payment thereofD and annullin* the Order dated April 22, 1977 of respondent court denyin* the motion to 4uash the &rit of eAecution. On +ay 25, 1977, this Court re4uired petitioner to implead the +unicipality of $or-a*aray, )ulacan as party respondent and on June 25, 1977, petitioner filed an amended petition impleadin* the +unicipality of $or-a*aray and Amando 9nri4ue-, the incumbent municipal mayor. 2n his amended petition, petitioner alle*es that the &rit of eAecution is already bein* enforced a*ainst the personal properties of petitionerD that such enforcement durin* the pendency of the instant petition &ould probably &or/ in.ustice to petitionerD and that petitioner stands to suffer *reat and irreparable in.ury if enforcement of the &rit is not temporarily restrained. (etitioner, therefore, prays that the eAecution be stayed or a temporary restrainin* order be issued pendin* resolution of the instant proceedin*s. On Au*ust 1, 1977, private respondents filed their Comment maintainin* that respondent court acted correctly and committed no abuse of discretion &hen it denied petitioner>s motion to 4uash the &rit of eAecution, B1C it bein* the ministerial duty of the trial court to issue a &rit for the enforcement of a final and eAecutory .ud*mentD and B2C since the personal liability of the petitioner and his co3defendant to pay the bac/ salaries of the private respondents as mandated in the decision sou*ht to be eAecuted cannot be shifted or transferred to the municipality of $or-a*aray, )ulacan, for to do

so &ould be to vary the terms of a final .ud*ment. On Au*ust 12, 1977, this Court resolved to consider the Comment of respondents as ans!er to the petition and re4uired the parties to file their respective memoranda, and thereafter the case &as submitted for decision. %he issue is &hether or not respondent Court in denyin* the +otion to Kuash the <rit of 9Aecution acted &ith *rave abuse of discretion or &ith lac/ or eAcess of .urisdiction. 2t cannot be denied that both the .ud*ments of the Court of 6irst 2nstance of )ulacan and of the Court of Appeals cate*orically state that the liability of herein petitioner is personal. %hus, accordin* to the trial court, ,9ufemio %. Correa and :ir*ilio ;armiento, municipal mayor and municipal treasurer of $or-a*aray, )ulacan, respectively, should be ordered personally to pay the salaries &hich the plaintiffs failed to receive by reason of their ille*al removal from office until they are actually reinstated., B9mphasis suppliedC. 2n affirmin* the decision of the trial court, the Court of Appeals 5 ruled that ,%he defendants are personally liable .ointly and severally because they acted &ithout .ustifiable cause B$emen-o vs. ;abillano, ;ept. 7, 19F , 25 ;C@A 1C., 6 %he .urisprudence relied upon by the petitioner in his effort to shift the responsibility to the +unicipality of $or-a*aray appears inapplicable. 2n Aguador v. 6nerio, supra, cited by petitioner, the municipal mayor and the members of the +unicipal Council of Oro4uieta &ere specifically ordered ,to appropriate necessary amounts to pay the salary differentials for the petitioners and also for the payment of their entire salaries from month to month, sub.ect naturally to the availability of funds after all statutory and subsistin* contractual obli*ations shall have been properly covered by ade4uate appropriations. , %he issue raised &as &hether or not, after the municipal mayor, members of the municipal council and the municipal treasurer &ere eApressly made parties in the mandamus case and in the contempt proceedin*s, it &as necessary to include the municipality as a party, to ma/e the latter liable. %his issue &as resolved in the ne*ative by this Court. 2n the case of Sison v. .a&o, supra, the trial court directed the Actin* +unicipal +ayor and Actin* Chief of (olice of )amban, %arlac to reinstate )onifacio 'acanlale as Actin* Chief of (olice, effective June E", 1957 ,&ith the incident of payment of bac/ salaries by the +unicipality of )amban., %he issue &as &hether or not the municipality of )amban could be ordered to pay the bac/ salaries of the Chief of (olice, it appearin* that said municipality &as not impleaded in the case. %his Court ruled that the fact that the +unicipality of )amban, %arlac &as not by name impleaded in the case of reinstatement and bac/ salaries does not affect the employee>s ri*ht to the payment of bac/ salaries, considerin* that the officers re4uired by la& to represent the municipality in an suits &ere made parties in their official capacity, hence the case &as heard and decided as if the municipality had been made a party. 2n both eases the .ud*ment of the Court specifically directed the municipality to pay the bac/ salaries. 1ere, the .ud*ment of the trial court, &hich &as affirmed by the Court of Appeals, found petitioners 9ufemio %. Correa and :ir*ilio ;armiento personally liable for the payment of the salaries &hich the dismissed policemen failed to receive because of their ille*al removal from office, and ordered them ,to pay .ointly and severally to the plaintiff Juanito ;armiento his salary for the period be*innin* January 15, 19F D plaintiff +elanio 9steban his salary for the period be*innin* 6ebruary 1, 19F D and plaintiffs Candido Cru-, 2sabelo ;aplala, %omas (alad, Antonio Ancheta, Antonio ;ilverio, 9li*io (un-al and Celedonio (rincipe their salaries for the period be*innin* January 2E, 19F , until they are actually reinstated to their former positions., 2n 5e$enzo vs. Sabillano, ( the Court ruled that appellant +unicipal +ayor )ernabe ;abillano &as ,correctly ad.ud*ed liable, for the payment of the bac/ salaries of appellee (olice Corporal Joa4uin (. $emen-o because his act of dismissin* appellee ,&ithout previous administrative investi*ation and &ithout .ustifiable cause ... is clearly an in.ury to appellee>s ri*hts. Appellant cannot hide under the mantle of his official capacity and pass the liability to the municipality of &hich he &as mayor. %here are alto*ether too many cases of this nature, &herein local elective officials, upon assumption of office, &ield their ne&3found po&er indiscriminately by replacin* employees &ith their o&n prote*es, re*ardless of the la&s and re*ulations *overnin* the civil service. :ictory at the polls should not be ta/en as authority for the commission of such ille*al acts., 2n the dischar*e of *overmental functions, ,municipal corporations are responsible for the acts of its officers, eAcept if and &hen and only to the eAtent that , they have acted by authority of the la&, and in comformity &ith the re4uirements thereof., 8 A (ublic officer &ho commits a tort or other &ron*ful act, done in eAcess or beyond the scope of his duty, is not protected by his office and is personally liable therefor lie any private individual. 9 %his principle of personal liability has been applied to cases &here a public officer removes another officer or dischar*es an employee &ron*fully, the reported cases sayin* that by reason of non3compliance &ith the re4uirements of la& in respect to removal from office, the officials &ere actin* outside their official authority., 10 @espondent Court, therefore, did not commit *rave abuse of discretion in denyin* petitioner>s motion to 4uash &rit of eAecution. %he &rit &as strictly in accordance &ith the terms of the .ud*ment. <19@96O@9, the instant petition is hereby 02;+2;;90. Costs a*ainst petitioner. -arredo, 2Chair$an3, A<uino, Concepcion, ,r., and De Castro, ,,., concur.'(!ph)'.*+t Santos and Abad Santos, ,,., are on leave. G.R. No. L-3(38 No>&97&r 20, 1951

CONC #CION A* LLA, plaintiff3appellee, vs.

M"NICI#ALITY OF NAGA, T AL., defendants. M"NICI#ALITY OF NAGA, defendant3appellant. Ra$on 0$perial for plaintiff appellee. %uis -. :vero for defendant appellant. T"A$ON, J.: %his is an appeal from a .ud*ment of the Court of 6irst 2nstance of Camarines ;ur sentencin* the municipality of $a*a, no& $a*a City, to pay the plaintiff, no& appellee, (E"" dama*es resultin* from the closin* of a municipal street. %he complaint alle*ed t&o causes of action and the parties submitted in the court belo& an a*reed statement of facts on both. As the second cause of action &as dismissed and the plaintiff did not appeal, and as the stipulated facts are lon* and some&hat involved in many or most of them have become irrelevant to the issues formulated in this appeal, it &ill suffice to state for the purpose of these issues, that the defendant municipality by resolution ordered the closin* of that part of a municipal street &hich ran bet&een the public mar/et and the plaintiff>s property, and used the closed thorou*hfare to eApand the mar/et. ,As a conse4uence of this resolution, and immediately after the passa*e of the same, 7 says the a*reement 7 permanent, semi3permanent, as &ell as temporary constructions &ere allo&ed by the defendant municipality of $a*a alon* the side&al/ of (laintiff>s property and abuttin* to said property, facin* (. (rieto ;treet, and eAtendin* out in the middle of the same street, hence deprivin* the plaintiff>s property of access to said street, and conse4uently retardin* her reconstructions. ,2t &as further stipulated ,that if all the dama*es is to be a&arded the plaintiff, the same should not eAceed the sum of %hree hundred pesos B(E""C., %he appellant is the municipality of or city of $a*a and the burden of its contention is that ,it acted and eAercised its police po&er, ,prompted to preserve the peace and *ood order of the community and promote the *eneral &elfareD, and this bein* the case, it believes that it is not liable for dama*es. %he appellant misses the point. %he municipality or city of $a*a &as not char*ed &ith any unla&ful act, or &ith actin* &ithout authority, or &ith invasion of plaintiff>s property ri*htsD the basis of the lo&er court>s decision in ;ection 225F of the @evised Administrative Code copied in appellant>s brief, &hich provides that no municipal road, street, etc. or any part thereof ,shall be closed &ithout indemnifyin* any person pre.udiced thereby., %he 4uestion then for determination by the court belo& &as reduced to &hether the plaintiff &as pre.udiced by defendant municipality>s action. %hat she &as economically dama*ed, the stipulation of facts admitsD and that the indemnity assessed is &ithin the bounds of the dama*es suffered, there is no dispute. As a matter of fact, the dama*es a&arded seem to be nominal .ud*ed by the description of the plaintiff>s interests adversely affected by the conversion of (. (rieto ;treet into a mar/et. %he appeal is absolutely &ithout merit, and the appealed decision &ill be affirmed, &ith costs a*ainst the appellant. .aras, C.,., Feria, .ablo, .adilla, Reyes, ,ugo and -autista Angelo, ,,., concur. G.R. No. L-235)2 January 2, 1968

J"ANA T. 1+A. + RAC0O, plaintiff3appellee, vs. M"NICI#ALITY OF ILAGAN, defendant3appellant. Teodulo 6. Mirasol for defendant appellant. 5o appearance for plaintiff appellee. * NG,ON, J.#., J.: (laintiff Juana %. :da. de @acho and the decedent, +anuel @acho, &ere spouses and had five minor children. On July 1, 1955 the decedent &as appointed as mar/et cleaner in the +unicipality of 2la*an, 2sabela, at the rate of (FF"."" per annum B(55."" monthlyC &hich amount he received up to June E", 195 . On July 1, 195 , decedent>s salary &as increased to (72"."" per annum B(F"."" monthlyC by virtue of a promotional appointment eAtended to him by the +unicipal +ayor. 1e received this amount until January F, 19F" &hen he tendered his resi*nation effective July 7, 19F". 0ecedent &as then paid the money value of his accumulated leaves from January 7, 19F" to +ay 2E, 19F" at the rate of (F"."" a month. On October 5, 19F", decedent died intestate at 2la*an. (laintiff then filed on 0ecember 9, 19F" a claim for salary differentials &ith the @e*ional Office of the 0epartment of 'abor &hich dropped the case later for lac/ of .urisdiction. )ased on the fore*oin* facts, the Court of 6irst 2nstance of 2sabela, in an action brou*ht on 0ecember 5, 19F1, by plaintiff, in her o&n behalf and as *uardian ad lite$ of her minor children, ruled that defendant +unicipality of 2la*an must pay (1,7FF."" to plaintiff representin* the &a*e differentials and ad.usted terminal leave of the decedent from 0ecember 9, 1957 1 to +ay 2E, 19F", based on the monthly &a*e rate of (12"."" pursuant to the +inimum <a*e 'a&.

0efendant municipality immediately appealed the case to 8s on the sole submission that its shorta*e and lac/ of available funds and eApected revenue validly e1e$pted it fro$ co$plying !ith the Mini$u$ Kage %a! . %he appeal must be dismissed. <e have already ans&ered the 4uestion posed in Rivera vs. Colago, '312E2E, 6ebruary 25, 19F1, &herein <e ruled that lac/ of funds of a municipality does not eAcuse it from payin* the statutory minimum &a*es to its employees, &hich, after all, is a $andatory statutory obligation of the municipality. %o uphold such defense of lac/ of available funds &ould render the +inimum <a*e 'a& futile and defeat its purpose. %his also disposes of the implication appellant is tryin* to ma/e that its duty to pay minimum &a*es is not a statutory obli*ation &hich &ould command preference in the municipal bud*et and appropriation ordinance. 2 +oreover, <e cannot sanction appellant>s proposition that it &ould eventually and *radually implement the +inimum <a*e 'a&, ,if and &hen its revenues can afford., %he la& 7 insofar as it affects *overnment employees 7 too/ effect in 1952. E 2t should have been implemented 7 or at least steps to implement it should have been ta/en 7 ri*ht then. %o eAcuse the defendant municipality no& &ould be to permit it to benefit from its non3feasance. 2t &ould also ma/e the effectivity of the la& dependent upon the &ill and initiative of said municipality &ithout statutory sanction. 0efendant>s remedy, therefore, is not to see/ an eAcuse from implementin* the la& but, as the lo&er court su**ested, to up*rade and improve its taA collection machinery &ith a vie& to&ards reali-in* more revenues. Or, it could for the present fore*o all non3essential eApenditures. <19@96O@9, the appealed .ud*ment is, as it is hereby affirmed. $o costs. ;o ordered. Concepcion, C.,., Reyes, ,.-.%., Dizon, Ma"alintal, /aldivar, Sanchez, Castro, Angeles and Fernando, ,,., concur. Foo%no%&'
1

%he cause of action for underpayments prior to this date &as already barred by the three3year limitation under the +inimum <a*e 'a&. See! ;ecs. 2295 S 229F, @evised Administrative Code. ;ec. EBcC, @epublic Act F"2.

G.R. No. 10(916 F&7ruary 20, 199( # RCI1AL MO+AY, ,OTICO MO+AY A!&.&a'&!B an! L ONORA MO+AY, petitioners, vs. CO"RT OF A## AL$, J"+G 1ANG LIN $. Y"I#CO OF *RANC0 6, R GIONAL TRIAL CO"RT, AG"$AN + L $"R AN+ M"NICI#ALITY OF *"NA@AN, respondents.

