Republic of the Philippines

SUPREME COURT
Manila

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.

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, 1and a declaration that Municipal
Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void.

On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No. 43-89,
"Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4
Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports
Facilities." 2

In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the
Sangguniang Panlalawigan for its approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved said Resolution
and returned it with the comment that "expropriation is unnecessary considering that there are still available lots in Bunawan for
the establishment of the government center." 3

The Municipality of Bunawan, herein public respondent, subsequently filed a petition for Eminent Domain against petitioner
Percival Moday before the Regional Trial Court at Prosperidad, Agusan del Sur. 4 The complaint was later amended to include
the registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party defendants.

On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon the Possession of Subject Matter of This
Case stating that it had already deposited with the municipal treasurer the necessary amount in accordance with Section 2, Rule
67 of the Revised Rules of Court and that it would be in the government's best interest for public respondent to be allowed to take
possession of the property.

Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court granted respondent municipality's
motion to take possession of the land. The lower court held that the Sangguniang Panlalawigan's failure to declare the resolution
invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review the ordinances and
resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old Local Government Code and that the
exercise of eminent domain is not one of the two acts enumerated in Section 19 thereof requiring the approval of the
Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's Order dated July 2, 1991 reads:

WHEREFORE, it appearing that the amount of P632.39 had been deposited as per Official Receipt No.
5379647 on December 12, 1989 which this Court now determines as the provisional value of the land, the
Motion to Take or Enter Upon the Possession of the Property filed by petitioner through counsel is hereby
GRANTED. The Sheriff of this Court is ordered to forthwith place the plaintiff in possession of the property
involved.
 Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose of ascertaining the
just compensation or fair market value of the property sought to be taken, with notice to all the parties
concerned.

SO ORDERED. 6

Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991.

Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion on the part of the trial court, but the
same was dismissed by respondent appellate court on July 15, 1992. 7 The Court of Appeals held that the public purpose for the
expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare
Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed.

Respondent appellate court also denied petitioners' motion for reconsideration on October 22, 1992. 8

Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of Barangay
Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal Gymnasium, which is
made of concrete.

In the instant petition for review filed on November 23, 1992, petitioner seeks the reversal of the decision and resolution of the
Court of Appeals and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null and void.

On December 8, 1993, the Court issued a temporary restraining order enjoining and restraining public respondent Judge
Evangeline Yuipco from enforcing her July 2, 1991 Order and respondent municipality from using and occupying all the
buildings constructed and from further constructing any building on the land subject of this petition. 9

Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a Resolution on
March 15, 1995, citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to
demolish the "blocktiendas" which were built in violation of the restraining order. 10

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:
 Sec. 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 function 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 incumbent
Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to
the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant seven-hectare
property adjacent to petitioners' land, evidenced by a sketch plan. 21

The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process of
law must be 
observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and
the public use character or the purpose of the taking, 23 has ruled that the necessity of exercising eminent domain must be genuine
and of a public character. 24 Government may not capriciously choose what private property should be taken.
After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations. The
uncertified photocopy of the sketch plan does not conclusively prove that the municipality does own vacant land adjacent to
petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent appellate court similarly
held that the pleadings and documents on record have not pointed out any of respondent municipality's "other available properties
available for the same purpose." 25 The accusations of political reprisal are likewise unsupported by competent evidence.
Consequently, the Court holds that petitioners' demand that the former municipal mayor be personally liable for damages is
without basis.

WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and Resolution of the Court of Appeals in the
case of "Percival Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are AFFIRMED. The Temporary
Restraining Order issued by the Court on December 8, 1993 is LIFTED.

SO ORDERED.

Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6690             March 29, 1912

SILVESTRA TENORIO Y VILLAMIL, plaintiff-appellee, 
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

Jose Robles Lahesa and O'Brien and DeWitt for appellant. 

A. B. Ritchey for appellee.

CARSON, J.:

This is an action to recover damages for the alleged unlawful detention and occupation by defendant of a small parcel of land, the
property of the plaintiff, situated near the railroad station in Dagupan in the Province of Pangasinan.

Plaintiff alleges that the land in question, some 1,219 square meters in extent, is worth P7,314.40; that before it was entered upon
by the defendant, two small houses erected thereon brought her a rental at the rate of P280 per annum, of which she has been
deprived by defendant since the month of March, 1907; that the defendant company compelled her to move three buildings from
the land taken by it, whereby shall had suffered damages in the sum of P400 and that as a result of the unlawful occupation of this
tract of land by the defendant company she had suffered further damages to the extent of P250 from the accumulation of water on
an adjoining parcel of land of which she is the owner.

Defendant company answering, admits that it has taken and is now occupying a small part of the land in question, 314 meters in
extent; but alleges that it is now and always has been ready and willing to pay the plaintiff a fair price for the land thus taken and
all damages to the remainder of her land resulting therefrom.

In explanation of the fact that it took possession of and continues to occupy this part of the land in question without the express
consent of the plaintiff and without having made payment therefor, defendant company alleges that the land taken is a part of
certain lands described in condemnation proceedings instituted in the Court of First Instance of the Province of Pangasinan,
whereby, by virtue of the authority lawfully conferred upon defendant company, it sought to have the land in question, and other
lands in that province, condemned for use as a roadbed; and while the facts are not fully developed in the record, it does appear
condemnation proceedings were regularly instituted for the purposes indicated, and there are indications in the record that the
land in question was included in the lands sought to be condemned therein, but that in those proceedings it was described as the
property of one Silvino Tenorio, although the name of the true owner, the plaintiff in this action, is, as she alleges, Silvestra
Tenorio.

The defendant company both by demurrer and answer, undertook in the court below to question plaintiff's right to maintain this
action (which is an ordinary action for damages for trespass on plaintiff's land) on the ground that under the statutory provisions
for the condemnation of lands by virtue of which defendant company had already instituted proceedings looking to the
condemnation of the land in question, it was the duty of the plaintiff to seek redress in those proceedings. But while we agree
with counsel for defendant company that, had the defendant company before entering upon and taking possession of the land in
question, proceeded in accordance with the provisions of law touching condemnation proceedings, by virtue of which it claims to
have been acting, in that event the plaintiff would not be entitled to bring a separate action; we are of opinion that in the absence
of proof of a substantial compliance with the provisions of law touching such proceedings the plaintiff was clearly entitled to
institute any appropriate action to recover the damages which she may have suffered as a result of an unauthorized and unlawful
seizure and occupation of her property.

The mode in which and maybe condemned and the steps to be taken for that purpose are prescribed either by the statute
or charter conferring the right of eminent domain or by a general law. The remedy so provided is exclusive, and as a
general rule the steps prescribed by the statute must be followed or the proceedings will be void. Since these statutes
are in derogation of general right and of common-law modes of procedure, they must be strictly construed in favor of
the landowner, and must be at least substantially or as sometimes said, "fully and fairly" complied with. Indeed the
general rule in the absence of statutory provision to the contrary, is that they must be strictly complied with. . . . Thus
the statutes must be complied with as to filing and contents of petition or application, . . . notice to the landowner and
other persons interested in the property, . . . and all other conditions precedent prescribed by the statute. (Cyclopedia of
Law and Procedure, vol. 15, pp. 815-817, and cases cited. See also American and English Encyclopedia of Law, vol.
10, p. 1054, and cases cited.)

The mode in which the defendant company was authorized to exercise the power of eminent domain is to be found in various
Acts of the Commission of which the following are pertinent citations:
 The Government of the Philippine Islands, or of any province or department thereof, or of any municipality, and any
person, or public or private corporation having by law the right to condemn private property for public use, shall
exercise that right in the manner hereinafter prescribed. (Act No. 190 of the Philippine Commission, sec. 241.)

The complaint in condemnation proceedings shall state with certainty the right of condemnation, and describe the
property sought to be condemned, showing the interest of each defendant separately. (Act No. 190, sec. 242.)

In addition to the method of procedure authorized for the exercise of the power of eminent domain by sections two
hundred and forty-one to two hundred and fifty-three, inclusive, of Act Numbered One hundred and ninety, entitled
"An Act providing a Code of Procedure in civil actions and special proceedings in the Philippine Islands," the
procedure in this Act provided may be adopted whenever a railroad corporation seeks to appropriate land for the
construction, extension, or operation of its railroad line. (Act No. 1258, sec. 1.)

