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vs. GOV.
SALVADOR
P.
DECISION
DAVIDE, JR., J.:
Petitioners caption their petition as one for Certiorari, Injunction With
Preliminary Mandatory Injunction,with Prayer for Temporary Restraining Order and
pray that this Court: (1) declare as unconstitutional: (a) Ordinance No. 15-92, dated
15 December 1992, of the Sangguniang Panlungsod of Puerto Princesa; (b) Office
Order No. 23, Series of 1993, dated 22 January 1993, issued by Acting City Mayor
Amado L. Lucero of Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2,
Series of 1993, dated 19 February 1993, of the Sangguniang Panlalawigan of
Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents Provincial
and City Prosecutors of Palawan and Puerto Princesa City and Judges of Regional
Trial Courts, Metropolitan Trial Courts [1] and Municipal Circuit Trial Courts in Palawan
from assuming jurisdiction over and hearing cases concerning the violation of the
Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil action
for certiorari and prohibition.
The following is petitioners summary of the factual antecedents giving rise to
the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City
enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: AN
ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE
PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND
PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF, the full
text of which reads as follows:
Section 1. Title of the Ordinance. - This Ordinance is entitled: AN ORDINANCE
BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING
EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF.
Section 2. Purpose, Scope and Coverage. - To effectively free our City Sea Waters
from Cyanide and other Obnoxious substance, and shall cover all persons and/or
entities operating within and outside the City of Puerto Princesa who is are [sic]
directly or indirectly in the business or shipment of live fish and lobster outside the
City.
Section 3. Definition of terms. - For purpose of this Ordinance the following are
hereby defined:
A. SEA BASS - A kind of fish under the family of Centropomidae, better known as
APAHAP;
B. CATFISH - A kind of fish under the family of Plotosidae, better known as HITOHITO;
C. MUDFISH - A kind of fish under the family of Orphicaphalisae better known as
DALAG
D. ALL LIVE FISH - All alive, breathing not necessarily moving of all specie[s] use for
food and for aquarium purposes.
E. LIVE LOBSTER - Several relatively, large marine crustaceans of the genus
Homarus that are alive and breathing not necessarily moving.
be resolved in favor of devolution of powers and of the lower government units. Any
fair and reasonable doubts as to the existence of the power shall be interpreted in
favor of the Local Government Unit concerned.
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. - Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance; and those which are essential to the promotion of the general welfare.
Section III. DECLARATION OF POLICY. - It is hereby declared to be the policy of the
Province of Palawan to protect and conserve the marine resources of Palawan not
only for the greatest good of the majority of the present generation but with [the]
proper perspective and consideration of [sic] their prosperity, and to attain this end,
the Sangguniang Panlalawigan henceforth declares that is [sic] shall be unlawful for
any person or any business entity to engage in catching, gathering, possessing,
buying, selling and shipment of live marine coral dwelling aquatic organisms as
enumerated in Section 1 hereof in and coming out of Palawan Waters for a period of
five (5) years;
Section IV. PENALTY CLAUSE. - Any person and/or business entity violating this
Ordinance shall be penalized with a fine of not more than Five Thousand Pesos
(P5,000.00), Philippine Currency, and/or imprisonment of six (6) months to twelve
(12) months and confiscation and forfeiture of paraphernalias [sic] and equipment
in favor of the government at the discretion of the Court;
Section V. SEPARABILITY CLAUSE. - If for any reason, a Section or provision of this
Ordinance shall be held as unconditional [sic] or invalid, it shall not affect the other
provisions hereof.
Section VI. REPEALING CLAUSE. - Any existing Ordinance or a provision of any
ordinance inconsistent herewith is deemed modified, amended or repealed.
Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10) days after its
publication.
SO ORDAINED.
xxx
4. The respondents implemented the said ordinances, Annexes A and C hereof
thereby depriving all the fishermen of the whole province of Palawan and the City of
Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers
Association of Palawan and other marine merchants from performing their lawful
occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa,
Eulogio Tremocha, and Felipe Ongonion, Jr. were even charged criminally under
criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court of Cuyo-AgutayaMagsaysay, an original carbon copy of the criminal complaint dated April 12, 1993
is hereto attached as Annex D; while xerox copies are attached as Annex D to the
copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the
respondent PNP with the respondent City Prosecutor of Puerto Princesa City, a xerox
copy of the complaint is hereto attached as Annex E;
Without seeking redress from the concerned local government units,
prosecutors office and courts, petitioners directly invoked our original jurisdiction by
filing this petition on 4 June 1993. In sum, petitioners contend that:
First, the Ordinances deprived them of due process of law, their livelihood, and
unduly restricted them from the practice of their trade, in violation of Section 2,
Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which
the Mayors permit could be granted or denied; in other words, the Mayor had the
absolute authority to determine whether or not to issue permit.
Third, as Ordinance No. 2 of the Province of Palawan altogether prohibited the
catching, gathering, possession, buying, selling and shipping of live marine coral
dwelling organisms, without any distinction whether it was caught or gathered
through lawful fishing method, the Ordinance took away the right of petitionersfishermen to earn their livelihood in lawful ways; and insofar as petitionersmembers of Airline Shippers Association are concerned, they were unduly prevented
from pursuing their vocation and entering into contracts which are proper,
necessary, and essential to carry out their business endeavors to a successful
conclusion.
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the
criminal cases based thereon against petitioners Tano and the others have to be
dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the
petition, and furnished the Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor
Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the
validity of Ordinance No.2, Series of 1993, as a valid exercise of the Provincial
Governments power under the general welfare clause (Section 16 of the Local
Government Code of 1991 [hereafter, LGC]), and its specific power to protect the
environment and impose appropriate penalties for acts which endanger the
environment, such as dynamite fishing and other forms of destructive fishing under
Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the
LGC. They claimed that in the exercise of such powers, the Province of Palawan had
the right and responsibilty to insure that the remaining coral reefs, where fish dwells
[sic], within its territory remain healthy for the future generation. The Ordinance,
they further asserted, covered onlylive marine coral dwelling aquatic
organisms which were enumerated in the ordinance and excluded other kinds of live
marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for
only five (5) years to protect and preserve the pristine coral and allow those
damaged to regenerate.
Aforementioned respondents likewise maintained that there was no violation of
due process and equal protection clauses of the Constitution. As to the former,
public hearings were conducted before the enactment of the Ordinance which,
undoubtedly, had a lawful purpose and employed reasonable means; while as to the
latter, a substantial distinction existed between a fisherman who catches live fish
with the intention of selling it live, and a fisherman who catches live fish with no
intention at all of selling it live, i.e., the former uses sodium cyanide while the latter
does not. Further, the Ordinance applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance
of a Temporary Restraining Order claiming that despite the pendency of this case,
Branch 50 of the Regional Trial Court of Palawan was bent on proceeding with
Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio
Tremocha, Romualdo Tano, Baldomero Tano, Andres Lemihan and Angel de Mesa for
violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on
prohibition. It must further be stressed that even if the petitioners did file motions to
quash, the denial thereof would not forthwith give rise to a cause of action under
Rule 65 of the Rules of Court. The general rule is that where a motion to quash is
denied, the remedy therefrom is notcertiorari, but for the party aggrieved thereby to
go to trial without prejudice to reiterating special defenses involved in said motion,
and if, after trial on the merits of adverse decision is rendered, to appeal therefrom
in the manner authorized by law. [7] And , even where in an exceptional circumstance
such denial may be the subject of a special civil action for certiorari, a motion for
reconsideration must have to be filed to allow the court concerned an opportunity to
correct its errors, unless such motion may be dispensed with because of existing
exceptional circumstances.[8] Finally, even if a motion for reconsideration has been
filed and denied, the remedy under Rule 65 is still unavailable absent any showing
of the grounds provided for in Section 1 thereof. [9] For obvious reasons, the petition
at bar does not, and could not have , alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for
DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a
nullity ... for being unconstitutional.[10] As such, their petition must likewise fail, as
this Court is not possessed of original jurisdiction over petitions for declaratory relief
even if only questions of law are involved, [11] it being settled that the Court merely
exercises appellate jurisdiction over such petitions. [12]
II
Even granting arguendo that the first set of petitioners have a cause of action
ripe for the extraordinary writ of certiorari, there is here a clear disregard of the
hierarchy of courts, and no special and important reason or exceptional or
compelling circumstance has been adduced why direct recourse to us should be
allowed. While we have concurrent jurisdiction with Regional Trial courts and with
the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence gives petitioners no
unrestricted freedom of choice of court forum, so we held in People v. Cuaresma:[13]
This concurrence of jurisdiction is not to be taken as according to parties seeking
any of the writs an absolute unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all hierarchy of courts. That
hierarchy is determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level (inferior) courts
should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to
issue these writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition. This is established
policy. It is a policy necessary to prevent inordinate demands upon the Courts time
and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Courts docket.
The Court feels the need to reaffirm that policy at this time, and to enjoin strict
adherence thereto in the light of what it perceives to be a growing tendency on the
part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed upon and
adjudicated directly and immediately by the highest tribunal of the land.
In Santiago v. Vasquez,[14] this Court forcefully expressed that the propensity of
litigants and lawyers to disregard the hierarchy of courts must be put to a halt, not
only because of the imposition upon the precious time of this Court, but also
because of the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred to the lower
court, the proper forum under the rules of procedure, or as better equipped to
resolve the issues since this Court is not a trier of facts. We reiterated the judicial
policy that this Court will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of
[its] primary jurisdiction.
III
Notwithstanding the foregoing procedural obstacles against the first set of
petitioners, we opt to resolve this case on its merits considering that the lifetime of
the challenged Ordinances is about to end. Ordinance No. 15-92 of the City of
Puerto Princesa is effective only up to 1 January 1998, while Ordinance No. 2 of the
Province of Palawan, enacted on 19 February 1993, is effective for only five (5)
years. Besides, these Ordinances were undoubtedly enacted in the exercise of
powers under the new LGC relative to the protection and preservation of the
environment and are thus novel and of paramount importance. No further delay
then may be allowed in the resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local
government units) enjoy the presumption of constitutionality. [15] To overthrow this
presumption, there must be a clear and unequivocal breach of the Constitution, not
merely a doubtful or argumentative contradiction. In short, the conflict with the
Constitution must be shown beyond reasonable doubt. [16] Where doubt exists, even
if well founded, there can be no finding of unconstitutionality. To doubt is to sustain.
[17]
The LGC provisions invoked by private respondents merely seek to give flesh
and blood to the right of the people to a balanced and healthful ecology. In fact, the
General Welfare Clause, expressly mentions this right:
SEC. 16. General Welfare.-- Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants. (underscoring supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare
provisions of the LGC shall be liberally interpreted to give more powers to the local
government units in accelerating economic development and upgrading the quality
of life for the people of the community.
The LGC vests municipalities with the power to grant fishery privileges in
municipal waters and to impose rentals, fees or charges therefor; to penalize, by
appropriate ordinances, the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing; and to prosecute
any violation of the provisions of applicable fishery laws. [24] Further,
the sangguniang bayan, the sangguniang panlungsod and the sangguniang
panlalawigan are directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter alia, ordinances that
[p]rotect the environment and impose appropriate penalties for acts which
endanger the environment such as dynamite fishing and other forms of destructive
fishing ... and such other activities which result in pollution, acceleration of
eutrophication of rivers and lakes or of ecological imbalance. [25]
Finally, the centerpiece of LGC is the system of decentralization [26] as expressly
mandated by the Constitution.[27] Indispensable thereto is devolution and the LGC
expressly provides that [a]ny provision on a power of a local government unit shall
be liberally interpreted in its favor, and in case of doubt, any question thereon shall
be resolved in favor of devolution of powers and of the lower local government unit.
Any fair and reasonable doubt as to the existence of the power shall be interpreted
in favor of the local government unit concerned, [28]Devolution refers to the act by
which the National Government confers power and authority upon the various local
government units to perform specific functions and responsibilities. [29]
One of the devolved powers enumerated in the section of the LGC on devolution
is the enforcement of fishery laws in municipal waters including the conservation of
mangroves.[30] This necessarily includes enactment of ordinances to effectively carry
out such fishery laws within the municipal waters.
The term municipal waters, in turn, include not only streams, lakes, and tidal
waters within the municipality, not being the subject of private ownership and not
comprised within the national parks, public forest, timber lands, forest reserves, or
fishery reserves, but also marine waters included between two lines drawn
perpendicularly to the general coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line parallel with the
general coastline and fifteen kilometers from it. [31] Under P.D. No. 704, the marine
waters included in municipal waters is limited to three nautical miles from the
general coastline using the above perpendicular lines and a third parallel line.
These fishery laws which local government units may enforce under Section
17(b), (2), (i) in municipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015
which, inter alia, authorizes the establishment of a closed season in any Philippine
water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which
provides for the exploration, exploitation, utilization, and conservation of coral
resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58, which makes it unlawful
for any person, association, or corporation to catch or cause to be caught, sell, offer
to sell, purchase, or have in possession any of the fish specie
called gobiidae or ipon during closed season; and (5) R.A. No. 6451 which prohibits
and punishes electrofishing, as well as various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of fishing in
municipal waters and the protection of its marine environment are concerned, must
be added the following:
1. Issuance of permits to construct fish cages within municipal waters;
2. Issuance of permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within municipal waters;
4. Issuance of permits to gather/culture shelled mollusks within municipal
waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of closed season in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April 1994
between the Department of Agriculture and the Department of Interior and Local
Government.
In light then of the principles of decentralization and devolution enshrined in the
LGC and the powers granted to local government units under Section 16 (the
General Welfare Clause), and under Sections 149, 447 (a) (1) (vi), 458 (a) (1) (vi)
and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the
validity of the questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under
R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for
Palawan Act, approved on 19 July 1992. This statute adopts a comprehensive
framework for the sustainable development of Palawan compatible with protecting
and enhancing the natural resources and endangered environment of the province,
which shall serve to guide the local government of Palawan and the government
agencies concerned in the formulation and implementation of plans, programs and
projects affecting said province.[32]
At this time then, it would be appropriate to determine the relation between the
assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod of
the City of Puerto Princesa and the Sangguniang Panlalawigan of the Province of
Palawan to protect the environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or declaration of policies
quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or
purposes: (1) to establish a closed season for the species of fish or aquatic animals
covered therein for a period of five years, and (2) to protect the corals of the marine
waters of the City of Puerto Princesa and the Province of Palawan from further
destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to
enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the
establishment of closed seasons. The devolution of such power has been expressly
confirmed in the Memorandum of Agreement of 5 April 1994 between the
Department of Agriculture and the Department of Interior and Local Government.
The realization of the second objective falls within both the general welfare
clause of the LGC and the express mandate thereunder to cities and provinces to
protect the environment and impose appropriate penalties for acts which endanger
the environment.[33]
The destruction of the coral reefs results in serious, if not irreparable, ecological
imbalance, for coral reefs are among the natures life-support systems. [34] They
collect, retain, and recycle nutrients for adjacent nearshore areas such as
mangroves, seagrass beds, and reef flats; provide food for marine plants and
animals; and serve as a protective shelter for aquatic organisms. [35] It is said that
[e]cologically, the reefs are to the oceans what forests are to continents: they are
shelter and breeding grounds for fish and plant species that will disappear without
them.[36]
The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called exotic tropical
species of fish not only for aquarium use in the West, but also for the market for live
banquet fish [which] is virtually insatiable in ever more affluent Asia. [37] These exotic
species are coral-dwellers, and fishermen catch them by diving in shallow water
with corraline habitats and squirting sodium cyanide poison at passing fish directly
or onto coral crevices; once affected the fish are immobilized [merely stunned] and
then scooped by hand.[38] The diver then surfaces and dumps his catch into a
submerged net attached to the skiff . Twenty minutes later, the fish can swim
normally.Back on shore, they are placed in holding pens, and within a few weeks,
they expel the cyanide from their system and are ready to be hauled. Then they are
placed in saltwater tanks or packaged in plastic bags filled with seawater for
shipment by air freight to major markets for live food fish. [39] While the fish are
meant to survive, the opposite holds true for their former home as [a]fter the
fisherman squirts the cyanide, the first thing to perish is the reef algae, on which
fish feed. Days later, the living coral starts to expire. Soon the reef loses its function
as habitat for the fish, which eat both the algae and invertebrates that cling to the
coral. The reef becomes an underwater graveyard, its skeletal remains brittle,
bleached of all color and vulnerable to erosion from the pounding of the waves. [40] It
has been found that cyanide fishing kills most hard and soft corals within three
months of repeated application.[41]
The nexus then between the activities barred by Ordinance No. 15-92 of the City
of Puerto Princesa and the prohibited acts provided in Ordinance No. 2, Series of
1993 of the Province of Palawan, on one hand, and the use of sodium cyanide, on
the other, is painfully obvious. In sum, the public purpose and reasonableness of the
Ordinances may not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L.
