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Manila
EN BANC
TRENT, J.:
The judgment appealed from in this case perpetually restrains and prohibits
the defendant and his deputies from collecting and enforcing against the
plaintiffs and their property the annual tax mentioned and described in
subsection (b) of section 100 of Act No. 2339, effective July 1, 1914, and
from destroying or removing any sign, signboard, or billboard, the property
of the plaintiffs, for the sole reason that such sign, signboard, or billboard is,
or may be, offensive to the sight; and decrees the cancellation of the bond
given by the plaintiffs to secure the issuance of the preliminary injunction
granted soon after the commencement of this action.
This case divides itself into two parts and gives rise to two main questions;
(1) that relating to the power of the court to restrain by injunction the
collection of the tax complained of, and (2) that relating to the validity of those
provisions of subsection (b) of section 100 of Act No. 2339, conferring power
upon the Collector of Internal Revenue to remove any sign, signboard, or
billboard upon the ground that the same is offensive to the sight or is
otherwise a nuisance.
The first question is one of the jurisdiction and is of vital importance to the
Government. The sections of Act No. 2339, which bear directly upon the
subject, are 139 and 140. The first expressly forbids the use of an injunction
to stay the collection of any internal revenue tax; the second provides a
remedy for any wrong in connection with such taxes, and this remedy was
intended to be exclusive, thereby precluding the remedy by injunction, which
remedy is claimed to be constitutional. The two sections, then, involve the
right of a dissatisfied taxpayers to use an exceptional remedy to test the
validity of any tax or to determine any other question connected therewith,
and the question whether the remedy by injunction is exceptional.
Preventive remedies of the courts are extraordinary and are not the usual
remedies. The origin and history of the writ of injunction show that it has
always been regarded as an extraordinary, preventive remedy, as
distinguished from the common course of the law to redress evils after they
have been consummated. No injunction issues as of course, but is granted
only upon the oath of a party and when there is no adequate remedy at law.
The Government does, by section 139 and 140, take away the preventive
remedy of injunction, if it ever existed, and leaves the taxpayer, in a contest
with it, the same ordinary remedial actions which prevail between citizen and
citizen. The Attorney-General, on behalf of the defendant, contends that
there is no provisions of the paramount law which prohibits such a course.
While, on the other hand, counsel for plaintiffs urge that the two sections are
unconstitutional because (a) they attempt to deprive aggrieved taxpayers of
all substantial remedy for the protection of their property, thereby, in effect,
depriving them of their property without due process of law, and (b) they
attempt to diminish the jurisdiction of the courts, as conferred upon them by
Acts Nos. 136 and 190, which jurisdiction was ratified and confirmed by the
Act of Congress of July 1, 1902.
In the first place, it has been suggested that section 139 does not apply to
the tax in question because the section, in speaking of a "tax," means only
legal taxes; and that an illegal tax (the one complained of) is not a tax, and,
therefore, does not fall within the inhibition of the section, and may be
restrained by injunction. There is no force in this suggestion. The inhibition
applies to all internal revenue taxes imposes, or authorized to be imposed,
by Act No. 2339. (Snyder vs. Marks, 109 U.S., 189.) And, furthermore, the
mere fact that a tax is illegal, or that the law, by virtue of which it is imposed,
is unconstitutional, does not authorize a court of equity to restrain its
collection by injunction. There must be a further showing that there are
special circumstances which bring the case under some well recognized
head of equity jurisprudence, such as that irreparable injury, multiplicity of
suits, or a cloud upon title to real estate will result, and also that there is, as
we have indicated, no adequate remedy at law. This is the settled law in the
United States, even in the absence of statutory enactments such as sections
139 and 140. (Hannewinkle vs. Mayor, etc., of Georgetown, 82 U.S., 547;
Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases, 232 U. S., 576,
587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S.,
32; Shelton vs. Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.)
Therefore, this branch of the case must be controlled by sections 139 and
140, unless the same be held unconstitutional, and consequently, null and
void.
The right and power of judicial tribunals to declare whether enactments of
the legislature exceed the constitutional limitations and are invalid has
always been considered a grave responsibility, as well as a solemn duty. The
courts invariably give the most careful consideration to questions involving
the interpretation and application of the Constitution, and approach
constitutional questions with great deliberation, exercising their power in this
respect with the greatest possible caution and even reluctance; and they
should never declare a statute void, unless its invalidity is, in their judgment,
beyond reasonable doubt. To justify a court in pronouncing a legislative act
unconstitutional, or a provision of a state constitution to be in contravention
of the Constitution of the United States, the case must be so clear to be free
from doubt, and the conflict of the statute with the constitution must be
irreconcilable, because it is but a decent respect to the wisdom, the integrity,
and the patriotism of the legislative body by which any law is passed to
presume in favor of its validity until the contrary is shown beyond reasonable
doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative
act to be contrary to the constitution. To doubt the constitutionality of a law
is to resolve the doubt in favor of its validity. (6 Ruling Case Law, secs. 71,
72, and 73, and cases cited therein.)