Whenever a railroad corporation is authorized by its charter, or by general law, to exercise the power of eminent
domain in the city of Manila or in any province, and has not obtained by agreement with the owners thereof the lands
necessary for its purposes as authorized by law, it may in its complaint, . . . in the Court of First Instance of the
province where the land is situated, join as defendants all persons owning or claiming to own, or occupying, any of the
lands sought to be condemned, or any interest therein, within the city to province, respectively, showing, so far as
practicable, the interest of each defendant and stating with certainty the right of condemnation, and describing the
property sought to be condemned. Process requiring the defendants to appear in answer to the complaint shall be
served upon all occupants of the land sought to be condemned, and upon the owners and all persons claiming therein,
so far as known. If the title to any lands sough to be condemned appears to be in the Insular Government, although the
lands are occupied by private individuals, or if it is uncertain whether the title is in the Insular Government or in private
individuals, or if the title is otherwise so obscure or doubtful that the company can not with accuracy or certainty
specify who are the real owners, averment may be made by the company in its complaint to the effect. Process shall be
served upon residents and nonresidents in the same manner as provided therefor in Act Numbered One hundred and
ninety, . . . . (Act No. 1258, sec. 3.)

. . . The provisions . . . as to persons not notified of the condemnation proceedings, shall be as such as are defined in
sections 248 to 253, inclusive, of Act No. 190. (Act No. 1258, sec. 5, last five lines.)

Nothing herein contained shall be construed so as to injure, prejudice, defeat, or destroy the estate, right, or title of any
person claiming land or any part thereof, or any interest therein, who was not made a party defendant to the
condemnation proceeding and did not have actual or constructive notice of the proceeding in such manner as the law
requires. (Act No. 190, sec. 253.)

The record wholly fails to disclose that process requiring the plaintiff to appear and answer the complaint filed in the
condemnation proceedings was served upon her, or upon any of the occupants of the land; and this, notwithstanding the fact, as
found by the trial court and practically conceded by counsel for defendant, that she was the known owner of the land in question.

The statute authorizing the defendant company to exercise power of eminent domain, being in derogation of general right and
conferring upon it exceptional privileges with regard to the property of others of which it may have need, should be construed
strictly in favor of landowners whose property is affected by its terms. Hence before any right to take possession of land under
this statute could have been lawfully exercised by the company, the provisions of the statute must have been "fully and fairly"
complied with. Manifestly, the seizure and occupation of property without first serving process on the owners or occupants is so
gross a violation of one of the most essential conditions precedent prescribed by the statute, that no claim by the company that it
is acting or desires to act under the authority of its charter in taking possession of this property can be heard by way of defense to
an action for damages for the unlawful trespass. The right to take such land, over the objection of the owner, and to have a fair
valuation placed thereon in special proceedings prescribed by law for that purpose, is made to depend upon the compliance by the
company with certain conditions precedent, and of course no rights can or do arise unless such conditions are fully and fairly
complied with. Not only did the defendant company fail to prove in the lower court that it had served process on the owner and
the occupants of the land, but it did not even claim to have done so when its counsel undertook to introduce in evidence the
record in the pending condemnation proceedings. And, indeed, no such claim has at any time been made on its behalf.

Plaintiff's evidence as to the value of the land appropriated is not wholly satisfactory but in the absence of any evidence whatever,
worthy of the name, to put in doubt the testimony of her witnesses, we do not think that we would be justified in reversing the
findings of fact by the trial judge who arrived at his conclusions after seeing and hearing these witnesses testify.
Counsel for defendant company assigns among other errors the action of the trial judge in excluding certain testimony and insists
that the exclusion of these witnesses justifies and requires the reversal of the judgment of the court below and the return of the
record for a new trial. But while we agree with counsel that the trial judge erred in excluding certain evidence offered by the
defendant, we are satisfied upon a review of the whole record that the result would not have been otherwise had this evidence
been admitted, and we do not think that a reversal should be granted for error of this character.

We think that the evidence of defendant, including the map, whereby counsel undertook to show the exact amount of the land of
the plaintiff occupied by the roadbed of the railroad; as also the evidence offered touching the assessed valuation of the land of
the plaintiff should have been admitted for what it was worth. But we do not think that had this evidence been admitted, and
granting that it would have been the effect claimed for it by the counsel for the defendant, that the result would have been
different.

The conclusion of the trial judge from the evidence before him was that the entire tract mentioned in his judgment had been
rendered substantially worthless to the plaintiff by the unauthorized occupation of a part of it by the defendant company, and we
do not think that the evidence on which he based this conclusion would be affected by proof that only a part of the tract was
actually occupied and retained in possession. The theory on which the trial judge correctly proceeded was that defendant
company having unlawfully taken possession of a part of the tract of land in question, and by its operations thereon rendered the
whole tract worthless to the plaintiff, plaintiff is entitled to abandon the entire tract, and recover damages for its full value. So
also proof of the assessed valuation of the land in question, while proper and competent evidence in a case of this character, is at
best of but very little value in a judicial inquiry as to its actual market. We do not believe that the weight to be given the
practically undisputed testimony of the witnesses for the plaintiff as to the actual market value of the land in question would have
been materially affected by proof that this land was assessed at a valuation greatly less than that placed upon it by the trial judge.

The judgment appealed from should be and is hereby affirmed with the costs of this instance against the appellant.

Torres, Mapa, Johnson and Moreland, JJ., concur.

THIRD DIVISION

[G.R. No. 125218. January 23, 1998]

FILSTREAM INTERNATIONAL INCORPORATED, petitioner, vs. COURT OF APPEALS, JUDGE FELIPE S.

TONGCO and THE CITY OF MANILA, respondent.

[G.R. No. 128077. January 23, 1998]

FILSTREAM INTERNATIONAL INCORPORATED, petitioner, vs., COURT OF APPEALS, ORLANDO MALIT,
ANTONIO CAGUIAT, ALICIA CABRERA, ARMANDO LACHICA, JACINTO CAGUIAT, GLORIA
ANTONIO, ELIZALDE NAVARRA, DOLORES FUENTES, SUSANA ROY, ANTONIO IBANEZ, BENIGNO
BASILIO, LUCERIA DEMATULAC, FLORENCIA GOMEZ, LAZARO GOMEZ, JOSE GOMEZ,
VENANCIO MANALOTO, CRISTINO UMALI, DEMETRIA GATUS, PRISCILLA MALONG, DOMINGO
AGUILA, RAMON SAN AGUSTIN, JULIAN FERRER, JR., FRANCISCO GALANG, FLORENTINO
MALIWAT, SEVERINA VILLAR, TRINIDAD NAGUIT, JOSE NAGUIT, FORTUNATO AGUSTIN
CABRERA, GAUDENCIO INTAL, DANILO DAVID, ENRIQUE DAVID, VICENTE DE GUZMAN,
POLICARPIO LUMBA, BELEN PALMA, ELEN SOMVILLO, LEONARDO MANICAD, OPRENG MICLAT,
BENITA MATA, GREGORIO LOPEZ, MARCELINA SAPNO, JESUS MERCADO, and CALIXTO
GOMEZ, respondent.

DECISION
FRANCISCO, J.:

In resolving the instant petitions, the Court is tasked to strike a balance between the contending interests when the state
exercised its power of eminent domain. On one side we have the owners of the property to be expropriated who must be duly
compensated for the loss of their property, while on the other is the State which must take the property for public use.
Petitioner, Filstream International Inc., is the registered owner of the properties subject of this dispute consisting of
adjacent parcels of land situated in Antonio Rivera Street, Tondo II, Manila, with a total area of 3,571.10 square meters and
covered by T.C.T. Nos. 203937, 203936, 169198, 169199, 169200 and 169202 of the Register of Deeds of Manila.
On January 7, 1993, petitioner filed an ejectment suit before the Metropolitan Trial Court of Manila (Branch 15) docketed
as Civil Case No. 140817-CV against the occupants of the abovementioned parcels of land (herein private respondents in G.R.
No. 128077) on the grounds of termination of the lease contract and non-payment of rentals. Judgment was rendered by the MTC
on September 14, 1993 ordering private respondents to vacate the premises and pay back rentals to petitioner. [1]
Not satisfied, private respondents appealed the decision to the Regional Trial Court of Manila, Branch 4 (Civil Case No.
93-68130) which in turn affirmed the decision of the MTC in its decision dated February 22, 1994. Still not content, private
respondents proceeded to the Court of Appeals via a petition for review (CA-G.R. SP No. 33714). The result however remained
the same as the CA affirmed the decision of the RTC in its decision dated August 25, 1994. [2]
Thereafter, no further action was taken by the private respondents, as a result of which the decision in the ejectment suit
became final and executory.
However, it appeared that during the pendency of the ejectment proceedings private respondents filed on May 25, 1993, a
complaint for Annulment of Deed of Exchange against petitioner Filstream which was docketed in Civil Case No. 93-66059
before the RTC of Manila, Branch 43. It was at this stage that respondent City of Manila came into the picture when the city
government approved Ordinance No. 7813[3] on November 5, 1993, authorizing Mayor Alfredo S. Lim to initiate the acquisition
by negotiation, expropriation, purchase, or other legal means certain parcels of land registered under T.C.T. Nos. 169193,
169198, 169190, 169200, 169202, and 169192 of the Registry of Deeds of Manila which formed part of the properties of
petitioner then occupied by private respondents. Subsequently, the City of Manila approved Ordinance No. 7855 [4] declaring the
expropriation of certain parcels of land situated along Antonio Rivera and Fernando Ma. Guerero streets in Tondo, Manila which
were owned by Mr. Enrique Quijano Gutierez, petitioners predecessor-in-interest. The said properties were to be sold and
distributed to qualified tenants of the area pursuant to the Land Use Development Program of the City of Manila.
On May 23, 1994, respondent City of Manila filed a complaint for eminent domain (Civil Case No. 94-70560) before the
RTC of Manila, Branch 42, [5] seeking to expropriate the aforecited parcels of land owned by petitioner Filstream which are
situated at Antonio Rivera Street, Tondo II, Manila. [6]
Pursuant to the complaint filed by respondent City of Manila,the trial court issued a Writ of Possession [7] in favor of the
former which ordered the transfer of possession over the disputed premises to the City of Manila.
At this juncture, petitioner Filstream filed a motion to dismiss the complaint for eminent domain as well as a motion to
quash the writ of possession. The motion to dismiss was premised on the following grounds: no valid cause of action; the petition
does not satisfy the requirements of public use and a mere clandestine maneuver to circumvent the writ execution issued  by the
RTC of Manila, Branch 4 in the ejectment suit; violation of the constitutional guarantee against non-impairment of obligation and
contract; price offered was too low hence violative of the just compensation provision of the constitution and the said amount is
without the certification of the City Treasurer for availability of funds. [8] With respect to the motion to quash the writ of
possession, petitioner raised the following objections: failure to comply with Section 2 of Rule 67 of the Rules of Court,
Ordinance No. 7813 is a void enactment for it was approved without a public hearing and violative of the constitutional guarantee
against impairment of obligation and contracts; the price is too low and unconscionable violating the just compensation provision
of the constitution, and the said writ is tainted with infirmity considering the absence of a certification from the City of Manila
that there is an immediately available fund for the subject expropriation. [9]
Respondent City of Manila filed its opposition [10] to petitioner Filstreams two motion and to which petitioner accordingly
filed a reply.[11] On September 30, 1994, the RTC of Manila, Branch 42, issued an order denying petitioner Filstreams motion to
dismiss and the motion to quash the Writ of Possession and declared as follows:

IN FINE, the defendants motion to dismiss and motion to quash writ of possession are both without merit and are hereby
DENIED and the subject parcels of lands covered by TCT Nos. 203937, 203936, 169198, 169199, 169200, and 169202 (of the
Register of Deeds of Manila) located at Antonio Rivera Street, Tondo II, Manila with a total area of 3,571.10 square meters are
hereby declared CONDEMNED in favor of the City of Manila for distribution and resale to all poor and landless qualified
residents/tenants in the said area under the citys land-for-the-landless program upon payment of just compensation which is yet to
be determined by this Court.[12]

Petitioner filed a motion for reconsideration [13] as well as a supplemental motion for reconsideration [14] seeking the reversal
of the above-quoted order but the same were denied. [15] Still, petitioner filed a subsequent motion to be allowed to file a second
motion for reconsideration but it was also denied.
Aggrieved, petitioner filed on March 31, 1996, a Petition for Certiorari with the Court of Appeals (CA-G.R. SP No. 36904)
seeking to set aside the September 30, 1994 order of the RTC of Manila, Branch 42.  However, on March 18, 1996, respondent
CA issued a resolution dismissing the petition in this wise:

It appearing that the above-entitled petition is insufficient in form and substance -- it does not comply with Section 2(a), Rule 6
of the Revised Internal Rules of the Court of Appeals which requires that the petition shall be x x x accompanied by x x x other
pertinent documents and papers, aside from the fact that copies of the pleadings attached to the petition are blurred and
unreadable -- this Court resolved to summarily DISMISS the same (petition). [16]

Petitioner filed a motion for reconsideration and attached clearer copies of the pertinent documents and papers pursuant to
Section 2(a) Rule 6 of the Revised Internal Rules of the Court of Appeals. But on May 20, 1996, respondent CA issued a
resolution denying the motion as petitioner failed to submit clearer and readable  copies of the pleadings. [17] This prompted
petitioner to proceed to this Court giving rise to the instant petition for review on certiorari under Rule 45 and docketed herein as
G.R. No. 125218, assailing the dismissal of its petition by the CA in its resolution dated March 18, 1996 as well as that of its
motion for reconsideration in the resolution dated May 20, 1996.
Meanwhile, owing to the finality of the decision in the ejectment suit (Civil Case No 140817 CV), the MTC of Manila,
Branch 15, upon motion of petitioner Filstream, issued a Writ of Execution as well as a Notice to Vacate the disputed premises.
[18]
 Private respondents filed a Motion to Recall/Quash the Writ of Execution and Notice to Vacate[19] alleging the existence of a
supervening event in that the properties subject of the dispute have already been ordered condemned in an expropriation
proceeding in favor of the City of Manila for the benefit of the qualified occupants thereof, thus execution shall be
stayed. Petitioner opposed the motion, reiterating that the decision in the ejectment case is already final and executory and
disputed private respondents right to interpose the expropriation proceedings as a defense because the latter were not parties to
the same.
For its part, the City of Manila filed on March 13, 1996, a motion for intervention with prayer to stay/quash the writ of
execution on the ground that it is the present possessor of the property subject of execution.
In its order dated March 14, 1996, the MTC of Manila, Branch 14, denied private respondents motion as it found the
allegations therein bereft of merit and upheld the issuance of the Writ of Execution and Notice to Vacate in petitioners favor.
[20]
 Subsequently, the trial court also denied the motion filed by the City of Manila.
On April 22, 1996, the trial court issued an order commanding the demolition of the structure erected on the disputed
premises. To avert the demolition, private respondents filed before the RTC of Manila, Branch 14, a Petition for  Certiorari and
Prohibition with prayer for the issuance of a temporary restraining order and preliminary injunction (docketed as Civil Case No.
96-78098). On April 29, 1996, the RTC of Manila, Branch 33, issued a TRO enjoining the execution if the writ issued in Civil
Case No. 140817-CV by the MTC of Manila, Branch 14. [21]Subsequently, the RTC issued a writ of preliminary injunction on
May 14, 1996.[22]
On May 15, 1996, the City of Manila filed its Petition for Certiorari and Prohibition with prayer for the issuance of a
temporary restraining order and preliminary injunction which was raffled to Branch 23 of the RTC of Manila (docketed as Civil
Case No. 96-78382), seeking the reversal of the orders issued by the MTC of Manila, Branch 14, which denied its motion to
intervene and quash the writ of execution in Civil Case No. 140817-CV.
 Thereafter, upon motion filed by the City of Manila, an order was issued by the RTC of Manila, Branch 10, ordering the
consolidation of Civil Case No. 96-78382 with Civil Case No. 96-78098 pending before Branch 14 of the RTC of Manila. [23] On
May 21, 1996, the RTC of Manila, Branch 14, issued an injunction in Civil Case No. 96-78098 enjoining the implementation of
the writ of execution until further orders from the court. [24] Petitioner Filstream filed a Motion to Dissolve the Writ of Preliminary
Injunction and to be allowed to post a counter-bond but the trial court denied the same.  Filstream then filed a motion for
reconsideration from the order of denial but pending resolution of this motion for voluntary inhibition of the presiding judge of
the RTC of Manila, Branch 14. The motion for inhibition was granted [25] and as a result, the consolidated cases (Civil Case No.
96-78382 and 96-78098) were re-raffled to the RTC of Manila, Branch 33.
During the proceedings before the RTC of Manila, Branch 33, petitioner Filstream moved for the dismissal of the
consolidated cases (Civil Case No. 96-78382 and 96-78098) for violation of Supreme Court Circular No. 04-94 (forum shopping)
because the same parties, causes of action and subject matter involved therein have already been disposed of in the decision in the
ejectment case (Civil Case No. 140817) which has already become final and executory prior to the filing of these consolidated
cases.
On December 9, 1996, an order was issued by the RTC of Manila, Branch 33, ordering the dismissal of Civil Cases Nos.
96-78382 and 96-78098 for violation of Supreme Court Circular No. 04-94. [26] Immediately thereafter, petitioner Filstream filed
an Ex-parte Motion for Issuance of an Alias Writ of Demolition and Ejectment and a supplemental motion to the same dated
January 10 and 13, 1997, respectively,[27] before the MTC of Manila, Branch 15, which promulgated the decision in the ejectment
suit (Civil Case No. 140817-CV). On January 23, 1997, the court granted the motion and issued the corresponding writ of
demolition.
As a consequence of the dismissal of the consolidated cases, herein private respondents filed a Petition for  Certiorari and
Prohibition with prayer for the issuance of a temporary restraining order and preliminary injunction before the Court of Appeals
(docketed as CA-G.R. SP No. 43101)[28] assailing the above-mentioned order of dismissal by the RTC of Manila, Branch 33, as
having been issued with grave abuse of discretion tantamount to lack or in excess of jurisdiction.
In a resolution dated January 28, 1997, the Court of Appeals granted herein private respondents prayer for the issuance of a
temporary restraining order and directed the MTC of Manila, Branch 15, to desist from implementing the order of demolition
dated January 23, 1997, unless otherwise directed.[29]
At the conclusion of the hearing for the issuance of a writ of preliminary injunction, the Court of Appeals, in its resolution
dated February 18, 1997, found merit in private respondents allegations in support of their application of the issuance of the writ
and granted the same, to wit:

Finding that the enforcement or implementation of the writ of execution and notice to vacate issued in Civil Case No. 140817-
CV, the ejectment case before respondent Judge Jiro, during the pendency of the instant petition, would probably be in violation
of petitioners right, and would tend to render the judgment in the instant case ineffectual, and probably work injustice to the
petitioners, the application for the issuance of a writ of preliminary injunction is hereby GRANTED.

WHEREFORE, upon the filing of a bond in the amount of P150,000.00, let a writ of preliminary injunction be issued
enjoining respondents, their employees, agents, representatives and anyone acting in their behalf from enforcing or executing the
writ of execution and notice to vacate issued in Civil Case No. 140817-CV of the court of respondent Judge Jiro, or otherwise
disturbing the status quo, until further orders of this Court.[30]

In turn, petitioner Filstream is now before this Court via a Petition for Certiorari under Rule 65 (G.R. No. 128077), seeking
to nullify the Resolutions of the Court of Appeals dated January 28, 1997 and February 18, 1997 which granted herein private
respondents prayer for a TRO and Writ of Preliminary Injunction, the same being null and void for having been issued in grave
abuse of discretion.
Upon motion filed by petitioner Filstream, in order to avoid any conflicting decision on the legal issues raised in the
petitions, the Court ordered that the later petition, G.R. No. 128077 be consolidated with G.R. No. 128077 in the resolution of
March 5, 1997.[31]
The issue raised in G.R. No. 125218 is purely procedural and technical matter.  Petitioner takes exception to the resolutions
of respondent CA dated March 18, 1996 and May 20, 1996 which ordered the dismissal of its Petition for  Certiorari for non-
compliance with Sec. 2(a) of Rule 6 of the Revised Internal Rules of the Court of Appeals by failing to attach to its petition other
pertinent documents and papers and for attaching copies of pleadings which are blurred and unreadable. Petitioner argues that
respondent appellate court seriously erred in giving more premium to form rather than the substance.
We agree with the petitioner. A strict adherence to the technical and procedural rules in this case would defeat rather than
meet the ends of justice as it would result in the violation of the substantial rights of petitioner.  At stake in the appeal filed by
petitioner before the CA is the exercise of their property rights over the disputed premises which have been expropriated and
have in fact been ordered condemned in favor of the City of Manila. In effect, the dismissal of their appeal in the expropriation
proceedings based on the aforementioned grounds is tantamount to a deprivation of property without due process of law as it
would automatically validate the expropriation proceedings based on the aforementioned grounds is tantamount to a deprivation
of property without due process of law as it would automatically validate the expropriation proceedings which the petitioner is
still disputing. It must be emphasized that where substantial rights are affected, as in this case, the stringent application of
procedural rules may be relaxed if only to meet the ends of substantial justice.
In these instances, respondent CA can exercise its discretion to suspend its internal rules and allow the parties to present
and litigate their causes of action so that the Court can make an actual and complete disposition of the issues presented in the
case. Rather than simply dismissing the petition summarily for non-compliance with respondent courts internal rules, respondent
CA should have instead entertained petitioner Filstreams petition for review on Certiorari, and ordered petitioner to submit the
corresponding pleadings which it deems relevant and replace those which are unreadable. This leniency could not have caused
any prejudiced to the rights of the other parties.
With regard to the other petition, G.R. No. 128077, petitioner Filstream objects to the issuance by respondent CA of the
restraining order and the preliminary injunction enjoining the execution of the writ of demolition issued in the ejectment suit
(Civil Case No. 140817-CV) as an incident to private respondents pending petition assailing the dismissal by the RTC of Manila,
Branch 33, of the consolidated petitions for certiorari filed by private respondents and the City of Manila on the ground of forum
shopping.
The propriety of the issuance of the restraining order and the writ of preliminary injunction is but a mere incient to the
actual controversy which is rooted in the assertion of the conflicting rights of the parties in this case over the disputed
premises. In order to determine whether private respondents are entitled to the injunctive reliefs granted by respondent CA, we
deemed it proper to extract the source of discord.
Petitioner Filstream anchors its claim by virtue of its ownership over the properties and the existence of a final and
executory judgment against private respondents ordering the latters ejectment from the premises (Civil Case No. 140817-CV).
Private respondents claim on the other hand hinges on an alleged supervening event which has rendered the enforcement of
petitioners rights moot, that is, the expropriation proceedings (Civil Case No. 94-70560) undertaken by the City of Manila over
the disputed premises for the benefit of herein private respondents. For its part, the City of Manila is merely exercising its power
of eminent domain within its jurisdiction by expropriating petitioners properties for public use.
There is no dispute as to the existence of a final and executory judgment in favor of petitioner Filstream ordering the
ejectment of private respondents from the properties subject of this dispute. The judgment in the ejectment suit became final and
executory after private respondents failed to interpose any appeal from the adverse decision of the Court of Appeals dated August
25, 1994 in CA-G.R. SP No. 33714. Thus, petitioner has every right to assert the execution of this decision as it had already
became final and executory.
However, it must also be conceded that the City of Manila has an undeniable right to exercise its power of eminent domain
within its jurisdiction. The right to expropriate private property for public use is expressly granted to it under Section 19 of the
1991 Local Government Code, to wit:

SECTION 19. Eminent Domain A local government unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, that the
power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such
offer was not accepted; Provided, further, That the local government unit may immediately take possession of the property upon
the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen (15%) of the fair
market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That the
amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the
time of the taking of the property. (Italics supplied) 

More specifically, the City of Manila has the power to expropriate private property in the pursuit of its urban land reform
and housing program as explicitly laid out in the Revised Charter of the City of Manila (R.A. No. 409) as follows:

General powers The city may have a common seal and alter the same at pleasure, and may take, purchase, receive, hold, lease,
convey, and dispose of real and personal property for the general interest of the city, condemn private property for public
use, contract and be contracted with, sue and be sued, and prosecute and defend to final judgment and execution, and exercise all
the powers hereinafter conferred. (R.A. 409, Sec. 3; Italics supplied).

x x x x x x x x x
Sec. 100. The City of Manila is authorized to acquire private lands in the city and to subdivide the same into home lots for sale
on easy terms to city residents, giving first priority to the bona fide tenants or occupants of said lands, and second priority to
laborers and low-salaried employees. For the purpose of this section, the city may raise necessary funds by appropriations of
general funds, by securing loans or by issuing bonds, and, if necessary, may acquire the lands through expropriation proceedings
in accordance with law, with the approval of the Presidentx x x. (Italics supplied).