Lucero of the City of Puerto Princesa, we find nothing therein violative of any
constitutional or statutory provision. The Order refers to the implementation of the
challenged ordinance and is not the Mayors Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of
authority on the part of the Sangguniang Panlungsod of Puerto Princesa to enact
Ordinance No. 15, Series of 1992, on the theory that the subject thereof is within
the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic Resources
(BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and
that, in any event, the Ordinance is unenforceable for lack of approval by the
Secretary of the Department of Natural Resources (DNR), likewise in accordance
with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and
responsibility of the BFAR under P. D. no. 704, over the management, conservation,
development, protection, utilization and disposition of all fishery and aquatic
resources of the country is not all-encompassing. First, Section 4 thereof excludes
from such jurisdiction and responsibility municipal waters, which shall be under the
municipal or city government concerned, except insofar as fishpens and seaweed
culture in municipal in municipal centers are concerned. This section provides,
however, that all municipal or city ordinances and resolutions affecting fishing and
fisheries and any disposition thereunder shall be submitted to the Secretary of the
Department of Natural Resources for appropriate action and shall have full force and
effect only upon his approval.[42]
Second, it must at once be pointed out that the BFAR is no longer under the
Department of Natural Resources (now Department of Environment and Natural
Resources). Executive Order No. 967 of 30 June 1984 transferred the BFAR from the
control and supervision of the Minister (formerly Secretary) of Natural Resources to
the Ministry of Agriculture and Food (MAF) and converted it into a mere staff agency
thereof, integrating its functions with the regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the
BFAR was retained as an attached agency of the MAF. And under the Administrative
Code of 1987,[43]the BFAR is placed under the Title concerning the Department of
Agriculture.[44]
Therefore, it is incorrect to say that the challenged Ordinance of the City of
Puerto Princesa is invalid or unenforceable because it was not approved by the
Secretary of the DENR. If at all, the approval that should be sought would be that of
the Secretary of the Department of Agriculture (not DENR) of municipal ordinances
affecting fishing and fisheries in municipal waters has been dispensed with in view
of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends
Section 16 and 29 of P.D. No. 704 [45] insofar that they are inconsistent with the
provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local
government units have the power, inter alia, to enact ordinances to enhance the
right of the people to a balanced ecology. It likewise specifically vests municipalities
with the power to grant fishery privileges in municipal waters, and impose rentals,
fees or charges therefor; to penalize, by appropriate ordinances, the use of
explosives, noxious or poisonous substances, electricity, muro-ami, and other
deleterious methods of fishing; and to prosecute other methods of fishing; and to
prosecute any violation of the provisions of applicable fishing laws. [46] Finally, it
imposes
upon
the sangguniang
bayan, the sangguniang
panlungsod, and
the sangguniang panlalawigan the duty to enact ordinances to [p]rotect the
environment and impose appropriate penalties for acts which endanger the
environment such as dynamite fishing and other forms of destructive fishing and
(5) The Ordinance violates MTDCs constitutional rights in that: (a) it is confiscatory
and constitutes an invasion of plaintiffs property rights; (b) the City Council has no
power to find as a fact that a particular thing is a nuisance per se nor does it have
the power to extrajudicially destroy it; and (6) TheOrdinance constitutes a denial of
equal protection under the law as no reasonable basis exists for prohibiting the
operation of motels and inns, but not pension houses, hotels, lodging houses or
other similar establishments, and for prohibiting said business in the Ermita-Malate
area but not outside of this area. [14]
In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the community as
provided for in Section 458 (a) 4 (vii) of the Local Government Code, [16] which reads,
thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect
the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to control, to
govern and to restrain places of exhibition and amusement. [18]
Petitioners likewise asserted that the Ordinance was enacted by the City Council
of Manila to protect the social and moral welfare of the community in conjunction
with its police power as found in Article III, Section 18(kk) of Republic Act No. 409,
[19]
otherwise known as the Revised Charter of the City of Manila (Revised Charter of
Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
...
Section 18. Legislative powers. The Municipal Board shall have the following
legislative powers:
...
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion
of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be necessary
to carry into effect and discharge the powers and duties conferred by this
chapter; and to fix penalties for the violation of ordinances which shall not
exceed two hundred pesos fine or six months imprisonment, or both such
fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity;
hence, private respondent had the burden to prove its illegality or
unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D. 499
and the Ordinance as the latter simply disauthorized certain forms of businesses
and allowed the Ermita-Malate area to remain a commercial zone. [22] The Ordinance,
the petitioners likewise claimed, cannot be assailed as ex post facto as it was
prospective in operation.[23] The Ordinance also did not infringe the equal protection
clause and cannot be denounced as class legislation as there existed substantial
and real differences between the Ermita-Malate area and other places in the City of
Manila.[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio)
issued an ex-parte temporary restraining order against the enforcement of
the Ordinance.[25] And on 16 July 1993, again in an intrepid gesture, he granted the
writ of preliminary injunction prayed for by MTDC. [26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion
of said Decisionreads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series
of 1993, of the City of Manila null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court against the defendant. No
costs.
SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12 December
1994, manifesting that they are elevating the case to this Court under then Rule 42
on pure questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It erred in
concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding that
the questioned Ordinance contravenes P.D. 499[31] which allows operators of all
kinds of commercial establishments, except those specified therein; and (3) It erred
in declaring the Ordinance void and unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the
assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary power
of the State and the general welfare clause exercised by local government units
provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code. [34] They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D. 499;
and that it enjoys the presumption of validity. [35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the general
law. It reiterates that the questioned Ordinance is not a valid exercise of police
power; that it is violative of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal protection
clause; and that it confers on petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules to guide and control his
actions.
This is an opportune time to express the Courts deep sentiment and tenderness
for the Ermita-Malate area being its home for several decades. A long-time resident,
the Court witnessed the areas many turn of events. It relished its glory days and
endured its days of infamy. Much as the Court harks back to the resplendent era of
the Old Manila and yearns to restore its lost grandeur, it believes that
the Ordinance is not the fitting means to that end. The Court is of the opinion, and
so holds, that the lower court did not err in declaring theOrdinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every
sentence thereof violates a constitutional provision. The prohibitions and sanctions
therein transgress the cardinal rights of persons enshrined by the Constitution. The
Court is called upon to shelter these rights from attempts at rendering them
worthless.
The tests of a valid ordinance are well established. A long line of decisions has
held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and must be passed according to the
procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2) must not
be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable. [37]
Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws. [38] The Ordinance must satisfy two
requirements: it must pass muster under the test of constitutionality and the test of
consistency with the prevailing laws. That ordinances should be constitutional
uphold the principle of the supremacy of the Constitution. The requirement that the
enactment must not violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their derivative legislative
power, a delegation of legislative power from the national legislature. The delegate
cannot be superior to the principal or exercise powers higher than those of the
latter.[39]
This relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution
strengthening the policy of local autonomy. The national legislature is still the
principal of the local government units, which cannot defy its will or modify or
violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power in order
to effectively accomplish and carry out the declared objects of their creation. [41] This
delegated police power is found in Section 16 of the Code, known as the general
welfare clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city council. The
Code empowers the legislative bodies to enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the
corporate powers of the province/city/ municipality provided under the Code. [42] The
inquiry in this Petition is concerned with the validity of the exercise of such
delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the limitation
that its exercise must be reasonable and for the public good. [43] In the case at bar,
the enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy. [44]
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure
the fundamental equality before the law of women and men. [45]
SEC. 1. No person shall be deprived of life, liberty or property without due process
of law, nor shall any person be denied the equal protection of laws. [46]
Sec. 9. Private property shall not be taken for public use without just compensation.
[47]
were so and if that were allowed, then the Ermita-Malate area would not only be
purged of its supposed social ills, it would be extinguished of its soul as well as
every human activity, reprehensible or not, in its every nook and cranny would be
laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building
or establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of
liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City
of Manila so desires to put an end to prostitution, fornication and other social ills, it
can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may
exercise its authority to suspend or revoke their licenses for these violations; [67] and
it may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given three
(3) months from the date of approval of the Ordinancewithin which to wind up
business operations or to transfer to any place outside the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area.
Further, it states in Section 4 that in cases of subsequent violations of the provisions
of the Ordinance, the premises of the erring establishment shall be closed and
padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on the
constitutional guarantees of a persons fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical restraint of
the person of the citizen, but is deemed to embrace the right of man to enjoy the
facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare. [68] In accordance with this case,
the rights of the citizen to be free to use his faculties in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty. [69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to
clarify the meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to contract,
to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long
recognizedas essential to the orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no doubt that the meaning of liberty
must be broad indeed.
In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education. In explaining the respect the
Constitution demands for the autonomy of the person in making these choices, the
U.S. Supreme Court explained:
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are central to
the liberty protected by the Fourteenth Amendment. At the heart of liberty is the
right to define ones own concept of existence, of meaning, of universe, and of the
mystery of human life. Beliefs about these matters could not define the attributes of
personhood where they formed under compulsion of the State. [71]
Persons desirous to own, operate and patronize the enumerated establishments
under Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy
to consummate their bonds in intimate sexual conduct within the motels
premisesbe it stressed that their consensual sexual behavior does not contravene
any fundamental state policy as contained in the Constitution. [72] Adults have a right
to choose to forge such relationships with others in the confines of their own private
lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice. [73] Their right to liberty
under the due process clause gives them the full right to engage in their conduct
without intervention of the government, as long as they do not run afoul of the law.
Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of all freedomit is the most
comprehensive of rights and the right most valued by civilized men. [74]
The concept of liberty compels respect for the individual whose claim to privacy
and interference demands respect. As the case of Morfe v. Mutuc,[75] borrowing the
words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness,
his isolation, are indefeasible; indeed, they are so fundamental that they are the
basis on which his civic obligations are built. He cannot abandon the consequences
of his isolation, which are, broadly speaking, that his experience is private, and the
will built out of that experience personal to himself. If he surrenders his will to
others, he surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself is in
any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe,
the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of
the citizen.[76]
There is a great temptation to have an extended discussion on these civil
liberties but the Court chooses to exercise restraint and restrict itself to the issues
presented when it should. The previous pronouncements of the Court are not to be
interpreted as a license for adults to engage in criminal conduct. The
reprehensibility of such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be prosecuted for their
illegal conduct, they should suffer the consequences of the choice they have made.
That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially
divests the respondent of the beneficial use of its property. [77] The Ordinance in
Section 1 thereof forbids the running of the enumerated businesses in the ErmitaMalate area and in Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use of property that it can
not be used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just compensation. [78] It is intrusive
and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property
shall not be taken for public use without just compensation. The provision is the
most important protection of property rights in the Constitution. This is a restriction
on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government
takes away a persons property to benefit society, then society should pay. The
principal purpose of the guarantee is to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.[79]
There are two different types of taking that can be identified. A possessory
taking occurs when the government confiscates or physically occupies property. A
regulatory taking occurs when the governments regulation leaves no reasonable
economically viable use of the property. [80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking
also could be found if government regulation of the use of property went too far.
When regulation reaches a certain magnitude, in most if not in all cases there must
be an exercise of eminent domain and compensation to support the act. While
property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was
a question of degree and therefore cannot be disposed of by general propositions.
On many other occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the facts in each
case. The Court asks whether justice and fairness require that the economic loss
caused by public action must be compensated by the government and thus borne
by the public as a whole, or whether the loss should remain concentrated on those
few persons subject to the public action. [83]
exercise of police power that is a result of a lack of imagination on the part of the
City Council and which amounts to an interference into personal and private rights
which the Court will not countenance. In this regard, we take a resolute stand to
uphold the constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation
which is a far cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive
ordinance regulating sexually oriented businesses, which are defined to include
adult arcades, bookstores, video stores, cabarets, motels, and theaters as well as
escort agencies, nude model studio and sexual encounter centers. Among other
things, the ordinance required that such businesses be licensed. A group of motel
owners were among the three groups of businesses that filed separate suits
challenging the ordinance. The motel owners asserted that the city violated the due
process clause by failing to produce adequate support for its supposition that
renting room for fewer than ten (10) hours resulted in increased crime and other
secondary effects. They likewise argued than the ten (10)-hour limitation on the
rental of motel rooms placed an unconstitutional burden on the right to freedom of
association. Anent the first contention, the U.S. Supreme Court held that the
reasonableness of the legislative judgment combined with a study which the city
considered, was adequate to support the citys determination that motels permitting
room rentals for fewer than ten (10 ) hours should be included within the licensing
scheme. As regards the second point, the Court held that limiting motel room
rentals to ten (10) hours will have no discernible effect on personal bonds as those
bonds that are formed from the use of a motel room for fewer than ten (10) hours
are not those that have played a critical role in the culture and traditions of the
nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila,[96] it needs pointing out, is also different from this case in that what
was involved therein was a measure which regulated the mode in which motels may
conduct business in order to put an end to practices which could encourage vice
and immorality. Necessarily, there was no valid objection on due process or equal
protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power
to prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and
unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise of
exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated differently, so as to give undue favor
to some and unjustly discriminate against others. [98] The guarantee means that no
person or class of persons shall be denied the same protection of laws which is
enjoyed by other persons or other classes in like circumstances. [99] The equal
protection of the laws is a pledge of the protection of equal laws. [100] It limits
not a profession exclusive to women. Both men and women have an equal
propensity to engage in prostitution. It is not any less grave a sin when men engage
in it. And why would the assumption that there is an ongoing immoral activity apply
only when women are employed and be inapposite when men are in harness? This
discrimination based on gender violates equal protection as it is not substantially
related to important government objectives.[105] Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test
of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers
local government units to regulate, and not prohibit, the establishments
enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar establishments is
found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
...
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
...
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of
any entertainment or amusement facilities, and to prohibit certain forms of
amusement or entertainment is provided under Section 458 (a) 4 (vii) of the Code,
which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
...
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
...
(vii) Regulate the establishment, operation, and maintenance of any entertainment
or amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants, or require the suspension or suppression of
The rule is that the City Council has only such powers as are expressly granted
to it and those which are necessarily implied or incidental to the exercise thereof. By
reason of its limited powers and the nature thereof, said powers are to be
construed strictissimi juris and any doubt or ambiguity arising out of the terms used
in granting said powers must be construed against the City Council. [113] Moreover, it
is a general rule in statutory construction that the express mention of one person,
thing, or consequence is tantamount to an express exclusion of all others. Expressio
unius est exclusio alterium. This maxim is based upon the rules of logic and the
natural workings of human mind. It is particularly applicable in the construction of
such statutes as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction. [114]
The argument that the City Council is empowered to enact the Ordinance by
virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the
Revised Charter of Manila is likewise without merit. On the first point, the ruling of
the Court in People v. Esguerra,[115] is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by
the other provisions of the same Code, and therefore it can not be applied to
intoxicating liquors, for the power to regulate the selling, giving away and
dispensing thereof is granted specifically by section 2242 (g) to municipal councils.
To hold that, under the general power granted by section 2238, a municipal council
may enact the ordinance in question, notwithstanding the provision of section 2242
(g), would be to make the latter superfluous and nugatory, because the power to
prohibit, includes the power to regulate, the selling, giving away and dispensing of
intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of
the legislative will must necessarily prevail and override the earlier law, the Revised
Charter of Manila.Legis posteriores priores contrarias abrogant, or later statute
repeals prior ones which are repugnant thereto. As between two laws on the same
subject matter, which are irreconcilably inconsistent, that which is passed later
prevails, since it is the latest expression of legislative will. [116] If there is an
inconsistency or repugnance between two statutes, both relating to the same
subject matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail
and override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted law
contains provisions contrary to those of an existing law but no provisions expressly
repealing them. Such repeals have been divided into two general classes: those
which occur where an act is so inconsistent or irreconcilable with an existing prior
act that only one of the two can remain in force and those which occur when an act
covers the whole subject of an earlier act and is intended to be a substitute therefor.
The validity of such a repeal is sustained on the ground that the latest expression of
the legislative will should prevail.[118]
In addition, Section 534(f) of the Code states that All general and special laws,
acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly. Thus,
submitting to petitioners interpretation that the Revised Charter of Manila
empowers the City Council to prohibit motels, that portion of the Charter stating
such must be considered repealed by the Code as it is at variance with the latters
provisions granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which affects the immediate safety
of persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property,
health or comfort of the community. It is a legitimate business. If it be a
nuisance per accidens it may be so proven in a hearing conducted for that purpose.
A motel is not per se a nuisance warranting its summary abatement without judicial
intervention.[119]
Notably, the City Council was conferred powers to prevent and prohibit certain
activities and establishments in another section of the Code which is reproduced as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and
shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
...
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill repute, gambling and
other prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and
morals of the inhabitants of the city;
...
If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list of the matters it may
prohibit under the above-quoted Section. The Ordinance now vainly attempts to
lump these establishments with houses of ill-repute and expand the City Councils
powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an
effort to overreach its prohibitory powers. It is evident that these establishments
may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage
clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the contractors defined in paragraph (h) thereof. The same Section also
defined amusement as a pleasurable diversion and entertainment, synonymous to
relaxation, avocation, pastime or fun; and amusement places to include theaters,
cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances.
Thus, it can be inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo singula
singulis which means that words in different parts of a statute must be referred to
their appropriate connection, giving to each in its place, its proper force and effect,
and, if possible, rendering none of them useless or superfluous, even if strict
grammatical construction demands otherwise. Likewise, where words under
consideration appear in different sections or are widely dispersed throughout an act
the same principle applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to
the provisions of P.D. 499. As correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a commercial area. The decree
allowed the establishment and operation of all kinds of commercial establishments
except warehouse or open storage depot, dump or yard, motor repair shop, gasoline
service station, light industry with any machinery or funeral establishment. The rule
is that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with
or repugnant to the general law. [121] As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:[122]
The requirement that the enactment must not violate existing law explains itself.
Local political subdivisions are able to legislate only by virtue of a valid delegation
of legislative power from the national legislature (except only that the power to
create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of
subordinate legislation. As delegates of the Congress, the local government units
cannot contravene but must obey at all times the will of their principal. In the case
before us, the enactment in question, which are merely local in origin cannot prevail
against the decree, which has the force and effect of a statute. [123]
Petitioners contend that the Ordinance enjoys the presumption of validity. While
this may be the rule, it has already been held that although the presumption is
always in favor of the validity or reasonableness of the ordinance, such presumption
must nevertheless be set aside when the invalidity or unreasonableness appears on
the face of the ordinance itself or is established by proper evidence. The exercise of
police power by the local government is valid unless it contravenes the fundamental
law of the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common
right.[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property rights
and
impairs
personal
privileges.
It
is
constitutionally
infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in its
operation; it is not sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City Council under the
Code had no power to enact the Ordinance and is therefore ultra vires, null and
void.
Concededly, the challenged Ordinance was enacted with the best of motives
and shares the concern of the public for the cleansing of the Ermita-Malate area of
its social sins. Police power legislation of such character deserves the full
endorsement of the judiciary we reiterate our support for it. But inspite of its
virtuous aims, the enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the City Council, cannot
leading case of People v. Vera, 16 "that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result of its enforcement. 17 Moreover,
that rule has been considerably relaxed. 18 The question then is neither abstract
nor academic as contended by respondents.