It is also the settled law in the United States that "due process of law" does
not always require, in respect to the Government, the same process that is
required between citizens, though it generally implies and includes regular
allegations, opportunity to answer, and a trial according to some well settled
course of judicial proceedings. The case with which we are dealing is in point.
A citizen's property, both real and personal, may be taken, and usually is
taken, by the government in payment of its taxes without any judicial
proceedings whatever. In this country, as well as in the United States, the
officer charged with the collection of taxes is authorized to seize and sell the
property of delinquent taxpayers without applying to the courts for
assistance, and the constitutionality of the law authorizing this procedure
never has been seriously questioned. (City of Philadelphia vs. [Diehl] The
Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This
must necessarily be the course, because it is upon taxation that the
Government chiefly relies to obtain the means to carry on its operations, and
it is of the utmost importance that the modes adopted to enforce the
collection of the taxes levied should be summary and interfered with as little
as possible. No government could exist if every litigious man were permitted
to delay the collection of its taxes. This principle of public policy must be
constantly borne in mind in determining cases such as the one under
consideration.
With these principles to guide us, we will proceed to inquire whether there is
any merit in the two propositions insisted upon by counsel for the plaintiffs.
Section 5 of the Philippine Bill provides: "That no law shall be enacted in said
Islands which shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of the law."
The origin and history of these provisions are well-known. They are found in
substance in the Constitution of the United States and in that of ever state in
the Union.
Section 3224 of the Revised Statutes of the United States, effective since
1867, provides that: "No suit for the purpose of restraining the assessment
or collection of any tax shall be maintained in any court."
Section 139, with which we have been dealing, reads: "No court shall have
authority to grant an injunction to restrain the collection of any internal-
revenue tax."
A comparison of these two sections show that they are essentially the same.
Both expressly prohibit the restraining of taxes by injunction. If the Supreme
Court of the United States has clearly and definitely held that the provisions
of section 3224 do not violate the "due process of law" and "equal protection
of the law" clauses in the Constitution, we would be going too far to hold that
section 139 violates those same provisions in the Philippine Bill. That the
Supreme Court of the United States has so held, cannot be doubted.
In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of
an income tax levied by an act of Congress prior to the one in issue in the
case of Pollock vs. Farmers' Loan & Trust Co. (157 U.S., 429) the court,
through Mr. Justice Miller, said: "If there existed in the courts, state or
National, any general power of impeding or controlling the collection of taxes,
or relieving the hardship incident to taxation, the very existence of the
government might be placed in the power of a hostile judiciary. (Dows vs.
The City of Chicago, 11 Wall., 108.) While a free course of remonstrance
and appeal is allowed within the departments before the money is finally
exacted, the General Government has wisely made the payment of the tax
claimed, whether of customs or of internal revenue, a condition precedent to
a resort to the courts by the party against whom the tax is assessed. In the
internal revenue branch it has further prescribed that no such suit shall be
brought until the remedy by appeal has been tried; and, if brought after this,
it must be within six months after the decision on the appeal. We regard this
as a condition on which alone the government consents to litigate the
lawfulness of the original tax. It is not a hard condition. Few governments
have conceded such a right on any condition. If the compliance with this
condition requires the party aggrieved to pay the money, he must do it."
Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: "That
there might be no misunderstanding of the universality of this principle, it was
expressly enacted, in 1867, that "no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any court." (Rev,
Stat., sec. 3224.) And though this was intended to apply alone to taxes levied
by the United States, it shows the sense of Congress of the evils to be feared
if courts of justice could, in any case, interfere with the process of collecting
taxes on which the government depends for its continued existence. It is a
wise policy. It is founded in the simple philosophy derived from the
experience of ages, that the payment of taxes has to be enforced by
summary and stringent means against a reluctant and often adverse
sentiment; and to do this successfully, other instrumentalities and other
modes of procedure are necessary, than those which belong to courts of
justice."
And again, in Snyder vs. Marks (109 U.S., 189), the court said: "The remedy
of a suit to recover back the tax after it is paid is provided by statute, and a
suit to restrain its collection is forbidden. The remedy so given is exclusive,
and no other remedy can be substituted for it. Such has been the current of
decisions in the Circuit Courts of the United States, and we are satisfied it is
a correct view of the law."itc-a1f
1980
1974
1981
1975
1982
1976
1983
1977
etc.
etc.