In fact, the City of Manilas right to exercise these prerogatives notwithstanding the existence of a final and executory
judgment over the property to be expropriated has been upheld by this Court in the case of Philippine Columbian Association vs.
Panis, G.R. No. 106528, December 21, 1993. [32] Relying on the aforementioned provisions of the Revised Charter of the City of
Manila, the Court declared that:

The City of Manila, acting through its legislative branch, has the express power to acquire private lands in the city and subdivide
these lands into home lots for sale to bona-fide tenants or occupants thereof, and to laborers and low-salaried employees of the
city.

That only a few could actually benefit from the expropriation of the property does not diminish its public use character. It is
simply not possible to provide all at once land and shelter for all who need them (Sumulong v. Guerrero, 154 SCRA 461 [1987]).

Corollary to the expanded notion of public use, expropriation is not anymore confined to vast tracts of land and landed estates
(Province of Camarines Sur v. Court of Appeals, G.R. Nol 103125, May 17, 1993; J. M. Tuason and Co., Inc. v. Land Tenure
Administration, 31 SCRA 413 [1970]). It is therefore of no moment that the land sought to be expropriated in this case is less
than the half a hectare only (Pulido v. Court of Appeals, 122 SCRA 63 [1983]).

Through the years, the public use requirement in eminent domain has evolved into a flexible concept, influenced by changing
conditions (Sumulong v. Guerrero, supra; Manotok v. National Housing Authority, 150 SCRA 89 [1987]; Heirs of Juancho
Ardona v. Reyes, 125 SCRA 220 [1983]). Public use now includes the broader notion of indirect public benefit or advantage,
including a particular, urban land reform and housing.[33]

We take judicial notice of the fact that urban land reform has become a paramount task in view of the acute shortage of
decent housing in urban areas particularly in Metro Manila. Nevertheless, despite the existence of a serious dilemma, local
government units are not given an unbridled authority when exercising their power of eminent domain in pursuit of solutions to
these problems. The basic rules still have to be followed, which are as follows: 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. 3, Sec. 1, 1987
Constitution); private property shall not be taken for public use without just compensation (Art. 3, Section 9, 1987
Constitution).Thus the exercise by local government units of the power of eminent domain is not without limitations.  Even
Section 19 of the 1991 Local Government Code is very explicit that it must comply with the provisions of the Constitution and
pertinent laws, to wit:

SECTION 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: x x x. (Italics supplied).

The governing law that deals with the subject of expropriation for purposes of urban land reform and housing in Republic
Act No. 7279 (Urban Development and Housing Act of 1992) and Sections 9 and 10 of which specifically provide as follows:

Sec. 9. Priorities in the acquisition of Land Lands for socialized housing shall be acquired in the following order:

(a) Those owned by the Government or any of its sub-divisions, instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and Resettlement
Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and 

(f) Privately-owned lands.

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give budgetary priority to on-site development of government lands.

Sec. 10. Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include, among
others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint
venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only
when other modes of acquisition have been exhausted: Provided further, That where expropriation is resorted to, parcels of land
owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein
defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules
of Court.

For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by the local government
units, or by the National Housing Authority primarily through negotiated purchase: Provided, That qualified beneficiaries who
are actual occupants of the land shall be given the right of first refusal. (Italics supplied).

Very clear from the above quoted provisions are the limitations with respect to the order of priority in acquiring private
lands and in resorting to expropriation proceedings as means to acquire the same.  Private lands rank last in the order of priority
for purposes of socialized housing. In the same vein, expropriation proceedings are to be resorted to only when the other modes
of acquisition have been exhausted. Compliance with these conditions must be deemed mandatory because these are the only
safeguards in securing the right of owners of private property to due process when their property is expropriated for public use.
Proceeding from the parameters laid out in the above disquisitions, we now pose the crucial question:  Did the city of
Manila comply with the abovementioned conditions when it expropriated petitioner Filstreams properties?  We have carefully
scrutinized the records of this case and found nothing that would indicate the respondent City of Manila complied with Sec. 9 and
Sec. 10 of R.A. 7279. Petitioners Filstreams properties were expropriated and ordered condemned in favor of the City of Manila
sans any showing that resort to the acquisition of other lands listed under Sec. 9 of RA 7279 have proved futile.  Evidently, there
was a violation of petitioner Filstreams right to due process which must accordingly be rectified.
Indeed, it must be emphasized that the State has a paramount interest in exercising its power of eminent domain for the
general good considering that the right of the State to expropriate private property as long as it is for public use always takes
precedence over the interest of private property owners. However we must not lose sight of the fact that the individual rights
affected by the exercise of such right are also entitled to protection, bearing in mind that the exercise of this superior right cannot
override the guarantee of due process extended by the law to owners of the property to be expropriated. In this regard, vigilance
over compliance with the due process requirements is in order.
WHEREFORE, the petitions are hereby GRANTED. In G.R. 125218, the resolutions of the Court of Appeals in CA-G.R.
SP No. 36904 dated March 18, 1996 and May 20, 1996 are hereby REVERSED and SET ASIDE. In G.R. No. 128077, the
resolution of the Court of Appeals in CA-G.R. SP No. 43101 dated January 28, 1997 and February 18, 1997 are REVERSED and
SET ASIDE.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Melo, and Panganiban, JJ., concur.
 SECOND DIVISION

 
 
REPUBLIC OF THE PHILIPPINES, G.R. No. 185091
REPRESENTED BY THE
DEPARTMENT OF EDUCATION
DIVISION OF LIPA CITY (FOR
PANINSINGIN PRIMARY SCHOOL),
Petitioner, Present:
CARPIO, J., Chairperson, 
- versus - ABAD,
VILLARAMA, JR.,*
PEREZ,** and
MENDOZA, JJ.
PRIMO MENDOZA and
MARIA LUCERO, Promulgated:
Respondents.
August 8, 2010
 
x --------------------------------------------------------------------------------------- x 
 
DECISION
 
ABAD, J.:
 
This case is about the propriety of filing an ejectment suit against the Government for its failure to acquire ownership
of a privately owned property that it had long used as a school site and to pay just compensation for it.
 
 
 
The Facts and the Case
 
 
Paninsingin Primary School (PPS) is a public school operated by petitioner Republic of the Philippines (the Republic)
through the Department of Education. PPS has been using 1,149 square meters of land in Lipa City, Batangas since 1957 for its
school. But the property, a portion of Lots 1923 and 1925, were registered in the name of respondents Primo and Maria Mendoza
(the Mendozas) under Transfer Certificate of Title (TCT) T-11410.[1]
 
On March 27, 1962 the Mendozas caused Lots 1923 and 1925 to be consolidated and subdivided into four lots, as
follows:
 
Lot 1 292 square meters in favor of Claudia Dimayuga
Lot 2 292 square meters in favor of the Mendozas
Lot 3 543 square meters in favor of Gervacio Ronquillo; and
Lot 4 1,149 square meters in favor of the City Government of Lipa[2]
 
As a result of subdivision, the Register of Deeds partially cancelled TCT T-11410 and issued new titles for Lots 1 and 3
in favor of Dimayuga and Ronquillo, respectively. Lot 2 remained in the name of the  Mendozas but no new title was issued in the
name of the City Government of Lipa for Lot 4.[3] Meantime, PPS remained in possession of the property.
 
The Republic claimed that, while no title was issued in the name of the City Government of Lipa, the  Mendozas had
relinquished to it their right over the school lot as evidenced by the consolidation and subdivision plan. Further, the property had
long been tax-declared in the name of the City Government and PPS built significant, permanent improvements on the same.
These improvements had also been tax-declared. [4]
 
The Mendozas claim, on the other hand, that although PPS sought permission from them to use the property as a school site, they
never relinquished their right to it. They allowed PPS to occupy the property since they had no need for it at that time. Thus, it
has remained registered in their name under the original title, TCT T-11410, which had only been partially cancelled. 
 