2. There is, however, this formidable obstacle that confronts petitioners. What they
seek is for this Court to hold that a Letter of Instruction, a regulatory measure
precisely enacted to cope with the serious and grave problem of energy
conservation, is void on its face. Such a task is rendered unusually difficult by what
has been referred to by Justice Laurel in the leading case of Angara v. Electoral
Commission 19 as the "presumption of constitutionality" and by the same jurist in
the case of People v. Vera 20 in slightly different words "a presumption that such an
act falls within constitutional limitations." There is need then for a factual
foundation of invalidity. In the language of Ermita-Malate Hotel & Motel Operations
Association, Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there
being a presumption of validity, the necessity for evidence to rebut it is
unavoidable, unless the statute or ordinance is void on its face, which is not the
case here. The principle has been nowhere better expressed than in the leading
case of O'Gorman & Young v. Hartford Fire Insurance Co., where the American
Supreme Court through Justice Brandeis tersely and succinctly summed up the
matter thus: 'The statute here questioned deals with a subject clearly within the
scope of the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence deprives the
plaintiff of due process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing
the statute.' " 21
3. It is true, of course, that there may be instances where a police power measure
may, because of its arbitrary, oppressive or unjust character, be held offensive to
the due process clause and, therefore, may, when challenged in an appropriate
legal proceeding, be declared void on its face. This is not one of them. A recital of
the whereas clauses of the Letter of Instruction makes it clear. Thus: "[Whereas],
developments in the international petroleum supply situation continue to follow a
trend of limited production and spiralling prices thereby precluding the possibility of
immediate relief in supplies within the foreseeable future; [Whereas], the
uncertainty of fuel supply availability underscores a compelling need for the
adoption of positive measures designed to insure the viability of the country's
economy and sustain its developmental growth; [Whereas], to cushion the effect of
increasing oil prices and avoid fuel supply disruptions, it is imperative to adopt a
program directed towards the judicious use of our energy resources complemented
with intensified conservation efforts and efficient utilization thereof; * * *." 22That is
undeniable is that the action taken is an appropriate response to a problem that
presses urgently for solution. It may not be the only alternative, but its
reasonableness is immediately apparent. Thus, to repeat, substantive due process,
which is the epitome of reasonableness and fair play, is not ignored, much less
infringed.
4. In the interplay between such a fundamental right and police power, especially so
where the assailed governmental action deals with the use of one's property, the
latter is accorded much leeway. That is settled law. What is more, it is good law. Due
process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate
Hotel decision: "To hold otherwise would be to unduly restrict and narrow the scope
of police power which has been properly characterized as the most essential,
insistent and the least limitable of powers, extending as it does 'to all the great
public needs.' It would be, to paraphrase another leading decision, to destroy the
very purpose of the state if it could be deprived or allowed itself to be deprived of
its competence to promote public health, public morals, public safety and the
general welfare. Negatively put, police power is 'that inherent and plenary power in
the State which enables it to prohibit all that is hurtful to the comfort, safety, and
welfare of society.' " 23
5. The due process question having been disposed of, there is still the objection
based on the equal protection clause to be considered. A governmental act may not
be offensive to the due process clause, but may run counter to such a guarantee.
Such is the case when there is no rational basis for the classification followed. That
is the point raised by petitioners. For them, there is no rational justification for the
ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for
precisely those owned by them fall within such category. Tested by the applicable
standard that must be satisfied to avoid the charge of a denial of equal protection,
the objection of petitioners is shown to be lacking in merit. Such a classification on
its face cannot be characterized as an affront to reason. A legal norm according
to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a
rule, principle, or standard, constitutes a defense against anarchy at one extreme
and tyranny at the other. Thereby, people living together in a community with its
myriad and complex problems can minimize the friction and reduce the conflicts, to
assure, at the very least, a peaceful ordering of existence. The Ideal situation is for
the law's benefits to be available to all, that none be placed outside the sphere of its
coverage. Only thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity, which is of the very essence of
the Idea of law. The actual, given things as they are and likely to continue to be,
cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does
not take into account the realties of the situation. * * * To assure that the general
welfare be promoted, which is the end of law, a regulatory measure may cut into
the rights to liberty and property. Those adversely affected may under such
circumstances invoke the equal protection clause only if they can show that the
governmental act assailed, far from being inspired by the attainment of the
common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons
must be treated in the same manner, the conditions not being different, both in the
privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances, which if not Identical are analogous. If
law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 25
6. Nor does it militate against the validity of the Letter of Instruction just because
the ban imposed does not go as far as it could have and therefore could be less
efficacious in character. That was the solution which for the President expressing a
power validly lodged in him, recommended itself. There was a situation that called
for a corrective measure. He decided that what was issued by him would do just
that or, at the very least, help in easing the situation. That it did not cover other
matters which could very well have been regulated does not call for a declaration of
nullity. The President, to paraphrase Lutz v. Araneta, 26 "is not required by the
Constitution to adhere to the policy of all or none." 27 It is quite obvious then that no
equal protection question arises.
7. It may not be amiss to refer to a 1981 American Supreme Court
decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent along with
several other business corporations adversely affected involved in the manufacture
and utilization of plastic milk containers filed suit in a Minnesota district court
seeking to enjoin enforcement of a Minnesota statute banning the retail sale of milk
in plastic nonreturnable, nonrefillable containers, but permitting such sale in other
nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After
conducting extensive evidentiary hearings, the Minnesota court enjoined
enforcement of the statute, finding that it violated among others the equal
protection clause of the Fourteenth Amendment to the Federal Constitution. The
Minnesota Supreme Court affirmed. On certiorari, the United States Supreme Court
reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted
that "proponents of the legislation argued that it would promote resource
conservation, ease solid waste disposal problems, and conserve energy." 29 That
sufficed for the Court to conclude "that the ban on plastic nonreturnable milk
containers bears a rational relation to the State's objectives, and must be sustained
under the Equal Protection Clause." 30 It does show that notwithstanding the "new
equal protection approach" with its emphasis on "suspect classification" and
"fundamental rights and interests standard," a concept so ably expounded by
professor Gunther, the "rational relation test" 31 still retains its validity. Not that
there could be any objection to the classification here followed as being in any way
susceptible to such a pejorative expression as "suspect" or that the assailed Letter
of Instruction does not qualify under "the fundamental rights and interests"
standard
8. There was set forth in the petition what were referred to as "other reasonable
measures which the authorities concerned with energy conservation can take
immediately, which are in fact acceptable and obviously called for and should have
been done long ago, to wit: 1. require and establish taxi stands equipped with
efficient telephone and communication systems; 2. strict implementation and
observance of cargo truck hours on main arteries; 3. strict observance of traffic
rules; 4. effective solution of traffic problems and decongestion of traffic through
rerouting and quick repair of roads and efficient operation of double decker buses;
5. rationing of gasoline to avoid panic buying and give the private car owner the
option and responsibility of deciding on the use of his allocation; 6. allow neon and
electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m.
7. prohibit immediately the importation of heavy and luxury cars and seriously reexamine the car manufacturing program." 32 Admittedly, such measures are
conducive to energy conservation. The question before us however is limited to
whether or not Letter of Instruction 869 as implemented by Memorandum Circular
No. 39 is violative of certain constitutional rights. It goes no further than that. The
determination of the mode and manner through which the objective of minimizing
the consumption of oil products may be attained is left to the discretion of the
political branches. 33 Absent therefore the alleged infringement of constitutional
rights, more precisely the due process and equal protection guarantees, this Court
cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality.
9. It was likewise contended that Memorandum Circular No. 39, issued by the then
thereupon, shall require the immediate surrender of the number plates * * *." 41 It
follows that while the imposition of a fine or the suspension of registration under the
conditions therein set forth is valid under the Land Transportation and Traffic Code,
the impounding of a vehicle finds no statutory justification. To apply that portion of
Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear
that a penalty even if warranted can only be imposed in accordance with the
procedure required by law. 42
WHEREFORE, the petition is dismissed.
Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ.,
concur.
Makasiar and Concepcion J., took no part.
Separate Opinions
ABAD SANTOS, J., dissenting:
The power of the State to restrict the use of certain motor vehicles during stated
days and hours as a fuel-saving measure is to me indubitable. It is anchored on the
police power of the State. For this reason LOI No. 869 cannot be assailed
successfully as violative of due process and equal protection guarantees of the
Constitution.
There is also no question as to the power of the Commissioner of Land
Transportation and the Minister of Public Works, Transportation and Communication
to issue Memorandum Circular No. 39 on June 11, 1979. The circular was necessary
to implement the LOI. But it does not follow that the circular is completely immune
from the taint of infirmity.
I refer to paragraph 4 of the circular which provides, inter alia, for penalties
consisting of fine and suspension or cancellation of the certificate of registration for
owners of motor vehicles violating the LOI. This portion of the circular is clearly
illegal for the LOI is absolutely and completely devoid of legal sanctions and
consequently the implementing circular cannot prescribe them. It is elementary that
only the legislature (or the President in the exercise of his legislative power) can
prescribe penalties. Executive officials whose task is to enforce the law can
prescribe penalties only if they are authorized to do so within specified limits by the
legislature.
It is contended by the respondents that the LOI and the implementing circular were
adopted pursuant to the Land Transportation and Traffic Code Republic Act No.
4136. This contention is utterly baseless.
LOI No. 869 can be compared to a multiple independently targeted ballistic missile.
It tasks various agencies of the government as follows:
1. The Ministry of Energy shall during the period of tight supply,
limit as necessary, sales of fuel products by oil companies and
other outlets to all consumers including the government and the
Armed Forces of the Philippines. Initially sales shall be limited to
1978 levels. This may be adjusted upward or downward as
required to balance supply with demand and to equitably
distribute available supplies. Moreover, the Ministry of Energy is
hereby authorized to set supply priorities and to establish supply
allocations accordingly.
2. The Ministry of Local Government and Community
SECOND DIVISION
[G.R. No. 107916. February 20, 1997]
PERCIVAL
MODAY,
ZOTICO
MODAY
(deceased)
and
LEONORA
MODAY, petitioners, vs. COURT OF APPEALS, JUDGE EVANGELINE S.
YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR
AND MUNICIPALITY OF BUNAWAN, respondents.
DECISION
ROMERO, J.:
The main issue presented in this case is whether a municipality may expropriate
private property by virtue of a municipal resolution which was disapproved by the
Sangguniang Panlalawigan. Petitioner seeks the reversal of the Court of Appeals
decision and resolution, promulgated on July 15, 1992 and October 22, 1992
respectively[1], and a declaration that Municipal Resolution No. 43-89 of the
Bunawan Sangguniang Bayan is null and void.
Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in
the May 8, 1995 election. [11] The incumbent Mayor Leonardo Barrios, filed a
Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of the
Temporary Restraining Order" and Memorandum on June 11, 1996 for the
Municipality of Bunawan.[12]
Petitioners contend that the Court of Appeals erred in upholding the legality of
the condemnation proceedings initiated by the municipality. According to
petitioners, the expropriation was politically motivated and Resolution No. 43-89
was correctly disapproved by the Sangguniang Panlalawigan, there being other
municipal properties available for the purpose. Petitioners also pray that the former
Mayor Anuncio C. Bustillo be ordered to pay damages for insisting on the
enforcement of a void municipal resolution.
The Court of Appeals declared that the Sangguniang Panlalawigan's reason for
disapproving the resolution "could be baseless, because it failed to point out which
and where are 'those available lots.' Respondent court also concluded that since the
Sangguniang Panlalawigan did not declare the municipal board's resolution as
invalid, expropriation of petitioners' property could proceed. [13]
The Court finds no merit in the petition and affirms the decision of the Court of
Appeals.
Eminent domain, the power which the Municipality of Bunawan exercised in the
instant case, is a fundamental State power that is inseparable from sovereignty. [14] It
is government's right to appropriate, in the nature of a compulsory sale to the State,
private property for public use or purpose. [15] Inherently possessed by the national
legislature, the power of eminent domain may be validly delegated to local
governments, other public entities and public utilities. [16] For the taking of private
property by the government to be valid, the taking must be for public use and there
must be just compensation.[17]
The Municipality of Bunawan's power to exercise the right of eminent domain is
not disputed as it is expressly provided for in Batas Pambansa Blg. 337, the Local
Government Code[18]in force at the time expropriation proceedings were initiated.
Section 9 of said law states:
"Section 9. Eminent Domain. A local government unit may, through its head and
acting pursuant to a resolution of its sanggunian, exercise the right of eminent
domain and institute condemnation proceedings for public use or purpose."
What petitioners question is the lack of authority of the municipality to exercise
this right since the Sangguniang Panlalawigan disapproved Resolution No. 43-89.
Section 153 of B.P. Blg. 337 provides:
"Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days after receiving
copies of approved ordinances, resolutions and executive orders promulgated by
the municipal mayor, the sangguniang panlalawigan shall examine the documents
or transmit them to the provincial attorney, or if there be none, to the provincial
fiscal, who shall examine them promptly and inform the sangguniang panlalawigan
in writing of any defect or impropriety which he may discover therein and make
such comments or recommendations as shall appear to him proper.
(2) If the sangguniang panlalawigan shall find that any municipal ordinance,
resolution or executive order is beyond the power conferred upon the
sangguniang bayan or the mayor, it shall declare such ordinance,
resolution or executive order invalid in whole or in part, entering its actions
upon the minutes and advising the proper municipal authorities thereof. The effect
of such an action shall be to annul the ordinance, resolution or executive order in
question in whole or in part. The action of the sangguniang panlalawigan shall be
final.
xxx xxx xxx." (Emphasis supplied.)
The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89
is an infirm action which does not render said resolution null and void. The law, as
expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the
power to declare a municipal resolution invalid on the sole ground that it is beyond
the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a
similar provision of law but different factual milieu then obtaining, the Court's
pronouncements in Velazco v. Blas, [19] where we cited significant early
jurisprudence, are applicable to the case at bar.
"The only ground upon which a provincial board may declare any municipal
resolution, ordinance, or order invalid is when such resolution, ordinance, or order is
'beyond the powers conferred upon the council or president making the same.'
Absolutely no other ground is recognized by the law. A strictly legal question is
before the provincial board in its consideration of a municipal resolution, ordinance,
or order. The provincial (board's) 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 legal powers conferred by law. If a provincial board
passes these limits, it usurps the legislative functions of the municipal council or
president. Such has been the consistent course of executive authority." [20]
Thus, the Sangguniang Panlalawigan was without the authority to disapprove
Municipal Resolution No. 43-89 for the Municipality of Bunawan clearly has the
power to exercise the right of eminent domain and its Sangguniang Bayan the
capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of
B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and
could be used as lawful authority to petition for the condemnation of petitioners'
property.
As regards the accusation of political oppression, it is alleged that Percival
Moday incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support
the latter's candidacy for mayor in previous elections. Petitioners claim that then
the tolls, as follows: 25% to PLDT and 75% to RCA. The sharing was amended in
1941 to 30% for PLDT and 70% for RCA, and again amended in 1947 to a 50-50
basis. The arrangement was later extended to radio-telephone messages to and
from European and Asiatic countries. Their contract contained a stipulation that
either party could terminate it on a 24-month notice to the other. 4 On 2 February
1956, PLDT gave notice to RCA to terminate their contract on 2 February 1958. 5
Soon after its creation in 1947, the Bureau of Telecommunications set up its own
Government Telephone System by utilizing its own appropriation and equipment
and by renting trunk lines of the PLDT to enable government offices to call private
parties. 6 Its application for the use of these trunk lines was in the usual form of
applications for telephone service, containing a statement, above the signature of
the applicant, that the latter will abide by the rules and regulations of the PLDT
which are on file with the Public Service Commission. 7 One of the many rules
prohibits the public use of the service furnished the telephone subscriber for his
private use. 8 The Bureau has extended its services to the general public since
1948, 9 using the same trunk lines owned by, and rented from, the PLDT, and
prescribing its (the Bureau's) own schedule of rates. 10 Through these trunk lines, a
Government Telephone System (GTS) subscriber could make a call to a PLDT
subscriber in the same way that the latter could make a call to the former.
On 5 March 1958, the plaintiff, through the Director of Telecommunications,
entered into an agreement with RCA Communications, Inc., for a joint overseas
telephone service whereby the Bureau would convey radio-telephone overseas calls
received by RCA's station to and from local residents. 11 Actually, they inaugurated
this joint operation on 2 February 1958, under a "provisional" agreement. 12
On 7 April 1958, the defendant Philippine Long Distance Telephone Company,
complained to the Bureau of Telecommunications that said bureau was violating the
conditions under which their Private Branch Exchange (PBX) is inter-connected with
the PLDT's facilities, referring to the rented trunk lines, for the Bureau had used the
trunk lines not only for the use of government offices but even to serve private
persons or the general public, in competition with the business of the PLDT; and
gave notice that if said violations were not stopped by midnight of 12 April 1958,
the PLDT would sever the telephone connections. 13 When the PLDT received no
reply, it disconnected the trunk lines being rented by the Bureau at midnight on 12
April 1958. 14 The result was the isolation of the Philippines, on telephone services,
from the rest of the world, except the United States. 15
At that time, the Bureau was maintaining 5,000 telephones and had 5,000 pending
applications for telephone connection. 16 The PLDT was also maintaining 60,000
telephones and had also 20,000 pending applications. 17Through the years, neither
of them has been able to fill up the demand for telephone service.
The Bureau of Telecommunications had proposed to the PLDT on 8 January 1958
that both enter into an interconnecting agreement, with the government paying (on
a call basis) for all calls passing through the interconnecting facilities from the
Government Telephone System to the PLDT. 18 The PLDT replied that it was willing to
enter into an agreement on overseas telephone service to Europe and Asian
countries provided that the Bureau would submit to the jurisdiction and regulations
of the Public Service Commission and in consideration of 37 1/2% of the gross
revenues. 19 In its memorandum in lieu of oral argument in this Court dated 9
February 1964, on page 8, the defendant reduced its offer to 33 1/3 % (1/3) as its
share in the overseas telephone service. The proposals were not accepted by either
party.