Strict compliance here is desired. 2
In accordance therewith, cabs of model 1971 were phase-out in registration year
1978; those of model 1972, in 1979; those of model 1973, in 1980; and those of
model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as
Case No. 80-7553, seeking to nullify MC No. 77-42 or to stop its
implementation; to allow the registration and operation in 1981 and
subsequent years of taxicabs of model 1974, as well as those of earlier
models which were phased-out, provided that, at the time of registration, they
are roadworthy and fit for operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation and
Urgent Motion", praying for an early hearing of their petition. The case was
heard on February 20, 1981. Petitioners presented testimonial and
documentary evidence, offered the same, and manifested that they would
submit additional documentary proofs. Said proofs were submitted on March
27, 1981 attached to petitioners' pleading entitled, "Manifestation,
Presentation of Additional Evidence and Submission of the Case for
Resolution." 3
On November 28, 1981, petitioners filed before the same Board a "Manifestation
and Urgent Motion to Resolve or Decide Main Petition" praying that the case be
resolved or decided not later than December 10, 1981 to enable them, in case of
denial, to avail of whatever remedy they may have under the law for the protection
of their interests before their 1975 model cabs are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the
case, but was later informed that the records of the case could not be
located.
On December 29, 1981, the present Petition was instituted wherein the
following queries were posed for consideration by this Court:
A. Did BOT and BLT promulgate the questioned memorandum circulars in
accord with the manner required by Presidential Decree No. 101, thereby
safeguarding the petitioners' constitutional right to procedural due process?
B. Granting, arguendo, that respondents did comply with the procedural
requirements imposed by Presidential Decree No. 101, would the
implementation and enforcement of the assailed memorandum circulars
violate the petitioners' constitutional rights to.
(1) Equal protection of the law;
(2) Substantive due process; and
(3) Protection against arbitrary and unreasonable classification and
standard?
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of Transportation the
power
4. To fix just and reasonable standards, classification, regulations,
practices, measurements, or service to be furnished, imposed, observed,
and followed by operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to
follow in the exercise of its powers:
Sec. 2. Exercise of powers. — In the exercise of the powers granted in the
preceding section, the Board shag proceed promptly along the method of
legislative inquiry.
Apart from its own investigation and studies, the Board, in its discretion,
may require the cooperation and assistance of the Bureau of
Transportation, the Philippine Constabulary, particularly the Highway Patrol
Group, the support agencies within the Department of Public Works,
Transportation and Communications, or any other government office or
agency that may be able to furnish useful information or data in the
formulation of the Board of any policy, plan or program in the
implementation of this Decree.
The Board may also can conferences, require the submission of position
papers or other documents, information, or data by operators or other
persons that may be affected by the implementation of this Decree, or
employ any other suitable means of inquiry.
In support of their submission that they were denied procedural due
process, petitioners contend that they were not caged upon to submit their
position papers, nor were they ever summoned to attend any conference
prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway
accorded the Board gives it a wide range of choice in gathering necessary
information or data in the formulation of any policy, plan or program. It is
not mandatory that it should first call a conference or require the
submission of position papers or other documents from operators or
persons who may be affected, this being only one of the options open to
the Board, which is given wide discretionary authority. Petitioners cannot
justifiably claim, therefore, that they were deprived of procedural due
process. Neither can they state with certainty that public respondents had
not availed of other sources of inquiry prior to issuing the challenged
Circulars. operators of public conveyances are not the only primary sources
of the data and information that may be desired by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is
neither violative of procedural due process. As held in Central Bank vs.
Hon. Cloribel and Banco Filipino, 44 SCRA 307 (1972):
Pevious notice and hearing as elements of due process, are constitutionally
required for the protection of life or vested property rights, as well as of
liberty, when its limitation or loss takes place in consequence of a judicial or
quasi-judicial proceeding, generally dependent upon a past act or event
which has to be established or ascertained. It is not essential to the validity
of general rules or regulations promulgated to govern future conduct of a
class or persons or enterprises, unless the law provides otherwise.
(Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is
arbitrary and oppressive because the roadworthiness of taxicabs depends
upon their kind of maintenance and the use to which they are subjected,
and, therefore, their actual physical condition should be taken into
consideration at the time of registration. As public contend, however, it is
impractical to subject every taxicab to constant and recurring evaluation,
not to speak of the fact that it can open the door to the adoption of multiple
standards, possible collusion, and even graft and corruption. A reasonable
standard must be adopted to apply to an vehicles affected uniformly, fairly,
and justly. The span of six years supplies that reasonable standard. The
product of experience shows that by that time taxis have fully depreciated,
their cost recovered, and a fair return on investment obtained. They are
also generally dilapidated and no longer fit for safe and comfortable service
to the public specially considering that they are in continuous operation
practically 24 hours everyday in three shifts of eight hours per shift. With
that standard of reasonableness and absence of arbitrariness, the
requirement of due process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal
protection of the law because the same is being enforced in Metro Manila
only and is directed solely towards the taxi industry. At the outset it should
be pointed out that implementation outside Metro Manila is also envisioned
in Memorandum Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum Circular, the rules herein
shall immediately be effective in Metro Manila. Its implementation outside
Metro Manila shall be carried out only after the project has been implemented
in Metro Manila and only after the date has been determined by the Board.
4
In fact, it is the understanding of the Court that implementation of the Circulars in
Cebu City is already being effected, with the BOT in the process of conducting
studies regarding the operation of taxicabs in other cities.
The Board's reason for enforcing the Circular initially in Metro Manila is that
taxicabs in this city, compared to those of other places, are subjected to
heavier traffic pressure and more constant use. This is of common
knowledge. Considering that traffic conditions are not the same in every city,
a substantial distinction exists so that infringement of the equal protection
clause can hardly be successfully claimed.
As enunciated in the preambular clauses of the challenged BOT Circular, the
overriding consideration is the safety and comfort of the riding public from
the dangers posed by old and dilapidated taxis. The State, in the exercise,
of its police power, can prescribe regulations to promote the health, morals,
peace, good order, safety and general welfare of the people. It can prohibit
all things hurtful to comfort, safety and welfare of society. 5 It may also regulate
property rights. 6 In the language of Chief Justice Enrique M. Fernando "the
necessities imposed by public welfare may justify the exercise of governmental
authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded". 7
In so far as the non-application of the assailed Circulars to other transportation
services is concerned, it need only be recalled that the equal protection clause
does not imply that the same treatment be accorded all and sundry. It applies to
things or persons Identically or similarly situated. It permits of classification of the
object or subject of the law provided classification is reasonable or based on
substantial distinction, which make for real differences, and that it must apply
equally to each member of the class. 8 What is required under the equal protection
clause is the uniform operation by legal means so that all persons under Identical
or similar circumstance would be accorded the same treatment both in privilege
conferred and the liabilities imposed. 9 The challenged Circulars satisfy the
foregoing criteria.
Evident then is the conclusion that the questioned Circulars do not suffer
from any constitutional infirmity. To declare a law unconstitutional, the
infringement of constitutional right must be clear, categorical and undeniable.
10
WHEREFORE, the Writs prayed for are denied and this Petition is hereby
dismissed. No costs.
SO ORDERED.
Fernando, CJ., Barredo, Makasiar, Concepcion, Jr., Guerrero, Abad Santos,
De Castro, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee and Aquino, JJ., concur in the result.
Separate Opinions
PABLO, J., disidente:
La recurrente tiene dos estanques de agua, de nueve pies de profundidad,
como anexos indispensables a su fabrica de hielo; estan constuidos dentro
de un solar que esta cercado pero con una puerta de entrada siempre
abierta en donde pasan libremente los coches que distribuyen hielo y las
personas que lo compran de la fabrica; cualquiera puede entrar sin distincion
alguna, no hay ningun guardia en la puerta que impida la entrada de
cualquiera persona. A dichos dos entanques tiene libre acceso el publico.
Es evidente que la recurrente debio haber cercado dichos estanques como
medida ordinaria de precaucion para que los ninos de corta edad no pueden
entrar, tanto mas cuanto que los bordes de esos estanques solo tienen un
pie de altura la superficie del terreno. El cerco puesto en el perimento del
solar, con puerta continuamente abierta, no es suficiente medida para
impedir que los ninos puedan meterse en los entanques. Ese cerco con su
puerta abierta es como un velo transparente con que se cubre una mujer
semidesnuda en un teatro, pica la curiosidad y atrae la atencion del publico.
Los niños son curiosos por naturaleza y los de ocho años no tienen perfecto
conocimiento de las cosas. Alucinados por la natural atraccion de las aguas,
se meteran en ellas con peligro de sus vidas, a menos que exista algo que
les impida.
Voto con la confirmacion de la decision apelada.
FIRST DIVISION
[G.R. No. L-8191. February 27, 1956.]
DIOSDADO A. SITCHON, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8397. February 27, 1956]
RICARDO DE LA CRUZ, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8500. February 27, 1956]
FELINO PEÑA, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in
his capacity as City Engineer of the City of Manila, Respondent-Appellee.