On November 6, 1998 the Mendozas wrote PPS, demanding that it vacate the disputed property. [5] When PPS declined
to do so, on January 12, 1999 the Mendozas filed a complaint with the Municipal Trial Court in Cities (MTCC) of Lipa City in
Civil Case 0002-99 against PPS for unlawful detainer with application for temporary restraining order and writ of preliminary
injunction.[6]
 
On July 13, 1999 the MTCC rendered a decision, dismissing the complaint on ground of the Republics immunity from
suit.[7] The Mendozas appealed to the Regional Trial Court (RTC) of Lipa City which ruled that the Republics consent was not
necessary since the action before the MTCC was not against it. [8]
In light of the RTCs decision, the Mendozas filed with the MTCC a motion to render judgment in the case before it.
[9]
 The MTCC denied the motion, however, saying that jurisdiction over the case had passed to the RTC upon appeal. [10] Later, the
RTC remanded the case back to the MTCC, [11] which then dismissed the case for insufficiency of evidence. [12] Consequently,
the Mendozas once again appealed to the RTC in Civil Case 2001-0236.
 
On June 27, 2006 the RTC found in favor of the Mendozas and ordered PPS to vacate the property. It held that
the Mendozas had the better right of possession since they were its registered owners. PPS, on the other hand, could not produce
any document to prove the transfer of ownership of the land in its favor. [13] PPS moved for reconsideration, but the RTC denied
it. 
 
The Republic, through the Office of the Solicitor General (OSG), appealed the RTC decision to the Court of Appeals
(CA) in CA-G.R. SP 96604 on the grounds that: (1) the Mendozas were barred by laches from recovering possession of the
school lot; (2) sufficient evidence showed that the Mendozas relinquished ownership of the subject lot to the City Government of
Lipa City for use as school; and (3) Lot 4, Pcs-5019 has long been declared in the name of the City Government since 1957 for
taxation purposes.[14]
 
In a decision dated February 26, 2008, the CA affirmed the RTC decision. [15] Upholding the Torrens system, it
emphasized the indefeasibility of the Mendozas registered title and the imprescriptible nature of their right to eject any person
occupying the property. The CA held that, this being the case, the Republics possession of the property through PPS should be
deemed merely a tolerated one that could not ripen into ownership. 
 
The CA also rejected the Republics claim of ownership since it presented no documentary evidence to prove the
transfer of the property in favor of the government.Moreover, even assuming that the Mendozas relinquished their right to the
property in 1957 in the governments favor, the latter never took steps to have the title to the property issued in its name or have
its right as owner annotated on the Mendozas title. The CA held that, by its omissions, the Republic may be held in estoppel to
claim that the Mendozaswere barred by laches from bringing its action. 
 
With the denial of its motion for reconsideration, the Republic has taken recourse to this Court  via petition for review
on certiorari under Rule 45.
 
The Issue Presented
 
The issue in this case is whether or not the CA erred in holding that the  Mendozas were entitled to evict the Republic
from the subject property that it had used for a public school.
 
The Courts Ruling
 
A decree of registration is conclusive upon all persons, including the Government of the Republic and all its branches,
whether or not mentioned by name in the application for registration or its notice. [16] Indeed, title to the land, once registered, is
imprescriptible.[17] No one may acquire it from the registered owner by adverse, open, and notorious possession. [18] Thus, to a
registered owner under the Torrens system, the right to recover possession of the registered property is equally imprescriptible
since possession is a mere consequence of ownership.
 
Here, the existence and genuineness of the Mendozas title over the property has not been disputed. While the
consolidation and subdivision plan of Lots 1923 and 1925 shows that a 1,149 square meter lot had been designated to the City
Government, the Republic itself admits that no new title was issued to it or to any of its subdivisions for the portion that PPS had
been occupying since 1957.[19]
 
That the City Government of Lipa tax-declared the property and its improvements in its name cannot defeat
the Mendozas title. This Court has allowed tax declarations to stand as proof of ownership only in the absence of a certificate of
title.[20] Otherwise, they have little evidentiary weight as proof of ownership. [21]
 
The CA erred, however, in ordering the eviction of PPS from the property that it had held as government school site for
more than 50 years. The evidence on record shows that the Mendozas intended to cede the property to the City Government of
Lipa permanently. In fact, they allowed the city to declare the property in its name for tax purposes.And when they sought in
1962 to have the bigger lot subdivided into four, the Mendozas earmarked Lot 4, containing 1,149 square meters, for the City
Government of Lipa.Under the circumstances, it may be assumed that the Mendozas agreed to transfer ownership of the land to
the government, whether to the City Government of Lipa or to the Republic, way back but never got around to do so and the
Republic itself altogether forgot about it. Consequently, the Republic should be deemed entitled to possession pending
the Mendozas formal transfer of ownership to it upon payment of just compensation.
The Court holds that, where the owner agrees voluntarily to the taking of his property by the government for public use,
he thereby waives his right to the institution of a formal expropriation proceeding covering such property.  Further, as the Court
also held in Eusebio v. Luis,[22] the failure for a long time of the owner to question the lack of expropriation proceedings covering
a property that the government had taken constitutes a waiver of his right to gain back possession. The Mendozas remedy is an
action for the payment of just compensation, not ejectment.
 
In Republic of the Philippines v. Court of Appeals,[23] the Court affirmed the RTCs power to award just compensation
even in the absence of a proper expropriation proceeding. It held that the RTC can determine just compensation based on the
evidence presented before it in an ordinary civil action for recovery of possession of property or its value and damages.  As to the
time when just compensation should be fixed, it is settled that where property was taken without the benefit of expropriation
proceedings and its owner filed an action for recovery of possession before the commencement of expropriation proceedings, it is
the value of the property at the time of taking that is controlling. [24]
 
Since the MTCC did not have jurisdiction either to evict the Republic from the land it had taken for public use or to
hear and adjudicate the Mendozas right to just compensation for it, the CA should have ordered the complaint for unlawful
detainer dismissed without prejudice to their filing a proper action for recovery of such compensation.
 
WHEREFORE, the Court partially GRANTS the petition, REVERSES the February 26, 2008 decision and the
October 20, 2008 resolution of the Court of Appeals in CA-G.R. 96604, and ORDERS the dismissal of respondents Primo and
Maria Mendozas action for eviction before the Municipal Trial Court in Cities of Lipa City in Civil Case 0002-99 without
prejudice to their filing an action for payment of just compensation against the Republic of the Philippines or, when appropriate,
against the City of Lipa.
 
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-15870 December 3, 1919

VISAYAN REFINING COMPANY, DEAN C. WORCESTER, and FRED A. LEAS, petitioners, 
vs.
HON. MANUEL CAMUS, Judge of the Court of First Instance of the Province of Rizal and HON. QUINTIN PAREDES,
Attorney-General of the Philippine Islands, respondents.

Kincaid and Perkins for petitioners.

Assistant Attorney-General Reyes for respondents.

STREET, J.:

This is an original petition, directed to the Supreme Court, containing an alternative prayer for a writ of certiorarior prohibition,
as the facts may warrant, to stop certain condemnation proceedings instituted by the Government of the Philippine Islands, and
now pending in the Court of First Instance of the Province of Rizal. The respondents have interposed what is called an answer,
but which is in legal effect merely a demurrer, challenging the sufficiency of the allegations of the petition. The matter having
been submitted upon oral argument, the cause is now before us for the decision of the question thus presented.

It appears that upon September 13, 1919, the Governor-General directed the Attorney-General to cause condemnation
proceedings to be begun for the purpose of expropriating a tract of land of an area of about 1,100,463 square meters, commonly
known as the site of Camp Tomas Claudio. Said land is located in the municipality of Parañaque, Province of Rizal, and lies
along the water front of Manila Bay, a few miles south of the city of Manila. It is stated in communication of the Governor-
General that the property in question is desired by the Government of the Philippine Islands for military and aviation purposes.

In conformity with the instructions of the Governor-General, condemnation proceedings were begun by the Attorney-General on
September 15, 1919, by filing a complaint in the name of the Government of the Philippine Islands in the Court of First Instance
of the Province of Rizal. Numerous persons are named in the complaint as defendants because of their supposed ownership of
portions of the property intended to be expropriated. In the list of persons thus impleaded appear the names of the three
petitioners herein, namely, the Visayan Refining Co., Dean C. Worcester, and Fred A. Leas, who are severally owners of
different portions of the property in question.

In the communication of the Governor-General, the Attorney-General was directed immediately upon filing the complaint to ask
the court to give the Government the possession of the land to be expropriated, after the necessary deposit should be made as
provided by law. Accordingly in the complaint itself the Attorney-General prayed the court promptly and provisionally to fix the
sum of P600,000 as the total value of the property and to put the Government in immediate possession when said sum should be
placed at the disposition of the court. An order was accordingly made on September 15, 1919, by the Honorable Judge Manuel
Camus, of the Court of First Instance of the Province of Rizal, fixing the value of the property provisionally at the amount stated
and ordering that the plaintiff be placed in possession, it being made to appear that a certificate of deposit for the amount stated
had been delivered to the provincial treasurer.