This view we have taken of the true nature of the Republic's petition necessarily
results in overruling the plea of defendant-appellant PLDT that the court of first
instance had no jurisdiction to entertain the petition and that the proper forum for
the action was the Public Service Commission. That body, under the law, has no
authority to pass upon actions for the taking of private property under the sovereign
right of eminent domain. Furthermore, while the defendant telephone company is a
public utility corporation whose franchise, equipment and other properties are under
the jurisdiction, supervision and control of the Public Service Commission (Sec. 13,
Public Service Act), yet the plaintiff's telecommunications network is a public service
owned by the Republic and operated by an instrumentality of the National
Government, hence exempt, under Section 14 of the Public Service Act, from such
jurisdiction, supervision and control. The Bureau of Telecommunications was created
in pursuance of a state policy reorganizing the government offices
to meet the exigencies attendant upon the establishment of the free
and independent Government of the Republic of the Philippines, and
for the purpose of promoting simplicity, economy and efficiency in its
operation (Section 1, Republic Act No. 51)
and the determination of state policy is not vested in the Commission (Utilities
Com. vs. Bartonville Bus Line, 290 Ill. 574; 124 N.E. 373).
Defendant PLDT, as appellant, contends that the court below was in error in not
holding that the Bureau of Telecommunications was not empowered to engage in
commercial telephone business, and in ruling that said defendant was not justified
in disconnecting the telephone trunk lines it had previously leased to the Bureau.
We find that the court a quo ruled correctly in rejecting both assertions.
Executive Order No. 94, Series of 1947, reorganizing the Bureau of
Telecommunications, expressly empowered the latter in its Section 79, subsection
(b), to "negotiate for, operate and maintain wire telephone or radio telephone
communication service throughout the Philippines", and, in subsection (c), "to
prescribe, subject to approval by the Department Head, equitable rates of charges
for messages handled by the system and/or for time calls and other services that
may be rendered by the system". Nothing in these provisions limits the Bureau to
non-commercial activities or prevents it from serving the general public. It may be
that in its original prospectuses the Bureau officials had stated that the service
would be limited to government offices: but such limitations could not block future
expansion of the system, as authorized by the terms of the Executive Order, nor
could the officials of the Bureau bind the Government not to engage in services that
are authorized by law. It is a well-known rule that erroneous application and
enforcement of the law by public officers do not block subsequent correct
application of the statute (PLDT vs. Collector of Internal Revenue, 90 Phil. 676), and
that the Government is never estopped by mistake or error on the part of its agents
(Pineda vs. Court of First Instance of Tayabas, 52 Phil. 803, 807; Benguet
Consolidated Mining Co. vs. Pineda, 98 Phil. 711, 724).
The theses that the Bureau's commercial services constituted unfair competition,
and that the Bureau was guilty of fraud and abuse under its contract, are, likewise,
untenable.
First, the competition is merely hypothetical, the demand for telephone service
being very much more than the supposed competitors can supply. As previously
noted, the PLDT had 20,000 pending applications at the time, and the Bureau had
another 5,000. The telephone company's inability to meet the demands for service
are notorious even now. Second, the charter of the defendant expressly provides:
SEC. 14. The rights herein granted shall not be exclusive, and the
rights and power to grant to any corporation, association or person
other than the grantee franchise for the telephone or electrical
transmission of message or signals shall not be impaired or affected by
the granting of this franchise: (Act 3436)
And third, as the trial court correctly stated, "when the Bureau of
Telecommunications subscribed to the trunk lines, defendant knew or should have
known that their use by the subscriber was more or less public and all embracing in
nature, that is, throughout the Philippines, if not abroad" (Decision, Record on
Appeal, page 216).
The acceptance by the defendant of the payment of rentals, despite its knowledge
that the plaintiff had extended the use of the trunk lines to commercial purposes,
continuously since 1948, implies assent by the defendant to such extended use.
Since this relationship has been maintained for a long time and the public has
patronized both telephone systems, and their interconnection is to the public
convenience, it is too late for the defendant to claim misuse of its facilities, and it is
not now at liberty to unilaterally sever the physical connection of the trunk lines.
..., but there is high authority for the position that, when such
physical connection has been voluntarily made, under a fair and
workable arrangement and guaranteed by contract and the continuous
line has come to be patronized and established as a great public
convenience, such connection shall not in breach of the agreement be
severed by one of the parties. In that case, the public is held to have
such an interest in the arrangement that its rights must receive due
consideration. This position finds approval in State ex rel. vs.
Cadwaller, 172 Ind. 619, 636, 87 N.E. 650, and is stated in the
elaborate and learned opinion of Chief Justice Myers as follows: "Such
physical connection cannot be required as of right, but if such
connection is voluntarily made by contract, as is here alleged to be the
case, so that the public acquires an interest in its continuance, the act
of the parties in making such connection is equivalent to a declaration
of a purpose to waive the primary right of independence, and it
imposes upon the property such a public status that it may not be
disregarded" citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W.
629, and the reasons upon which it is in part made to rest are referred
to in the same opinion, as follows: "Where private property is by the
consent of the owner invested with a public interest or privilege for the
benefit of the public, the owner can no longer deal with it as private
property only, but must hold it subject to the right of the public in the
exercise of that public interest or privilege conferred for their benefit."
Allnut v. Inglis (1810) 12 East, 527. The doctrine of this early case is
the acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co.,
74 S.E. 636, 638).
It is clear that the main reason for the objection of the PLDT lies in the fact that
said appellant did not expect that the Bureau's telephone system would expand
with such rapidity as it has done; but this expansion is no ground for the
discontinuance of the service agreed upon.
The last issue urged by the PLDT as appellant is its right to compensation for the
use of its poles for bearing telephone wires of the Bureau of Telecommunications.
Admitting that section 19 of the PLDT charter reserves to the Government
the defendant counterclaimed for P8,772.00 for the use of its poles by the plaintiff,
contending that what was allowed free use, under the aforequoted provision, was
one ten-pin cross-arm attachment and only for plaintiff's telegraph system, not for
its telephone system; that said section could not refer to the plaintiff's telephone
system, because it did not have such telephone system when defendant acquired
its franchise. The implication of the argument is that plaintiff has to pay for the use
of defendant's poles if such use is for plaintiff's telephone system and has to pay
also if it attaches more than one (1) ten-pin cross-arm for telegraphic purposes.
As there is no proof that the telephone wires strain the poles of the PLDT more
than the telegraph wires, nor that they cause more damage than the wires of the
telegraph system, or that the Government has attached to the poles more than one
ten-pin cross-arm as permitted by the PLDT charter, we see no point in this
assignment of error. So long as the burden to be borne by the PLDT poles is not
increased, we see no reason why the reservation in favor of the telegraph wires of
the government should not be extended to its telephone lines, any time that the
government decided to engage also in this kind of communication.
In the ultimate analysis, the true objection of the PLDT to continue the link
between its network and that of the Government is that the latter competes
"parasitically" (sic) with its own telephone services. Considering, however, that the
PLDT franchise is non-exclusive; that it is well-known that defendant PLDT is unable
to adequately cope with the current demands for telephone service, as shown by
the number of pending applications therefor; and that the PLDT's right to just
compensation for the services rendered to the Government telephone system and
its users is herein recognized and preserved, the objections of defendant-appellant
are without merit. To uphold the PLDT's contention is to subordinate the needs of
the general public to the right of the PLDT to derive profit from the future expansion
of its services under its non-exclusive franchise.
WHEREFORE, the decision of the Court of First Instance, now under appeal, is
affirmed, except in so far as it dismisses the petition of the Republic of the
Philippines to compel the Philippine Long Distance Telephone Company to continue
servicing the Government telephone system upon such terms, and for a
compensation, that the trial court may determine to be just, including the period
elapsed from the filing of the original complaint or petition. And for this purpose, the
records are ordered returned to the court of origin for further hearings and other
proceedings not inconsistent with this opinion. No costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano,
Teehankee and Barredo, JJ., concur.
SUPREME COURT
Manila
EN BANC
G.R. No. L-20620 August 15, 1974
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates for defendantappellees.
ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case
No. 1623, an expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred to as the
Republic) filed, on June 26, 1959, a complaint for eminent domain against
defendant-appellee, Carmen M. Vda. de Castellvi, judicial administratrix of the
estate of the late Alfonso de Castellvi (hereinafter referred to as Castellvi), over a
parcel of land situated in the barrio of San Jose, Floridablanca, Pampanga, described
as follows:
A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo 23666.
Bounded on the NE by Maria Nieves Toledo-Gozun; on the SE by
national road; on the SW by AFP reservation, and on the NW by
AFP reservation. Containing an area of 759,299 square meters,
more or less, and registered in the name of Alfonso Castellvi
under TCT No. 13631 of the Register of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun (hereinafter referred to
as Toledo-Gozun over two parcels of land described as follows:
A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan Psd,
26254. Bounded on the NE by Lot 3, on the SE by Lot 3; on the
SW by Lot 1-B, Blk. 2 (equivalent to Lot 199-B Swo 23666; on the
NW by AFP military reservation. Containing an area of 450,273
square meters, more or less and registered in the name of Maria
Nieves Toledo-Gozun under TCT No. 8708 of the Register of
Deeds of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan Psd
26254. Bounded on the NE by Lot No. 3, on the SE by school lot
and national road, on the SW by Lot 1-B Blk 2 (equivalent to Lot
199-B Swo 23666), on the NW by Lot 1-B, Blk-1. Containing an
area of 88,772 square meters, more or less, and registered in
the name of Maria Nieves Toledo Gozun under TCT No. 8708 of
the Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things, that the fair market
value of the above-mentioned lands, according to the Committee on Appraisal for
the Province of Pampanga, was not more than P2,000 per hectare, or a total market
value of P259,669.10; and prayed, that the provisional value of the lands be fixed at
P259.669.10, that the court authorizes plaintiff to take immediate possession of the
lands upon deposit of that amount with the Provincial Treasurer of Pampanga; that
the court appoints three commissioners to ascertain and report to the court the just
compensation for the property sought to be expropriated, and that the court issues
thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the provisional value of the
lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged, among other
things, that the land under her administration, being a residential land, had a fair
market value of P15.00 per square meter, so it had a total market value of
P11,389,485.00; that the Republic, through the Armed Forces of the Philippines,
particularly the Philippine Air Force, had been, despite repeated demands, illegally
occupying her property since July 1, 1956, thereby preventing her from using and
disposing of it, thus causing her damages by way of unrealized profits. This
defendant prayed that the complaint be dismissed, or that the Republic be ordered
to pay her P15.00 per square meter, or a total of P11,389,485.00, plus interest
thereon at 6% per annum from July 1, 1956; that the Republic be ordered to pay her
P5,000,000.00 as unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz, Dolores G. viuda de
Gil, Paloma Castellvi, Carmen Castellvi, Rafael Castellvi, Luis Castellvi, Natividad
Castellvi de Raquiza, Jose Castellvi and Consuelo Castellvi were allowed to intervene
as parties defendants. Subsequently, Joaquin V. Gozun, Jr., husband of defendant
Nieves Toledo Gozun, was also allowed by the court to intervene as a party
defendant.
After the Republic had deposited with the Provincial Treasurer of Pampanga the
amount of P259,669.10, the trial court ordered that the Republic be placed in
possession of the lands. The Republic was actually placed in possession of the lands
on August 10,
1959. 1
In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun alleged, among
other things, that her two parcels of land were residential lands, in fact a portion
with an area of 343,303 square meters had already been subdivided into different
lots for sale to the general public, and the remaining portion had already been set
aside for expansion sites of the already completed subdivisions; that the fair market
value of said lands was P15.00 per square meter, so they had a total market value
of P8,085,675.00; and she prayed that the complaint be dismissed, or that she be
paid the amount of P8,085,675.00, plus interest thereon at the rate of 6% per
annum from October 13, 1959, and attorney's fees in the amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed on February
11, 1960, and also intervenor Joaquin Gozun, Jr., husband of defendant Maria Nieves
Toledo-Gozun, in his motion to dismiss, dated May 27, 1960, all alleged that the
value of the lands sought to be expropriated was at the rate of P15.00 per square
meter.
On November 4, 1959, the trial court authorized the Provincial Treasurer of
Pampanga to pay defendant Toledo-Gozun the sum of P107,609.00 as provisional
value of her lands. 2 On May 16, 1960 the trial Court authorized the Provincial
Treasurer of Pampanga to pay defendant Castellvi the amount of P151,859.80 as
provisional value of the land under her administration, and ordered said defendant
to deposit the amount with the Philippine National Bank under the supervision of
the Deputy Clerk of Court. In another order of May 16, 1960 the trial Court entered
an order of condemnation.3
The trial Court appointed three commissioners: Atty. Amadeo Yuzon, Clerk of Court,
as commissioner for the court; Atty. Felicisimo G. Pamandanan, counsel of the
Philippine National Bank Branch at Floridablanca, for the plaintiff; and Atty. Leonardo
F. Lansangan, Filipino legal counsel at Clark Air Base, for the defendants. The
Commissioners, after having qualified themselves, proceeded to the performance of
their duties.
On March 15,1961 the Commissioners submitted their report and recommendation,
wherein, after having determined that the lands sought to be expropriated were
residential lands, they recommended unanimously that the lowest price that should
be paid was P10.00 per square meter, for both the lands of Castellvi and ToledoGozun; that an additional P5,000.00 be paid to Toledo-Gozun for improvements
found on her land; that legal interest on the compensation, computed from August
10, 1959, be paid after deducting the amounts already paid to the owners, and that
no consequential damages be awarded. 4 The Commissioners' report was objected
to by all the parties in the case by defendants Castellvi and Toledo-Gozun, who
insisted that the fair market value of their lands should be fixed at P15.00 per
square meter; and by the Republic, which insisted that the price to be paid for the
lands should be fixed at P0.20 per square meter. 5
After the parties-defendants and intervenors had filed their respective memoranda,
and the Republic, after several extensions of time, had adopted as its memorandum
its objections to the report of the Commissioners, the trial court, on May 26, 1961,
rendered its decision 6 the dispositive portion of which reads as follows:
WHEREFORE, taking into account all the foregoing
circumstances, and that the lands are titled, ... the rising trend
of land values ..., and the lowered purchasing power of the
Philippine peso, the court finds that the unanimous
recommendation of the commissioners of ten (P10.00) pesos per
square meter for the three lots of the defendants subject of this
action is fair and just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum on the total value of
the lands of defendant Toledo-Gozun since (sic) the amount
deposited as provisional value from August 10, 1959 until full
payment is made to said defendant or deposit therefor is made
in court.
In respect to the defendant Castellvi, interest at 6% per annum
will also be paid by the plaintiff to defendant Castellvi from July
1, 1956 when plaintiff commenced its illegal possession of the
Castellvi land when the instant action had not yet been
commenced to July 10, 1959 when the provisional value thereof
was actually deposited in court, on the total value of the said
(Castellvi) land as herein adjudged. The same rate of interest
shall be paid from July 11, 1959 on the total value of the land
herein adjudged minus the amount deposited as provisional
value, or P151,859.80, such interest to run until full payment is
made to said defendant or deposit therefor is made in court. All
the intervenors having failed to produce evidence in support of
their respective interventions, said interventions are ordered
dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial and/or reconsideration,
upon the grounds of newly-discovered evidence, that the decision was not
supported by the evidence, and that the decision was against the law, against which
motion defendants Castellvi and Toledo-Gozun filed their respective oppositions. On
July 8, 1961 when the motion of the Republic for new trial and/or reconsideration
was called for hearing, the Republic filed a supplemental motion for new trial upon
the ground of additional newly-discovered evidence. This motion for new trial and/or
reconsideration was denied by the court on July 12, 1961.
On July 17, 1961 the Republic gave notice of its intention to appeal from the
decision of May 26, 1961 and the order of July 12, 1961. Defendant Castellvi also
filed, on July 17, 1961, her notice of appeal from the decision of the trial court.
The Republic filed various ex-parte motions for extension of time within which to file
its record on appeal. The Republic's record on appeal was finally submitted on
December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint opposition to the
approval of the Republic's record on appeal, but also a joint memorandum in
support of their opposition. The Republic also filed a memorandum in support of its
prayer for the approval of its record on appeal. On December 27, 1961 the trial
court issued an order declaring both the record on appeal filed by the Republic, and
the record on appeal filed by defendant Castellvi as having been filed out of time,
thereby dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike out the order of
December 27, 1961 and for reconsideration", and subsequently an amended record
on appeal, against which motion the defendants Castellvi and Toledo-Gozun filed
their opposition. On July 26, 1962 the trial court issued an order, stating that "in the
interest of expediency, the questions raised may be properly and finally determined
by the Supreme Court," and at the same time it ordered the Solicitor General to
submit a record on appeal containing copies of orders and pleadings specified
therein. In an order dated November 19, 1962, the trial court approved the
Republic's record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant Toledo-Gozun did not
appeal.
The motion to dismiss the Republic's appeal was reiterated by appellees Castellvi
and Toledo-Gozun before this Court, but this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought to increase the
provisional value of her land. The Republic, in its comment on Castellvi's motion,
opposed the same. This Court denied Castellvi's motion in a resolution dated
October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated October 6, 1969,
praying that they be authorized to mortgage the lands subject of expropriation, was
denied by this Court or October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel for the estate
of the late Don Alfonso de Castellvi in the expropriation proceedings, filed a notice
of attorney's lien, stating that as per agreement with the administrator of the estate
of Don Alfonso de Castellvi they shall receive by way of attorney's fees, "the sum
equivalent to ten per centum of whatever the court may finally decide as the
expropriated price of the property subject matter of the case."
--------Before this Court, the Republic contends that the lower court erred:
1. In finding the price of P10 per square meter of the lands
subject of the instant proceedings as just compensation;
2. In holding that the "taking" of the properties under
the LESSEE shall have the right and privilege to compensate the
LESSOR at the fair value or the equivalent, in lieu of
performance of its obligation, if any, to restore the premises. Fair
value is to be determined as the value at the time of occupancy
less fair wear and tear and depreciation during the period of this
lease.
6. The LESSEE may terminate this lease at any time during the
term hereof by giving written notice to the LESSOR at least thirty
(30) days in advance ...
7. The LESSEE should not be responsible, except under special
legislation for any damages to the premises by reason of combat
operations, acts of GOD, the elements or other acts and deeds
not due to the negligence on the part of the LESSEE.