[G.R. No. L-8513. February 27, 1956]
SANTIAGO BROTAMONTE, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8516. February 27, 1956]
ERNESTO NAVARRO, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as the City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8620. February 27, 1956]
AMADO SAYO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in
his capacity as City Engineer of the City of Manila, Respondent-Appellee.
DECISION
CONCEPCION, J.:
These are six (6) class suits against the City Engineer of Manila to enjoin him
from carrying out his threat to demolish the houses of Petitioners herein, upon
the ground that said houses constitute public nuisances. In due course, the Court
of First Instance of Manila rendered separate, but substantially identical,
decisions adverse to the Petitioners, who have appealed therefrom directly to this
Court. Inasmuch as the fact are not disputed and the same issues have been raised
in all these cases, which were jointly heard before this Court, we deem it fit to
dispose of the appeals in one decision.
1. Case No. L-8191 (Case No. 21530 of the Court of First Instance of Manila)
was instituted by Diosdado A. Sitchon, Luis Gavino and Ponciano Adoremos, in
their own behalf and in representation of twenty-two (22) persons, named in an
annex to the petition. In 1947 and 1948, said Petitioners occupied portions of the
public street known as Calabash Road, City of Manila, and constructed houses
thereon, without the consent of the authorities. Later on, some of them paid
“concession fees or damages, for the use” of said portions of the street, to a
collector of the city treasurer, who issued receipts with an annotation reading:chanroblesvirtuallawlibrary
“without prejudice to the order to vacate.” The constructions were such that the
roads and drainage on both sides thereof were obstructed. In some places, the
ditches used for drainage purposes were completely obliterated. What is more,
said ditches cannot be opened, repaired or placed in proper condition because of
said houses. On or about May 15, 1952, Respondent City Engineer advised them
to vacate the place and remove their houses within a stated period, with the
warning already referred to. Hence, the institution of the case, upon the filing of
which a writ of preliminary injunction was issued.
3. Felino Peña, Francisco Morales and Jose Villanueva filed case No. L-8500
(Case No. 21535 of the Court of First Instance of Manila), on their own behalf
and in representation of about thirty (30) persons, who, without the
aforementioned authority, occupied portions of the street area of R. Papa
Extension, City of Manila, sometime after its liberation. As in the preceding
cases, several Petitioners paid “concession fees or damages” to a collector of the
city treasurer, “without prejudice to the order to vacate”, which was given on May
10, 1952, with the warning that should they fail to remove said houses,
Respondent would do so, at their expense. Upon being advised, later on, of the
intention of Respondent’s agents to carry out said threat, the corresponding
petition was filed and a writ of preliminary injunction secured.
4. Santiago Brotamonte, Godofredo Blanquiso and Salvador Justiniano
commenced case No. L-8513 (Case No. 21531 of the Court of First Instance of
Manila), on their behalf and in representation of forty-two (42) other persons,
who, without any authority, occupied portions of the bed of a branch of the Estero
de San Miguel, City of Manila, and constructed houses thereon, sometime in 1947
and 1948. As in the cases already mentioned, some of them paid concession fees
or damages, “without prejudice to the order to vacate”, which was given, with the
usual warning, in December, 1953. The institution of the case and a writ of
preliminary injunction soon followed.
5. In case No. L-8516 (Case No. 21580 of the Court of First Instance of Manila),
Ernesto Navarro, Pablo Salas and Herminigildo Digap are Petitioners, on their
own behalf and in that of fifteen (15) persons, who, sometime after the liberation
of Manila, occupied portions of the bed of the Pasig River, at about the end of
Rio Vista Street, San Miguel, Manila, which are covered and uncovered by the
tide, and erected houses there on without any authority therefor. “Concession fees
or damages” were paid by some of them, “without prejudice to the order to
vacate”. After giving, on or about June 20, 1952, the corresponding notice and
warning, which were not heeded, Respondent threatened to demolish said houses
at Petitioners’ expense, whereupon the case was instituted and a writ of
preliminary injunction secured.
6. Case No. L-8620 (Case No. 22143 of the Court of First Instance of Manila)
was filed by Amado Sayo, Marciano Lamco and Victor Bernardo, on their behalf
and in that of twenty-two (22) other persons, who, in 1946 and 1947, occupied
portions of Torres Bugallon, Cavite, Misericordia and Antipolo Streets, in the
City of Manila, and constructed houses thereon, without any authority therefor.
Some paid “monthly rentals and/or damages, and/or concession fees” from 1946
to 1951, “without prejudice to the order to vacate”, which was given on May 1,
1952, with the usual warning, followed, about two (2) years later, by a threat to
demolish said houses. Hence, the case, upon the filing of which writ of
preliminary injunction was issued.