ROM RO, J.: %he main issue presented in this case is &hether a municipality may eApropriate private property by virtue of a municipal resolution &hich &as disapproved by the ;an**unian* (anlala&i*an. (etitioner see/s the reversal of the Court of Appeals decision and resolution, promul*ated on July 15, 1992 and October 22, 1992 respectively, 1 and a declaration that +unicipal @esolution $o. 5E3 9 of the )una&an ;an**unian* )ayan is null and void. On July 2E, 19 9, the ;an**unian* )ayan of the +unicipality of )una&an in A*usan del ;ur passed @esolution $o. 5E3 9, ,Authori-in* the +unicipal +ayor to 2nitiate the (etition for 9Apropriation of a One B1C 1ectare (ortion of 'ot $o. F1E 3(ls35 Alon* the $ational 1i*h&ay O&ned by (ercival +oday for the ;ite of )una&an 6armers Center and Other #overnment ;ports 6acilities., 2 2n due time, @esolution $o. 5E3 9 &as approved by then +unicipal +ayor Anuncio C. )ustillo and transmitted to the ;an**unian* (anlala&i*an for its approval. On ;eptember 11, 19 9, the ;an**unian* (anlala&i*an disapproved said @esolution and returned it &ith the comment that ,eApropriation is unnecessary considerin* that there are still available lots in )una&an for the establishment of the *overnment center., 3 %he +unicipality of )una&an, herein public respondent, subse4uently filed a petition for 9minent 0omain a*ainst petitioner (ercival +oday before the @e*ional %rial Court at (rosperidad, A*usan del ;ur. ) %he complaint &as later amended to include the re*istered o&ners, (ercival +oday>s parents, Motico and 'eonora +oday, as party defendants. On +arch F, 1991, public respondent municipality filed a +otion to %a/e or 9nter 8pon the (ossession of ;ub.ect +atter of %his Case statin* that it had already deposited &ith the municipal treasurer the necessary amount in accordance &ith ;ection 2, @ule F7 of the @evised @ules of Court and that it &ould be in the *overnment>s best interest for public respondent to be allo&ed to ta/e possession of the property. 0espite petitioners> opposition and after a hearin* on the merits, the @e*ional %rial Court *ranted respondent municipality>s motion to ta/e possession of the land. %he lo&er court held that the ;an**unian* (anlala&i*an>s failure to declare the resolution invalid leaves it effective. 2t added that the duty of the ;an**unian* (anlala&i*an is merely to revie& the ordinances and resolutions passed by the ;an**unian* )ayan under ;ection 2" B1C of

).(. )l*. EE7, old 'ocal #overnment Code and that the eAercise of eminent domain is not one of the t&o acts enumerated in ;ection 19 thereof re4uirin* the approval of the ;an**unian* (anlala&i*an. 5 %he dispositive portion of the lo&er court>s Order dated July 2, 1991 reads! <19@96O@9, it appearin* that the amount of (FE2.E9 had been deposited as per Official @eceipt $o. 5E79F57 on 0ecember 12, 19 9 &hich this Court no& determines as the provisional value of the land, the +otion to %a/e or 9nter 8pon the (ossession of the (roperty filed by petitioner throu*h counsel is hereby #@A$%90. %he ;heriff of this Court is ordered to forth&ith place the plaintiff in possession of the property involved. 'et the hearin* be set on Au*ust 9, 1991 at !E" o>cloc/ in the mornin* for the purpose of ascertainin* the .ust compensation or fair mar/et value of the property sou*ht to be ta/en, &ith notice to all the parties concerned. ;O O@09@90. 6 (etitioners> motion for reconsideration &as denied by the trial court on October E1, 1991. (etitioners elevated the case in a petition for certiorari alle*in* *rave abuse of discretion on the part of the trial court, but the same &as dismissed by respondent appellate court on July 15, 1992. ( %he Court of Appeals held that the public purpose for the eApropriation is clear from @esolution $o. 5E3 9 and that since the ;an**unian* (anlala&i*an of A*usan del ;ur did not declare @esolution $o. 5E3 9 invalid, eApropriation of petitioners> property could proceed. @espondent appellate court also denied petitioners> motion for reconsideration on October 22, 1992.
8

+ean&hile, the +unicipality of )una&an had erected three buildin*s on the sub.ect property! the Association of )aran*ay Councils BA)CC 1all, the +unicipal +otorpool, both &ooden structures, and the )una&an +unicipal #ymnasium, &hich is made of concrete. 2n the instant petition for revie& filed on $ovember 2E, 1992, petitioner see/s the reversal of the decision and resolution of the Court of Appeals and a declaration that @esolution $o. 5E3 9 of the +unicipality of )una&an is null and void. On 0ecember , 199E, the Court issued a temporary restrainin* order en.oinin* and restrainin* public respondent Jud*e 9van*eline =uipco from enforcin* her July 2, 1991 Order and respondent municipality from usin* and occupyin* all the buildin*s constructed and from further constructin* any buildin* on the land sub.ect of this petition. 9 Actin* on petitioners> Omnibus +otion for 9nforcement of @estrainin* Order and for Contempt, the Court issued a @esolution on +arch 15, 1995, citin* incumbent municipal mayor Anuncio C. )ustillo for contempt, orderin* him to pay the fine and to demolish the ,bloc/tiendas, &hich &ere built in violation of the restrainin* order. 10 6ormer +ayor Anuncio C. )ustillo paid the fine and manifested that he lost in the +ay , 1995 election. 11 %he incumbent +ayor 'eonardo )arrios, filed a +anifestation, +otion to @esolve ,8r*ent +otion for 2mmediate 0issolution of the %emporary @estrainin* Order, and +emorandum on June 11, 199F for the +unicipality of )una&an. 12 (etitioners contend that the Court of Appeals erred in upholdin* the le*ality of the condemnation proceedin*s initiated by the municipality. Accordin* to petitioners, the eApropriation &as politically motivated and @esolution $o. 5E3 9 &as correctly disapproved by the ;an**unian* (anlala&i*an, there bein* other municipal properties available for the purpose. (etitioners also pray that the former +ayor Anuncio C. )ustillo be ordered to pay dama*es for insistin* on the enforcement of a void municipal resolution. %he Court of Appeals declared that the ;an**unian* (anlala&i*an>s reason for disapprovin* the resolution ,could be baseless, because it failed to point out &hich and &here are those available lots.>, @espondent court also concluded that since the ;an**unian* (anlala&i*an did not declare the municipal board>s resolution as invalid, eApropriation of petitioners> property could proceed. 13 %he Court finds no merit in the petition and affirms the decision of the Court of Appeals. 9minent domain, the po&er &hich the +unicipality of )una&an eAercised in the instant case, is a fundamental ;tate po&er that is inseparable from soverei*nty. 1) 2t is *overnment>s ri*ht to appropriate, in the nature of a compulsory sale to the ;tate, private property for public use or purpose. 15 2nherently possessed by the national le*islature, the po&er of eminent domain may be validly dele*ated to local *overnments, other public entities and public utilities. 16 6or the ta/in* of private property by the *overnment to be valid, the ta/in* must be for public use and there must be .ust compensation. 1( %he +unicipality of )una&an>s po&er to eAercise the ri*ht of eminent domain is not disputed as it is eApressly provided for in )atas (ambansa )l*. EE7, the local #overnment Code 18 in force at the time eApropriation proceedin*s &ere initiated. ;ection 9 of said la& states! ;ec. 9. 9minent 0omain. 7 A local *overnment unit may, throu*h its head and actin* pursuant to a resolution of its san**unian, eAercise the ri*ht of eminent domain and institute condemnation proceedin*s for public use or purpose.

<hat petitioners 4uestion is the lac/ of authority of the municipality to eAercise this ri*ht since the ;an**unian* (anlala&i*an disapproved @esolution $o. 5E3 9. ;ection 15E of ).(. )l*. EE7 provides! ;ec. 15E. ;an**unian* (anlala&i*an @evie&. 7 B1C <ithin thirty days after receivin* copies of approved ordinances, resolutions and eAecutive orders promul*ated by the municipal mayor, the san**unian* panlala&i*an shall eAamine the documents or transmit them to the provincial attorney, or if there be none, to the provincial fiscal, &ho shall eAamine them promptly and inform the san**unian* panlala&i*an in &ritin* of any defect or impropriety &hich he may discover therein and ma/e such comments or recommendations as shall appear to him proper. B2C 2f the san**unian* panlala&i*an shall find that any municipal ordinance, resolution or eAecutive order is beyond the po&er conferred upon the san**unian* bayan or the mayor, it shall declare such ordinance, resolution or eAecutive order invalid in &hole or in part, enterin* its actions upon the minutes and advisin* the proper municipal authorities thereof. %he effect of such an action shall be to annul the ordinance, resolution or eAecutive order in 4uestion in &hole or in part. %he action of the san**unian* panlala&i*an shall be final. AAA AAA AAA B9mphasis supplied.C %he ;an**unian* (anlala&i*an>s disapproval of +unicipal @esolution $o. 5E3 9 is an infirm action &hich does not render said resolution null and void. %he la&, as eApressed in ;ection 15E of ).(. )l*. EE7, *rants the ;an**unian* (anlala&i*an the po&er to declare a municipal resolution invalid on the sole *round that it is beyond the po&er of the ;an**unian* )ayan or the +ayor to issue. Althou*h pertainin* to a similar provision of la& but different factual milieu then obtainin*, the Court>s pronouncements in @elazco v. -las, 19 &here &e cited si*nificant early .urisprudence, are applicable to the case at bar. %he only *round upon &hich a provincial board may declare any municipal resolution, ordinance, or order invalid is &hen such resolution, ordinance, or order is ,beyond the po&ers conferred upon the council or president ma/in* the same., Absolutely no other *round is reco*ni-ed by the la&. A strictly le*al 4uestion is before the provincial board in its consideration of a municipal resolution, ordinance, or order. %he provincial Bboard>sC disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the le*al po&ers conferred by la&. 2f a provincial board passes these limits, it usurps the le*islative function of the municipal council or president. ;uch has been the consistent course of eAecutive authority. 20 %hus, the ;an**unian* (anlala&i*an &as &ithout the authority to disapprove +unicipal @esolution $o. 5E3 9 for the +unicipality of )una&an clearly has the po&er to eAercise the ri*ht of eminent domain and its ;an**unian* )ayan the capacity to promul*ate said resolution, pursuant to the earlier34uoted ;ection 9 of ).(. )l*. EE7. (erforce, it follo&s that @esolution $o. 5E3 9 is valid and bindin* and could be used as la&ful authority to petition for the condemnation of petitioners> property. As re*ards the accusation of political oppression, it is alle*ed that (ercival +oday incurred the ire of then +ayor Anuncio C. )ustillo &hen he refused to support the latter>s candidacy for mayor in previous elections. (etitioners claim that then incumbent +ayor C. )ustillo used the eApropriation to retaliate by eApropriatin* their land even if there &ere other properties belon*in* to the municipality and available for the purpose. ;pecifically, they alle*e that the municipality o&ns a vacant seven3hectare property ad.acent to petitioners> land, evidenced by a s/etch plan. 21 %he limitations on the po&er of eminent domain are that the use must be public, compensation must be made and due process of la& must be observed. 22 %he ;upreme Court, ta/in* co*ni-ance of such issues as the ade4uacy of compensation, necessity of the ta/in* and the public use character or the purpose of the ta/in*, 23 has ruled that the necessity of eAercisin* eminent domain must be *enuine and of a public character. 2) #overnment may not capriciously choose &hat private property should be ta/en. After a careful study of the records of the case, ho&ever, &e find no evidentiary support for petitioners> alle*ations. %he uncertified photocopy of the s/etch plan does not conclusively prove that the municipality does o&n vacant land ad.acent to petitioners> property suited to the purpose of the eApropriation. 2n the 4uestioned decision, respondent appellate court similarly held that the pleadin*s and documents on record have not pointed out any of respondent municipality>s ,other available properties available for the same purpose., 25 %he accusations of political reprisal are li/e&ise unsupported by competent evidence. Conse4uently, the Court holds that petitioners> demand that the former municipal mayor be personally liable for dama*es is &ithout basis. <19@96O@9, the instant petition is hereby 09$290. %he 4uestioned 0ecision and @esolution of the Court of Appeals in the case of ,(ercival +oday., et al. v. +unicipality of )una&an, et al., BCA #.@. ;( $o. 2F712C are A662@+90. %he %emporary @estrainin* Order issued by the Court on 0ecember , 199E is '26%90. ;O O@09@90. Regalado, .uno, Mendoza and Torres, ,r., ,,., concur. G.R. No. (28)1 January 29, 198(

#RO1INC OF C *", petitioner, vs. 0ONORA*L INT RM +IAT A## LLAT CO"RT an! ATTY. #A*LO #. GARCIA, respondents.