8. This LEASE AGREEMENT supersedes and voids any and all
agreements and undertakings, oral or written, previously
entered into between the parties covering the property herein
leased, the same having been merged herein. This AGREEMENT
may not be modified or altered except by instrument in writing
only duly signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract of lease (Exh. 4,
Castellvi) is 'similar in terms and conditions, including the date', with the annual
contracts entered into from year to year between defendant Castellvi and the
Republic of the Philippines (p. 17, t.s.n., Vol. III)". 11 It is undisputed, therefore, that
the Republic occupied Castellvi's land from July 1, 1947, by virtue of the abovementioned contract, on a year to year basis (from July 1 of each year to June 30 of
the succeeding year) under the terms and conditions therein stated.
Before the expiration of the contract of lease on June 30, 1956 the Republic sought
to renew the same but Castellvi refused. When the AFP refused to vacate the leased
premises after the termination of the contract, on July 11, 1956, Castellvi wrote to
the Chief of Staff, AFP, informing the latter that the heirs of the property had
decided not to continue leasing the property in question because they had decided
to subdivide the land for sale to the general public, demanding that the property be
vacated within 30 days from receipt of the letter, and that the premises be returned
in substantially the same condition as before occupancy (Exh. 5 Castellvi). A
follow-up letter was sent on January 12, 1957, demanding the delivery and return of
the property within one month from said date (Exh. 6 Castellvi). On January 30,
1957, Lieutenant General Alfonso Arellano, Chief of Staff, answered the letter of
Castellvi, saying that it was difficult for the army to vacate the premises in view of
the permanent installations and other facilities worth almost P500,000.00 that were
erected and already established on the property, and that, there being no other
recourse, the acquisition of the property by means of expropriation proceedings
would be recommended to the President (Exhibit "7" Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance of Pampanga, in
Civil Case No. 1458, to eject the Philippine Air Force from the land. While this
ejectment case was pending, the Republic instituted these expropriation
proceedings, and, as stated earlier in this opinion, the Republic was placed in
possession of the lands on August 10, 1959, On November 21, 1959, the Court of
First Instance of Pampanga, dismissed Civil Case No. 1458, upon petition of the
parties, in an order which, in part, reads as follows:
1. Plaintiff has agreed, as a matter of fact has already signed an
fraud the question being not what the intention was, but what is expressed in the
language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena
Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover, in order to judge the intention of
the contracting parties, their contemporaneous and subsequent acts shall be
principally considered (Art. 1371, Civil Code). If the intention of the lessee (Republic)
in 1947 was really to occupy permanently Castellvi's property, why was the contract
of lease entered into on year to year basis? Why was the lease agreement renewed
from year to year? Why did not the Republic expropriate this land of Castellvi in
1949 when, according to the Republic itself, it expropriated the other parcels of land
that it occupied at the same time as the Castellvi land, for the purpose of converting
them into a jet air base? 14 It might really have been the intention of the Republic to
expropriate the lands in question at some future time, but certainly mere notice much less an implied notice of such intention on the part of the Republic to
expropriate the lands in the future did not, and could not, bind the landowner, nor
bind the land itself. The expropriation must be actually commenced in court
(Republic vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or color of legal authority.
This circumstance in the "taking" may be considered as present in the instant case,
because the Republic entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or otherwise informally
appropriated or injuriously affected. It may be conceded that the circumstance of
the property being devoted to public use is present because the property was used
by the air force of the AFP.
Fifth, the utilization of the property for public use must be in such a way as to oust
the owner and deprive him of all beneficial enjoyment of the property. In the instant
case, the entry of the Republic into the property and its utilization of the same for
public use did not oust Castellvi and deprive her of all beneficial enjoyment of the
property. Castellvi remained as owner, and was continuously recognized as owner
by the Republic, as shown by the renewal of the lease contract from year to year,
and by the provision in the lease contract whereby the Republic undertook to return
the property to Castellvi when the lease was terminated. Neither was Castellvi
deprived of all the beneficial enjoyment of the property, because the Republic was
bound to pay, and had been paying, Castellvi the agreed monthly rentals until the
time when it filed the complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for purposes of eminent
domain cannot be considered to have taken place in 1947 when the Republic
commenced to occupy the property as lessee thereof. We find merit in the
contention of Castellvi that two essential elements in the "taking" of property under
the power of eminent domain, namely: (1) that the entrance and occupation by the
condemnor must be for a permanent, or indefinite period, and (2) that in devoting
the property to public use the owner was ousted from the property and deprived of
its beneficial use, were not present when the Republic entered and occupied the
Castellvi property in 1947.
Untenable also is the Republic's contention that although the contract between the
parties was one of lease on a year to year basis, it was "in reality a more or less
permanent right to occupy the premises under the guise of lease with the 'right and
privilege' to buy the property should the lessor wish to terminate the lease," and
"the right to buy the property is merged as an integral part of the lease
relationship ... so much so that the fair market value has been agreed upon, not, as
of the time of purchase, but as of the time of occupancy" 15 We cannot accept the
Republic's contention that a lease on a year to year basis can give rise to a
permanent right to occupy, since by express legal provision a lease made for a
determinate time, as was the lease of Castellvi's land in the instant case, ceases
upon the day fixed, without need of a demand (Article 1669, Civil Code). Neither can
it be said that the right of eminent domain may be exercised by simply leasing the
premises to be expropriated (Rule 67, Section 1, Rules of Court). Nor can it be
accepted that the Republic would enter into a contract of lease where its real
intention was to buy, or why the Republic should enter into a simulated contract of
lease ("under the guise of lease", as expressed by counsel for the Republic) when all
the time the Republic had the right of eminent domain, and could expropriate
Castellvi's land if it wanted to without resorting to any guise whatsoever. Neither
can we see how a right to buy could be merged in a contract of lease in the absence
of any agreement between the parties to that effect. To sustain the contention of
the Republic is to sanction a practice whereby in order to secure a low price for a
land which the government intends to expropriate (or would eventually expropriate)
it would first negotiate with the owner of the land to lease the land (for say ten or
twenty years) then expropriate the same when the lease is about to terminate, then
claim that the "taking" of the property for the purposes of the expropriation be
reckoned as of the date when the Government started to occupy the property under
the lease, and then assert that the value of the property being expropriated be
reckoned as of the start of the lease, in spite of the fact that the value of the
property, for many good reasons, had in the meantime increased during the period
of the lease. This would be sanctioning what obviously is a deceptive scheme, which
would have the effect of depriving the owner of the property of its true and fair
market value at the time when the expropriation proceedings were actually
instituted in court. The Republic's claim that it had the "right and privilege" to buy
the property at the value that it had at the time when it first occupied the property
as lessee nowhere appears in the lease contract. What was agreed expressly in
paragraph No. 5 of the lease agreement was that, should the lessor require the
lessee to return the premises in the same condition as at the time the same was
first occupied by the AFP, the lessee would have the "right and privilege" (or option)
of paying the lessor what it would fairly cost to put the premises in the same
condition as it was at the commencement of the lease, in lieu of the lessee's
performance of the undertaking to put the land in said condition. The "fair value" at
the time of occupancy, mentioned in the lease agreement, does not refer to the
value of the property if bought by the lessee, but refers to the cost of restoring the
property in the same condition as of the time when the lessee took possession of
the property. Such fair value cannot refer to the purchase price, for purchase was
never intended by the parties to the lease contract. It is a rule in the interpretation
of contracts that "However general the terms of a contract may be, they shall not
be understood to comprehend things that are distinct and cases that are different
from those upon which the parties intended to agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property should not be
reckoned as of the year 1947 when the Republic first occupied the same pursuant to
the contract of lease, and that the just compensation to be paid for the Castellvi
property should not be determined on the basis of the value of the property as of
that year. The lower court did not commit an error when it held that the "taking" of
the property under expropriation commenced with the filing of the complaint in this
case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just compensation" is to be
determined as of the date of the filing of the complaint. This Court has ruled that
when the taking of the property sought to be expropriated coincides with the
commencement of the expropriation proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the just compensation should be
determined as of the date of the filing of the complaint. (Republic vs. Philippine
National Bank, L-14158, April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it
is undisputed that the Republic was placed in possession of the Castellvi property,
by authority of the court, on August 10, 1959. The "taking" of the Castellvi property
for the purposes of determining the just compensation to be paid must, therefore,
be reckoned as of June 26, 1959 when the complaint for eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to be expropriated,
which had never been under lease to the Republic, the Republic was placed in
possession of said lands, also by authority of the court, on August 10, 1959, The
taking of those lands, therefore, must also be reckoned as of June 26, 1959, the
date of the filing of the complaint for eminent domain.
2. Regarding the first assigned error discussed as the second issue the
Republic maintains that, even assuming that the value of the expropriated lands is
to be determined as of June 26, 1959, the price of P10.00 per square meter fixed by
the lower court "is not only exhorbitant but also unconscionable, and almost
fantastic". On the other hand, both Castellvi and Toledo-Gozun maintain that their
lands are residential lands with a fair market value of not less than P15.00 per
square meter.
The lower court found, and declared, that the lands of Castellvi and Toledo-Gozun
are residential lands. The finding of the lower court is in consonance with the
unanimous opinion of the three commissioners who, in their report to the court,
declared that the lands are residential lands.
The Republic assails the finding that the lands are residential, contending that the
plans of the appellees to convert the lands into subdivision for residential purposes
were only on paper, there being no overt acts on the part of the appellees which
indicated that the subdivision project had been commenced, so that any
compensation to be awarded on the basis of the plans would be speculative. The
Republic's contention is not well taken. We find evidence showing that the lands in
question had ceased to be devoted to the production of agricultural crops, that they
had become adaptable for residential purposes, and that the appellees had actually
taken steps to convert their lands into residential subdivisions even before the
Republic filed the complaint for eminent domain. In the case of City of Manila vs.
Corrales (32 Phil. 82, 98) this Court laid down basic guidelines in determining the
value of the property expropriated for public purposes. This Court said:
In determining the value of land appropriated for public
purposes, the same consideration are to be regarded as in a
sale of property between private parties. The inquiry, in such
cases, must be what is the property worth in the market, viewed
not merely with reference to the uses to which it is at the time
applied, but with reference to the uses to which it is plainly
adapted, that is to say, What is it worth from its availability for
valuable uses?
So many and varied are the circumstances to be taken into
account in determining the value of property condemned for
public purposes, that it is practically impossible to formulate a
rule to govern its appraisement in all cases. Exceptional
expropriated by the condemnor. The records show that this resolution No. 5 was
repealed by the same Provincial Committee on Appraisal in its resolution No. 10 of
May 14, 1959 (Exhibit 13-Castellvi). In that resolution No. 10, the appraisal
committee stated that "The Committee has observed that the value of the land in
this locality has increased since 1957 ...", and recommended the price of P1.50 per
square meter. It follows, therefore, that, contrary to the stand of the Republic, that
resolution No. 5 of the Provincial Appraisal Committee can not be made the basis for
fixing the fair market value of the lands of Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting Assistant Provincial
Assessor of Pampanga, dated February 8, 1961 (Exhibit K), to the effect that in 1950
the lands of Toledo-Gozun were classified partly as sugar land and partly as urban
land, and that the sugar land was assessed at P.40 per square meter, while part of
the urban land was assessed at P.40 per square meter and part at P.20 per square
meter; and that in 1956 the Castellvi land was classified as sugar land and was
assessed at P450.00 per hectare, or P.045 per square meter. We can not also
consider this certification of the Acting Assistant Provincial Assessor as a basis for
fixing the fair market value of the lands of Castellvi and Toledo-Gozun because, as
the evidence shows, the lands in question, in 1957, were already classified and
assessed for taxation purposes as residential lands. The certification of the assessor
refers to the year 1950 as far as the lands of Toledo-Gozun are concerned, and to
the year 1956 as far as the land of Castellvi is concerned. Moreover, this Court has
held that the valuation fixed for the purposes of the assessment of the land for
taxation purposes can not bind the landowner where the latter did not intervene in
fixing it. 25
On the other hand, the Commissioners, appointed by the court to appraise the lands
that were being expropriated, recommended to the court that the price of P10.00
per square meter would be the fair market value of the lands. The commissioners
made their recommendation on the basis of their observation after several ocular
inspections of the lands, of their own personal knowledge of land values in the
province of Pampanga, of the testimonies of the owners of the land, and other
witnesses, and of documentary evidence presented by the appellees. Both Castellvi
and Toledo-Gozun testified that the fair market value of their respective land was at
P15.00 per square meter. The documentary evidence considered by the
commissioners consisted of deeds of sale of residential lands in the town of San
Fernando and in Angeles City, in the province of Pampanga, which were sold at
prices ranging from P8.00 to P20.00 per square meter (Exhibits 15, 16, 17, 18, 19,
20, 21, 22, 23-Castellvi). The commissioners also considered the decision in Civil
Case No. 1531 of the Court of First Instance of Pampanga, entitled Republic vs.
Sabina Tablante, which was expropriation case filed on January 13, 1959, involving a
parcel of land adjacent to the Clark Air Base in Angeles City, where the court fixed
the price at P18.00 per square meter (Exhibit 14-Castellvi). In their report, the
commissioners, among other things, said:
... This expropriation case is specially pointed out, because the
circumstances and factors involved therein are similar in many
respects to the defendants' lands in this case. The land in Civil
Case No. 1531 of this Court and the lands in the present case
(Civil Case No. 1623) are both near the air bases, the Clark Air
Base and the Basa Air Base respectively. There is a national road
fronting them and are situated in a first-class municipality. As
added advantage it may be said that the Basa Air Base land is
commissioners had made ocular inspections of the lands and had considered the
nature and similarities of said lands in relation to the lands in other places in the
province of Pampanga, like San Fernando and Angeles City. We cannot disregard the
observations of the commissioners regarding the circumstances that make the lands
in question suited for residential purposes their location near the Basa Air Base,
just like the lands in Angeles City that are near the Clark Air Base, and the facilities
that obtain because of their nearness to the big sugar central of the Pampanga
Sugar mills, and to the flourishing first class town of Floridablanca. It is true that the
lands in question are not in the territory of San Fernando and Angeles City, but,
considering the facilities of modern communications, the town of Floridablanca may
be considered practically adjacent to San Fernando and Angeles City. It is not out of
place, therefore, to compare the land values in Floridablanca to the land values in
San Fernando and Angeles City, and form an idea of the value of the lands in
Floridablanca with reference to the land values in those two other communities.
The important factor in expropriation proceeding is that the owner is awarded the
just compensation for his property. We have carefully studied the record, and the
evidence, in this case, and after considering the circumstances attending the lands
in question We have arrived at the conclusion that the price of P10.00 per square
meter, as recommended by the commissioners and adopted by the lower court, is
quite high. It is Our considered view that the price of P5.00 per square meter would
be a fair valuation of the lands in question and would constitute a just compensation
to the owners thereof. In arriving at this conclusion We have particularly taken into
consideration the resolution of the Provincial Committee on Appraisal of the
province of Pampanga informing, among others, that in the year 1959 the land of
Castellvi could be sold for from P3.00 to P4.00 per square meter, while the land of
Toledo-Gozun could be sold for from P2.50 to P3.00 per square meter. The Court has
weighed all the circumstances relating to this expropriations proceedings, and in
fixing the price of the lands that are being expropriated the Court arrived at a happy
medium between the price as recommended by the commissioners and approved
by the court, and the price advocated by the Republic. This Court has also taken
judicial notice of the fact that the value of the Philippine peso has considerably gone
down since the year 1959. 30Considering that the lands of Castellvi and ToledoGozun are adjoining each other, and are of the same nature, the Court has deemed
it proper to fix the same price for all these lands.
3. The third issue raised by the Republic relates to the payment
of interest. The Republic maintains that the lower court erred
when it ordered the Republic to pay Castellvi interest at the rate
of 6% per annum on the total amount adjudged as the value of
the land of Castellvi, from July 1, 1956 to July 10, 1959. We find
merit in this assignment of error.
In ordering the Republic to pay 6% interest on the total value of the land of Castellvi
from July 1, 1956 to July 10, 1959, the lower court held that the Republic had
illegally possessed the land of Castellvi from July 1, 1956, after its lease of the land
had expired on June 30, 1956, until August 10, 1959 when the Republic was placed
in possession of the land pursuant to the writ of possession issued by the court.
What really happened was that the Republic continued to occupy the land of
Castellvi after the expiration of its lease on June 30, 1956, so much so that Castellvi
filed an ejectment case against the Republic in the Court of First Instance of
Pampanga. 31 However, while that ejectment case was pending, the Republic filed
the complaint for eminent domain in the present case and was placed in possession
of the land on August 10, 1959, and because of the institution of the expropriation
proceedings the ejectment case was later dismissed. In the order dismissing the
ejectment case, the Court of First Instance of Pampanga said:
Plaintiff has agreed, as a matter of fact has already signed an
agreement with defendants, whereby she had agreed to receive
the rent of the lands, subject matter of the instant case from
June 30, 1956 up to 1959 when the Philippine Air Force was
placed in possession by virtue of an order of the Court upon
depositing the provisional amount as fixed by the Provincial
Appraisal Committee with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30, 1956 to August 10, 1959,
she should be considered as having allowed her land to be leased to the Republic
until August 10, 1959, and she could not at the same time be entitled to the
payment of interest during the same period on the amount awarded her as the just
compensation of her land. The Republic, therefore, should pay Castellvi interest at
the rate of 6% per annum on the value of her land, minus the provisional value that
was deposited, only from July 10, 1959 when it deposited in court the provisional
value of the land.
4. The fourth error assigned by the Republic relates to the denial by the lower court
of its motion for a new trial based on nearly discovered evidence. We do not find
merit in this assignment of error.
After the lower court had decided this case on May 26, 1961, the Republic filed a
motion for a new trial, supplemented by another motion, both based upon the
ground of newly discovered evidence. The alleged newly discovered evidence in the
motion filed on June 21, 1961 was a deed of absolute sale-executed on January 25,
1961, showing that a certain Serafin Francisco had sold to Pablo L. Narciso a parcel
of sugar land having an area of 100,000 square meters with a sugar quota of 100
piculs, covered by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for
P14,000, or P.14 per square meter.