After appropriate proceedings, the Court of First Instance of Manila rendered
separate decisions, the dispositive part of which, except in case No. L-8620, is of
the following tenor:chanroblesvirtuallawlibrary
“Por tanto, el Juzgado sobresee esta causa por falta de meritos y ordena al
ingeniero de la ciudad de Maniia que haga la demolicion o la remocion de las
citadas casas, dentro de quince dias despues de haber avisado al efecto a los aqui
recurrentes, y a costa de los mismos.”
In said case No. L-8620, the lower court rendered judgment as follows: chanroblesvirtuallawlibrary
“In view of the foregoing considerations the Court hereby declares: chanroblesvirtuallawlibrary
“(a) that the houses of all Petitioners in this case erected on the land which forms
part of Torres Bugallon, Cavite, Misericordia and Antipolo Streets constitute
public nuisance as defined by section 1112 of Ordinance No. 1600 of the City of
Manila and by Article 694 paragraphs 4 and 5 of the Civil Code and
“(b) that the City Engineer of the City of Manila is the official authorized by
Article 1112 of Ordinance No. 1600 of the City of Manila and Article 699,
paragraph 3 of the Civil Code to abate said public nuisance and charge the
expenses thereof to Petitioners.”
Petitioners contend that said decisions should be reversed upon the ground that,
in trying to demolish their respective houses without notice and hearing, the city
engineer sought to deprive them of their property without due process of law,
apart from the fact that, under Articles 701 and 702 of the new Civil Code, the
power to remove public nuisances is vested in the district health officer, not in
Respondent city engineer. It should be noted, however, that, before expressing
his intent to demolish the houses in question, Respondent had advised and
ordered the Petitioners to remove said houses, within the periods stated in the
corresponding notices; that Petitioners do not question, and have not
chan roblesvirtualawlibrary
questioned, the reasonableness or sufficiency of said periods; and that they chan roblesvirtualawlibrary
have never asked Respondent herein to give them an opportunity to show that
their houses do not constitute public nuisances. Besides, it is not disputed that
said houses are standing on public streets, with the exception of the houses
involved in cases Nos. 8513 and 8516, which are built on portions of river beds.
It is clear, therefore, that said houses are public nuisances, pursuant to Articles
694 and 695 of the Civil Code of the Philippines, which is Republic Act No.
386, reading:chanroblesvirtuallawlibrary
“(4) Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or chan roblesvirtualawlibrary
ART. 700. — “The district health officer shall take care that one or all of the
remedies against a public nuisance are availed of.”
ART. 702. — “The district health officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a public
nuisance.”
However, section 31 of Republic Act No. 409, the Revised Charter of the City of
Manila, specifically places upon the city engineer the duty, among others, “to
have charge of the care of streets, canals and esteros ”; to “prevent the
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encroachment of private buildings on the streets and public places ”; to “have cralaw cralaw chan roblesvirtualawlibrary
supervision of all private docks, wharves, piers and other property bordering
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on the harbor, rivers, esteros and waterways and issue permits for the cralaw cralaw
construction, repair and removal of the same and enforce all ordinances relating
to the same”; to “have the care and custody of all sources of water supply ”;
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yield to said section 31 of Republic Act No. 409, not only because the former
preceded the latter, but, also, because said section 31 of Republic Act No. 409 is
a special provision specifically designed for the City of Manila, whereas said
Articles 700 and 702 of the Civil Code are general provisions applicable
throughout the Philippines. Moreover, section 1122 of the Revised Ordinance of
the City of Manila (No. 1600) explicitly authorizes the action sought to be taken
by Respondent herein, by providing: chanroblesvirtuallawlibrary
for a hearing or for notice to the owner before his property is subjected to restraint
or destruction.” (12 Am. Jur. 356, 357.)
“In the exercise of the police power the state may authorize its officers summarily
to abate public nuisances without resort to legal proceedings and without notice
or a hearing.
Municipal Corporations generally have power to cause the abatement of public
nuisances summarily without resort to legal proceedings.” (39 Am. Jur. 455, 456,
457.)”
Being in conformity with the facts and the law, the decisions appealed from are
hereby affirmed in toto, and the writs of preliminary injunction issued by the
lower court dissolved, with costs against Petitioners-Appellants. It is SO
ORDERED.
Paras, C.J., Padilla, Montemayor, Reyes, A. Jugo, Bautista Angelo,
Labrador, Reyes, J. B. L. and Endencia., JJ., concur.