G"TI RR ,, JR., J.: %his is a petition to revie& the decision of the respondent 2ntermediate Appellate Court in A.C. #.@. C: $o. FF5"2 entitled ,#overnor @ene 9spina, et. at v. +ayor ;er*io OsmeOa, Jr., et. al, Atty. (ablo (. #arcia v. (rovince of Cebu, 1 affirmin* &ith modification the order of the Court of 6irst 2nstance of Cebu, )ranch :22, *rantin* respondent (ablo (. #arcia>s claim for compensation for services rendered as counsel in behalf of the respondent (rovince of Cebu. %he facts of the case are not in dispute. On 6ebruary 5, 19F5, &hile then incumbent #overnor @ene 9spina &as on official business in +anila, the :ice3#overnor, (riscillano Almendras and three BEC members of the (rovincial )oard enacted @esolution $o. 1 , donatin* to the City of Cebu 21" province. o&ned lots all located in the City of Cebu, &ith an a**re*ate area of over E " hectares, and authori-in* the :ice3#overnor to si*n the deed of donation on behalf of the province. %he deed of donation &as immediately eAecuted in behalf of the (rovince of Cebu by :ice3#overnor Almendras and accepted in behalf of the City of Cebu by +ayor ;er*io OsmeOa, Jr. %he document of donation &as prepared and notari-ed by a private la&yer. %he donation &as later approved by the Office of the (resident throu*h 9Aecutive ;ecretary Juan Cancio. Accordin* to the 4uestioned deed of donation the lots donated &ere to be sold by the City of Cebu to raise funds that &ould be used to finance its public improvement pro.ects. %he City of Cebu &as *iven a period of one B1C year from Au*ust 15, 19F5 &ithin &hich to dispose of the donated lots. 8pon his return from +anila, #overnor 9spina denounced as 'e*al and immoral the action of his collea*ues in donatin* practically all the patrimonial property of the province of Cebu, considerin* that the latter>s income &as less than one. fourth B1N5C of that of the City of Cebu. %o prevent the sale or disposition of the lots, the officers and members of the Cebu +ayor>s 'ea*ue Bin behalf of their respective municipalitiesC alon* &ith some taApayers, includin* Atty. #arcia, filed a case see/in* to have the donation declared ille*al, null and void. 2t &as alle*ed in the complaint that the plaintiffs &ere filin* it for and in behalf of the (rovince of Cebu in the nature of a derivative suit. $amed defendants in the suit &ere the City of Cebu, City +ayor ;er*io OsmeOa, Jr. and the Cebu provincial officials responsible for the donation of the province3o&ned lots. %he case &as doc/eted as Civil Case $o. @3 FF9 of the Court of 6irst 2nstance of Cebu and assi*ned to )ranch :2 thereof. 0efendants City of Cebu and City +ayor OsmeOa, Jr. filed a motion to dismiss the case on the *round that plaintiffs did not have the le*al capacity to sue. ;ubse4uently, in an order, dated +ay, 19F5, the court dismissed Case $o. @3 FF9 on the *round that plaintiffs &ere not the real parties in interest in the case. (laintiffs filed a motion for reconsideration of the order of dismissal. %his motion &as denied by the Court. +ean&hile, Cebu City +ayor ;er*io OsmeOa, Jr. announced that he &ould borro& funds from the (hilippine $ational )an/ B($)C and &ould use the donated lots as collaterals. 2n July, 19F5, the City of Cebu advertised the sale of an the lots remainin* unsold. %hereupon, #overnor 9spina, apprehensive that the lots &ould be irretrievably lost by the (rovince of Cebu, decided to *o to court. 1e en*a*ed the services of respondent #arcia in filin* and prosecutin* the case in his behalf and in behalf of the (rovince of Cebu. #arcia filed the complaint for the annulment of the deed of donation &ith an application for the issuance of a &rit of preliminary in.unction, &hich application &as *ranted on the same day, Au*ust F, 19F5. %he complaint &as later amended to implead Cebu City +ayor Carlos (. Cui-on as additional defendant in vie& of 6iscal $umeriano Capan*pan*an>s manifestation statin* that on ;eptember 9, 19F5, ;er*io OsmeOa, Jr. filed his certificate of Candidacy for senator, his positionNoffice havin* been assumed by City +ayor Carlos (. Cui-on. ;ometime in 1972, the (rovincial )oard passed a resolution authori-in* the (rovincial Attorney, Alfredo #. )a*uia, to enter his appearance for the (rovince of Cebu and for the incumbent #overnor, :ice3#overnor and members of the (rovincial )oard in this case. On January E", 197E, Alfredo #. )a*uia, (rovincial Attorney of the (rovince of Cebu, entered his appearance as additional counsel for the (rovince of Cebu and as counsel for #overnor Osmundo @ama, :ice3#overnor ;alutario 6ernande- and )oard +embers 'eonardo 9nad, #uillermo 'e*a-pi, and @i-alina +i*allos. On January E1, 197E, Atty. )a*uia filed a complaint in intervention statin* that intervenors (rovince of Cebu and (rovincial )oard of Cebu &ere .oinin* or unitin* &ith ori*inal plaintiff, former #overnor of Cebu, @ene 9spina. %hey adopted his causes of action, claims, and position stated in the ori*inal complaint filed before the court on Au*ust F, 19F5. On June 25, 1975, a compromise a*reement &as reached bet&een the province of Cebu and the city of Cebu. On July 15, 1975, the court approved the compromise a*reement and a decision &as rendered on its basis.

On 0ecember 5, 1975, the court issued an order directin* the issuance of a &rit of eAecution to implement the decision dated July 15, 1975, to &it! 1. Orderin* the City of Cebu to return and deliver to the (rovince of Cebu all the lots enumerated in the second para*raph hereofD 2. Orderin* the (rovince of Cebu to pay the amount of One +illion 6ive 1undred %housand (esos B(1,5"",""".""C to the City of Cebu for and in consideration of the return by the latter to the former of the aforesaid lotsD E. 0eclarin* the retention by the City of Cebu of the eleven B11C lots mentioned in para*raph $o. 1 of the compromise a*reement, namely, 'ot $os. 1151, 12F1, 12F , 12F9, 1272, 127E, 917, F5F3A, F5FA353" and 1"1"73CD 5. Orderin* the City of Cebu or the City %reasurer to turn over to the (rovince of Cebu the amount of (1 795 .9E mentioned in AnneA ,A, of the defendants manifestation dated October 21, 1975D 5. 0eclarin* the City of Cebu and an its present and past officers completely free from liabilities to third persons in connection &ith the aforementioned lots, &hich liabilities if any, shall be assumed by the (rovince of CebuD F. Orderin* the @e*ister of 0eeds of the City of Cebu to cancel the certification of titles in the name of the City of Cebu coverin* the lots enumerated in the second para*raph of this order and to issue ne& ones in lieu thereof in the name of the (rovince of Cebu. 6or services rendered in Civil Case no. 2E 3)C, C62 of Cebu, respondent (ablo (. #arcia filed throu*h counsel a $otice of Attorney>s 'ien, dated April 15, 1975, prayin* that his statement of claim of attorney>s lien in said case be entered upon the records thereof, pursuant to ;ection E7, @ule 1E of the @ules of Court. %o said notice, petitioner (rovince of Cebu filed throu*h counsel, its opposition dated April 2E, 1975, statin* that the payment of attorney>s fees and reimbursement of incidental eApenses are not allo&ed by la& and settled .urisprudence to be paid by the (rovince. A re.oinder to this opposition &as filed by private respondent #arcia. After hearin*, the Court of 6irst 2nstance of Cebu, then presided over by Jud*e Alfredo +ari*omen, rendered .ud*ment dated +ay E", 1979, in favor of private respondent and a*ainst petitioner (rovince of Cebu, declarin* that the former is entitled to recover attorney>s fees on the basis of 4uantum meruit and fiAin* the amount thereof at (E","""."". )oth parties appealed from the decision to the Court of Appeals. 2n the case of private respondent, ho&ever, he appealed only from that portion of the decision &hich fiAed his attorney>s fees at (E","""."" instead of at E"R of the value of the properties involved in the liti*ation as stated in his ori*inal claim On October 1 , 19 5, the 2ntermediate Appellate Court rendered a decision affirmin* the findin*s and conclusions of the trial court that the private respondent is entitled to recover attorney>s fees but fiAin* the amount of such fees at 5R of the mar/et value of the properties involved in the liti*ation as of the date of the filin* of the claim in 1975. %he dispositive portion of the decision reads! <19@96O@9, eAcept for the aforementioned modification that the compensation for the services rendered by the Claimant Atty. (ablo (. #arcia is fiAed at five percent B5RC of the total fair mar/et value of the lots in 4uestion, the order appealed from is hereby affirmed in all other respects. )oth parties &ent to the ;upreme Court &ith private respondent 4uestionin* the fiAin* of his attorney>s fees at 5R instead of E"R of the value of the properties in liti*ations as prayed for in his claims. 1o&ever, the private respondent later &ithdre& his petition in #.@. $o. 72 1 &ith the follo&in* eAplanation! %hat after a lon* and serious reflection and reassessment of his position and intended course of action and, after see/in* the vie&s of his friends, petitioner has come to the definite conclusion that prosecutin* his appeal &ould only result in further delay in the final disposition of his claim Bit has been pendin* for the last 1" years 5 in the C62 and F in the Court of Appeals, later 2ntermediate Appellate CourtC and that it &ould be more prudent and practicable to accept in full the decision of the 2ntermediate Appellate Court. 1ence, only the petition of the (rovince of Cebu is pendin* before this Court. %he matter of representation of a municipality by a private attorney has been settled in Ra$os v. Court of Appeals B1" ;C@A 72 C. Collaboration of a private la& firm &ith the fiscal and the municipal attorney is not allo&ed. ;ection 1F E of the @evised Administrative Code provides! .;ection 1F E. 0uty of fiscal to represent provinces and provincial subdivisions in liti*ation. 7 %he provincial fiscal shall represent the province and any municipality, or municipal district thereof in any court, eAcept in cases &hereof ori*inal .urisdiction is vested in the ;upreme Court or in cases &here the municipality, or municipal district in 4uestion is a party adverse

to the provincial *overnment or to some other municipality, or municipal district in the same province. <hen the interests of a provincial *overnment and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. <hen the provincial fiscal is dis4ualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council %he above provision, complemented by ;ection E of the 'ocal Autonomy 'a&, is clear in providin* that only the provincial fiscal and the municipal attorney can represent a province or municipality in its la&suits. %he provision is mandatory. %he municipality>s authority to employ a private la&yer is eApressly limited only to situations &here the provincial fiscal is dis4ualified to represent it B0e #uia v. %he Auditor #eneral 55 ;C@A 1F9D +unicipality of )ocaue, et. al. v. +anoto/, 9E (hil. 17ED 9nri4ue-, ;r., v. 1onorable #imene-, 1"7 (hil. 9E2C as &hen he represents the province a*ainst a municipality. %he la&ma/er, in re4uirin* that the local *overnment should be represented in its court cases by a *overnment la&yer, li/e its municipal attorney and the provincial fiscal intended that the local *overnment should not be burdened &ith the eApenses of hirin* a private la&yer. %he la&ma/er also assumed that the interests of the municipal corporation &ould be best protected if a *overnment la&yer handles its liti*ations. 2t is to be eApected that the municipal attorney and the fiscal &ould be faithful and dedicated to the corporation>s interests, and that, as civil service employees, they could be held accountable for any misconduct or dereliction of duty B;ee @amos v. Court of Appeals, supraC. 1o&ever, every rule is not &ithout an eAception, 0bi <uid generaliter concediturL inest haec e1ceptio, si non ali<uid sit contra &us fas<ue B<here anythin* is *ranted *enerally, this eAception is impliedD that nothin* shall be contrary to la& and ri*htC. 2ndeed, e4uity, as &ell as the eAceptional situation facin* us in the case at bar, re4uire a departure from the established rule. %he petitioner anchors its opposition to private respondent>s claim for compensation on the *rounds that the employment of claimant as counsel for the (rovince of Cebu by then #overnor @ene 9spina &as unauthori-ed and violative of ;ection 1F 1 to 1F E in relation to ;ection 1F79 of the @evised Administrative Code and that the claim for attorney>s fees is beyond the purvie& of ;ection E7, @ule 1E of the @ules of Court. 2t is ar*ued that #overnor 9spina &as not authori-ed by the (rovincial )oard, throu*h a board resolution, to employ Atty. (ablo (. #arcia as counsel of the (rovince of Cebu. Admittedly, this is so. 1o&ever, the circumstances obtainin* in the case at bar are such that the rule cannot be applied. %he (rovincial )oard &ould never have *iven such authori-ation. %he decision of the respondent court elucidates the matter thus! ... %he provisions of ;ections 1F 1 to 1F E of the @evised Administrative Code contemplate a normal situation &here the adverse party of the province is a third person as in the case of 6nri<uez v. Auditor 4eneral, 1"7 (hil 9E2. 2n the present case, the controversy involved an intramural fi*ht bet&een the (rovincial #overnor on one hand and the members of the (rovincial )oard on the other hand. Obviously it is unthin/able for the (rovincial )oard to adopt a resolution authori-in* the #overnor to employ Atty. #arcia to act as counsel for the (rovince of Cebu for the purpose of filin* and prosecutin* a case a*ainst the members to the same (rovincial )oard Accordin* to the claimant Atty. #arcia, ho& can #overnor 9spina be eApected to secure authority from the (rovincial )oard to employ claimant as counsel for the (rovince of Cebu &hen the very officials from &hom authority is to be sou*ht are the same officials to be sued, 2t is simply impossible that the :ice3#overnor and the members of the (rovincial )oard &ould pass a resolution authori-in* #overnor 9spina to hire a la&yer to file a suit a*ainst themselves. AAA AAA AAA 8nder ;ection 21"2 of the @evised Administrative Code it is the (rovincial )oard upon &hom is vested the authority ,to direct, in its discretion, the brin*in* or defense of civil suits on behalf of the (rovincial #overnor TTT., Considerin* that the members of the (rovincial )oard are the very ones involved in this case, they cannot be eApected to directed the (rovincial 6iscal the filin* of the suit on behalf of the provincial *overnment a*ainst themselves. +oreover, as ar*ued by the claimant, even if the (rovincial 6iscal should side &ith the #overnor in the brin*in* of this suit, the (rovincial )oard &hose members are made defendants in this case, can simply frustrate his efforts by directin* him to dismiss the case or by refusin* to appropriate funds for the eApenses of the liti*ation. ... Conse4uently, there could have been no occasion for the eAercise by the (rovincial 6iscal of his po&ers and duties since the members of the (rovincial )oard &ould not have directed him to file a suit a*ainst them. A situation obtains, therefore, &here the (rovincial #overnor, in behalf of the (rovince of Cebu, see/s redress a*ainst the very members of the body, that is, the (rovincial )oard, &hich, under the la&, is to provide it &ith le*al assistance. A strict application of the provisions of the @evise Administrative Code on the matter &ould deprive the plaintiffs in the court belo& of redress for a valid *rievance. %he provincial board authori-ation re4uired by la& to secure the services of special counsel becomes an impossibility. %he decision of the respondent court is *rounded in e4uity 7 a correction applied to la&, &here on account of the *eneral comprehensiveness of the la&, particular eAceptions not bein* provided a*ainst, somethin* is &antin* to render it perfect.

