G.R. No. 104732. June 22, 1993.
* Same; Appointing Power; The appointing power has the right of choice which he may
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.
JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioners, vs. HON.
FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON,
respondents.
Constitutional Law; Local Government Code; Sec. 94 of the LGC is not determinative
of the constitutionality of Sec. 13, par.(d), of RA 7227 for no legislative act prevail over
the fundamental law of the land.In the case before us, the subject proviso directs
the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other
government posts (as Chairman of the Board and Chief Executive Officer of SBMA).
Since this is precisely what the constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that the proviso contravenes Sec. 7, first
par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective
official may be most beneficial to the higher interest of the body politic is of no
moment. It is argued that Sec. 94 of the Local Government Code (LGC) permits the
appointment of a local elective official to another post if so allowed by law or by the
primary functions of his office. But, the contention is fallacious. Section 94 of the LGC
is not determinative of the constitutionality of Sec. 13, par. (d), of RA 7227, for no
legislative act can prevail over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be
declared unconstitutional, we need not rule on its validity. Neither can we invoke a
practice otherwise unconstitutional as authority for its validity.
Same; Same; Subic Bay Metropolitan Authority; Meaning of the phrase shall be
appointed; The phrase shall be appointed unquestionably shows the intent to make
the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo
City.It is further argued that the SBMA posts are merely ex officio to the position of
Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union
v. Executive Secretary, where we stated that the prohibition against the holding of any
other office or employment by the President, Vice-President, Members of the Cabinet,
and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of
the Constitution, does not comprehend additional duties and functions required by the
primary functions of the officials concerned, who are to perform them in an ex officio
capacity as provided by law, without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not
contemplate making the subject SBMA posts as ex officio or automatically attached to
the Office of the Mayor of Olongapo City without need of appointment. The phrase
shall be appointed unquestionably shows the intent to make the SBMA posts
appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been
the legislative intent to make the subject positions ex officio, Congress would have, at
least, avoided the word appointed and, instead, ex officio would have been used.
exercise freely according to his judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and eligibilities.Considering that
appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., the choice of a person to fill an office
constitutes the essence of his appointment, and Mr. Justice Malcolm adds that an
[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we
held: The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power x x x x
Same; De Facto Officer; Respondent Gordons appointment pursuant to a legislative
act that contravenes the Constitution cannot be sustained. His acts as SBMA official
are not necessarily null and void, he may be considered a de facto officer.As
incumbent elective official, respondent Gordon is ineligible for appointment to the
position of Chairman of the Board and Chief Executive Officer of SBMA; hence, his
appointment thereto pursuant to a legislative act that contravenes the Constitution
cannot be sustained. He however remains Mayor of Olongapo City, and his acts as
SBMA official are not necessarily null and void; he may be considered a de facto
officer, one whose acts, though not those of a lawful officer, the law, upon principles
of policy and justice, will hold valid so far as they involve the interest of the public and
third persons, where the duties of the office were exercised x x x x under color of a
known election or appointment, void because the officer was not eligible, or because
there was a want of power in the electing or appointing body, or by reason of some
defect or irregularity in its exercise, such ineligibility, want of power or defect being
unknown to the public x x x x [or] under color of an election, or appointment, by or
pursuant to a public unconstitutional law, before the same is adjudged to be such
(State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am.
Dec., 213; Sheehans Case, 122 Mass, 445, 23 Am. Rep., 323). Flores vs. Drilon, 223
SCRA 568, G.R. No. 104732 June 22, 1993
G.R. No. 93654. May 6, 1992.*

FRANCISCO U. DACANAY, petitioner, vs. MAYOR MACARIO ASISTIO, JR., CITY

ENGR. LUCIANO SARNE, JR. of Kalookan City, Metro Manila, MILA PASTRANA
AND/OR RODOLFO TEOFE, STALLHOLDERS AND REPRESENTING CO-
STALLHOLDERS, respondents.