RESOLUTION
January 20, 1961
BARRERA, J.:
The Decision in this case, promulgated on June 30, 1960, provided, among
others, for the lifting of the preliminary injunction issued by the lower court
directed against petitioner's construction of a building allegedly being made
in violation of Municipal Ordinance No. 3, series of 1909 of the municipality
of Laoag, and in disregard of respondents' right to light and view.
In their motion for reconsideration timely presented, respondents claim that
the findings of the lower court, affirmed by the Court of Appeals, that the
building under construction violated the aforementioned ordinance (from
which no appeal was interposed) having become final, justify the issuance
of and making permanent the injunction already issued.
There is no question that respondents' house, as well as that of petitioner,
are within their respective properties; that respondents' wall stands only 50
centimeters from the boundary of the 2 lots, whereas, the wall of the
petitioner's building was constructed 1 meter from the boundary or 1 meter
and 50 centimeters from the wall of the house of respondents. As a result,
the lower court found that the eaves of the two houses overlap each other
by 24 centimeters. This, the Court of Appeals declared to be violative of
Ordinance No. 3, series of 1903, amending Sections 1, 5, 6, and 13 of the
Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters,
measured from eaves to eaves of adjoining buildings of strong materials.
It must be noted, however, that the Ordinance in question was adopted since
1909 and was, therefore, already in force at the time the house of
respondents was reconstructed in 1946 after the building originally erected
thereon was burned in 1942. If respondents constructed their house at least
one meter from the boundary line, as petitioner has constructed hers, there
would be no overlapping of the eaves and there would not be any violation
of the ordinance. As things now stand, in view of such construction by the
respondents, the overlapping of the eaves and the consequential violation of
the ordinance can not entirely be attributed to petitioner, as to require her
alone to make the adjustments necessary for the observance of the 2-meter
eaves-to-eaves distance from her neighbors. If any compliance with the
ordinance would be made not only by petitioner, but also by the respondents.
There is, therefore, no reason for the continuation of the injunction.
In view of the foregoing, and as the other grounds respondents' motion for
reconsideration had been already duly considered in the Decision, the said
motion is hereby denied, for lack of merit. So ordered.
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Gutierrez David, Paredes, and Dizon, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31118 January 14, 1930
MARCELO FRANCISCO, plaintiff-appellant,
vs.
TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.
Gregorio Perfecto for appellant.
Prudencio A. Remigio for appellee Paez.
No appearance for other appellees.
ROMUALDEZ, J.:
In the complaint the plaintiff claims a right of way, upon payment of
indemnity, across defendant Paez's land; that the latter recognize the
plaintiff's ownership of a piece of land of 23.46 square meters, that he
vacate it, and that the defendant indemnify him for the damages arising
from said occupation.
Defendant Paez answered with a general denial and set up the special
defense of prescription. Defendant Jabson, in turn, also answered with a
general denial, and by way of special defense denied that the plaintiff has
any right of way over his land, because outside of it there is another
possible way to the street, which is shorter and less prejudicial.
After the judicial commissioner appointed for the purpose had taken the
evidence and inspected the land, the Court of First Instance of Manila
decided the case as follows:
In view of the foregoing considerations, the complaint is dismissed with
respect to the first cause of action. It is held that the plaintiff is the absolute
owner of the piece of land mentioned in the second cause of action, with an
area of 23.46 square meters and included within lot No. 13, block No. 2718
of the certificate of title issued in his favor, and he is entitled to the
ownership of the small house built of strong materials by defendant Paez
thereon, upon payment of its value, or to compel the defendant to purchase
said land at twenty pesos (P20) per square meter. Should the plaintiff
choose the first alternative, he shall pay the price to be agreed upon by and
between himself and said defendant, and in default thereof, the value to be
later determined by the court after hearing the evidence that might be
presented in connection therewith. Defendant Paez shall pay the costs of
this action. So ordered. (Pages 40 and 41, bill of exceptions.)
The plaintiff appealed from this judgment, and makes the following
assignments of error:
1. In holding that the plaintiff's action to enforce his right of way over
defendant Paez's land is barred by the statute of limitations.
2. In not holding that the action to enforce a right of way is imprescriptible.
3. In denying the relief sought in the complaint, respecting the right of way
through Timoteo Paez's land.
The question raised in this appeal, then, is whether the plaintiff's right of
way over defendant Paez's land has prescribed or is imprescriptible.