2t is also ar*ued that the employment of claimant &as violative of sections 1F 1 to 1F E of the @evised Administrative Code because the (rovincial 6iscal &ho &as the only competent official to file this case &as not dis4ualified to act for the (rovince of Cebu. @espondent counsel>s representation of the (rovince of Cebu became necessary because of the (rovincial )oard>s failure or refusal to direct the brin*in* of the action to recover the properties it had donated to the City of Cebu. %he )oard more effectively dis4ualified the (rovincial 6iscal from representin* the (rovince of Cebu &hen it directed the 6iscal to appear for its members in Civil Case $o. @3 FF9 filed by Atty. #arcia, and others, to defend its actuation in passin* and approvin* (rovincial )oard @esolution $o. 1 F. %he ans&er of the (rovincial 6iscal on behalf of the :ice3 #overnor and the (rovincial )oard members filed in Civil Case $o. @3 FF9D B9Ahibit ,?,C upholds the validity and le*ality of the donation. 1o& then could the (rovincial 6iscal represent the (rovince of Cebu in the suit to recover the properties in 4uestionJ 1o& could #overnor 9spina be represented by the (rovincial 6iscal or see/ authori-ation from the (rovincial )oard to employ special counselJ 5e$o tenetur ad i$possibile B%he la& obli*es no one to perform an impossibilityC.l!phlMitN $either could a prosecutor be desi*nated by the 0epartment of Justice. +alacaOan* had already approved the 4uestioned donation Anent the 4uestion of liability for respondent counsel>s services, the *eneral rule that an attorney cannot recover his fees from one &ho did not employ him or authori-e his employment, is sub.ect to its o&n eAception. 8ntil the contrary is clearly sho&n an attorney is presumed to be actin* under authority of the liti*ant &hom he purports to represent BA-otes v. )lanco, 7 (hil. 7E9C 1is authority to appear for and represent petitioner in liti*ation, not havin* been 4uestioned in the lo&er court, it &ill be presumed on appeal that counsel &as properly authori-ed to file the complaint and appear for his client. B@epublic v. (hilippine @esources 0evelopment Corporation, 1"2 (hil. 9F"C 9ven &here an attorney is employed by an unauthori-ed person to represent a client, the latter &ill be bound &here it has /no&led*e of the fact that it is bein* represented by an attorney in a particular liti*ation and ta/es no prompt measure to repudiate the assumed authority. ;uch ac4uiescence in the employment of an attorney as occurred in this case is tantamount to ratification B%an 'ua v. O> )rien, 55 (hil. 5EC. %he act of the successor provincial board and provincial officials in allo&in* respondent Atty. (ablo (. #arcia to continue as counsel and in .oinin* him in the suit led the counsel to believe his services &ere still necessary. <e apply a rule in the la& of municipal corporations! ,that a municipality may become obli*ated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to &hich it has the *eneral po&er to contract. %he doctrine of implied municipal liability has been said to apply to all cases &here money or other property of a party is received under such circumstances that the *eneral la&, independent of eApress contract implies an obli*ation upon the municipality to do .ustice &ith respect to the same., BE Am Jur. ;ec. 515, p. 19EC! %he obli*ation of a municipal corporation upon the doctrine of an implied contract does not connote an enforceable obli*ation. ;ome specific principle or situation of &hich e4uity ta/es co*ni-ance must be the foundation of the claim. %he principle of liability rests upon the theory that the obli*ation implied by la& to pay does not ori*inate in the unla&ful contract, but arises from considerations outside it. %he measure of recovery is the benefit received by the municipal corporation. %he amount of the loan, the value of the property or services, or the compensation specified in the contract, is not the measure. 2f the price named in the invalid contract is sho&n to be entirely fair and reasonable not only in vie& of the labor done, but also in reference to the benefits conferred, it may be ta/en as the true measure of recovery. %he petitioner can not set up the plea that the contract &as ultra vires and still retain benefits thereunder. 1avin* re*arded the contract as valid for purposes of reapin* some benefits, the petitioner is estopped to 4uestion its validity for the purposes of denyin* ans&erability. %he trial court discussed the services of respondent #arcia as follo&s! ... %hus because of his effort in the filin* of this case and in securin* the issuance of the in.unction preventin* the City of Cebu and ;er*io OsmeOa, Jr., from sellin* or disposin* the lots to third parties, on the part of the members of the (rovincial )oard from eAtendin* the date of the automatic reversion beyond Au*ust 15, 19F5, on the part of the @e*ister of 0eeds 7 from effectin* the transfer of title of any of the donated lots to any vendee or transferee, the disposition of these lots by the City of Cebu to third parties &as frustrated and thus! saved these lots for their eventual recovery by the province of Cebu. Actually it &as #overnor 9spina &ho filed the case a*ainst Cebu City and +ayor OsmeOa. #arcia .ust happened to be the la&yer, ;till Atty. #arcia is entitled to compensation. %o deny private respondent compensation for his professional services &ould amount to a deprivation of property &ithout due process of la& BCristobal v. 9mployees> Compensation Commission, 1"E ;C@A E29C. %he petitioner alle*es that althou*h they do not deny Atty. #arcia>s services for #overnor 9spina B&ho ceased to be such #overnor of Cebu on ;eptember 1E, 19F9C and the ori*inal plaintiffs in the case, ,it cannot be said &ith candor and fairness that &ere it not for his services the lots &ould have already been lost to the province forever, because the donation itself he &as tryin* to en.oin and annul in said case &as sub.ect to a reversion clause under &hich lots remainin* undisposed of by the City as of Au*ust 15, 19F5 automatically reverted to the province and only about 17 lots &ere disposed of by Au*ust 15, 19F5., <e 4uote respondent counsel>s comment &ith approval! AAA AAA AAA <hile it is true that the donation &as sub.ect to a reversion clause, the same clause *ave the (rovincial )oard the discretion to eAtend the period of reversion beyond Au*ust 15, 19F5 Bsee para*raph E of donationC.

<ith the /no&n predisposition of the ma.ority of the members of the (rovincial )oard, there &ould have been no impediment to the eAtension of the reversion date to beyond Au*ust 15, 19F5. Once the date of reversion is eAtended, the disposition of an the donated lots &ould be only a matter of course. <e have carefully revie&ed the records of this case and conclude that E"R or even 5R of properties already &orth B(12",""",""".""C in 1979 as compensation for the private respondent>s services is simply out of the 4uestion. %he case handled by Atty. #arcia &as decided on the basis of a compromise a*reement &here he no lon*er participated. %he decision &as rendered after pre3trial and &ithout any hearin* on the merits. %he factual findin*s and applicable la& in this petition are accurately discussed in the eAhaustive and &ell3&ritten Order of then %rial Jud*e, no& Court of Appeals Justice Alfredo +ari*omen <e a*ree &ith his determination of reasonable fees for the private la&yer on the basis of 4uantum meruit. %he trial court fiAed the compensation at (E","""."" and ordered reimbursement of actual eApenses in the amount of (2 9.5E. <19@96O@9, the 4uestioned October 1 , 19 5 decision of the 2ntermediate Appellate Court is set aside. %he Order of the %rial Court dated +ay E", 1979 is @92$;%A%90. ;O O@09@90. Fernan 2Chair$an3, Ala$pay, .aras and .adilla ,,., concur. -idin ,., too" no part. G.R. No. L-9920 F&7ruary 29, 1960

*ARTOLOM . $AN +I GO, plaintiff3appellee, vs. T0 M"NICI#ALITY OF NA"JAN, #RO1INC OF ORI NTAL MIN+ORO, defendant3appellant. Rodegelio M. ,alandoni and ,ose .. %aurel for appellee. Delgado, Flores, Macapagal and Dizon and the .rovincial Fiscal of 7riental Mindoro for appellant. G"TI RR , +A1I+, J.2 6ollo&in* a public biddin* conducted by the municipality of $au.an, Oriental +indoro for the lease of its municipal &aters, @esolution 5F, series of 1957 &as passed by the municipal council thereof a&ardin* the concession of the )utas @iver and the $au.an 'a/e to the hi*hest bidder )artolome ;an 0ie*o. Conse4uently, a contract &as entered into bet&een the said ;an 0ie*o and the municipality, stipulatin* that for a period of five B5C years, from January 1, 195 to 0ecember E1, 1952, the former &as to be the lessee of ,the eAclusive privile*e of erectin* fish corrals alon* the )utas @iver be*innin* from its .unction &ith the ;an A*ustin @iver up to the $au.an 'a/e itself,, for annual rental of (2F,E""."", or a total of (1E1,5""."" for five years. 8pon petition by the lessee, ho&ever, the said council reduced the annual rental by 2"R by virtue of @esolution 59, series of 1959. On ;eptember 5, 195", the lessee re4uested for a five3year eAtension of the ori*inal lease period. %he re4uest &as, for some time, left pendin* before the municipal council, but on 0ecember 1, 1951, after the lessee had reiterated his petition for eAtension, for the reason that the typhoon ,<anda,, &hich too/ place that month, destroyed most of his fish corrals, the council adopted @esolution 222, series of 1951 eAtendin* the lease for another five B5C years be*innin* January 1, 1952, &ith the eApress condition that the plaintiff &ould &aive the privile*e to see/ for reduction of the amount of rent &hich &as to be based on the ori*inal contract. After the resolution had been approved by the (rovincial )oard of Oriental +indoro, the lessor and the lessee, on 0ecember 2E, 1951, contracted for the eAtension of the period of the lease. %he contract &as approved and confirmed on 0ecember 29, 1951 by @esolution 229, series of 1951, of the municipal council of $au.an &hose term &as then about to eApire. (ursuant to the said contract, the lessee filed a surety bond of (52,"""."" and then reconstructed his fish corrals and stoc/ed the $au.an 'a/e &ith baO*us fin*erlin*s. On January 2, 1952, the municipal council of $au.an, this time composed of a ne& set of members, adopted @esolution E, series of 1952, revo/in* @esolution 222, series of 1951. On the same date, the ne& council also passed @esolution 11, revo/in* @esolution 229 of the old council &hich confirmed the eAtension of the lease period. %he lessee re4uested for reconsideration and recall of @esolution E, on the *round, amon* others, that it violated the contract eAecuted bet&een him and the municipality on 0ecember 2E, 1951, and, therefore, contrary to Article 222, section 1, clause 1" of the Constitution. %he re4uest, ho&ever, &as not *ranted. On ;eptember 5, 1952, the lessee instituted this proceedin*s in the court belo& see/in* to have @esolution E, series of 1952, of the municipal council of $au.an, declared null and void, for bein* unconstitutional, and prayin* for an order en.oinin* the defendant municipality from conductin* a public biddin* for the leasin* of the $au.an fisheries to any person other than the plaintiff durin* the period from January 1, 195E to 0ecember E1, 1957. Ans&erin* the complaint, the defendant asserted the validity of @esolution E, series of 1951, alle*in* by the &ay of special defense that the resolution authori-in* the ori*inal lease contract, reducin* the lease rentals and rene&in* the lease are null and void for not havin* been passed in accordance &ith la&. 0efendant further put up a counterclaim for the amount representin* the ille*al reduction of 2"R of the ori*inal rentals, plus the sum of (2,191.F" per month be*innin* 0ecember 1, 1952 until the case shall have been terminated.

After trial, the lo&er court rendered .ud*ment upholdin* the validity of the lease contract, as &ell at is eAtension, and declarin* @esolution E, series of 1952, null and void. %he municipality of $au.an has ta/en this appeal. %he main 4uestion to be decided is &hether or not @esolution $o. E, series of 1952, revo/in* @esolution 222, series of 1951, of the municipal council of $au.an is valid. 6or clarity, &e have to reiterate that @esolution 222, series of 1951, is an approval of plaintiff3appellee>s petition for eAtension for another five years, effective January 1, 195E, of his five3year lease concession *ranted under @esolution 5F, series of 1957. ;aid @esolution 222, ho&ever, &as revo/ed by the municipal council under a ne& set of members in its @esolution E, series of 1952, for the reason, amon* others, that the eAtension &as ille*al, it havin* been *ranted &ithout competitive public biddin*. 2t is this last mentioned resolution that has been declared null and void by the trial court. %he la& B;ec. 2E2E of the @evised Administrative CodeC re4uires that &hen the eAclusive privile*e of fishery or the ri*ht to conduct a fish3breedin* *round is *ranted to a private party, the same shall be let to the hi*hest bidder in the same manner as is bein* done in eAploitin* a ferry, a mar/et or a slau*hterhouse belon*in* to the municipality B;ee +unicipality of ;an 'uis vs. :entura, et al., 5F (hil., E29C. %he re4uirement of competitive biddin* is for the purpose of invitin* competition and to *uard a*ainst favoritism, fraud and corruption in the lettin* of fishery privile*es B See E +cKuillin, +unicipal Corporations, 2nd 9d., p. 117"D 1arles #asli*ht Co. vs. $e& =or/, EE $.=. E"9D and 2 0illon, +unicipal Corporation, p. 1219C. %here is no doubt that the ori*inal lease contract in this case &as a&arded to the hi*hest bidder, but the reduction of the rental and the eAtension of the term of the lease appear to have been *ranted &ithout previous public biddin*. 2n the case of CalteA B(hil.C, 2nc., et al. vs. 0el*ado )ros., 2nc., et al., 9F (hil., EF , the amendment to an arrastre contract &as declared null and void on the *round that it &as made &ithout previous public biddin*. 2n so declarin*, this Court has adopted the follo&in* opinion! . . . it is the opinion of the Court that the said a*reement .. eAecuted and entered into &ithout previous public biddin*, is null and void, and cannot adversely affect the ri*hts of third parties . . . and of the public in *eneral. %he Court a*rees &ith the contention of counsel for the plaintiffs that the due eAecution of a contract after public biddin* is a limitation upon the ri*ht of the contradictin* parties to alter or amend it &ithout another public biddin*, for other&ise &hat &ould a public biddin* be *ood for if after the eAecution of a contract after public biddin*, the contractin* parties may alter or amend the contract or even cancel it, at their &illJ (ublic biddin*s are held for the protection of the public, and to *ive the public the best possible advanta*es by means of open competition bet&een the bidders. 1e &ho bids or offers the best terms is a&arded the contract sub.ect of the bid, and it is obvious that such protection and best possible advanta*es to the public &ill disappear if the parties to a contract eAecuted after public biddin* may alter or amend it &ithout another previous public biddin*. <hile in that case &e ruled that althou*h the ,arrastre contract, therein 4uestioned authori-ed the parties to alter or amend any of the terms thereof, such authority must be considered as bein* sub.ect to the re4uirement of previous public biddin*, a formality observed before the ori*inal contract &as a&arded, &ith more reason should the rule re4uirin* such public biddin* be stric/ly applied in the instant case &here no such authority to alter or amend the terms of the contract &as reserved. 6urthermore, it has been ruled that statutes re4uirin* public biddin* apply to amendments of any contract already eAecuted in compliance &ith the la& &here such amendments alter the ori*inal contract in some vital and essential particular B See +orse vs. )oston, 15 $.9. 1E25E +ass. 257.C 2nasmuch as the period in a lease is a vital and essential particular to the contract, &e believe that the eAtension of the lease period in this case, &hich &as *ranted &ithout the essential re4uisite of public biddin*, is not in accordance &ith la&. And it follo&s the @esolution 222, series of 1951, and the contract authori-ed thereby, eAtendin* the ori*inal five3year lease to another five years are null and void as contrary to la& and public policy. <e a*ree &ith the defendant3appellant in that the 4uestion @esolution E is not an impairment of the obli*ation of contract, because the constitutional provision on impairment refers only to contract le*ally eAecuted. <hile, apparently, @esolution E tended to abro*ate the contract eAtendin* the lease, le*ally spea/in*, there &as no contract abro*ated because, as &e have said, the eAtension contract is void and ineAistent. %he lo&er court, in holdin* that the defendant3appellant municipality has been estopped from assailin* the validity of the contract into &hich it entered on 0ecember 2E, 1951, seems to have overloo/ed the *eneral rule that 7 . . . the doctrine of estoppel cannot be applied as a*ainst a municipal corporation to validate a contract &hich it has no po&er to ma/e or &hich it is authori-ed to ma/e only under prescribed conditions, &ithin prescribed limitations, or in a prescribed mode or manner, althou*h the corporation has accepted the benefits thereof and the other party has fully performed his part of the a*reement, or has eApended lar*e sums in preparation for performance. A reason fre4uently assi*ned for this rule is that to apply the doctrine of estoppel a*ainst a municipality in such case &ould be to enable it to do indirectly &hat it cannot do directly. Also, &here a contract is violative of public policy, the municipality eAecutin* it cannot be estopped to assert the invalidity of a contract &hich has ceded a&ay, controlled, or embarrassed its le*islative or *overnment po&ers. BE Am. Jur. pp. 2"232"5C. As pointed out above, ,public biddin*s are held for the best protection of the public and to *ive the public the best possible advanta*es by means of open competition bet&een the bidders., %hus, contracts re4uirin* public biddin* affect public interest, and to chan*e them &ithout complyin* &ith that re4uirement &ould indeed be a*ainst public policy. %here is, therefore, nothin* to plaintiff3appellee>s contention that the parties in this case bein* in pari delicto should be left in the situation &here they are found, for ,althou*h the parties are in pari delicto, yet the court may interfere and *rant relief at the suit of one of them, &here public policy re4uires its intervention, even thou*h the result may be that a benefit &ill be derived by a plaintiff &ho is in e4ual *uilt &ith defendant. )ut here the *uilt of the parties is not considered as e4ual to the hi*her ri*ht of the public, and the *uilty party to &hom the relief is *ranted is simply the instrument by &hich the public is served., B1E C.J. p. 597C