Constitutional Law; Civil Law; Public Lands; Contracts; A public street is property for
public use hence outside the commerce of man.There is no doubt that the disputed
areas from which the private respondents market stalls are sought to be evicted are
public streets, as found by the trial court in Civil Case No. C-12921. A public street is
property for public use hence outside the commerce of man (Arts. 420, 424, Civil
Code). Being outside the commerce of man, it may not be the subject of lease or other
contract.

Same; Same; Same; Same; The right of the public to use the city streets may not be
bargained away through contract.As the stallholders pay fees to the City
Government for the right to occupy portions of the public street, the City Government,
contrary to law, has been leasing portions of the streets to them. Such leases or
licenses are null and void for being contrary to law. The right of the public to use the
city streets may not be bargained away through contract. The interests of a few should
not prevail over the good of the greater number in the community whose health,
peace, safety, good order and general welfare, the respondent city officials are under
legal obligation to protect.

Same; Same; Same; Same; Mayor Robles Executive Order may not infringe upon the
vested right of the public to use city streets for the purpose they were intended to
serve.The Executive Order issued by Acting Mayor Robles authorizing the use of
Heroes del 96 Street as a vending area for stallholders who were granted licenses by
the city government contravenes the general law that reserves city streets and roads
for public use. Mayor Robles Executive Order may not infringe upon the vested right
of the public to use city streets for the purpose they were intended to serve: i.e., as
arteries of travel for vehicles and pedestrians. As early as 1989, the public
respondents had started to look for feasible alternative sites for flea markets. They
have had more than ample time to relocate the street vendors. Dacanay vs. Asistio,
Jr., 208 SCRA 404, G.R. No. 93654 May 6, 1992
Nos. L-60549, 60553 to 60555. October 26, 1983.*
HEIRS OF JUANCHO ARDONA (represented by Gloria Ardona) ANASTACIO C.
CABILAO, HEIRS OF CIPRIANO CABILAO (represented by Jose Cabilao) MODESTA
CABILAO, HEIRS OF ROMAN CABUENAS (represented by Alberto Cabuenas),
AGRIPINO GABISAY and PRUDENCIA MABINI, ANTONIO LABRADOR and LUCIA
GABISAY, GERONIMO MABINI and MARCELINA SABAL, INOCENCIO MABINI and
ARSENIA REYES, PATRICIO MABINI and GREGORIA BORRES, ANICETO
GADAPAN and MAXIMA GABISAY, BARTOLOME MAGNO and CALINECA E.
MAGNO, ALBERTO CABUENAS, NARCISO CABUENAS and VICTORIA
CABUENAS, EUTIQUIOSENO, HEIRS OF ESPERIDION CABUENAS (represented
by Alberto Cabuenas), MAXIMINA NAVARO, SULPICIO NAVARO, EDUARDO
NAVARO, MARTINIANO ROMA (in representation of Arcadio Mabini, deceased),
MARTIN SENO, FAUSTO ARDA, MAXIMA CABILAO, ESTRELLA SENO, EDUVEGIS
S. CABILAO, ROSARIO CABILAO, MINORS DANILO, SOCORRO, JOSEFINA and
MARITES, all surnamed Cabilao, JUAN BORRES (represented by Francisca Borres),
RAMON JABADAN, JESUS ALIPAR and LEONILA KABAHAR, ANTONIO
LABRADOR, HEIRS OF NICASIO GABISAY (represented by Arsenio Gabisay),
PACIFICO LABRADOR, DEMETRIO LABRADOR and FRUCTOSA TABURA,
VENANCIO DEL MAR, MARINO DEL MAR, HEIRS OF TEODORA ARCILLO
(represented by Brigida Arcillo) DIONISIA GABUNADA, HEIRS OF BUENAVENTURA
FRANCISCO (represented by Felicidad Sadaya Francisco), HEIRS OF VICTORIA C.
CABUENAS (represented by Alberto Cabuenas) HEIRS OF CIPRIANO GABUNADA
(represented by Claudio Gabunada), petitioners, vs. HON. JUAN Y. REYES,
Executive Judge and Presiding Judge of Branch I, COURT OF FIRST INSTANCE OF
CEBU, and the PHILIPPINE TOURISM AUTHORITY, respondents.