At this stage of the proceedings in the Court of First Instance the three respondents already mentioned, to wit, the Visayan
Refining Co., Dean C. Worcester, and Fred A. Leas, interposed a demurrer, questioning the validity of the proceedings on the
ground that there is no Act of the Philippine Legislature authorizing the exercise of the power of eminent domain to acquire land
for military or aviation purposes.

Contemporaneously with the filing of their demurrer, the same parties moved the Court of First Instance to revoke its order of
September 15, giving the plaintiff provisional possession. This motion is based substantially on the same ground as the demurrer,
that is, the lack of legislative authority for the proposed expropriation, but it contains one additional allegation to the effect that
the deposit in court of the sum of P600,000, had been made without authority of law. In support of this contention it was shown,
by means of an informal communication from the Insular Auditor, that the money in question had been taken from the
unexpended balance of the funds appropriated by Acts Nos. 2748 and 2785 of the Philippine Legislature for the use of the Militia
Commission. This appropriation showed, upon the date said deposit of P600,000 was made, an unexpended balance of
P1,144,672.83.

On October 3, 1919, the Judge of the Court of First Instance overruled the demurrer interposed by the three parties mentioned
and denied their motion to vacate the order granting possession to the Government. The present proceeding was thereupon
instituted in this Court in the manner and for the purpose already stated.

General authority to exercise the power of eminent domain is expressly conferred on the Government of the Philippine Islands, as
now constituted by section 63 of the Philippine Bill, which reads as follows:
 That the Government of the Philippine Islands is hereby authorized, subject to the limitation and conditions prescribed
in this Act to acquire, receive, hold, maintain, and convey title to real and personal property, and may acquire real
estate for public uses by the exercise of the right of eminent domain. (Act of Congress of July 1, 1902.)

Section 3 of the Jones Act contains the further provision that "private property shall not be taken for public use without just
compensation." In addition to this there is found in the same section the familiar provision, already expressed in section 5 of the
Philippine Bill, that no law shall be enacted which shall deprive any person of property without due process of law, or deny any
person the equal protection of the laws. (Acts of Congress of August 29, 1916, sec. 3.)

Section 64 of the Administrative Code of the Philippine Islands (Act No. 2711) expressly confers on the Government General the
power, among others:

To determine when it is necessary or advantageous to exercise the right of eminent domain in behalf of the Government
of the Philippine Islands; and to direct the Attorney-General, where such at is deemed advisable, to cause the
condemnation proceedings to be begun in the court having proper jurisdiction.

The procedural provisions relative to the conduct of expropriation proceedings are contained in section 241 to 253, inclusive, of
the Code of Civil Procedure, supplemented as they are by various later Acts of the Legislature. Among the salient features of the
scheme of expropriation thus created are these: (1) If the court is of the opinion that the right of expropriation exists, three
commissioners are appointed to hear the parties, view the premises, and assess the damages to be paid for the condemnation (sec.
243 Code Civ. Proc.); (2) after hearing the evidence submitted by the parties and assessing the damages in the manner prescribed
by law (sec. 244), the commissioners make their report to the court, setting forth all their proceedings; and it is expressly declared
that "none of their proceedings shall be effectual to bind the property or the parties until the court shall have accepted their report
and rendered judgment in accordance with its recommendations" (sec. 245); (3) the court then acts upon the report, accepting the
same in whole or in part, or rejecting, recommitting, or setting aside the same, as it sees fit (sec. 246).

It is further declared in section 246 that —

The court . . . may make such final order and judgment as shall secure to the plaintiff the property essential to the
exercise of his rights under the law, and to the defendant just compensation for the land so taken; and the judgment
shall require payment of the sum awarded as provided in the next section (i.e., sec. 247) before the plaintiff can enter
upon the ground and appropriate it to the public use.

Sections 247 and 251 of the same Code are of sufficient importance in this connection to warrant quotation in their entirety. They
are as follows:

SEC. 247. Rights of Plaintiff After the Judgment. — Upon payment by the plaintiff to the defendant of compensation as
fixed by the judgment, or after tender to him of the amount so fixed and payment of the costs, the plaintiffs shall have
the right to enter in and upon the land so condemned, to appropriate the same to the public use defined in the judgment.
In case the defendant and his attorney absent themselves from the court or decline to receive the same, payment may be
made to the clerk of the court for him, and such officer shall be responsible on his bond therefor and shall be compelled
to receive it."

SEC. 251. Final Judgment, Its Record and Effect. — The record of the final judgment in such action shall state
definitely, by meters and bounds and adequate description, the particular land or interest in land condemned to the
public use, and the nature of the public use. A certified copy of the record of the judgment shall be recorded in the
office of the registrar of deeds for the province in which the estate is situated, and its effect shall be to vest in the
plaintiff for the public use stated the land and estate so described.

The provisions which deal with the giving of immediate possession when the Government of the Philippine Islands is the plaintiff
are found in Act No. 2826, which is in part as follows:

SEC. 2. When condemnation proceedings are instituted by or in favor of the Insular Government . . . in any competent
court of the Philippines, the plaintiff shall be entitled to enter immediately upon the land covered by such proceedings,
after depositing with the provincial treasurer the value of said land in cash, as previously and promptly determined and
fixed by the competent court, which money the provincial treasurer shall retain subject to the order and final decision of
the court: Provided, however, That the court may permit that in lieu of cash, there may be deposited with the provincial
treasurer a certificate of deposit of any depository of the Government of the Philippine Islands, payable to the
 provincial treasurer on sight, for the sum ordered deposited by the court. The certificate and the sums represented by it
shall be subject to the order and final decision of the court, and the court shall have authority to place said plaintiff in
possession of the land, upon such deposit being made, by the proper orders and a mandate, if necessary.

SEC. 3. . . . Upon the payment by the plaintiff to the defendants of the compensation awarded by the sentence, or after
the tender of said sum to the defendants, and the payment of the costs, or in case the court orders the price to be paid
into court, the plaintiff shall be entitled to appropriate the land so condemned to the public use specified in the
sentence. In case payment is made to the court, the clerk of the same shall be liable on his bond for the sum so paid and
shall be obliged to receive the same.

In connection with the foregoing provisions found in laws enact under the American regime is to be considered the following
provision of the Civil Code:

ART. 349. No one may be deprived of his property unless it be by competent authority for some purpose of proven
public utility and after payment of the proper compensation.

Unless this requisite has been complied with, it shall be the duty of the court to protect the owner of such property in its
possession or to restore its possession to him, as the case may be.

Taken together the laws mentioned supply a very complete scheme of judicial expropriation, deducing the authority from its
ultimate source in sovereignty, providing in detail for the manner of its exercise, and making the right of the expropriator finally
dependent upon payment of the amount awarded by the court.

As has already been indicated the petition before us proceeds on the idea that the expropriation proceedings in question cannot be
maintained by the Philippine Government in the absence of a statute authorizing the exercise of the power of eminent domain for
military and aviation purposes; and while it is not urged that a special legislative Act must be passed every time any particular
parcel of property is to be expropriated, it is 
claimed — and this really amounts to the same thing — that the Government cannot institute and prosecute expropriation
proceedings unless there is already in existence a legislative appropriation especially destined to pay for the land to be taken.

We are of the opinion that the contentions of the petitioners, in whatever way they may be understood or expressed, are not well
founded. There is one point at least on which all must agree, namely, that if land can be taken by the Government for a public use
at all, the use intended to be made of the land now in question, that is, for military and aviation purposes, is a public use. It is
undeniable that a military establishment is essential to the maintenance of organized society, and the courts will take judicial
notice of the recent progress of the military and naval arts resulting from the development of aeronautics.

The question as to the abstract authority of the Government to maintain expropriation proceedings upon the initiative of the
Governor-General should not be confused with that which has reference to the necessity for a legislative appropriation. They
really involve different problems and will be separately considered.