2n vie& of the fore*oin*, &e hold that the municipal council of $au.an acted ari*ht in adoptin* @esolution E, series of 1952, no& in 4uestion. 2n consonance &ith the principles enunciated above, @esolution 59, series of 1957, reducin* the rentals by 2"R of the ori*inal price, &hich &as also passed &ithout public biddin*, should li/e&ise be held void, since a reduction of the rental to be paid by the lessee is a substantial alternation in the contract, ma/in* it a distinct and different lease contract &hich re4uires the prescribed formality of public biddin*. %here seems to be no necessity of passin* on the validity of @esolution 5F, series of 1957, for defendant3appellant, apparently, did not mean to have it annulled, as may be seen from its prayer in the court belo& and also in this appeal. At any rate, the validity of said resolution does not alter our findin* to the effect that @esolution 59, series of 1959, and @esolution 222, series of 1951, are ille*al and voidD and that @esolution E, series of 1952, is valid. <herefore, the appealed .ud*ment is reversedD plaintiff3appellee is hereby ordered to pay the defendant3appellant under the latter>s counterclaim the sum of (17,971.F" representin* the unapproved and ineffective reduction by 2"R of the ori*inal stipulated rental, for the period from July 1, 1959 to 0ecember 1, 1952 plus the further sum of (2,191.F" per month be*innin* 0ecember 1, 1952, to 0ecember E1, 1957, as reasonable compensation for the ille*al retention of the $au.an fisheries. <ithout special pronouncement as to costs. -engzon, Monte$ayor, -autista Angelo, %abrador, Concepcion, Reyes, ,.-.%., 6ndencia, and -arrera, ,,., concur.

$OL"TION April 'B, 'CEO

G"TI RR , +A1I+, J.2 2n the above entitled case, &hich &as decided on 6ebruary 29, 19F", the plaintiff3appellee moves for reconsideration of the decision on the *rounds B1C that in virtue of the dispositive portion thereof the plaintiff3appellee is ordered to pay the sum of (2,191.F" per month be*innin* 0ecember 1, 1952 to 0ecember E1, 1957 as reasonable compensation for the ille*al retention of the $au.an fisheries, &hile the contract, &hich &as declared ille*al and void covered the period January 1, 195E to 0ecember E1, 1957, so the period of payment of the sum of (2,191.F" should be*in not from 0ecember 1, 1952 but from January 1, 195ED B2C that plaintiff3appellee has already paid to the defendant3appellant the said sum of (2,191.F" every month, from January 1, 195E to 0ecember E1, 1957D BEC that by clerical error in the statement of facts of the decision Bsecond para*raphC it appears that the eAtension of the lease contract commenced January 1, 1952, instead of January 1, 195ED and B5Cthat this Court ordered the plaintiff3appellee to pay defendant3appellant the sum of (17,971.F" representin* the unapproved and ineffective reduction by 2"R of the ori*inally stipulated rental, &hich order, from the strictly le*al point of vie&, cannot be assailed, yet on e4uitable *rounds relief from such payment of the sum could be *iven for the reasons alle*ed in the motion. %he defendant3appellant, on other hand, filed an ,Ans&er to the +otion for @econsideration and Application for 0ama*es,. %he ans&er states! Accordin* to the evidence in this case, after the approval, in June, 1959, of @esolution 59, series of 1959, reducin* the rental by 2"R, the plaintiff3appellee paid defendant3appellant the reduced rentals from July 1, 1959 to 0ecember E1, 1952. %he ori*inal lease contract ,9Ahibit ,A,, stipulates an annual rental of (2F,E""."" payable every trimester, and 2"R thereof is (5,2F"."" or (1,E15."" per trimester, &hich amount plaintiff conse4uently failed to pay from July 1, 1959 to 0ecember E1, 1952. ;ince the period from July 1, 1959 to 0ecember E1, 1952 consists of 15 trimesters, the plaintiff3appellee failed to pay accordin*ly, the amount of (1 ,51"."" durin* the said period Bsession of April 12, 1955, t.s.n., pp. 1"311C. 1o&ever, this 1onorable Court, in orderin* the plaintiff to pay the sum of (17,971.F" computed and based the said amount from July 1, 1959 to 0ecember 1, 1952, such that the rental correspondin* to the month of 0ecember, 1952 &as not included in the decision B(1 ,51" 33 (5E .E5 Hrepresentin* 2"R monthly reductionI 7 (17,971.F" B&hich should be (17,971.FF to be eAactC. And since the total unpaid reduction amountin* to (17,971.F" as found by the court in its decisions, does not include the rental for the month of 0ecember, 1952, this Court conse4uently had to order the plaintiff to pay defendant the full amount of the rental of (2,191.F" B(2,191.FF to be eAactC, &hich is one3t&elfth B1N2C of (2F,E""."", commencin* from 0ecember 1, 1952 to 0ecember E1, 19F7, other&ise, there &ould be a *ap of one month, that is, there &ould be no rental for the entire month of 0ecember 1952. ... After a careful consideration of *rounds 1, 2 and E of the motion and the ans&er thereto, &hich involve clerical errors, this Court deems it necessary to amend the decision as follo&s! (art of the second para*raph to read! . . . the council adopted @esolution 222, series of 1951 eAtendin* the lease for another five B5C years be*innin* January 1, 195E, &ith the eApress condition that the plaintiff &ould &aive the privile*e to see/ for reduction of the amount of rent &hich &as to be based on the ori*inal contract. %he dispositive portion to read!

<herefore, the appealed .ud*ment is reversedD plaintiff3appellee is hereby ordered to pay defendant3appellant under the latter>s counterclaim the sum of (1 ,51"."" representin* the unapproved and ineffective reduction by 2"R of the ori*inally stipulated rental, for the period from July 1, 1959 to Dece$ber P', 'CQF, plus the further sum of (2,191.F" per month be*innin* ,anuary ', 'CQP to 0ecember E1, 1957, as reasonable compensation for the ille*al retention of the $au.an fisheries, unless the said su$ of .F,'C'.EO per $onth has already been paid by the plaintiff appellee to the defendant appellant during the said period . #round 5 of the +otion for @econsideration is denied for lac/ of merit. And defendant3appellant>s application for dama*es is li/e&ise denied, but &ithout pre.udice to the filin* of the same in the proper court. .aras, C.,., -engzon, Monte$ayor, -autista Angelo, %abrador, Concepcion, Reyes, ,.-.%., and -arrera, ,,., concur. G.R. No. 105909 Jun& 28, 199) M"NICI#ALITY OF #ILILLA, RI,AL, petitioner, vs. 0ON. CO"RT OF A## AL$, 0ON. ART"RO A. MARA1 , a' #r&'4!4n< Ju!<&, R&<4ona5 Tr4a5 Cour%, *ran./ (8, Moron<, R4Ca5, an! #0ILI##IN # TROL "M COR#ORATION, respondents. Feli1 6. Mendiola for petitioner. Ma"alintal, -arot, Torres D 0barra for respondent .hilippine .etroleu$ Corporation.

R GALA+O, J.: (etitioner 4uestions and see/s the nullification of the resolution of respondent Court of Appeals in CA3#.@. ;(. $o. 275"5 dated +arch E1, 1992, dismissin* the petition for havin* been filed by a private counsel, as &ell as its succeedin* resolution dated June 9, 1992, denyin* petitioner>s motion for reconsideration. 1 %he records sho& that on +arch 17, 19 9, the @e*ional %rial Court of %anay, @i-al, )ranch ", rendered .ud*ment in Civil Case $o. "573% in favor of plaintiff, no& herein petitioner +unicipality of (ililla, @i-al, a*ainst defendant, no& herein private respondent (hilippine (etroleum Corporation B((C, for shortC, orderin* therein defendant to pay said plaintiff B1C the amount of (5,E"1,E 5."" representin* the taA on business due from the defendant under ;ection 9BAC of +unicipal %aA Ordinance $o. 1 of said municipality for the period from 1979 to 19 E, inclusive, plus such amount of taA as may accrue until final determination of the caseD B2C stora*e permit fee in the amount of (E,E21,7E"."" due from the defendant under ;ection 1", para*raph MB1EC Bb313cC of the same municipal taA ordinance for the period from 1975 to 19 F, inclusive, plus the amount of said fee that may accrue until final determination of the caseD BEC mayor>s permit fee due from the defendant under ;ection 1", para*raph B(C B2C of said municipal taA ordinance from 1975 to 19 5, inclusive, in the amount of (12,12"."", plus such amount of the same fee as may accrue until final determination of the caseD B5C sanitary inspection fee in the amount of (1,"1"."" for the period from 1975 to 19 5, plus the amount of this fee that may accrue until final determination of the caseD and B5C the costs of suit. 2 On June E, 1991, in #.@. $o. 9"77F this Court affirmed the aforesaid .ud*ment, &ith the modification that business taAes accruin* prior to 197F are not to be paid by ((C because the same have prescribed, and that stora*e fees are not also to be paid by ((C since the stora*e tan/s are o&ned by ((C and not by the municipality and, therefore, cannot be the bases of a char*e for service by the municipality. 3 %his .ud*ment became final and eAecutory on July 1E, 1991 and the records &ere remanded to the trial court for eAecution. On October 15, 1991, in connection &ith the eAecution of said .ud*ment, Atty. 6eliA 9. +endiola filed a motion in behalf of plaintiff municipality &ith the @e*ional %rial Court, )ranch 7 , +oron*, @i-al- for the eAamination of defendant corporation>s *ross sales for the years 197F to 197 and 19 5 to 1991 for the purpose of computin* the taA on business imposed under the 'ocal %aA Code, as amended. On October 21, 1991, defendant corporation filed a manifestation to the effect that on October 1 , 1991, (ililla +ayor $icomedes (atenia received from it the sum of (11,557,9"7."" as full satisfaction of the above3mentioned .ud*ment of the ;upreme Court, as evidence by the release and 4uitclaim documents eAecuted by said mayor. Accordin*ly, on October E1, 1991 the court belo& issued an order denyin* plaintiff municipality>s motion for eAamination and eAecution of .ud*ment on the *round that the .ud*ment in 4uestion had already been satisfied. ) %hereafter, on $ovember 21, 1991 Atty. +endiola filed a motion for reconsideration of the court>s aforesaid order of October E1, 1991, claimin* that the total liability of defendant corporation to plaintiff municipality amounted to (25,17F,599."", &hile the amount involved in the release and 4uitclaim eAecuted by +ayor (atenia &as only (12,71 ,F92D and that the said mayor could not &aive the balance &hich represents the taAes due under the .ud*ment to the municipality and over &hich .ud*ment the la& firm of Atty. +endiola had re*istered t&o liens for alle*ed consultancy services of 25R and attorneys> fees of 25R &hich, &hen 4uantified and added, amount to more than (12 million. On January 2 ,1992, the trial court denied the aforesaid motion for reconsideration. 5