Constitutional Law; Statutory Construction; The States power of eminent domain
extends to the expropriation of land for tourism purposes although this specific
objective is not expressed in the Constitution.The petitioners look for the word
tourism in the Constitution. Understandably the search would be in vain. The policy
objectives of the framers can be expressed only in general terms such as social
justice, local autonomy, conservation and development of the national patrimony,
public interest, and general welfare, among others. The programs to achieve these
objectives vary from time to time and according to place. To freeze specific programs
like tourism into express constitutional provisions would make the Constitution more
prolix than a bulky code and require of the framers a prescience beyond Delphic
proportions. The particular mention in the Constitution of agrarian reform and the
transfer of utilities and other private enterprises to public ownership merely
underscores the magnitude of the problems sought to be remedied by these
programs. They do not preclude nor limit the exercise of the power of eminent domain
for such purposes like tourism and other development programs.
Same; Same; Requisites of eminent domain.The constitutional restraints are public
use and just compensation.
Same; Same; The restrictive view of the term public use cannot be adopted in the
Philippines which does not have big and correctly located public lands and which has
never been a laissez-faire State.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.
Same; Same; Judiciary has to defer liberally to legislative discretion in the review of
programs for economic development and social progress.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 the judiciary to defer to legislative discretion in 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.
Same; Same; Public use does not mean use by the public in expropriation cases.
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.
Same; Same; Expropriation of several barangays for provocation of tourism and
construction of sports and hotel complex constitutes expropriation for public use.
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 and 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.
Same; Same; Petitioners failed to show that area being expropriated is a land reform
area. Only 8,970 square meters of 283 hectares affected is part of Operation 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 metersless
than one hectareis 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 electricitywhich
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.
Same; Same; Contract clause cannot bar exercise of police power.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 estop
the legislature from enacting laws intended for the public good.
Same; Same; Government may take immediate possession of land subject to
expropriation proceedings upon deposit of 10% of its value.Under Presidential
Decree No. 42, as amended by Presidential Decree No. 1533, the government, its
agency or instrumentality, as plaintiff in an expropriation proceedings is authorized to
take immediate possession, control and disposition of the property and the
improvements, with power of demolition, notwithstanding the pendency of the issues
before the court, upon deposit with the Philippine National Bank of an amount
equivalent to 10% of the value of the property expropriated.
Same; Same; Agrarian Law; Pres. Decree No. 583 which penalizes forcible ejectment
of agricultural tenants has nothing to do with and does not cover expropriation cases
instituted by the government.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 tenanted 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.
Teehankee, J., dissenting on Justice Makasiars opinion:
Action; Personality of petitioners to file instant petition.Teehankee, J., dissented on
the grounds stated in Justice Makasiars separate opinion. Petitioners have the
personality to file the petition at bar, as conceded by public respondent itself in having
filed the expropriation case against them.
Makasiar, J., concurring and dissenting:
Action; Not being tenants, petitioners have no personality to file instant suit.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.
Constitutional Law; Agrarian Law; Welfare of small landowners and the landless
should prevail over right of PTA to expropriate lands for tourism development.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. Heirs
of Juancho Ardona vs. Reyes, 125 SCRA 220, Nos. L-60549, 60553 to 60555 October
26, 1983
No. L-24670. December 14, 1979.*
ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant, vs. FEATI BANK AND
TRUST CO., defendant-appellee.
Appeal; The appellee has no duty to make assignments of error.The defendant-
appellee submitted its counter-assignment of errors. In this connection, We already
had occasion to hold in Relativo v. Castro that (I)t is not incumbent on the appellee,
who occupies a purely defensive position, and is seeking no affirmative relief, to make
assignments of error.
Same; An assignment of error can include only questions that were raised in the trial
court.In the first place, the validity of the said resolution was never questioned
before it. The rule is that the question of law or of fact which may be included in the
appellants assignment of errors must be those which have been raised in the court
below, and are within the issues framed by the parties. The object of requiring the
parties to present all questions and issues to the lower court before they can be
presented to the appellate court is to enable the lower court to pass thereon, so that
the appellate court upon appeal may determine whether or not such ruling was
erroneous.