The trial court held the plaintiff's right to have been barred on the following
grounds:
It has been proved that the parcels of land now belonging to defendant
Ricardo Jabson originally belonged to a certain Paulino Castañeda y
Francisco, married to Teodora del Mundo, who, on December 20, 1908
obtained decree No. 3138 in proceeding No. 4865, and subsequently,
certificate of title No. 1449. On October 20, 1909, the parcel of land thus
held by Paulino Castañeda y Francisco was subdivided by the latter into
two parts, one containing 193.66 square meters, situated in the inner
portion of the space between Padre Rada and Ilaya Streets, and the other
containing 173.71 square meters, conterminous with said streets. The first
of these parcels, that is, the interior portion, after successive transfers
became the property of the plaintiff herein, and the second portion, after
several transfers, also, became the property of defendant Jabson.
Therefore, from October 20, 1909, when the property was subdivided into
the two aforesaid portions, there arose the right of the original owners of
the interior parcel to claim a right of way over the adjacent land which was
then the land abutting upon P. Rada and Ilaya Streets, through which was
the nearest and shortest way to said streets. Notwithstanding the fact that
from that date said right arose, none of the previous owners exercised said
right until the plaintiff attempted to enforce it through the complaint filed on
September 1, 1927, that is, after almost eighteen years had elapsed.
Section 40 of the Code of Civil Procedure provides that the action to
recover ownership or possession of real property, or an interest therein,
may only be exercised within ten years after the cause of said action
arises. Applying this legal provision to the facts established in this case, it is
evident that the plaintiff cannot obtain the relief he seeks in his complaint
because his action is barred by the statute of limitations, inasmuch as
neither he nor his predecessors demanded the right of way within said
limitations. (Pages 36, 37, and 38, bill of exceptions.)
The facts related by the court below are based upon the result of these
proceedings. But we should not lose sight of the fact that although it is true
that easements are extinguished by non-user for twenty years (article 546,
No. 1, Civil Code), nevertheless, the case at bar does not deal with an
easement which has been used, while the legal provisio cited is only
applicable to easements which being in use are later abandoned. Here is
what Manresa says on this point:
Prescription affects all easements lawfully arisen although they may not
have been used. Nevertheless, the second paragraph of article 546,
number 2, refers to an easement in use, for one cannot discontinue using
what one has never used, and there can be no act, at least in all the cases,
adverse to an inchoate easement. (4 Commentaries on the Civil Code,
fourth edition, page 662.) And in speaking of legal easements, such as the
one in question, the same author observes.
(c) Others, finally, may be extinguished by non-user, but only with respect
to the actual form or manner in which they had been exercised, and the
right or the power to claim the exercise of legal easement does not
prescribe, as occurs especially in the case of the right of way and
easement of aqueduct. (Emphasis ours.) (Ditto, pages 662 and 663).
The appellee also cites in support of his appeal No. 5 of said article 546
which refers to extinction of easements by waiver. It should be noted that in
the case of intermittent easements, such as the right of way, the waiver
must be, if not formal and solemn, at least such as may be obviously
gathered from positive acts, and the mere refraining from claiming the right
is not, to our mind, sufficient for the purpose. This seems to be the drift of
the following commentaries made by Manresa:
There has also been some discussion as to whether the waiver should be
express or implied. It may be that the act of walling up a window by the
owner of the dominant estate is a plain act of implied waiver, and yet, this
act does not of itself extinguish the easement, but only serves to mark the
beginning of the prescription. In intermittent easements (like the one in
question) the mere fact of leaving them seems to indicate a waiver, and
yet, it is not sufficient to extinguish them. It seems then that as a general
rule, an express waiver should be required, but without prejudice to having
the courts decide in exceptional cases that there is an evident waiver,
inferred from acts which reveal it beyond all doubt. (Ibid., pages 667, 668.)
(Emphasis ours.)
The mere fact that the plaintiff and his predecessors refrained from
claiming the easement, without any positive act to imply a real waiver, does
not, in our opinion, bring the case within the provision of the aforesaid
article 546, No. 5, of the Civil Code.
Our conclusion is that such a right of way, provided by the law for the
benefit of private individuals, may be waived, for Manresa so declares:
Legal easements established in the interest of private individuals may be
waived, but not so those of public utility. (Opus, volume and edition as
aforecited, page 668.)
But the court holds, for the reasons stated above, that said article 546, No.
5, Civil Code, is not applicable to the instant case, with reference to waiver,
nor is No. 2 of the same article, regarding non-user; and therefore, the
plaintiff's right of way cannot be deemed extinguished.
The judgment appealed from is modified and it is held that, upon payment of
the proper indemnity, the plaintiff is entitled to a right of way through the
shortest and least prejudicial portion of the servient estate, from plaintiff's lot
designated No. 3, in the plan Exhibit A, through defendant Timoteo Paez's
lot No. 12 according to said plan, to P. Rada Street, as provided in articles
564, 565 and concordant articles of the Civil Code.
Without express pronouncement of costs. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and
Villa-Real, JJ., concur