On 6ebruary 1 , 1992, Atty. +endiola, a*ain ostensibly in behalf of herein petitioner municipality, filed a petition for certiorari &ith us, &hich petition &e referred to the Court of Appeals for proper disposition and &as doc/eted therein as CA3#.@. ;( $o. 275"5. 6 On +arch 2, 1992, respondent ((C filed a motion 4uestionin* Atty. +endiola>s authority to represent petitioner municipality. ( Conse4uently, on +arch E1, 1992 respondent Court of Appeals dismissed the petition for havin* been filed by a private counsel in violation of la& and .urisprudence, but &ithout pre.udice to the filin* of a similar petition by the +unicipality of (ililla throu*h the proper provincial or municipal le*al officer. 8 (etitioner filed a motion for reconsideration &hich &as denied by the Court of Appeals in its resolution of June 9, 1992. 9 (etitioner is once a*ain before us &ith the follo&in* assi*nment of errors! 1. 2t is an error for the Court of Appeals to consider private respondent>s ne& issue raised for the first time on appeal, as it could no lon*er be considered on appeal, because it &as never been BsicC raised in the court belo&. 2. 2t is an error for the Court of Appeals in dismissin* BsicC the instant petition &ith alternative remedy of filin* similar petition as it is a departure from established .urisprudence. E. 2t is an error for the Court of Appeals to rule that the filin* of the instant petition by the private counsel is in violation of la& and .urisprudence. 10 <e find the present petition devoid of merit. %he Court of Appeals is correct in holdin* that Atty. +endiola has no authority to file a petition in behalf of and in the name of the +unicipality of (ililla. %he matter of representation of a municipality by a private attorney has been settled in Ra$os vs. Court of Appeals, et al., 11 and reiterated in .rovince of Cebu vs. 0nter$ediate Appellate Court, et al., 12 &here &e ruled that private attorneys cannot represent a province or municipality in la&suits. ;ection 1F E of the @evised Administrative Code provides! ;ection 1F E. Duty of fiscal to represent provinces and provincial subdivisions in litigation . 7 %he provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, eAcept in cases &hereof ori*inal .urisdiction is vested in the ;upreme Court or in cases &here the municipality or municipal district in 4uestion is a party adverse to the provincial *overnment or to some other municipality or municipal district in the same province. <hen the interests of a provincial *overnment and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. <hen the provincial fiscal is dis4ualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council. 13 8nder the above provision, complemented by ;ection E, @epublic Act $o. 22F5, the 'ocal Autonomy 'a&, 1) only the provincial fiscal and the municipal attorney can represent a province or municipality in their la&suits. %he provision is mandatory. %he municipality>s authority to employ a private la&yer is eApressly limited only to situations &here the provincial fiscal is dis4ualified to represent it. 15 6or the aforementioned eAception to apply, the fact that the provincial fiscal &as dis4ualified to handle the municipality>s case must appear on record. 16 2n the instant case, there is nothin* in the records to sho& that the provincial fiscal is dis4ualified to act as counsel for the +unicipality of (ililla on appeal, hence the appearance of herein private counsel is &ithout authority of la&. %he submission of Atty. +endiola that the eAception is broad enou*h to include situations &herein the provincial fiscal refuses to handle the case cannot be sustained. %he fiscal>s refusal to represent the municipality is not a le*al .ustification for employin* the services of private counsel. 8nli/e a practicin* la&yer &ho has the ri*ht to decline employment, a fiscal cannot refuse to perform his functions on *rounds not provided for by la& &ithout violatin* his oath of office. 2nstead of en*a*in* the services of a special attorney, the municipal council should re4uest the ;ecretary of Justice to appoint an actin* provincial fiscal in place of the provincial fiscal &ho has declined to handle and prosecute its case in court, pursuant to ;ection 1F79 of the @evised Administrative Code. 1( 2t is also si*nificant that the lac/ of authority of herein counsel, Atty. +endiola, &as even raised by the municipality itself in its comment and opposition to said counsel>s motion for eAecution of his lien, &hich &as filed &ith the court a <uo by the office of the (rovincial (rosecutor of @i-al in behalf of said municipality. 18 %he contention of Atty. +endiola that private respondent cannot raise for the first time on appeal his lac/ of authority to represent the municipality is untenable. %he le*ality of his representation can be 4uestioned at any sta*e of the proceedin*s. 2n the cases hereinbefore cited, 19 the issue of lac/ of authority of private counsel to represent a municipality &as only raised for the first time in the proceedin*s for the collection of attorney>s fees for services rendered in the particular case, after the decision in that case had become final and eAecutory andNor had been duly eAecuted. 6urthermore, even assumin* that the representation of the municipality by Atty. +endiola &as duly authori-ed, said authority is deemed to have been revo/ed by the municipality &hen the latter, throu*h the municipal mayor and &ithout said counsel>s participation, entered into a compromise a*reement &ith herein private respondent &ith re*ard to the eAecution of the .ud*ment in its favor and thereafter filed personally &ith the court

belo& t&o pleadin*s entitled and constitutive of a ,;atisfaction of Jud*ment, and a ,@elease and Kuitclaim,. 20 A client, by appearin* personally and presentin* a motion by himself, is considered to have impliedly dismissed his la&yer. 1erein counsel cannot pretend to be authori-ed to continue representin* the municipality since the latter is entitled to dispense &ith his services at any time. )oth at common la& and under ;ection 2F, @ule 1E of the @ules of Court, a client may dismiss his la&yer at any time or at any sta*e of the proceedin*s, and there is nothin* to prevent a liti*ant from appearin* before the court to conduct his o&n liti*ation. 21 %he client has also an undoubted ri*ht to compromise a suit &ithout the intervention of his la&yer. 22 9ven the la&yers> ri*ht to fees from their clients may not be invo/ed by the la&yers themselves as a *round for disapprovin* or holdin* in abeyance the approval of a compromise a*reement. %he la&yers concerned can enforce their ri*hts in the proper court in an appropriate proceedin* in accordance &ith the @ules of Court, but said ri*hts may not be used to prevent the approval of the compromise a*reement. 23 %he apprehension of herein counsel that it is impossible that the municipality &ill file a similar petition, considerin* that the mayor &ho controls its le*islative body &ill not ta/e the initiative, is not only con.ectural but &ithout factual basis. Contrary to his pretensions, there is presently a manifestation and motion pendin* &ith the trial court filed by the aforesaid municipal mayor for the &ithdra&al of the ,;atisfaction of Jud*ment, and the ,@elease and Kuitclaim, 2) previously filed in the case therein as earlier mentioned. <19@96O@9, the petition at bar is 09$290 for lac/ of merit and the .ud*ment of respondent Court of Appeals is hereby A662@+90. ;O O@09@90. 5arvasa, C.,., .adilla, .uno and Mendoza, ,,., concur. G.R. No. 99)25 Mar./ 3, 199( ANTONIO C. RAMO$, RO$ALIN+A M. # R ,, NORMA C. CA$TILLO an! *ALI"AG MAR? T 1 N+OR$ A$$OCIATION, INC., petitioners, vs. CO"RT OF A## AL$, 0ON. CAMILO O. MONT $A, JR., 4n /4' .a3a.4%y a' #r&'4!4n< Ju!<& o: %/& R&<4ona5 Tr4a5 Cour% o: *u5a.an, *ran./ 19, an! M"NICI#ALITY OF *ALI"AG, respondents.

#ANGANI*AN, J.: <ho has the le*al authority to represent a municipality in la&3suitsJ 2f an unauthori-ed la&yer represents a municipality &hat is the effect of his participation in the proceedin*sJ (arenthetically, does a motion to &ithdra& the appearance of the unauthori-ed counsel have to comply &ith @ule 15 of the @ules of Court re*ardin* notice and hearin* of motionsJ %hese 4uestions are ans&ered by this Court in resolvin* this petition for revie& under @ule 55 of the @ules of Court of the 0ecision 1 of public respondent 2 in CA3#.@. ;( $o. 2E595 promul*ated on +arch 15, 1991, &hich denied due course to and dismissed the petition therein. Also assailed is the @esolution 3 of public respondent promul*ated on +ay 9, 1991, &hich denied the motion for reconsideration for lac/ of merit. The Facts %he facts as found by public respondent are undisputed, to &ith! ) On April 1 , 199", petitioners Antonio C. @amos, @osalinda +. (ere-, $orma C. Castillo, and the )aliua* +ar/et :endors Association, 2nc. filed a petition before the court a <uo doc/eted as Civil Case $o. 2F53+39 for the 0eclaration of $ullity of +unicipal Ordinances $o. 91 B197FC and $o. 7 B199"C and the contract of lease over a commercial arcade to be constructed in the municipality of )aliua*, )ulacan. On April 27, 19 ", durin* the hearin* on the petitioners> motion for the issuance of preliminary in.unction, &as issued by the court a <uo on +ay 9, 199". +ean&hile, on +ay E, 199", the provincial 6iscal and the (rovincial Attorney, Oliviano 0. @e*alado, filed an Ans&er in B sicC behalf of respondent municipality. At the pre3trial conference scheduled on +ay 2 , 199", Atty. @oberto ). @omanillos appeared, manifestin* that he &as counsel for respondent municipality. On the same date, and on June 15, 199", respectively, Atty. @omanillos filed a motion to dissolve in.unction and a motion to admit an Amended Ans&er &ith motion to dismiss.

On June 1 , 199", (rovincial Attorney Oliviano 0. @e*alado appeared as collaboratin* counsel of Atty. @omanillos. %he (rovincial 6iscal did not appear. 2t &as Atty. @omanillos &ho submitted the @eply to petitioners> Opposition to respondents> motion to dissolve in.unction. 2t &as also Atty. @omanillos &ho submitted a &ritten formal offer of evidence on July 17, 199" for respondent municipality. 0urin* the hearin* on Au*ust 1", 199", petitioners 4uestioned the personality of Atty. @omanillos to appear as counsel of B sicC the respondent municipality, &hich opposition &as reiterated on Au*ust 15, 199", and &as put in &ritin* in petitioners> motion of Au*ust 2", 199" to dis4ualify Atty. @omanillos from appearin* as counsel for respondent municipality and to declare null and void the proceedin*s participated in and underta/en by Atty. @omanillos. +ean&hile, Atty. @omanillos and Atty. @e*alado filed a .oint motion dated Au*ust 22, 199" statin*, amon* others, that Atty. @omanillos &as &ithdra&in* as counsel for respondent municipality and that Atty. @e*alado, as his collaboratin* counsel for respondent municipality, is adoptin* the entire proceedin*s participated inNunderta/en by Atty. @omanillos. On ;eptember 19, 199" respondent Jud*e issued the Order no& bein* assailed &hich, as already stated, denied petitioners> motion to dis4ualify Atty. @omanillos as counsel for respondent municipality and to declare null and void the proceedin* participated in by Atty. @omanillosD and on the other hand, *ranted Atty. @e*alado>s motion ,to formally adopt the entire proceedin*s includin* the formal offer of evidence,. 2n support of his fore*oin* action, respondent Jud*e reasoned! ,(etitioners, motion for the dis4ualification of Atty. @omanillos as respondent municipality>s counsel is deemed moot and academic in vie& of his &ithdra&al as counsel of said municipality pursuant to a .oint motion dated Au*ust 22, 199", althou*h he shall remain as counsel on record of private respondent ?risti Corporation. Atty. Oliviano @e*alado under the same .oint motion moved for the adoption of the entire proceedin*s conducted by collaboratin* counsel, Atty. @omanillos. 2t is noted that Atty. @omanillos initially entered his appearance as collaboratin* counsel of the (rovincial (rosecutor and the (rovincial Attorney &hen he filed a motion to dissolve in.unction under motion dated +ay E", 199" and since then despite his active participation in the proceedin*s, the opposin* counsel has never 4uestioned his appearance until after he made a formal offer of evidence for the respondents. %he ac4uiescence of petitioners> counsel of BsicC his appearance is tantamount to a &aiver and petitioners are, therefore, estopped to 4uestion the same. 2n all the pleadin*s made by Atty. @omanillos, it &as clearly indicated that he &as appearin* as the collaboratin* counsel of the (rovincial Attorney )esides, petitioners> counsel failed to submit their comment andNor ob.ection to the said .oint motion of respondents> counsel as directed by the Court &ithin the re*lementary period. )y virtue of these circumstances, all the proceedin*s attended to and participated in by said collaboratin* counsel is a fait acco$pli and the Court finds no co*ent .ustification to nullify the same., (etitioner>s motion for reconsideration of the fore*oin* Order &as denied by respondent Jud*e in his Order dated October 19, 199", the second Order no& bein* assailed. @espondent Jud*e reiterated the observations &hich he made in the Order of ;eptember 19, 199" that Atty. @omanillos, &hile actively handlin* the said case &as merely appearin* as the collaboratin* counsel of both the (rovincial (rosecutor and the (rovincial Attorney of )ulacanD that Atty. @omanillos> appearance &as ,never impu*ned by petitioners, and &as only 4uestioned after his BAtty. @omanillos>C submission of the formal offer of evidence for respondentD and that therefore, said court proceedin*s ,is B sicC a fait acco$pli,. @espondent Jud*e &ent on to say that the declaration of nullity of said proceedin*s and the re3ta/in* of the same evidence by the same parties is B sicC ,apparently an eAercise in futility,. 1e added that in the absence of untimely ob.ection by petitioners to Atty. @omanillos> appearance as the collaboratin* counsel, petitioners are *uilty of laches for havin* slept on B sicC their ri*hts and are estopped as their ac4uiescence may be considered as &aiver of such ri*ht. 6urthermore, accordin* to respondent Jud*e, assumin* that the proceedin*s had been ,tainted &ith frailness to render the same le*ally ob.ectionable,, the same as been ,le*ally remedied, by its formal adoption upon motion of the (rovincial Attorney BsicC, Atty. @e*alado, &ho is not dis4ualified to appear as counsel for the municipality of )aliua*, for the reason that by virtue of ;ection 19 of @.A. $o. 51 5 B%he 0ecentrali-ation Act of 19F7C, the authority to act as le*al officerNadviser for BsicC civil cases of the province of )ulacan, of &hich the municipality of )aliua* is a political subdivision, has been transferred from the (rovincial 6iscal Bno& (rovincial (rosecutorC of )ulacan to the (rovincial Attorney thereof. As earlier stated, the Court of Appeals dismissed the petition and denied the motion for reconsideration. 1ence this recourse. The 0ssues %he issues raised by petitioners in their +emorandum are! 5 1C 8nder present la&s and .urisprudence, can a municipality be represented in a suit a*ainst it by a private counselJ 2C 2f not, &hat is the status of the proceedin*s underta/en by an unauthori-ed private counselD