Local Governments; Municipalities are empowered by law to adopt zoning ordinances
and regulations.Section 3 of R.A. No. 2264 otherwise known as the Local Autonomy
Act, empowers a Municipal Council to adopt zoning and subdivision ordinances or
regulations for the municipality. Clearly, the law does not restrict the exercise of the
power through an ordinance. Therefore, granting that Resolution No. 27 is not an
ordinance, it certainly is a regulatory measure within the intendment or ambit of the
word regulation under the provision. As a matter of fact the same section declares
that the power exists (A)ny provision of law to the contrary notwithstanding x x x.
Same; An exception to the general welfare powers delegated to municipalities is when
the exercise of its powers will conflict with vested rights arising from its contracts.
The only exceptions under Section 12 are existing vested rights arising out of a
contract between a a province, City or municipality on one hand and a third party on
the other, in which case the original terms and provisions of the contract should
govern. The exceptions, clearly, do no apply in the case at bar.
Same; Police Power; Contracts; Land Registration; The police power is superior to
contractual stipulations between parties on the use of lands sold by subdivisions even
if said conditions are annotated on the Torrens Title.With regard to the contention
that said resolution cannot nullify the contractual obligations assumed by the
defendant-appelleereferring to the restrictions incorporated in the deeds of sale and
later in the corresponding Transfer Certificates of Title issued to defendant-appellee
it should be stressed, that while non-impairment of contracts is constitutionally
guaranteed, the rule is not absolute, since has to be reconciled with the legitimate
exercise of police power, i.e., the power to prescribe regulations to promote the
health, morals, peace, education, good order or safety and general welfare of the
people. Invariably described as the most essential, insistent, and illimitable of
powers and in a sense, the greatest and most powerful attribute of government, the
exercise of the power may be judicially inquired into and corrected only if it is
capricious, whimsical, unjust or unreasonable, there having been a denial of due
process or a violation of any other applicable constitutional guarantee.
Same; Same; Same; Same;Resolution No. 27, S-1960 declaring the western part of
Highway 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to
the Pasig River as an industrial and commercial zone, was obviously passed by the
Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard
or promote the health, safety, peace, good order and general welfare of the people in
the locality. Judicial notice may be taken of the conditions prevailing in the area,
especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the
highway; industrial and commercial complexes have flourished about the place.
EDSA, a main traffic artery which runs through several cities and municipalities in the
Metro Manila are, supports an endless stream of traffic and the resulting activity, noise
and pollution are hardly conducive to the health, safety or welfare of the residents in
its route. Having been expressly granted the power to adopt zoning and subdivision
ordinances or regulations, the municipality of Mandaluyong, through its Municipal
Council, was reasonably, if not perfectly, justified under the circumstances, in passing
the subject resolution.
Same; Same; Same; Statutory Construction; Foreign Jurisprudence; American
decisions and authorities are not per se controlling in the Philippines.In the first
place, the views set forth in American decisions and authorities are not per se
controlling in the Philippines, the laws of which must necessarily be construed in
accordance with the intention of its own lawmakers and such intent may be deduced
from the language of each law and the context of other local legislation related
thereto.
Fernando, C.J., concurring:
Police Power; Contracts; Balancing the police power with the exercise of property
rights may be called for in certain instances.Reference was made in the opinion of
the Court to Philippine American Life Insurance Company v. Auditor General The
ponente in that case was Justice Sanchez. A concurrence came from me. It contained
this qualification: It cannot be said, without rendering negatory the constitutional
guarantee of non-impairment, and for that matter both the equal protection and due
process clauses which equally serve to protect property rights, that at the mere
invocation of the police power, the objection on non-impairment grounds automatically
loses forces. Here, as in other cases where governmental authority may trench upon
property rights, the process of balancing, adjustment or harmonization is called for.