In the supplemental motion, the alleged newly discovered evidence were: (1) a
deed of sale of some 35,000 square meters of land situated at Floridablanca for
P7,500.00 (or about P.21 per square meter) executed in July, 1959, by the spouses
Evelyn D. Laird and Cornelio G. Laird in favor of spouses Bienvenido S. Aguas and
Josefina Q. Aguas; and (2) a deed of absolute sale of a parcel of land having an area
of 4,120,101 square meters, including the sugar quota covered by Plantation Audit
No. 161 1345, situated at Floridablanca, Pampanga, for P860.00 per hectare (a little
less than P.09 per square meter) executed on October 22, 1957 by Jesus Toledo y
Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the motions for a new
trial.
To warrant the granting of a new trial based on the ground of newly discovered
evidence, it must appear that the evidence was discovered after the trial; that even
with the exercise of due diligence, the evidence could not have been discovered and
produced at the trial; and that the evidence is of such a nature as to alter the result
of the case if admitted. 32 The lower court correctly ruled that these requisites were
not complied with.
The lower court, in a well-reasoned order, found that the sales made by Serafin
Francisco to Pablo Narciso and that made by Jesus Toledo to the Land Tenure
Administration were immaterial and irrelevant, because those sales covered
sugarlands with sugar quotas, while the lands sought to be expropriated in the
instant case are residential lands. The lower court also concluded that the land sold
by the spouses Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain proceedings, in order that
evidence as to the sale price of other lands may be admitted in evidence to prove
the fair market value of the land sought to be expropriated, the lands must, among
other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands mentioned in those deeds of
sale were residential, the evidence would still not warrant the grant of a new trial,
for said evidence could have been discovered and produced at the trial, and they
cannot be considered newly discovered evidence as contemplated in Section 1(b) of
Rule 37 of the Rules of Court. Regarding this point, the trial court said:
The Court will now show that there was no reasonable diligence
employed.
The land described in the deed of sale executed by Serafin
Francisco, copy of which is attached to the original motion, is
covered by a Certificate of Title issued by the Office of the
Register of Deeds of Pampanga. There is no question in the mind
of the court but this document passed through the Office of the
Register of Deeds for the purpose of transferring the title or
annotating the sale on the certificate of title. It is true that Fiscal
Lagman went to the Office of the Register of Deeds to check
conveyances which may be presented in the evidence in this
case as it is now sought to be done by virtue of the motions at
bar, Fiscal Lagman, one of the lawyers of the plaintiff, did not
exercise reasonable diligence as required by the rules. The
assertion that he only went to the office of the Register of Deeds
'now and then' to check the records in that office only shows the
half-hazard [sic] manner by which the plaintiff looked for
evidence to be presented during the hearing before the
Commissioners, if it is at all true that Fiscal Lagman did what he
is supposed to have done according to Solicitor Padua. It would
have been the easiest matter for plaintiff to move for the
issuance of a subpoena duces tecum directing the Register of
Deeds of Pampanga to come to testify and to bring with him all
documents found in his office pertaining to sales of land in
Floridablanca adjacent to or near the lands in question executed
or recorded from 1958 to the present. Even this elementary
precaution was not done by plaintiff's numerous attorneys.
The same can be said of the deeds of sale attached to the
supplementary motion. They refer to lands covered by certificate
of title issued by the Register of Deeds of Pampanga. For the
same reason they could have been easily discovered if
reasonable diligence has been exerted by the numerous lawyers
of the plaintiff in this case. It is noteworthy that all these deeds
of sale could be found in several government offices, namely, in
the Office of the Register of Deeds of Pampanga, the Office of
the Provincial Assessor of Pampanga, the Office of the Clerk of
Court as a part of notarial reports of notaries public that
acknowledged these documents, or in the archives of the
For several years, the aforequoted section of the Ordinance was not enforced by city
authorities but seven years after the enactment of the ordinance, the Quezon City
Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it
does hereby request the City Engineer, Quezon City, to stop any
further selling and/or transaction of memorial park lots in
Quezon City where the owners thereof have failed to donate the
required 6% space intended for paupers burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang
Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of
Rizal Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and
mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul
Section 9 of the Ordinance in question The respondent alleged that the same is
contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and
the Revised Administrative Code.
There being no issue of fact and the questions raised being purely legal both
petitioners and respondent agreed to the rendition of a judgment on the pleadings.
The respondent court, therefore, rendered the decision declaring Section 9 of
Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and City
Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid and
reasonable exercise of police power and that the land is taken for a public use as it
is intended for the burial ground of paupers. They further argue that the Quezon
City Council is authorized under its charter, in the exercise of local police power, " to
make such further ordinances and resolutions not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the protection of
property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or
confiscation of property is obvious because the questioned ordinance permanently
restricts the use of the property such that it cannot be used for any reasonable
purpose and deprives the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not available as a
source of power for the taking of the property in this case because it refers to "the
power of promoting the public welfare by restraining and regulating the use of
liberty and property." The respondent points out that if an owner is deprived of his
property outright under the State's police power, the property is generally not taken
for public use but is urgently and summarily destroyed in order to promote the
general welfare. The respondent cites the case of a nuisance per se or the
destruction of a house to prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the
respondent Judge to be well-founded. We quote with approval the lower court's
ruling which declared null and void Section 9 of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid
exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537),
does not reveal any provision that would justify the ordinance in
question except the provision granting police power to the City.
Section 9 cannot be justified under the power granted to Quezon
City to tax, fix the license fee, and regulatesuch other business,
trades, and occupation as may be established or practised in the
City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit
(People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of
Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A
fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but
also prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation of the
provision thereof is punishable with a fine and/or imprisonment
and that upon conviction thereof the permit to operate and
maintain a private cemetery shall be revoked or cancelled.' The
confiscatory clause and the penal provision in effect deter one
from operating a memorial park cemetery. Neither can the
ordinance in question be justified under sub- section "t", Section
12 of Republic Act 537 which authorizes the City Council to'prohibit the burial of the dead within the center of
population of the city and provide for their burial in
such proper place and in such manner as the
council may determine, subject to the provisions of
the general law regulating burial grounds and
cemeteries and governing funerals and disposal of
the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes
confiscation or as euphemistically termed by the respondents,
'donation'
We now come to the question whether or not Section 9 of the
ordinance in question is a valid exercise of police power. The
police power of Quezon City is defined in sub-section 00, Sec.
12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and
regulations not repugnant to law as may be
necessary to carry into effect and discharge the
powers and duties conferred by this act and such
as it shall deem necessary and proper to provide
for the health and safety, promote, the prosperity,
improve the morals, peace, good order, comfort
and convenience of the city and the inhabitants
thereof, and for the protection of property therein;
and enforce obedience thereto with such lawful
fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this
section.
We start the discussion with a restatement of certain basic
principles. Occupying the forefront in the bill of rights is the
provision which states that 'no person shall be deprived of life,
Syllabus
Case
1. A servitude has been imposed upon the land for which respondents are entitled
to compensation under the Fifth Amendment. Pp.328 U. S. 260-267.
(a) The common law doctrine that ownership of land extends to the periphery of the
universe has no place in the modern world. Pp. 328 U. S. 260-261.
(b) The air above the minimum safe altitude of flight prescribed by the Civil
Aeronautics Authority is a public highway and part of the public domain, as declared
by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics
Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.
(c) Flights below that altitude are not within the navigable air space which Congress
placed within the public domain, even though they are within the path of glide
approved by the Civil Aeronautics Authority. Pp. 328 U. S. 263-264.
Page 328 U. S. 257
(d) Flights of aircraft over private land which are so low and frequent as to be a
direct and immediate interference with the enjoyment and use of the land are as
much an appropriation of the use of the land as a more conventional entry upon it.
Pp. 328 U. S. 261-262,328 U. S. 264-267.
2. Since there was a taking of private property for public use, the claim was
"founded upon the Constitution," within the meaning of 141(1) of the Judicial
Code, and the Court of Claims had jurisdiction to hear and determine it. P. 328 U. S.
267.
3. Since the court's findings of fact contain no precise description of the nature or
duration of the easement taken, the judgment is reversed, and the cause is
remanded to the Court of Claims so that it may make the necessary findings.
Pp. 328 U. S. 267-268.
(a) An accurate description of the easement taken is essential, since that interest
vests in the United States. P. 328 U. S. 267.
(b) Findings of fact on every "material issue" are a statutory requirement, and a
deficiency in the findings cannot be rectified by statements in the opinion. Pp. 328
U. S. 267-268.
(c) A conjecture in lieu of a conclusion from evidence would not be a proper
foundation for liability of the United States. P. 328 U. S. 268.
104 Ct.Cls. 342, 60 F.Supp. 751, reversed and remanded.
The Court of Claims granted respondents a judgment for the value of property
destroyed and damage to their property resulting from the taking of an easement
over their property by low-flying military aircraft of the United States, but failed to
include in its findings of fact a specific description of the nature or duration of the
easement. 104 Ct.Cls. 342, 60 F.Supp. 751. This Court granted certiorari. 327 U.S.
775. Reversed and remanded, p. 328 U. S. 268.
Page 328 U. S. 258
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a case of first impression. The problem presented is whether respondents'
property was taken within the meaning of the Fifth Amendment by frequent and
regular flights of army and navy aircraft over respondents' land at low altitudes. The
Court of Claims held that there was a taking, and entered judgment for respondent,
one judge dissenting. 60 F.Supp. 751. The case is here on a petition for a writ of
certiorari which we granted because of the importance of the question presented.
Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It
has on it a dwelling house, and also various outbuildings which were mainly used for
raising chickens. The end of the airport's northwest-southeast runway is 2,220 feet
from respondents' barn and 2,275 feet from their house. The path of glide to this
runway passes directly over the property -- which is 100 feet wide and 1,200 feet
long. The 30 to 1 safe glide angle [Footnote 1] approved by the Civil Aeronautics
Authority [Footnote 2] passes over this property at 83 feet, which is 67 feet above
the house, 63 feet above the barn and 18 feet above the highest tree. [Footnote 3]
The use by the United States of this airport is pursuant to a lease executed in May,
1942, for a term commencing June 1, 1942 and ending June 30, 1942, with a
provision for renewals until June 30, 1967, or six
Page 328 U. S. 259
months after the end of the national emergency, whichever is the earlier.
Various aircraft of the United States use this airport -- bombers, transports, and
fighters. The direction of the prevailing wind determines when a particular runway is
used. The northwest-southeast runway in question is used about four percent of the
time in taking off and about seven percent of the time in landing. Since the United
States began operations in May, 1942, its four-motored heavy bombers, other
planes of the heavier type, and its fighter planes have frequently passed over
respondents' land buildings in considerable numbers and rather close together.
They come close enough at times to appear barely to miss the tops of the trees, and
at times so close to the tops of the trees as to blow the old leaves off. The noise is
startling. And, at night, the glare from the planes brightly lights up the place. As a
result of the noise, respondents had to give up their chicken business. As many as
six to ten of their chickens were killed in one day by flying into the walls from fright.
The total chickens lost in that manner was about 150. Production also fell off. The
result was the destruction of the use of the property as a commercial chicken farm.
Respondents are frequently deprived of their sleep, and the family has become
nervous and frightened. Although there have been no airplane accidents on
respondents' property, there have been several accidents near the airport and close
to respondents' place. These are the essential facts found by the Court of Claims.
On the basis of these facts, it found that respondents' property had depreciated in
value. It held that the United States had taken an easement over the property on
June 1, 1942, and that the value of the property destroyed and the easement taken
was $2,000.
Page 328 U. S. 260
I. The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C.
171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49
U.S.C. 401 et seq. Under those statutes, the United States has "complete and
exclusive national sovereignty in the air space" over this country. 49 U.S.C. 176(a).
They grant any citizen of the United States "a public right of freedom of transit in air
commerce [Footnote 4] through the navigable air space of the United States." 49
U.S.C. 403. And "navigable air space" is defined as "airspace above the minimum
safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C.
180. And it is provided that "such navigable airspace shall be subject to a public
right of freedom of interstate and foreign air navigation." Id. It is therefore argued
that, since these flights were within the minimum safe altitudes of flight which had
been prescribed, they were an exercise of the declared right of travel through the
airspace. The United States concludes that, when flights are made within the
navigable airspace without any physical invasion of the property of the landowners,
there has been no taking of property. It says that, at most, there was merely
incidental damage occurring as a consequence of authorized air navigation. It also
argues that the landowner does not own superadjacent airspace which he has not
subjected to possession by the erection of structures or other occupancy. Moreover,
it is argued that, even if the United States took airspace owned by respondents, no
compensable damage was shown. Any damages are said to be merely
consequential for which no compensation may be obtained under the Fifth
Amendment.
It is ancient doctrine that at common law ownership of the land extended to the
periphery of the universe -- cujus
Page 328 U. S. 261
est solum ejus est usque and coelum. [Footnote 5] But that doctrine has no place in
the modern world. The air is a public highway, as Congress has declared. Were that
not true, every transcontinental flight would subject the operator to countless
trespass suits. Common sense revolts at the idea. To recognize such private claims
to the airspace would clog these highways, seriously interfere with their control and
development in the public interest, and transfer into private ownership that to which
only the public has a just claim.
But that general principle does not control the present case. For the United States
conceded on oral argument that, if the flights over respondents' property rendered
it uninhabitable, there would be a taking compensable under the Fifth Amendment.
It is the owner's loss, not the taker's gain, which is the measure of the value of the
property taken. United States v. Miller, 317 U. S. 369. Market value fairly determined
is the normal measure of the recovery. Id. And that value may reflect the use to
which the land could readily be converted, as well as the existing use. United States
v. Powelson, 319 U. S. 266, 319 U. S. 275, and cases cited. If, by reason of the
frequency and altitude of the flights, respondents could not use this land for any
purpose, their loss would be complete. [Footnote 6] It would be as complete as if
the United States had entered upon the surface of the land and taken exclusive
possession of it.
We agree that, in those circumstances, there would be a taking. Though it would be
only an easement of flight
Page 328 U. S. 262
which was taken, that easement, if permanent and not merely temporary, normally
would be the equivalent of a fee interest. It would be a definite exercise of complete
dominion and control over the surface of the land. The fact that the planes never
touched the surface would be as irrelevant as the absence in this day of the feudal
livery of seisin on the transfer of real estate. The owner's right to possess and
exploit the land -- that is to say, his beneficial ownership of it -- would be destroyed.
It would not be a case of incidental damages arising from a legalized nuisance, such
as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. In that case,
property owners whose lands adjoined a railroad line were denied recovery for
damages resulting from the noise, vibrations, smoke, and the like, incidental to the
operations of the trains. In the supposed case, the line of flight is over the land. And
the land is appropriated as directly and completely as if it were used for the
runways themselves.
There is no material difference between the supposed case and the present one,
except that, here, enjoyment and use of the land are not completely destroyed. But
that does not seem to us to be controlling. The path of glide for airplanes might
reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a
residential section to a wheat field. Some value would remain. But the use of the
airspace immediately above the land would limit the utility of the land and cause a
diminution in its value. [Footnote 7] That was the philosophy of Portsmouth Harbor
Land & Hotel Co. v.
Page 328 U. S. 263
United States, 260 U. S. 327. In that case, the petition alleged that the United States
erected a fort on nearby land, established a battery and a fire control station there,
and fired guns over petitioner's land. The Court, speaking through Mr. Justice
Holmes, reversed the Court of Claims which dismissed the petition on a demurrer,
holding that "the specific facts set forth would warrant a finding that a servitude has
been imposed." [Footnote 8] 260 U.S. at 260 U. S. 330. And see Delta Air Corp. v.
Kersey, 193 Ga. 862, 20 S.E.2d 245.Cf. United States v. 357.25 Acres of Land, 55
F.Supp. 461.
The fact that the path of glide taken by the planes was that approved by the Civil
Aeronautics Authority does not change the result. The navigable airspace which
Congress has placed in the public domain is "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. 180. If
that agency prescribed 83 feet as the minimum safe altitude, then we would have
presented the question of the validity of the regulation. But nothing of the sort has
been done. The path of glide governs the method of operating -- of landing or taking
off. The altitude required for that operation is not the minimum safe altitude of flight
which is the downward reach of the navigable airspace. The minimum prescribed by
the authority is 500 feet during the day and 1000 feet at night for air carriers (Civil
Air Regulations, Pt. 61, 61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1)
and from 300 to 1000 feet for
Page 328 U. S. 264
other aircraft depending on the type of plane and the character of the
terrain. Id., Pt. 60, 60.350-60.3505, Fed.Reg.Cum.Supp.,supra. Hence, the flights
in question were not within the navigable airspace which Congress placed within the
public domain. If any airspace needed for landing or taking off were included, flights
which were so close to the land as to render it uninhabitable would be immune. But
the United States concedes, as we have said, that, in that event, there would be a
taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of
flight within the meaning of the statute. The Civil Aeronautics Authority has, of
course, the power to prescribe air traffic rules. But Congress has defined navigable
airspace only in terms of one of them -- the minimum safe altitudes of flight.
We have said that the airspace is a public highway. Yet it is obvious that, if the
landowner is to have full enjoyment of the land, he must have exclusive control of
the immediate reaches of the enveloping atmosphere. Otherwise buildings could not
be erected, trees could not be planted, and even fences could not be run. The
principle is recognized when the law gives a remedy in case overhanging structures
are erected on adjoining land. [Footnote 9] The landowner owns at least as much of
the space above the ground as the can occupy or use in connection with the
land. See Hinman v. Pacific Air Transport, 84 F.2d 755. The fact that he does not
occupy it in a physical sense -- by the erection of buildings and the like -- is not
material. As we have said, the flight of airplanes, which skim the surface but do not
touch it, is as much an appropriation of the use of the land as a more conventional
entry upon it. We would not doubt that, if the United States erected
Page 328 U. S. 265
an elevated railway over respondents' land at the precise altitude where its planes
now fly, there would be a partial taking, even though none of the supports of the
structure rested on the land. [Footnote 10] The reason is that there would be an
intrusion so immediate and direct as to subtract from the owner's full enjoyment of
the property and to limit his exploitation of it. While the owner does not in any
physical manner occupy that stratum of airspace or make use of it in the
conventional sense, he does use it in somewhat the same sense that space left
between buildings for the purpose of light and air is used. The superadjacent
airspace at this low altitude is so close to the land that continuous invasions of it
affect the use of the surface of the land itself. We think that the landowner, as an
incident to his ownership, has a claim to it, and that invasions of it are in the same
category as invasions of the surface. [Footnote 11]
In this case, as in Portsmouth Harbor Land & Hotel Co. v. United States, supra, the
damages were not merely consequential. They were the product of a direct invasion
of respondents' domain.