EC Can the provincial attorney of a province act as counsel of a municipality in a suitD 5C Can the provincial attorney adopt &ith le*al effect the proceedin*s underta/en by an unauthori-ed private counsel of BsicC a municipalityD 5C +ay a court act on an alle*ed motion &hich violates ;ections 5 and 5 of @ule 15 and section 2F, @ule 12 of the @ules of Court. (etitioners contend that the assailed 0ecision &hich affirmed the Orders of the trial court is void for bein* violative of the follo&in* la&s! 6 :231 %he respondent court violated ;ection 1F E of the @evised Administrative CodeD ;ection E, para*raph E BaC of @epublic Act $o. 22F5, other&ise /no&n as the 'ocal Autonomy ActD and ;ection E5, )oo/ 2:, %itle 222, Chapter 12, Administrative Code of 19 7 B9Aecutive Order $o. 292C &hen it authori-ed Atty. Oliviano 0. @e*alado, the (rovincial Attorney of )ulacan, to appear as counsel for respondent +unicipality of )aliua*. :232 %he respondent court violated ;ection 1F E of the @evised Administrative CodeD ;ection E, para*raph E BaC of @epublic Act $o. 22F5, other&ise /no&n as the 'ocal Autonomy ActD ;ection E5, )oo/ 2:, %itle 222, Chapter 12, 9Aecutive Order $o. 292, other&ise /no&n as the Administrative Code of 19 7D and Article 1E52 of the $e& Civil Code, &hen it denied the petitioners> motion to declare the proceedin*s underta/en or participated in by said Atty. @oberto ). @omanillos, as private counsel of respondent +unicipality, null and void. :23E %he respondent court acted in eAcess of its .urisdiction and in *rave abuse of discretion &hen it acted and *ranted the respondent>s JO2$% +O%2O$ dated Au*ust 22, 199" BanneA ,1,C &hich, as a rule, is a mere &orthless piece of paper &hich the respondent .ud*eNcourt has no authority to act upon, considerin* that said motion &as filed in court in patent violation of or &ithout complyin* &ith the mandatory re4uirements provided for by ;ections 5 and of @ule 15 and ;ection 2F of @ule 1E of the @ules of Court. (ublic respondent did not *ive due course to the petition ,because it does not pri$a facie sho& .ustifiable *rounds for the issuance of certiorari., ( (ublic respondent adds that! 8 Considerin* the fore*oin* .urisprudence, the lo*ical conclusion is that the (rovincial Attorney of )ulacan has no& the authority to represent the municipality of )aliua* in its la& suits. 2t follo&s that respondent Jud*e &as correct in rulin* in the assailed Order of October 19, 199" that even assumin*, arguendo, that the proceedin*s by the court a <uo &hich had been participated in by Atty. @omanillos are le*ally ob.ectionable, this &as le*ally remedied by the formal adoption by the provincial Attorney, Atty. @e*alado, of the said proceedin*s, considerin* that the provincial attorney is not dis4ualified from representin* the municipality of )aliua* in civil cases. 2n the second place, the record discloses that Atty. @omanillos had appeared as counsel for respondent municipality of )aliua* in collaboration &ith the (rovincial (rosecutor and the (rovincial Attorney , as sho&n in the motion to dissolve in.unction dated may 2 , 199" &hich Atty. @omanillos had filed for respondent municipality. Accordin*ly and pursuant to the aforecited provisions of la&, it cannot correctly be said that respondent Jud*e had acted &ith *rave abuse of discretion &hen he allo&ed Atty. @omanillos to act as private counsel and Atty. @e*alado, (rovincial Attorney of )ulacan, to appear as counsel for respondent +unicipality of )aliua*. (erforce, it also cannot be correctly said that respondent Jud*e violated the aforecited provisions &hen he denied petitioners> motion to declare null and void the proceedin*s underta/en by and participated in by Atty. @omanillos as private counsel of the municipality of )aliua*. At any rate, even *rantin*, only for the sa/e of ar*ument, that Atty. @omanillos> appearance as counsel for the municipality could not be le*ally authori-ed under the aforesaid provisions of la&, the fact that Atty. @e*alado as (rovincial Attorney of )aliua* had formally adopted the proceedin*s participated in by Atty. @omanillos as counsel for the municipality of )aliua* had served, as already stated, to cure such a defect. %hirdly, <e are li/e&ise unable to see *rave abuse of discretion in respondent Jud*e>s actuation in *rantin* the .oint motion filed by Atty. @omanillos and Atty. @e*alado for the &ithdra&al of the former as private counsel of respondent municipality, and the adoption by the latter of the proceedin*s participated inNunderta/en by the former, includin* the formal offer of evidence submitted by the former.

(ublic respondent li/e&ise found that the ,.oint motion does not parta/e of the nature of an adversarial motion &hich &ould have rendered non3 compliance &ith ;ections 5 and 5 of @ule 15 of the @ules of Court fatal to the motion., 9 2t is to be emphasi-ed that petitioners ,sou*ht the dis4ualification of Atty. @omanillos . . . B%hus,C &hat petitioners had sou*ht to BbeC achieveBdC in their said motion &as in fact &hat Atty. @omanillos had sou*ht . . . in the .oint motion dated Au*ust 22, 199"., 10 @espondent municipality submits that ;ection 19 of @A 51 5 is not meant to prohibit or prevent the (rovincial Attorney to act as le*al adviser and le*al officer for municipalities and municipal districts because such interpretations &ould be to say the least, absurd B sicC. 2n this .urisdiction, a province is composed of municipalities and municipal districts, and therefore they are deemed included in the provisions of ;ection 19 of @epublic Act 51 5. 2t is also impractical and contrary to the spirit of the la& to limit the sphere of authority of the (rovincial Attorney to the province only. 11 %he different alle*ations boil do&n to three main issues! B1C <ho is authori-ed to represent a municipality in a civil suit a*ainst itJ B2C <hat is the effect on the proceedin*s &hen a private counsel represents a municipalityJ 9lse&ise stated, may be the proceedin*s be validated by a provincial attorney>s adoption of the actions made by a private counselJ BEC 0oes a motion of &ithdra&al of such unauthori-ed appearance, and adoption of proceedin*s participated in by such counsel have to comply &ith ;ections 5 and 5 12 of @ule 15 of the @ules of CourtJ The Court9s Ruling <e affirm the 0ecision and @esolution of public respondent. First 0ssue; Kho is Authorized to Represent a Municipality in its %a!suitsR 2n the recent case of Municipality of .ililla, Rizal vs. Court of Appeals, 13 this Court, throu*h +r. Justice 6loren- 0. @e*alado, set in clear3cut terms the ans&er to the 4uestion of &ho may le*ally represent a municipality in a suit for or a*ainst it, thus! 1) . . . %he matter of representation of a municipality by a private attorney has been settled in Ra$os vs. Court of Appeals, et al., 15 and reiterated in .rovince of Cebu vs. 0nter$ediate Appellate Court, et al., 16 &here &e ruled that private attorneys cannot represent a province or municipality in la&suits. ;ection 1F E of the @evised Administrative Code provides! ;ec. 1F E. Duty of fiscal to represent provinces and provincial subdivisions in litigation . 7 %he provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, eAcept in cases &hereof BsicC ori*inal .urisdiction is vested in the ;upreme Court or in cases &here the municipality or municipal district in 4uestion is a party adverse to the provincial *overnment or to some other municipality or municipal district in the same province. <hen the interests of a provincial *overnment and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. <hen the provincial fiscal is dis4ualified to serve any municipality or other political subdivision of a province a special attorney may be employed by its council. 1( 8nder the above provision, complemented by ;ection E, @epublic Act $o. 22F5, the 'ocal Autonomy 'a&, 18 only provincial fiscal and the municipal attorney can represent a province or municipality in their la&suits. %he provision is mandatory. %he municipality>s authority to employ a private la&yer is eApressly limited only to situations &here the provincial fiscal is dis4ualified to represent it. 19 6or the aforementioned eAception to apply, the fact that the provincial fiscal &as dis4ualified to handle the municipality>s case must appear on record. 20 2n the instant case, there is nothin* in the records to sho& that the provincial fiscal is dis4ualified to act as counsel for the +unicipality of (ililla on appeal, hence the appearance of herein private counsel is &ithout authority of la&. %he provincial fiscal>s functions as le*al officer and adviser for the civil cases of a province and corollarily, of the municipalities thereof, &ere subse4uently transferred to the provincial attorney. 21 %he fore*oin* provisions of la& and .urisprudence sho& that only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its la&suits. Only in eAceptional instances may a private attorney be hired by a municipality to represent it in la&suits. %hese eAceptions are enumerated in the case of Alinsug vs. RTC -r. QB, San Carlos City, 5egros 7ccidental, 22 to &it! 23 0ndeed, it appears that the la! allo!s a private counsel to be hired by a $unicipality only !hen the $unicipality is an adverse party in a case involving the provincial govern$ent or another $unicipality or city !ithin the province . %his provision has its apparent ori*in in the rulin* in De 4uia v. The Auditor 4eneral B55 ;C@A 1F9, +arch 29, 1979C &here the Court held that the

municipality>s authority to employ a private attorney is eApressly limited only to situations &here the provincial fiscal &ould be dis4ualified to serve and represent it. <ith ;ec. 1F E of the old Administrative Code as le*al basis, the Court therein cited 9nri4ue-, ;r. v. #imene- H1"7 (hil 9E2 B19F"CI &hich enumerated instances &hen the provincial fiscal is dis4ualified to represent in court a particular municipalityD if and &hen ori*inal .urisdiction of case involvin* the municipality is vested in the ;upreme Court, &hen the municipality is a party adverse to the provincial *overnment or to some other municipality in the same province, and &hen, in a case involvin* the municipality, he, or his &ife, or child, is pecuniarily involved, as heir le*atee, creditor or other&ise. %hereafter, in Ra$os vs. Court of Appeals B1" ;C@A 72 , October E", 19 1C, the Court ruled that a municipality may not be represented by a private la& firm &hich had volunteered its services gratis, in collaboration &ith the municipal attorney and the fiscal, as such representations &as violative of ;ec. 1F E of the old Administrative Code. This strict coherence to the letter of the la! appears to have been dictated by the fact that #the $unicipality should not be burdened !ith e1penses of hiring a private la!yer# and that the interests of the $unicipality !ould be best protected if a govern$ent la!yer handles its litigations . B9mphasis supplied.C $one of the fore*oin* eAceptions is present in this case. 2t may be said that Atty. @omanillos appeared for respondent municipality inasmuch as he &as already counsel of ?risti Corporation &hich &as sued &ith respondent municipality in this same case. %he order of the trial court dated ;eptember 19, 199", stated that Atty. @omanillos ,entered his appearance as collaboratin* counsel of the provincial prosecutor and the provincial attorney., 2) %his collaboration is contrary to la& and hence should not have been reco*ni-ed as le*al. 2t has already been ruled in this &ise! %he fact that the municipal attorney and the fiscal are supposed to collaborate &ith a private la& firm does not le*ali-e the latter>s representation of the municipality of 1a*onoy in Civil Case $o. 5"953+. <hile a private prosecutor is allo&ed in criminal cases, an analo*ous arran*ement is not allo&ed in civil cases &herein a municipality is the plaintiff. 25 As already stated, private la&yers may not represent municipalities on their o&n. $either may they do so even in collaboration &ith authori-ed *overnment la&yers. %his is anchored on the principle that only accountable public officers may act for and in behalf of public entities and that public funds should not be eApanded to hire private la&yers. (etitioners cannot be held in estoppel for 4uestionin* the le*ality of the appearance of Atty. @omanillos, not&ithstandin* that they 4uestioned the &itnesses of respondent municipality durin* the hearin* of its motion to dissolve the preliminary in.unction. Municipality of .ililla, Rizal vs. Court of Appeals 26 held that the le*ality of the representation of an unauthori-ed counsel may be raised at any sta*e of the proceedin*s. %his Court stated that! 2( %he contention of Atty. +endiola that private respondent cannot raise for the first time on appeal his lac/ of authority to represent the municipality is untenable. %he le*ality of his representation can be 4uestioned at any sta*e of the proceedin*s. 2n the cases hereinbefore cited, the issue of lac/ of authority of private counsel to represent a municipality &as only raised for the first time in the proceedin*s for the collection of attorney>s fees for services rendered in the particular case, after the first time in the proceedin*s for the collection of attorney>s fees for services rendered in the particular case, after the decision in that case had become final and eAecutory andNor had been duly eAecuted. 9lementary fairness dictates that parties una&are of the unauthori-ed representation should not be held in estoppel .ust because they did not 4uestion on the spot the authority of the counsel for the municipality. %he rule on appearances of a la&yers is that BuCntil the contrary is clearly sho&n, an attorney is presumed to be actin* under authority of the liti*ant &hom he purports to represent. BA-otes v. )lanco, 7 (hil. 7E9C 1is authority to appear for and represent petitioner in liti*ation, not havin* been 4uestioned in the lo&er court, it &ill be presumed on appeal that counsel &as properly authori-ed to file the complaint and appear for his client. B@epublic v. (hilippine @esources 0evelopment Corporation, 1"2 (hil. 9F"C 28 Second 0ssue; 6ffect on .roceedings by Adoption of :nauthorized Representation <ould the adoption by Atty. @e*alado of the proceedin*s participated in by Atty. @omanillos validate such proceedin*sJ <e a*ree &ith public respondent that such adoption produces validity. (ublic respondent stated the reasons 29 to &hich &e a*ree! +oreover, it does not appear that the adoption of proceedin*s participated in or underta/en by Atty. @omanillos &hen he &as private counsel for the respondent municipality of )aliua* 7 such as the proceedin*s on the motion to dissolve the in.unction, &herein petitioners had even cross3eAamined the &itnesses presented by Atty. @omanillos in support of said motion and had even started to present their &itnesses to sustain their ob.ection to the motion 7 &ould have resulted in any substantial pre.udice to petitioners> interest. As <ee see it, to declare the said proceedin*s null and void 7 not&ithstandin* the formal adoption thereof by Atty. @e*alado as (rovincial Attorney of )ulacan in court 7 and to re4uire trial ane& to cover the same sub.ect matter, to hear the same &itnesses and to admit the same evidence adduced by the same parties cannot enhance the promotion of .ustice. %his Court believes that conferrin* le*itimacy to the appearance of Atty. @omanillos &ould not cause substantial pre.udice on petitioners. @e4uirin* ne& trial on the mere le*al technicality that the municipality &as not represented by a le*ally authori-ed counsel &ould not serve the interest of