Same; Same; Same;This is the concluding paragraph of my concurrence in the
Philippine American Life Insurance Co. case: If emphasis be therefore laid, as this
concurring opinion does, on the pressing and inescapable need for such an approach
whenever a possible collision between state authority and an assertion of
constitutional right to property may exist, it is not to depart from what sound
constitutional orthodoxy dictates. It is rather to abide by what is compels. In litigations
of this character the, perhaps much more so than in other disputes, where there is a
reliance on a constitutional provision, the judiciary cannot escape what Holmes fitly
referred to as the sovereign prerogative of choice, the exercise of which might
possibly be impugned if there be no attempt, however slight, at such an effort of
adjusting or reconciling the respective claims of state regulatory power and
constitutionally protected rights.
Same; Same; Constitutional Law; The claim to property rights based on the non-
impairment clause has a lesser weight under the present Constitution, vis a vis the
police power.The only point I would wish to add is that in the process of such
balancing and adjustment, the present Constitution, the Philippine American Life
Insurance Co. decision having been promulgated under the 1935 Charter, leaves no
doubt that the claim to property rights based on the non-impairment clause has a
lesser weight. For as explicitly provided by our present fundamental law: The State
shall promote social justice to ensure the dignity, welfare, and security of all the
people. Towards this end, the State shall regulate the acquisition, ownership, use,
enjoyment, and disposition of private property, and equitably diffuse property
ownership and profits.
Same; Same; Same; Arrangements dealing with property rights are not impressed
with sanctity.More specifically, such covenants are an important means of ordering
one aspect of property relationships. Through them, there could be delimitation of land
use rights. It is quite understandable why the law should ordinarily accord them
deference. It does so, it has been said, both on grounds of morality and utility.
Nonetheless, there are limits to the literal enforcement of their terms. To the extent
that they ignore technological or economic progress, they are not automatically
entitled to judicial protection. Clearly, they must speak from one point of time to
another. The parties, like all mortals, do not have the power of predicting the future
with unfailing certainty. In cases therefore were societal welfare calls for police power
legislation, the parties adversely affected should realize that arrangements dealing
with property rights are not impressed with sanctity. That approach, in my view, was
the guiding principle of the opinion of the Court. Hence my full and entire concurrence.
Barredo, J., concurring:
Police Power; Contracts; It is public knowledge that the place in question is already a
commercial area.I concur. I hold it is a matter of public knowledge that the place in
question is commercial. It would be worse if the same were to be left as residential
and all around are already commercial.
Abad Santos, J., dissenting:
Police Power; The municipal ordinance in question was not exacted pursuant to the
police power of the municipality of Mandaluyong. Its effect to the case at bar is to
replace the peace of a residential area with the turmoil of commerce and pollution of
industry setting back efforts of the Metro Manila Governor to improve the quality of life.
But Resolution No. 27, cannot be described as promotive of the health, morals,
peace, education, good order or safety and general welfare of the people of
Mandaluyong. On the contrary, its effect is the opposite. For the serenity, peace and
quiet of a residential section would be the resolution be replaced by the chaos, turmoil
and frenzy of commerce and industry. Where there would be no industrial and noise
pollution these bane of so-called progress would now pervade and suffocate the
environment of the detriment of the ecology. To characterize the ordinance as an
exercise of police power would be retrogressive. It will set back all the efforts of the
Ministry of Human Settlements to improve the quality of life especially in Metro Manila.
It will make Metro Manila, not the city of man as envisioned by its Governor but a city
of commerce and industry. Ortigas & Co., Limited Partnership vs. Feati Bank and Trust
Co., 94 SCRA 533, No. L-24670 December 14, 1979
No. L-29993. October 23, 1978.*
LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN,
ALFONSO R. MAGSANOC, JESUS MACARANAS, MAXIMO MANANGAN, FIDEL
MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all Members of the
Municipal Council of Malasiqui in 1959, Malasiqui, Pangasinan, petitioners, vs.
ROSALINA. ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA,
ERNESTO, NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed
FONTANILLA, and THE HONORABLE COURT OF APPEALS, respondents.