Page 328 U. S. 266
As stated in United States v. Cress, 243 U. S. 316, 243 U. S. 328,
". . . it is the character of the invasion, not the amount of damage resulting from it,
so long as the damage is substantial, that determines the question whether it is a
taking."
We said in United States v. Powelson, supra, p. 319 U. S. 279, that, while the
meaning of "property" as used in the Fifth Amendment was a federal question, "it
will normally obtain its content by reference to local law." If we look to North
Carolina law, we reach the same result. Sovereignty in the airspace rests in the
State "except where granted to and assumed by the United States."
Gen.Stats.1943, 63-11. The flight of aircraft is lawful
"unless at such a low altitude as to interfere with the then existing use to which the
land or water, or the space over the land or water, is put by the owner, or unless so
conducted as to be imminently dangerous to persons or property lawfully on the
land or water beneath."
Id., 63-13. Subject to that right of flight, "ownership of the space above the lands
and waters of this State is declared to be vested in the several owners of the
surface beneath." Id., 63-12. Our holding that there was an invasion of
respondents' property is thus not inconsistent with the local law governing a
landowner's claim to the immediate reaches of the superadjacent airspace.
The airplane is part of the modern environment of life, and the inconveniences
which it causes are normally not compensable under the Fifth Amendment. The
airspace, apart from the immediate reaches above the land, is part of the public
domain. We need not determine at this time what those precise limits are. Flights
over private land are not a taking, unless they are so low and so frequent as to be a
direct and immediate interference with the enjoyment and use of the land. We need
not speculate on that phase of the present case. For the findings of the Court
Page 328 U. S. 267
of Claims plainly establish that there was a diminution in value of the property, and
that the frequent, low-level flights were the direct and immediate cause. We agree
with the Court of Claims that a servitude has been imposed upon the land.
II. By 145(1) of the Judicial Code, 28 U.S.C. 250(1), the Court of Claims has
jurisdiction to hear and determine
"All claims (except for pensions) founded upon the Constitution of the United States
or . . . upon any contract, express or implied, with the Government of the United
States."
We need not decide whether repeated trespasses might give rise to an implied
contract. Cf. Portsmouth Harbor Land & Hotel Co. v. United States, supra. If there is
a taking, the claim is "founded upon the Constitution," and within the jurisdiction of
the Court of Claims to hear and determine. See Hollister v. Benedict & Burnham
Mfg. Co., 113 U. S. 59, 113 U. S. 67; Hurley v. Kincaid, 285 U. S. 95, 285 U. S.
104; Yearsley v. W. A. Ross Construction Co., 309 U. S. 18, 309 U. S. 21. Thus, the
jurisdiction of the Court of Claims in this case is clear.
III. The Court of Claims held, as we have noted, that an easement was taken. But
the findings of fact contain no precise description as to its nature. It is not described
in terms of frequency of flight, permissible altitude, or type of airplane. Nor is there
a finding as to whether the easement taken was temporary or permanent. Yet an
accurate description of the property taken is essential, since that interest vests in
the United States. United States v. Cress, supra, 243 U. S. 328-329, and cases cited.
It is true that the Court of Claims stated in its opinion that the easement taken was
permanent. But the deficiency in findings cannot be rectified by statements in the
opinion. United States v. Esnault-Pelterie, 299 U. S. 201, 299 U. S. 205-206; United
States v. Seminole Nation, 299 U. S. 417, 299 U. S. 422. Findings of fact on every
"material issue" are a statutory
Page 328 U. S. 268
requirement. 53 Stat. 752, 28 U.S.C. 288. The importance of findings of fact based
on evidence is emphasized here by the Court of Claims' treatment of the nature of
the easement. It stated in its opinion that the easement was permanent because
the United States "no doubt intended to make some sort of arrangement whereby it
could use the airport for its military planes whenever it had occasion to do so." That
sounds more like conjecture, rather than a conclusion from evidence, and if so, it
would not be a proper foundation for liability of the United States. We do not stop to
examine the evidence to determine whether it would support such a finding, if
made. For that is not our function. United States v. Esnault-Pelterie, supra, p. 299 U.
S. 206.
Since on this record it is not clear whether the easement taken is a permanent or a
temporary one, it would be premature for us to consider whether the amount of the
award made by the Court of Claims was proper.
The judgment is reversed, and the cause is remanded to the Court of Claims so that
it may make the necessary findings in conformity with this opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
V
Plaintiff, in line with the policy of the government to promote tourism
and development of tourism projects will construct in Barangays
Malubog, Busay and Babag, all of Cebu City, a sports complex
(basketball courts, tennis courts, volleyball courts, track and field,
baseball and softball diamonds, and swimming pools), clubhouse, gold
course, children's playground and a nature area for picnics and
horseback riding for the use of the public.
The development plan, covering approximately 1,000 hectares,
includes the establishment of an electric power grid in the area by the
National Power Corporation, thus assuring the supply of electricity
therein for the benefit of the whole community. Deep wells will also be
constructed to generate water supply within the area. Likewise, a
complex sewerage and drainage system will be devised and
constructed to protect the tourists and nearby residents from the
dangers of pollution.
Complimentary and support facilities for the project will be
constructed, including public rest houses, lockers, dressing rooms,
coffee shops, shopping malls, etc. Said facilities will create and offer
employment opportunities to residents of the community and further
generate income for the whole of Cebu City.
Plaintiff needs the property above described which is directly covered
by the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608 filed their respective
Opposition with Motion to Dismiss and/or Reconsideration. The defendants in Civil
Case No. R-19562 filed a manifestation adopting the answer of defendants in Civil
Case No. R-19864. The defendants, now petitioners, had a common allegation in
that the taking is allegedly not impressed with public use under the Constitution.
In their motions to dismiss, the petitioners alleged, in addition to the issue of public
use, that there is no specific constitutional provision authorizing the taking of
private property for tourism purposes; that assuming that PTA has such power, the
intended use cannot be paramount to the determination of the land as a land
reform area; that limiting the amount of compensation by Legislative fiat is
constitutionally repugnant; and that since the land is under the land reform
program, it is the Court of Agrarian Relations and not the Court of First Instance that
has jurisdiction over the expropriation cases.
The Philippine Tourism Authority having deposited with The Philippine National
Bank, Cebu City Branch, an amount equivalent to 10% of the value of the properties
pursuant to Presidential Decree No. 1533. the lower court issued separate orders
authorizing PTA to take immediate possession of the premises and directing the
issuance of writs of possession.
On May 25, 1982, petitioners filed this petition questioning the orders of the
respondent Judge, The respondents have correctly restated the grounds in the
petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack basis because the Constitution
does not provide for the expropriation of private property for tourism or
other related purposes;
B. The writs of possession or orders authorizing PTA to take immediate
possession is premature because the "public use" character of the
taking has not been previously demonstrated;
C. The taking is not for public use in contemplation of eminent domain
law;
D. The properties in question have been previously declared a land
reform area; consequently, the implementation of the social justice
pro- ,vision of the Constitution on agrarian reform is paramount to the
right of the State to expropriate for the purposes intended;
E. Proclamation No. 2052 declaring certain barangays in Cebu City,
which include the lands subject of expropriation as within a tourist
zone, is unconstitutional for it impairs the obligation of contracts; "F.
Since the properties are within a land reform area, it is the Court of
Agrarian Relations, not the lower court, that has jurisdiction pursuant
to Pres. Decree No. 946;
F. The forcible ejectment of defendants from the premises constitutes a
criminal act under Pres. Decree No. 583;
In their memorandum, the petitioners have summarized the issues as follows:
I. Enforcement of the Writ of Possession is Premature:
II. Presidential Decree 564 Amending Presidential Decree l89 is
Constitutionally Repugnant:
III. The Condemnation is not for Public Use, Therefore, Unconstitutional:
IV. The Expropriation for Tourism Purposes of Lands Covered by the
Land Reform Program Violates the Constitution:
implication grant the power to the government of the state, but limit a
power which would otherwise be without limit.
The constitutional restraints are public use and just compensation.
Do the purposes of the taking in this case constitute "public use"?
The petitioners ask us to adopt a strict construction and declare that "public use"
means literally use by the public and that "public use" is not synonymous with
"public interest", "public benefit", or "public welfare" and much less "public
convenience. "
The petitioners face two major obstacles. First, their contention which is rather
sweeping in its call for a retreat from the public welfare orientation is unduly
restrictive and outmoded. Second, no less than the lawmaker has made a policy
determination that the power of eminent domain may be exercised in the promotion
and development of Philippine tourism.
The restrictive view of public use may be appropriate for a nation which
circumscribes the scope of government activities and public concerns and which
possesses big and correctly located public lands that obviate the need to take
private property for public purposes. Neither circumstance applies to the
Philippines. We have never been a laissez faire State, And the necessities which
impel the exertion of sovereign power are all too often found in areas of scarce
public land or limited government resources.
Certain aspects of parliamentary government were introduced by the 1973
amendments to the Constitution with further modifications in the 1976 and 1981
amendments. Insofar as the executive and legislative departments are concerned,
the traditional concept of checks and balances in a presidential form was
considerably modified to remove some roadblocks in the expeditious
implementation of national policies. There was no such change for the judiciary. We
remain as a checking and balancing department even as all strive to maintain
respect for constitutional boundaries. At the same time, the philosophy of
coordination in the pursuit of developmental goals implicit in the amendments also
constrains in the judiciary to defer to legislative discretion iii the judicial review of
programs for economic development and social progress unless a clear case of
constitutional infirmity is established. We cannot stop the legitimate exercise of
power on an invocation of grounds better left interred in a bygone age and time.* As
we review the efforts of the political departments to bring about self-sufficiency, if
not eventual abundance, we continue to maintain the liberal approach because the
primary responsibility and the discretion belong to them.
There can be no doubt that expropriation for such traditions' purposes as the
construction of roads, bridges, ports, waterworks, schools, electric and
telecommunications systems, hydroelectric power plants, markets and
slaughterhouses, parks, hospitals, government office buildings, and flood control or
irrigation systems is valid. However, the concept of public use is not limited to
traditional purposes. Here as elsewhere the Idea that "public use" is strictly limited
to clear cases of "use by the public" has been discarded.
In the United States, the rule was enunciated in Berman v. Parker (348 U.S. 25; 99 L.
ed. 27) as follows:
We do not sit to determine whether a particular housing project is or is
not desirable. The concept of the public welfare is broad and inclusive.
See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424, 96 L ed 469,
472, 72 S Ct 405. The values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as
carefully patrolled. In the present case, the Congress and its authorized
agencies have made determinations that take into account a wide
variety of values. It is not for us to reappraise them. If those who
govern the District of Columbia decide that the Nation's Capital should
be beautiful as well as sanitary, there is nothing in the Fifth
Amendment that stands in the way.
Once the object is within the authority of Congress, the right to realize
it through the exercise of eminent domain is clear. For the power of
eminent domain is merely the means to the end. See Luxton v. North
River Bridge Co. 153 US 525, 529, 530, 38 L ed 808, 810, 14 S Ct 891;
United States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed
576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated from the rest of North
Carolina because of the flooding of the reservoir of a dam thus making the provision
of police, school, and health services unjustifiably expensive, the government
decided to expropriate the private properties in the village and the entire area was
made part of an adjoining national park. The district court and the appellate court
ruled against the expropriation or excess condemnation. The Court of Appeals
applied the "use by the public" test and stated that the only land needed for public
use was the area directly flooded by the reservoir. The village may have been cut off
by the dam but to also condemn it was excess condemnation not valid under the
"Public use" requirement. The U.S. Supreme Court inUnited States ex rel TVA v.
Welch (327 U.S, 546; 90 L. ed 843) unanimously reversed the lower courts. It
stated:
The Circuit Court of Appeals, without expressly relying on a compelling
rule of construction that would give the restrictive scope to the T.V.A.
Act given it by the district court, also interpreted the statute narrowly.
It first analyzed the facts by segregating the total problem into distinct
parts, and thus came to the conclusion that T.V.A.'s purpose in
condemning the land in question was only one to reduce its liability
arising from the destruction of the highway. The Court held that use of
the lands for that purpose is a "private" and not a "public use" or, at
best, a "public use" not authorized by the statute. we are unable to
agree with the reasoning and conclusion of the Circuit Court of
Appeals.
We think that it is the function of Congress to decide what type of
taking is for a public use and that the agency authorized to do the
taking may do so to the still extent of its statutory authority, United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L ed 576, 580,
16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of the judicial power to determine
what is a "public use" in Fourteenth Amendment controversies, this
Court has said that when Congress has spoken on this subject "Its
decision is entitled to deference until it is shown to involve an
impossibility." Old Dominion Land Co. v. United States, 269, US 55, 66,
70 L ed 162, 46 S Ct 39. Any departure from this judicial restraint
would result in courts deciding on what is and is not a governmental
function and in their invalidating legislation on the basis of their view
on that question at the moment of decision, a practice which has
proved impracticable in other fields. See Case v. Bowles decided
February 4, 1946, 437 US 92, 101, ante, 552, 559, 66 S Ct 438. New
York v. United States, 326 US 572 ante 326, 66 S Ct 310). We hold that
the T.V.A. took the tracts here involved for a public purpose, if, as we
think is the case, Congress authorized the Authority to acquire, hold,
and use the lands to carry out the purposes of the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the
statutory and judicial trend as follows:
The taking to be valid must be for public use. There was a time when it
was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not
allowable. It is not any more. As long as the purpose of the taking is
public, then the power of eminent domain comes into play. As just
noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals. The other is
in the transfer, through the exercise of this power, of utilities and other
private enterprise to the government. It is accurate to state then that
at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. (Fernando, The
Constitution of the Philippines, 2nd ed., pp. 523-524)
The petitioners' contention that the promotion of tourism is not "public use"
because private concessioners would be allowed to maintain various facilities such
as restaurants, hotels, stores, etc. inside the tourist complex is impressed with even
less merit. Private bus firms, taxicab fleets, roadside restaurants, and other private
businesses using public streets end highways do not diminish in the least bit the
public character of expropriations for roads and streets. The lease of store spaces in
underpasses of streets built on expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively to private airlines and
shipping companies are still for public use. The expropriation of private land for
slum clearance and urban development is for a public purpose even if the
developed area is later sold to private homeowners, commercial firms,
entertainment and service companies, and other private concerns.
The petitioners have also failed to overcome the deference that is appropriately
accorded to formulations of national policy expressed in legislation. The rule in
Berman u. Parker (supra) of deference to legislative policy even if such policy might
mean taking from one private person and conferring on another private person
applies as well as in the Philippines.
... Once the object is within the authority of Congress, the means by
which it will be attained is also for Congress to determine. Here one of
the means chosen is the use of private enterprise for redevelopment of
the area. Appellants argue that this makes the project a taking from
one businessman for the benefit of another businessman. But the
means of executing the project are for Congress and Congress alone to
determine, once the public purpose has been established. Selb Luxton
v. North River Bridge Co. (US) supra; cf. Highland v. Russel Car & Snow
Plow Co. 279 US 253, 73 L ed 688, 49 S Ct 314. The public end may be
as well or better served through an agency of private enterprise than
through a department of government-or so the Congress might
conclude. We cannot say that public ownership is the sole method of
promoting the public purposes of community redevelopment projects.
What we have said also disposes of any contention concerning the fact
that certain property owners in the area may be permitted to
repurchase their properties for redevelopment in harmony with the
over-all plan. That, too, is a legitimate means which Congress and its
agencies may adopt, if they choose. (Berman v. Parker, 99 L ed 38, 348
US 33, 34)
An examination of the language in the 1919 cases of City of Manila v. Chinese
Community of Manila (40 Phil, 349) and Visayan Refining Co. vs. Camus, earlier
cited, shows that from the very start of constitutional government in our country
judicial deference to legislative policy has been clear and manifest in eminent
domain proceedings.
The expressions of national policy are found in the revised charter of the Philippine
Tourism Authority, Presidential Decree No. 564:
and physical well- being of the people; and that property already taken for public
use may not be taken for another public use.
We have considered the above arguments with scrupulous and thorough
circumspection. For indeed any claim of rights under the social justice and land
reform provisions of the Constitution deserves the most serious consideration. The
Petitioners, however, have failed to show that the area being developed is indeed a
land reform area and that the affected persons have emancipation patents and
certificates of land transfer.
The records show that the area being developed into a tourism complex consists of
more than 808 hectares, almost all of which is not affected by the land reform
program. The portion being expropriated is 282 hectares of hilly and unproductive
land where even subsistence farming of crops other than rice and corn can hardly
survive. And of the 282 disputed hectares, only 8,970 square meters-less than one
hectare-is affected by Operation Land Transfer. Of the 40 defendants, only two have
emancipation patents for the less than one hectare of land affected. And this 8,970
square meters parcel of land is not even within the sports complex proper but forms
part of the 32 hectares resettlement area where the petitioners and others similarly
situated would be provided with proper housing, subsidiary employment,
community centers, schools, and essential services like water and electricity-which
are non-existent in the expropriated lands. We see no need under the facts of this
petition to rule on whether one public purpose is superior or inferior to another
purpose or engage in a balancing of competing public interests. The petitioners
have also failed to overcome the showing that the taking of the 8,970 square
meters covered by Operation Land Transfer forms a necessary part of an
inseparable transaction involving the development of the 808 hectares tourism
complex. And certainly, the human settlement needs of the many beneficiaries of
the 32 hectares resettlement area should prevail over the property rights of two of
their compatriots.
The invocation of the contracts clause has no merit. The non-impairment clause has
never been a barrier to the exercise of police power and likewise eminent domain.