.ustice. After all, this Court does not see any in.ustice committed a*ainst petitioners by the adoptions of the &or/ of private counsel nor any interest of .ustice bein* served by re4uirin* retrial of the case by the duly authori-ed le*al representative of the to&n. 2n sum, althou*h a municipality may not hire a private la&yer to represent it in liti*ations, in the interest of substantial .ustice ho&ever, &e hold that a municipality may adopt the &or/ already performed in *ood faith by such private la&yer, &hich &or/ is beneficial to it B1C provided that no in.ustice it thereby heaped on the adverse party and B2C provided further that no compensation in any *uise is paid therefor by said municipality to the private la&yer. 8nless so eApressly adopted, the private la&yers &or/ cannot bind the municipality. Third 0ssue; #,oint Motion# 5eed 5ot Co$ply !ith Rule 'Q <e also a*ree &ith the .ustification of public respondent than a motion to &ithdra& the appearance of an unauthori-ed la&yer is a non3adversarial motion that need not comply &ith ;ection 5 @ule 15 as to notice to the adverse party. %he dis4ualification of Atty. @omanillos &as &hat petitioners &ere really prayin* for &hen they 4uestioned his authority to appear for the municipality. %he dis4ualification &as *ranted, thereby servin* the relief prayed for by petitioners. such bein* the case, no ,notice directed to the parties concerned and served at least E days before the hearin* thereof, 30 need be *iven petitioners, the 4uestioned motion not bein* contentious. )esides, &hat petitioners &ere 4uestionin* as to lac/ of authority &as remedied by the adoption of proceedin*s by an authori-ed counsel, Atty. @e*alado. %he action of the trial court allo&in* the motion of respondent municipality effectively *ranted petitioners motion to dis4ualify Atty. @omanillos. 2n .eople vs. %eviste, 31 &e ruled that! <hile it is true any motion that does not comply &ith the re4uirements of @ule 15 should not be accepted for filin* and, if filed, is not entitled to .udicial co*ni-ance, this Court has li/e&ise held that &here a ri*id application of the rule &ill result in a manifest failure or miscarria*e of .ustice, technicalities may be disre*arded in order to resolve the case. 'iti*ations should, as much as possible, be decided on the merits and not on technicalities. As this Court held in 4alvez vs. Court of Appeals, ,an order of the court *rantin* the motion to dismiss despite the absence of a notice of hearin*, or proof of service thereof, is merely an irre*ularity in the proceedin*s . . . B&hichC cannot deprive a competent court of .urisdiction over the case., BCitations omittedC. 2t should be remembered that rules of procedure are but tools desi*ned to facilitate the attainment of .ustice, such that &hen ri*id application of the rules tend to frustrate rather than promote substantial .ustice, this Court is empo&ered to suspend their operation. 32 <19@96O@9, premises considered, the (etition is 09$290 and the assailed 0ecision and @esolution are A662@+90. $o costs. ;O O@09@90. 5arvasa, C.,., Davide, Melo and Francisco, ,,., concur. G.R. No. 118605 A3r45 12, 2000

+GAR+O MANC NI+O FOR 0IM$ LF AN+ OT0 R T AC0 R$ OF CAMARIN $ NORT 0IG0 $C0OOL, petitioners, vs. CO"RT OF A## AL$, T0 #RO1INCIAL *OAR+, #RO1INCIAL $C0OOL *OAR+, #RO1INCIAL GO1 RNOR, #RO1INCIAL TR A$"R R AN+ #RO1INCIAL A"+ITOR, ALL OF T0 #RO1INC OF CAMARIN $ NORT , respondents. @9;O'8%2O$ ="I$"M*ING, J.: %his is a petition for revie& of the decision dated October 17, 1995, by the Court of Appeals in CA3#.@. ;( $o. E5EE1, en.oinin* the partial eAecution of the .ud*ment dated 0ecember 2", 199E, of the @e*ional %rial Court B@%CC of Camarines $orte, )ranch E in Civil Case $o. 5 F5 entitled ,9d*ardo +ancenido, et al. v. %he (rovincial )oard, et al., for $anda$us and dama*es. %he antecedent facts as summari-ed by the Court of Appeals are as follo&s! On ;eptember F, 199", private respondent Hherein petitionerI 9duardo +ancenido filed an action for $anda$us and dama*es &ith the @e*ional %rial Court of Camarines $orte, )ranch E , 0aet Bdoc/eted as Civil Case $o. 5 F5C, a*ainst the petitioners provincial board of Camarines $orte, the school board, provincial *overnor, provincial treasurer, and provincial auditor to pay the teacher>s claim for unpaid salary increases. On 0ecember 19, 199", petitioners Hherein co3respondentsI filed their ans&er to the complaint. On 0ecember 2", 199E, the lo&er court rendered a decision orderin* the (rovincial ;chool )oard to appropriate and satisfy plaintiffs> claim in the amount of (2F , ""."", as unpaid salary increases. On 6ebruary 21, 1995, petitioners Hherein co3respondentsI filed a notice of appeal.

On 6ebruary 25, 1995, respondent .ud*e issued an order *ivin* due course to petitioners> appeal. On +arch 1, 1995, private respondents filed a notice of appeal. On the same date, private respondents filed an opposition to petitioners> notice of appeal and a motion for partial eAecution of .ud*ment. On April , 1995, respondent .ud*e issued an order B1C recallin* the order of 6ebruary 2E, 1995, *rantin* the appeal of petitioners, B2C approvin* the appeal of private respondentsD and BEC *rantin* their motion for partial eAecution. On April 15, 1995, petitioners filed a motion for reconsideration of the order of April , 1995. On June 1, 1995, respondent .ud*e denied the motion for reconsideration. 1 0issatisfied &ith the denial, respondents herein filed a petition for $anda$us, prohibition. and in.unction &ith the Court of Appeals &ith the prayer, amon* others, that their notice of appeal be *iven due course and the trial court be prohibited from enforcin* the partial eAecution of its .ud*ment. ;aid petition &as doc/eted as CA3#.@. ;( $o. E5EE1. ;ubse4uently, the appellate court rendered its decision of October 17, 1995, the dispositive portion of &hich reads! <19@96O@9, the Court #@A$%; the petition for prohibition and $anda$us and hereby orders respondent .ud*e. B1C to elevate the ori*inal record of Civil Case $o. 5 F5 to the Court of Appeals in due course of appealD and B2C to desist from the partial eAecution of the decision in the case. $o costs. ;O O@09@90.2 (etitioners then filed a motion to reconsider the appellate court>s decision, &hich motion &as denied by the Court of Appeals in its resolution dated 0ecember 21, 1995. 1ence, the instant petition anchored on the follo&in* assi*nment of errors! a. %he Court of Appeals has erred in reco*ni-in* the authority of Atty. Jose 'apa/ to file the sub.ect $otice of Appeal. b. %he Court of Appeals has erred in reco*ni-in* that the service of a copy of the sub.ect $otice of Appeal upon (etitioners themselves is valid. c. %he Court of Appeals has erred in en.oinin* the partial eAecution of the 0ecision dated 0ecember 2", 199E rendered by the %rial Court. E 6or our resolution no& are the follo&in* issues! B1C <hether a private counsel may represent municipal officials sued in their official capacitiesD and B2C <hether a $otice of Appeal filed throu*h private counsel and &ith notice to petitioners and not to their counsel is valid. Anent the first issue, petitioners contend that Atty. Jose 'apa/ could not represent the respondents (rovincial %reasurer and (rovincial ;chool )oard, because both are instrumentalities of the $ational #overnment and may be represented only by the Office of the ;olicitor #eneral pursuant to ;ection E5, Chapter 12, %itle E, )oo/ 5 of the Administrative Code of 19 7. Only the (rovincial (rosecutor of Camarines $orte may represent the (rovincial #overnor and the (rovincial )oard in accordance &ith ;ection 5 1 H1I, par. ) of the 'ocal #overnment Code of 1991. (etitioners cite .rovince of Cebu v. 0AC, 157 ;C@A 557 B19 7C, &here &e held that! %he municipality>s authority to employ a private la&yer is eApressly limited only to situations &here the provincial fiscal is dis4ualified to represent it B0e #uia v. %he Auditor #eneral, 55 ;C@A 1F9D +unicipality of )ocaue, et al. v. +anoto/, 9E (hil. 17E, 9nri4ue-, ;r., v. 1onorable #imene-, 1"7 (hil. 9E2C as &hen he represents the province a*ainst a municipality. %he la&ma/er, in re4uirin* that the local *overnment should be represented in its court cases by a *overnment la&yer, li/e its municipal attorney and the provincial fiscal, intended that the local *overnment should not be burdened &ith the eApenses of hirin* a private la&yer. %he la&ma/er also assumed that the interests of the municipal corporation &ould be best protected if a *overnment la&yer handles its liti*ations.5 (etitioners also pray that the $otice of Appeal filed by respondents dated 6ebruary 1 , 1995, be deemed a mere scrap of paper. %hey claim that it &as filed by a la&yer not authori-ed to do so. 9ven *rantin* that Atty. 'apa/ could represent respondents in filin* the $otice of Appeal, they add, it &as not properly served since its copy &as sent to petitioners and not to their counsel of record. %hey conclude that this error is fatal to their appeal. 6or in Riego v. Riego, 1 ;C@A 91 B19FFC, &e held!

H<Ihere a party appears by attorney in an action or proceedin* in a court of record, all notices thereafter re4uired to be *iven therein must be *iven to the attorney and not to the client, and a notice *iven to the client and not to his attorney is not a notice in la&. 5 6inally, petitioners point out, since the 4uestioned $otice of Appeal had fatal defects, its filin* did not toll the runnin* of the period for the finality of .ud*ment and petitioners could still file a motion for partial eAecution of the .ud*ment. After considerin* petitioners> ar*uments, ho&ever, &e find their contentions far from persuasive. ;ec. 5 1, Article 11, %itle : of the 'ocal #overnment Code B@.A. $o. 71F"C provides for the appointment of a le*al officer, &hose function is! B2C @epresent the local *overnment unit in all civil actions and special proceedin*s &herein the local *overnment unit or any official thereof, in his official capacity, is a party! .rovided, %hat, in actions or proceedin*s &here a component city or municipality is a party adverse to the provincial *overnment or to another component city or municipality, a special le*al officer may be employed to represent the adverse partyD %he Court has previously ruled on the representation of a local *overnment unit by a private attorney. 2n Municipality of -ocaue v. Manoto", 9E (hil. 17E B195EC, and succeedin* cases, &e held that only &hen the provincial fiscal is dis4ualified may the municipal council be authori-ed to hire the services of a special attorney. <e reiterated this in De 4uia v. Auditor 4eneral, 55 ;C@A 1F9 B1972C.F 2n 6nri<uez, Sr. v. 4i$enez, 1"7 (hil 9E2 B19F"C, &e enumerated the instances &hen the provincial public prosecutor is dis4ualified from representin* a particular municipality, i.e., &hen the .urisdiction of a case involvin* the municipality lies &ith the ;upreme Court, &hen the municipality is a party adverse to the provincial *overnment or to some other municipality in the same province, and &hen in a case involvin* the municipality, the provincial prosecutor, his spouse, or his child is involved as a creditor, heir, le*atee, or other&ise. )ut do these rulin*s e4ually apply to local *overnment officialsJ 2n Alinsug v. RTC, -r. QB, San Carlos City, 5egros 7ccidental, 225 ;C@A 559 B199EC, &e laid do&n the rule that, in resolvin* &hether a local *overnment official may secure the services of private counsel in an action filed a*ainst him in his official capacity, the nature of the action and the relief sou*ht are to be considered. 2n Albuera v. Torres, 192 (hil. 211 B1957C, &e approved the representation by private counsel of a provincial *overnor sued in his official capacity, &here the complaint contained other alle*ations and a prayer for moral dama*es, &hich, if due from the defendants, must be satisfied by them in their private capacity. 2n .rovince of Cebu v. 0nter$ediate Appellate Court, supra, &e declared that &here ri*id adherence to the la& on representation &ould deprive a party of his ri*ht to redress for a valid *rievance, the hirin* of private counsel &ould be proper. %he present case had its ori*ins in Civil Case $o. 5 F5 filed before the @%C of Camarines $orte, )ranch E , for $anda$us and dama*es. $ot&ithstandin* the fact that the trial court *ranted $anda$us, petitioners appealed to the Court of Appeals since the trial court did not a&ard dama*es. 2n vie& of the dama*es sou*ht &hich, if *ranted, could result in personal liability, respondents could not be deemed to have been improperly represented by private counsel. $o error may thus be attributed to the appellate court &hen it reco*ni-ed the ri*ht of respondents to be represented by private counsel. On the second issue, petitioners ar*ue that respondents failed to perfect their appeal since respondents served a copy of their $otice of Appeal upon petitioners, and not upon their counsel of record. 2t is settled that the ri*ht to appeal is a mere statutory privile*e and may be eAercised only in accordance &ith the @ules of Court.7 ;ec. 1, @ule 59 of the @ules of Court provides! ;ec. 1. .leadings, $otions, service of papers and proof thereof. 7 (leadin*s, motions, filin* and service of papers, and proof thereof, eAcept as other&ise provided, shall be *overned by @ules 7, , 9, 1E, and 15, in so far as they are not inconsistent &ith the provisions of this rule. ;ec. 2, @ule 1E of the @ules of Court states! ;ec. 2. .apers to be filed and served. 7 9very order re4uired by its terms to be served, every pleadin* subse4uent to the complaint, every &ritten motion other than one &hich may be heard e1 parte, and every &ritten notice, appearance, demand, offer of .ud*ment or similar papers shall be filed &ith the court, and served upon the parties affected thereby. 0f any of such parties has appeared by an attorney or attorneys, service upon hi$ shall be $ade upon his attorneys or one of the$, unless service upon the party hi$self is ordered by the court . <here one attorney appears for several parties, he shall be entitled only to one copy of any paper served upon him by the opposite side. B9mphasis suppliedC. (ursuant to the aforecited @ules, service of notice &hen a party is represented by counsel should be made upon counsel, and not upon the party. %he purpose of the rule is to maintain a uniform procedure calculated to place in competent hands the prosecution of a party>s case. <e find petitioners> reliance on Riego proper and to the point.9 <e find, ho&ever, that no error &as committed by the Court of Appeals &hen it ordered the trial court BaC to elevate the ori*inal record of Civil Case $o. 5 F5 and BbC to desist from any further proceedin*s in said case. (etitioners did appeal the decision of the trial court to the appellate court &ithin the re*lementary period to perfect an appeal. Once a &ritten notice of appeal is filed, appeal is perfected and the trial court loses .urisdiction over the case, both over the record and sub.ect of the case. 1"

<ith respect to the trial court>s order of partial eAecution pendin* appeal, our vie& is that it &as properly challen*ed by respondents in a special civil action. 11 <e have held that the eAecution of a .ud*ment before becomin* final by reason of appeal is allo&ed, but only in eAceptional cases and only if firmly founded upon *ood reasons for such eAecution. 12 2n other &ords, a .ud*e should state in his special order *rantin* a &rit of eAecution pendin* appeal ,*ood reasons, .ustifyin* the issuance of said &rit. 1E %he Court of Appeals found the order of the .ud*e bereft of such ,*ood reasons., 2n the absence of *ood reasons &hich &ould .ustify eAecution pendin* appeal, it became incumbent upon the revie&in* court, to order the elevation of the records of the case in due course, for its appropriate consideration, other&ise failure to do so mi*ht constitute *rave abuse of discretion on its part. 15 %o attribute error to the Court of Appeals &hen it rendered the assailed decision is to misunderstand the rationale for the action it had ta/en.'J!phi'.nGt ACCO@02$#'=, the instant petition is hereby 09$290 and the decision of the Court of Appeals in CA3#.@. ;( $o. E5EE1 A662@+90. ;O O@09@90. -ellosillo, Mendoza, -uena and De %eon, ,r., ,,., concur.