No. L-30183. October 23, 1978.*
MUNICIPALITY OF MALASIQUI, petitioner, vs. ROSALINA, ANGELINA, LEONARDO,
EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA,
REMEDIOS and ROBERTO, all surnamed FONTANILLA, and the Honorable COURT
OF APPEALS, respondents.
Damages; Municipal corporations; In the absence of a statutory law, municipal
corporations are not liable for damages for acts done in the performance of
governmental functions.If the injury is caused in the course of the performance of a
governmental function or duty no recovery, as a rule, can be had from the municipality
unless there is an existing statute on the matter, nor from its officers, so long as they
performed their duties honestly and in good faith or that they did not act wantonly and
maliciously. In Palafox, et al. v. Province of Ilocos Norte, et al., 1958, a truck driver
employed by the provincial government of Ilocos Norte ran over Proceto Palafox in the
course of his work at the construction of a road. The Supreme Court in affirming the
trial courts dismissal of the complaint for damages held that the province could not be
made liable because its employee was in the performance of a governmental function
the construction and maintenance of roadsand however tragic and deplorable it
may be, the death of Palafox imposed on the province no duty to pay monetary
consideration.
Same; Same; The rule is otherwise where it is engaged in the exercise of proprietary
functions.With respect to proprietary functions, the settled rule is that a municipal
corporation can be held liable to third persons ex contractu or ex delicto. Municipal
corporations are subject to be sued upon contracts and in tort.
Same; Same; The holding of a town fiesta by a municipality is an exercise of a private
function of the municipality.Coming to the case before Us, and applying the general
tests given above, We hold that the holding of the town fiesta in 1959 by the
Municipality of Malasiqui, Pangasinan, was an exercise of a private or proprietary
function of the municipality.
Same; Same.This provision (Section 2282, RAC) simply gives authority to the
municipality to celebrate a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate a religious or
historical event of the town is in essence an act for the special benefit of the
community and not for the general welfare of the public performed in pursuance of a
policy of the state. The mere fact that the celebration, as claimed, was not to secure
profit or gain but merely to provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is not a source of income for
the town, nonetheless it is a private undertaking as distinguished from the
maintenance of public schools, jails, and the like which are for public service.
Same; Same; Under the doctrine of respondent superior, a municipality may be held
liable for the acts of Us agent relative to the exercise thereof of acts proprietary in
character.Lastly, petitioner or appellant Municipality cannot evade responsibility
and/or liability under the claim that it was Jose Macaraeg who constructed the stage.
The municipality acting through its municipal council appointed, Macaraeg as
chairman of the sub-committee on entertainment and in charge of the construction of
the zarzuela stage. Macaraeg acted merely as an agent of the Municipality. Under
the doctrine of respondent superior mentioned earlier, petitioner is responsible or
liable for the negligence of its agent acting within his assigned tasks.
Same; Same; Article 27 of the Civil Code providing indemnification for damages where
a public servant refuses or neglects, without just cause, to perform his official duty
covers a case of non-feasance as distinguished from negligence or misfeasance in
carrying out official duties. Municipal councilors found negligent in supervising safe
use of a stage used in a town fiesta are not liable under this article of the Civil Code.
In their Petition for review the municipal councilors allege that the Court of Appeals
erred in ruling that the holding of a town fiesta is not a governmental function and that
there was negligence on their part for not maintaining and supervising the safe use of
the stage, in applying Article 27 of the Civil Code against them, and in not holding
Jose Macaraeg liable for the collapse of the stage and the consequent death of
Vicente Fontanilla. We agree with petitioners that the Court of Appeals erred in
applying Article 27 of the Civil Code against them, for this particular article covers a
case of non-feasance or non-performance by a public officer of his official duty; it does
nof apply to a case of negligence or misfeasance in carrying out an official duty.