As stated in Manigault v. Springs (199 U.S. 473) "parties by entering into contracts
may not stop the legislature from enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v. Genato (69 SCRA 544) which
involved the expropriation of land for a public plaza. The Court stated:
xxx xxx xxx
... What is claimed is that there must be a showing of necessity for
such condemnation and that it was not done in this case in support of
such a view, reliance is placed on City of Manila v. Arenano Law
Colleges. (85 Phil. 663 [1950]) That doctrine itself is based on the
earlier case of City of Manila v. Chinese Community of Manila, (50 Phil.
349) also, like Camus, a 1919 decision. As could be discerned,
In their last argument, the petitioners claim that a consequence of the expropriation
proceedings would be their forcible ejectment. They contend that such forcible
ejectment is a criminal act under Presidential Decree No. 583. This contention is not
valid. Presidential Decree No. 583 prohibits the taking cognizance or
implementation of orders designed to obstruct the land reform program. It refers to
the harassment of tenant- farmers who try to enforce emancipation rights. It has
nothing to do with the expropriation by the State of lands needed for public
purposes. As a matter of fact, the expropriated area does not appear in the master
lists of the Ministry of Agrarian Reforms as a teranted area. The petitioners' bare
allegations have not been supported with particulars pointing to specific parcels
which are subject of tenancy contracts. The petitioners may be owner-tillers or may
have some form of possessory or ownership rights but there has been no showing of
their being tenants on the disputed lands.
The petitioners have failed to overcome the burden of anyone trying to strike down
a statute or decree whose avowed purpose is the legislative perception is the public
good. A statute has in its favor the presumption of validity. All reasonable doubts
should be resolved in favor of the constitutionality of a law. The courts will not set
aside a law as violative of the Constitution except in a clear case (People v. Vera, 65
Phil. 56). And in the absence of factual findings or evidence to rebut the
presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc. v. Mayor
of Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the development of the 808 hectares
includes plans that would give the petitioners and other displaced persons
productive employment, higher incomes, decent housing, water and electric
facilities, and better living standards. Our dismissing this petition is, in part,
predicated on those assurances. The right of the PTA to proceed with the
expropriation of the 282 hectares already Identified as fit for the establishment of a
resort complex to promote tourism is, therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby DISMISSE D for lack of
merit.
SO ORDERED.
Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin and
Relova, JJ., concur.
Aquino, J, concurs in the result.
De Castro, J, is on leave.
Separate Opinions
Separate Opinions
MAKASIAR, J, concurring and dissenting:
It appearing that the petitioners are not tenants of the parcels of land in question
and therefore do not fall within the purview of the Land Reform Code, the petition
should be dismissed on that score alone.
There is no need to decide whether the power of the Philippine Tourism Authority to
expropriate the land in question predicated on the police power of the State shall
take precedence over the social justice guarantee in favor of tenants and the
landless. The welfare of the landless and small land owners should prevail over the
right of the PTA to expropriate the lands just to develop tourism industry, which
benefit the wealthy only. Such a position would increase the disenchanted citizens
and drive them to dissidence. The government is instituted primarily for the welfare
of the governed and there are more poor people in this country than the rich The
tourism industry is not essential to the existence of the government, but the citizens
are, and their right to live in dignity should take precedence over the development
of the tourism industry.
Sumulong vs. Guerrero, 154 SCRA 461, No. L-48685, September 30, 1987
Posted by Alchemy Business Center and Marketing Consultancy at 11:22
PM Labels: 154 SCRA 461, 1987, No. L-48685, Political Law, September
30, Sumulong vs. Guerrero
Sumulong vs. Guerrero, 154 SCRA 461, No. L-48685, September 30, 1987
G.R. No. L-48685 September 30, 1987
LORENZO SUMULONG and EMILIA VIDANES-BALAOING, petitioners,
vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING
AUTHORITY, respondents.
CORTES, J.:
On December 5, 1977 the National Housing Authority (NIIA) filed a complaint for
expropriation of parcels of land covering approximately twenty five (25) hectares,
(in Antipolo, Rizal) including the lots of petitioners Lorenzo Sumulong and Emilia
Vidanes-Balaoing with an area of 6,667 square meters and 3,333 square meters
respectively. The land sought to be expropriated were valued by the NHA at one
peso (P1.00) per square meter adopting the market value fixed by the provincial
assessor in accordance with presidential decrees prescribing the valuation of
property in expropriation proceedings.
Together with the complaint was a motion for immediate possession of the
properties. The NHA deposited the amount of P158,980.00 with the Philippine
National Bank, representing the "total market value" of the subject twenty five
hectares of land, pursuant to Presidential Decree No. 1224 which defines "the policy
on the expropriation of private property for socialized housing upon payment of just
compensation."
On January 17, 1978, respondent Judge issued the following Order:
Plaintiff having deposited with the Philippine National Bank, Heart Center Extension
Office, Diliman, Quezon City, Metro Manila, the amount of P158,980.00 representing
the total market value of the subject parcels of land, let a writ of possession be
issued.
SO ORDERED.
Pasig, Metro Manila, January 17, 1978.
(SGD) BUENAVENTURA S. GUERRERO
Judge
Petitioners filed a motion for reconsideration on the ground that they had been
deprived of the possession of their property without due process of law. This was
however, denied.
Hence, this petition challenging the orders of respondent Judge and assailing the
constitutionality of Pres. Decree No. 1224, as amended. Petitioners argue that:
1) Respondent Judge acted without or in excess of his jurisdiction or with grave
abuse of discretion by issuing the Order of January 17, 1978 without notice and
without hearing and in issuing the Order dated June 28, 1978 denying the motion
for reconsideration.
2) Pres. Decree l224, as amended, is unconstitutional for being violative of the due
process clause, specifically:
a) The Decree would allow the taking of property regardless of size and no matter
how small the area to be expropriated;
b) "Socialized housing" for the purpose of condemnation proceeding, as defined in
said Decree, is not really for a public purpose;
c) The Decree violates procedural due process as it allows immediate taking of
possession, control and disposition of property without giving the owner his day in
court;
d) The Decree would allow the taking of private property upon payment of unjust
and unfair valuations arbitrarily fixed by government assessors;
e) The Decree would deprive the courts of their judicial discretion to determine what
would be the "just compensation" in each and every raise of expropriation.
Indeed, the exercise of the power of eminent domain is subject to certain limitations
imposed by the constitution, to wit:
Private property shall not be taken for public use without just compensation (Art. IV,
Sec. 9);
No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to be established for this
Court to nullify legislative or executive measures adopted to implement specific
constitutional provisions aimed at promoting the general welfare.
Petitioners' objections to the taking of their property subsumed under the headings
of public use, just compensation, and due process have to be balanced against
competing interests of the public recognized and sought to be served under
declared policies of the constitution as implemented by legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as
amended, for the purpose of condemnation proceedings is not "public use" since it
will benefit only "a handful of people, bereft of public character."
"Socialized housing" is defined as, "the construction of dwelling units for the middle
and lower class members of our society, including the construction of the
supporting infrastructure and other facilities" (Pres. Decree No. 1224, par. 1). This
definition was later expanded to include among others:
a) The construction and/or improvement of dwelling units for the middle and lower
income groups of the society, including the construction of the supporting
infrastructure and other facilities;
b) Slum clearance, relocation and resettlement of squatters and slum dwellers as
well as the provision of related facilities and services;
c) Slum improvement which consists basically of allocating homelots to the dwellers
in the area or property involved, rearrangemeant and re-alignment of existing
houses and other dwelling structures and the construction and provision of basic
community facilities and services, where there are none, such as roads, footpaths,
drainage, sewerage, water and power system schools, barangay centers,
community centers, clinics, open spaces, parks, playgrounds and other recreational
facilities;
implementation of such program the State shall respect the rights of small property
owners. (Art. XIII, sec. 9, Emphaisis supplied)
Housing is a basic human need. Shortage in housing is a matter of state concern
since it directly and significantly affects public health, safety, the environment and
in sum, the general welfare. The public character of housing measures does not
change because units in housing projects cannot be occupied by all but only by
those who satisfy prescribed qualifications. A beginning has to be made, for it is not
possible to provide housing for are who need it, all at once.
Population growth, the migration to urban areas and the mushrooming of crowded
makeshift dwellings is a worldwide development particularly in developing
countries. So basic and urgent are housing problems that the United Nations
General Assembly proclaimed 1987 as the "International Year of Shelter for the
Homeless" "to focus the attention of the international community on those
problems". The General Assembly is Seriously concerned that, despite the efforts of
Governments at the national and local levels and of international organizations, the
driving conditions of the majority of the people in slums and squatter areas and
rural settlements, especially in developing countries, continue to deteriorate in both
relative and absolute terms." [G.A. Res. 37/221, Yearbook of the United Nations
1982, Vol. 36, p. 1043-4]
In the light of the foregoing, this Court is satisfied that "socialized housing" fans
within the confines of "public use". It is, particularly important to draw attention to
paragraph (d) of Pres. Dec. No. 1224 which opportunities inextricably linked with
low-cost housing, or slum clearance, relocation and resettlement, or slum
improvement emphasize the public purpose of the project.
In the case at bar, the use to which it is proposed to put the subject parcels of land
meets the requisites of "public use". The lands in question are being expropriated
by the NHA for the expansion of Bagong Nayon Housing Project to provide housing
facilities to low-salaried government employees. Quoting respondents:
1. The Bagong Nayong Project is a housing and community development
undertaking of the National Housing Authority. Phase I covers about 60 hectares of
GSIS property in Antipolo, Rizal; Phase II includes about 30 hectares for industrial
development and the rest are for residential housing development.
It is intended for low-salaried government employees and aims to provide housing
and community services for about 2,000 families in Phase I and about 4,000 families
in Phase II.
It is situated on rugged terrain 7.5 kms. from Marikina Town proper; 22 Kms. east of
Manila; and is within the Lungs Silangan Townsite Reservation (created by
Presidential Proclamation No. 1637 on April 18, 1977).
The lands involved in the present petitions are parts of the expanded/additional
areas for the Bagong Nayon Project totalling 25.9725 hectares. They likewise
include raw, rolling hills. (Rollo, pp. 266-7)
The acute shortage of housing units in the country is of public knowledge. Official
data indicate that more than one third of the households nationwide do not own
their dwelling places. A significant number live in dwellings of unacceptable
standards, such as shanties, natural shelters, and structures intended for
commercial, industrial, or agricultural purposes. Of these unacceptable dwelling
units, more than one third is located within the National Capital Region (NCR) alone
which lies proximate to and is expected to be the most benefited by the housing
project involved in the case at bar [See, National Census and Statistics Office,
1980 Census of Population and Housing].
According to the National Economic and Development Authority at the time of the
expropriation in question, about "50 per cent of urban families, cannot afford
adequate shelter even at reduced rates and will need government support to
provide them withsocial housing, subsidized either partially or totally" [NEDA, FOUR
YEAR DEVELOPMENT PLAN For 1974-1977, p. 357]. Up to the present, housing some
remains to be out of the reach of a sizable proportion of the population" [NEDA,
MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, p. 240].
The mushrooming of squatter colonies in the Metropolitan Manila area as well as in
other cities and centers of population throughout the country, and, the efforts of the
government to initiate housing and other projects are matters of public knowledge
[See NEDA, FOUR YEAR DEVELOPMENT PLAN For 1974-1977, pp. 357-361; NEDA,
FIVE-YEAR PHILIPPINE DEVELOPMENT PLAN 1978-1982, pp. 215-228 NEDA, FIVE
YEAR PHILIPPINE DEVELOPMENT PLAN 1983-1987, pp. 109-117; NEDA, MEDIUM
TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, pp. 240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as amended, would allow the
taking of "any private land" regardless of the size and no matter how small the area
of the land to be expropriated. Petitioners claim that "there are vast areas of lands
in Mayamot, Cupang, and San Isidro, Antipolo, Rizal hundred of hectares of which
are owned by a few landowners only. It is surprising [therefore] why respondent
National Housing Authority [would] include [their] two man lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R. No. L-21064, February
18, 1970, 31 SCRA 413 (1970) at 428] this Court earlier ruled that expropriation is
not confined to landed estates. This Court, quoting the dissenting opinion of Justice
J.B.L. Reyes in Republic vs. Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of eminent domain under Article XIII, section 4
of our Constitution cannot be determined on a purely quantitative or area basis. Not
only does the constitutional provision speak of lands instead of landed estates, but I
see no cogent reason why the government, in its quest for social justice and peace,
should exclusively devote attention to conflicts of large proportions, involving a
considerable number of individuals, and eschew small controversies and wait until
they grow into a major problem before taking remedial action.
The said case of J.M. Tuason Co., Inc. departed from the ruling in Guido vs. Rural
Progress Administration [84 Phil. 847 (1949)] which held that the test to be applied
for a valid expropriation of private lands was the area of the land and not the
number of people who stood to be benefited. Since then "there has evolved a clear
pattern of adherence to the "number of people to be benefited test" " [Mataas na
Lupa Tenants Association, Inc. v. Dimayuga, G.R. No. 32049, June 25,1984, 130
SCRA 30 (1984) at 39]. Thus, in Pulido vs. Court of Appeals [G.R. No. 57625, May 3,
1983, 122 SCRA 63 (1983) at 73], this Court stated that, "[i]t is unfortunate that the
petitioner would be deprived of his landholdings, but his interest and that of his
family should not stand in the way of progress and the benefit of the greater may
only of the inhabitants of the country."
The State acting through the NHA is vested with broad discretion to designate the
particular property/properties to be taken for socialized housing purposes and how
much thereof may be expropriated. Absent a clear showing of fraud, bad faith, or
gross abuse of discretion, which petitioners herein failed to demonstrate, the Court
will give due weight to and leave undisturbed the NHA's choice and the size of the
site for the project. The property owner may not interpose objections merely
because in their judgment some other property would have been more suitable, or
just as suitable, for the purpose. The right to the use, enjoyment and disposal of
private property is tempered by and has to yield to the demands of the common
good. The Constitutional provisions on the subject are clear:
The State shall promote social justice in all phases of national development. (Art. II,
sec. 10)
The Congress shall give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good. To this end, the State shall
regulate the acquisition, ownership, use and disposition of property and its
increments. (Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of the provisions in the
1935 and 1973 Constitutions, emphasize:
...the stewardship concept, under which private property is supposed to be held by
the individual only as a trustee for the people in general, who are its real owners. As
a mere steward, the individual must exercise his rights to the property not for his
own exclusive and selfish benefit but for the good of the entire community or nation
[Mataas na Lupa Tenants Association, Inc. supra at 42-3 citing I. CRUZ, PHILIPPINE
POLITICAL LAW, 70 (1983 ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended, would allow the
taking of private property upon payment of unjust and unfair valuations arbitrarily
fixed by government assessors. In addition, they assert that the Decree would
deprive the courts of their judicial discretion to determine what would be "just
compensation".
The foregoing contentions have already been ruled upon by this Court in the case
ofIgnacio vs. Guerrero (G.R. No. L-49088, May 29, 1987) which, incidentally, arose
from the same expropriation complaint that led to this instant petition. The
provisions on just compensation found in Presidential Decree Nos. 1224, 1259 and
1313 are the same provisions found in Presidential Decree Nos. 76, 464, 794 and
1533 which were declared unconstitutional in Export Processing Zone All thirty vs.
Dulay (G.R. No. 5960 April 29, 1987) for being encroachments on prerogatives.
This Court abandoned the ruling in National Housing Authority vs. Reyes [G.R. No.
49439, June 29,1983, 123 SCRA 245 (1983)] which upheld Pres. Decree No. 464, as
amended by - Presidential Decree Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court pointed out that:
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of the taking. It
means a fair and full equivalent for the loss sustained. ALL the facts as to the
condition of the property and its surroundings, its improvements and capabilities,
should be considered.
xxx xxx xxx
Various factors can come into play in the valuation of specific properties singled out
for expropriation. The values given by provincial assessors are usually uniform for
very wide areas covering several barrios or even an entire total with the exception
of the poblacion. Individual differences are never taken into account. The value of
land is based on such generalities as its possible cultivation for rice, corn, coconuts,
or other crops. Very often land described as directional has been cultivated for
generations. Buildings are described in terms of only two or three classes of building
materials and estimates of areas are more often inaccurate than correct. Tax values
can serve as guides but cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the valuations made by assessors
since they had the opportunity to protest is illusory. The overwhelming mass of
landowners accept unquestioningly what is found in the tax declarations prepared
by local assessors or municipal clerks for them. They do not even look at, much less
analyze, the statements. The Idea of expropriation simply never occurs until a
demand is made or a case filed by an agency authorized to do so. (pp. 12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended, violates procedural due
process as it allows immediate taking of possession, control and disposition of
property without giving the owner his day in court. Respondent Judge ordered the
issuance of a writ of possession without notice and without hearing.
The constitutionality of this procedure has also been ruled upon in the Export
Processing Zone Authority case, viz:
It is violative of due process to deny to the owner the opportunity to prove that the
valuation in the tax documents is unfair or wrong. And it is repulsive to basic
concepts of justice and fairness to allow the haphazard work of minor bureaucrat or
clerk to absolutely prevail over the judgment of a court promulgated only after
expert commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have been judiciously
evaluated. (p. 13)
On the matter of the issuance of a writ of possession, the ruling in the Ignacio case
is reiterated, thus:
[I]t is imperative that before a writ of possession is issued by the Court in
expropriation proceedings, the following requisites must be met: (1) There must be
a Complaint for expropriation sufficient in form and in substance; (2) A provisional
determination of just compensation for the properties sought to be expropriated
must be made by the trial court on the basis of judicial (not legislative or executive)
discretion; and (3) The deposit requirement under Section 2, Rule 67 must be
complied with. (p. 14)
This Court holds that "socialized housing" defined in Pres. Decree No. 1224, as
amended by Pres. Decree Nos. 1259 and 1313, constitutes "public use" for purposes
of expropriation. However, as previously held by this Court, the provisions of such
decrees on just compensation are unconstitutional; and in the instant case the Court
finds that the Orders issued pursuant to the corollary provisions of those decrees
authorizing immediate taking without notice and hearing are violative of due
process.
WHEREFORE, the Orders of the lower court dated January 17, 1978 and June 28,
1978 issuing the writ of possession on the basis of the market value appearing
therein are annulled for having been issued in excess of jurisdiction. Let this case be
remanded to the court of origin for further proceedings to determine the
compensation the petitioners are entitled to be paid. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.