Same; Same; A municipal corporation exercising proprietary functions is on the same
footing as a private corporation. Its governing board or municipal council is not liable
solidarily for acts committed by its employees unless there is bad faith or wanton
negligence on their part.The Court of Appeals in its decision now under review held
that the celebration of a town fiesta by the Municipality of Malasiqui was not a
governmental function. We upheld that ruling. The legal consequence thereof is that
the Municipality stands on the same footing as an ordinary private corporation with the
municipal council acting as its board of directors. It is an elementary principle that a
corporation has a personality, separate and distinct from its officers, directors, or
persons composing it and the latter are not as a rule co-responsible in an action for
damages for tort or negligence (culpa aquiliana) committed by the corporations
employees or agents unless there is a showing of bad faith or gross or wanton
negligence on their part.

Attorneys; Same; Award of attorneys fees justified where municipal officers gave
assurances of relief to heirs of deceased, but later failed to do so.Under paragraph
11, Art. 2208 of the Civil Code attorneys fees and expenses of litigation may be
granted when the court deems it just and equitable. In this case of Vicente Fontanilla,
although respondent appellate court failed to state the grounds for awarding attorneys
tees, the records show however that attempts were made by plaintiffs, now private
respondents, to secure an extrajudicial compensation from the municipality; that the
latter gave promises and assurances of assistance but failed to comply; and it was
only eight months after the incident that the bereaved family of Vicente Fontanilla was
compelled to seek relief from the courts to ventilate what was believed to be a just
cause. We hold, therefore, that there is no error committed in the grant of attorneys
fees which after all is a matter of judicial discretion. The amount of P1,200.00 is fair
and reasonable. Torio vs. Fontanilla, 85 SCRA 599, No. L-29993, No. L-30183
October 23, 1978

G.R. No. 112889. April 18, 1995.*

BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and
EDUARDO T. RODRIGUEZ, respondents.
Election Law; Local Government Code; The Court believes and holds, that Article 73
of the Rules and Regulations Implementing the Local Government Code of 1991, to
the extent that it confines the term fugitive from justice to refer only to a person who
has been convicted by final judgment, is an inordinate and undue circumscription of
the law.The Court believes and thus holds, albeit with some personal reservations of
the ponente (expressed during the Courts en banc deliberations), that Article 73 of the
Rules and Regulations Implementing the Local Government Code of 1991, to the
extent that it confines the term fugitive from justice to refer only to a person (the
fugitive) who has been convicted by final judgment, is an inordinate and undue
circumscription of the law.
Same; Same; COMELEC did not make any definite finding on whether or not, in fact,
private respondent is a fugitive from justice as such term must be interpreted and
applied in the light of the Courts opinion.Unfortunately, the COMELEC did not make
any definite finding on whether or not, in fact, private respondent is a fugitive from
justice as such term must be interpreted and applied in the light of the Courts
opinion. The omission is understandable since the COMELEC dismissed outrightly the
petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations
promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is
thus constrained to remand the case to the COMELEC for a determination of this
unresolved factual matter.
DAVIDE, JR.,J., Separate Opinion:
Election Law; Local Government Code; Fugitive from justice refers not only to those
who flee after conviction to avoid punishment but also to those who, after being
charged, flee to avoid prosecution.The term fugitive from justice refers not only to
those who flee after conviction to avoid punishment but also to those who, after being
charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the
definition given to it by the Oversight Committee, i.e., a person who has been
convicted by final judgment, as appearing in Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991, as inordinate and an undue
circumscription of the law. I agree.
Same; Same; The definition disregards the true and accepted meaning of the word
fugitive.I further submit that it also unreasonably expands the scope of the
disqualification in the 1991 Local Government Code because it disqualifies all those
who have been convicted by final judgment, regardless of the extent of the penalty
imposed and of whether they have served or are serving their sentences or have
evaded service of sentence by jumping bail or leaving for another country. The
definition thus disregards the true and accepted meaning of the word fugitive. This
new definition is unwarranted for nothing in the legislative debates has been shown to
sustain it and the clear language of the law leaves no room for a re-examination of the
meaning of the term. Marquez, Jr. vs. Commission on Elections, 243 SCRA 538, G.R.
No. 112889 April 18, 1995