Upon the first, we are of the opinion that in this jurisdiction at least expropriation proceedings may be maintained upon the
exclusive initiative of the Governor-General, without the aid of any special legislative authority other than that already on the
statute books. Furthermore, if the Government complies with the requirements of law relative to the making of a deposit in court,
provisional possession of the property may be at once given to it, just as is permitted in the case of any other person or entity
authorized by law to exercise the power eminent domain. Special legislative authority for the buying of a piece of land by the
Government is no more necessary than for buying a paper of pain; and in the case of a forced taking of property against the will
of the owner, all that can be required of the government is that should be able to comply with the conditions laid down by law as
and when those conditions arise.

The contention that the authority to maintain such a proceeding cannot be delegated by the Legislature to the Chief Executive, is
in our opinion wholly erroneous and apparently has its basis in a misconception of fundamentals. It is recognized by all writers
that the power of eminent domain is inseparable from sovereignty being essential to the existence of the State and inherent in
government even in its most primitive forms. Philosophers and legists may differ as to the grounds upon which the exercise of
this high power is to be justified, but no one can question its existence. No law, therefore, is ever necessary to confer this right
upon sovereignty or upon any government exercising sovereign or quasi-sovereign powers.

As is well said by the author of the article on Eminent Domain in the encyclopædic treaties Ruling Case Law.
 The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in
sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in
most of the state constitutions relating to the taking of property for the public use do not by implication grant the power
to the government of the state, but limit a power which would otherwise be without limit. (10, R. C. L., pp. 11, 12.)

In other words, the provisions now generally found in the modern laws of constitutions of civilized countries to the effect that
private property shall not be taken for public use without compensation have their origin in the recognition of a necessity for
restraining the sovereign and protecting the individual. Moreover, as will be at once apparent, the performance of the
administrative acts necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition in the
Sovereign or other Chief Executive. Therefore, when the Philippine Legislature declared in section 64 of the Administrative
Code, that the Governor-General, who exercises supreme executive power in these Islands (sec. 21, Jones Act), should be the
person to direct the initiation of expropriation proceedings, it placed the authority exactly where one would expect to find it, and
we can conceive of no ground upon which the efficacy of the statute can reasonably be questioned.

We would not of course pretend that, under our modern system of Government, in which the Legislature plays so important a
role, the executive department could, without the authority of some statute, proceed to condemn property for its own uses;
because the traditional prerogatives of the sovereign are not often recognized nowadays as a valid source of power, at least in
countries organized under republican forms of government. Nevertheless it may be observed that the real check which the
modern Legislature exerts over the Executive Department, in such a matter as this, lies not so much in the extinction of the
prerogative as in the fact the hands of the Executive can always be paralyzed by lack of money — something which is ordinarily
supplied only by the Legislature.

At any rate the conclusion is irresistible that where the Legislature has expressly conferred the authority to maintain expropriation
proceedings upon the Chief Executive, the right of the latter to proceed therein is clear. As is said by the author of the article from
which we have already quoted, "Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly
legislative. The executive authorities may then decide whether the power will be invoked and to what extent." (10 R. C. L., p.
14.)

The power of eminent domain, with respect to the conditions under which the property is taken, must of course be exercised in
subjection to all the restraints imposed by constitutional or organic law. The two provisions by which the exercise of this power is
chiefly limited in this jurisdiction are found in the third section of the Jones Act, already mentioned, which among other things
declares (1) that no law shall be enacted which shall deprive any person of property without due process of law and (2) that
private property shall not be taken for public use without just compensation. The latter of these provisions is directly aimed at the
taking of property under the exercise of the power of eminent domain; and as this requirement, in connection with the statutes
enacted to make sure the payment of compensation, usually affords all the protection that the owner of property can claim, it
results that the due process clause is rarely invoked by the owner in expropriation proceedings.

Nevertheless it should be noted that the whole problem of expropriation is resolvable in its ultimate analysis into a constitutional
question of due process of law. The specific provisions that just compensation shall be made is merely in the nature of a
superadded requirement to be taken into account by the Legislature in prescribing the method of expropriation. Even were there
no organic or constitutional provision in force requiring compensation to be paid, the seizure of one's property without payment,
even though intended for a public use, would undoubtedly be held to be a taking without due process of law and a denial of the
equal protection of the laws.

This point is not merely an academic one, as might superficially seem. On the contrary it has a practical bearing on the problem
before us, which may be expressed by saying that, if the Legislature has prescribed a method of expropriation which provides for
the payment of just compensation and such method is so conceived and adapted as to fulfill the constitutional requisite of due
process of law, any proceeding conducted in conformity with that method must be valid.lawphi1.net

These considerations are especially important to be borne in mind in connection with the second contention made by counsel for
the petitioners, namely, that land cannot be expropriated by the Government in the absence of a legislative appropriation
especially destined to pay for the land to be taken. To this question we now address ourselves; and while we bear in mind the
cardinal fact that just compensation must be made, the further fact must not be overlooked that there is no organic or
constitutional provision in force in these lands Islands requiring that compensation shall actually be paid prior to the judgment of
condemnation.

If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will be apparent that the
method of expropriation adopted in this jurisdiction is such as to afford absolute assurance that no piece of land can be finally and
irrevocably taken from an unwilling owner until compensation is paid. It is true that in rare instances the proceedings may be
voluntarily abandoned before the expropriation is complete or the proceedings may fail because the expropriator becomes
insolvent, in either of which cases the owner retains the property; and if possession has been prematurely obtained by the plaintiff
in the proceedings, it must be restored. It will be noted that the title does not actually pass to the expropriator until a certified
copy of the record of the judgment is recorded in the office of the register of deeds (sec. 251, Code Civ. Proc.). Before this stage
of the proceedings is reached the compensation is supposed to have been paid; and the court is plainly directed to make such final
order and judgment as shall secure to the defendant just compensation for the land taken. (Sec. 246, Code Civ. Proc.).
Furthermore, the right of the expropriator is finally made dependent absolutely upon the payment of compensation by him. (Sec.
3, Act No. 2826; sec. 247, Code Civ. Proc.).

It will be observed that the scheme of expropriation exemplified in our statutes does not primarily contemplate the giving of a
personal judgment for the amount of the award against the expropriator; the idea is rather to protect the owner by requiring
payment as a condition precedent to the acquisition of the property by the other party. The power of the court to enter a judgment
for the money and to issue execution thereon against the plaintiff is, however, unquestioned; and the court can without doubt
proceed in either way. But whatever course be pursued the owner is completely protected from the possibility of losing his
property without compensation.

When the Government is plaintiff the judgment will naturally take the form of an order merely requiring the payment of the
award as a condition precedent to the transfer of the title, as a personal judgment against the Government could not be realized
upon execution. It is presumed that by appearing as plaintiff in condemnation proceedings, the Government submits itself to the
jurisdiction of the court and thereby waives its immunity from suit. As a consequence it would be theoretically subject to the
same liability as any other expropriator. Nevertheless, the entering of a personal judgment against it would be an unnecessary, as
well as profitless formality.

In the face of the elaborate safeguards provided in our procedure, it is frivolous to speculate upon the possibility that the
Legislature may finally refuse to appropriate any additional amount, over and above the provisional deposit, that may be
necessary to pay the award. That it may do. But the Government can not keep the land and dishonor the judgment. Moreover, in
the eventuality that the expropriation shall not be consummated, the owners will be protected by the deposit from any danger of
loss resulting from the temporary occupation of the land by the Government; for it is obvious that this preliminary deposit serves
the double purpose of a prepayment upon the value of the property, if finally expropriated and as an indemnity against damage in
the eventuality that the proceedings should fail of consummation.

It appears that the money represented by the certificate of deposit which was placed at the disposal of the lower court, pursuant to
the requirements of section 2 of Act No. 2826, was taken from certain appropriations under the control of the Militia
Commission, a body created by section 29 of Act No. 2715, for the purpose, among others, of advising the Governor-General
upon measures relative to the organization equipment, and government of the National Guard and reserve militia. Counsel for the
petitioners say that money appropriated for the purpose of the Militia Commission cannot be lawfully used to acquire the land
which is now the subject of expropriation, because no authority for the exercise of the power of eminent domain is to be found in
any of the Acts appropriating money for said Commission; from whence it is argued that the certificate of deposit affords no
protection to the owners of property.

The point appears to be one of little general importance, and we will not multiply words over it. Suffice it to say that in our
opinion the Insular Auditor was acting within his authority when he let this money out of the Insular Treasury; and being now
within the control of the lower court, it will doubtless in due time be applied to the purpose for which the deposit was made.

From the foregoing discussion it is apparent that the action taken by the lower court in the condemnation proceedings aforesaid
was in all respects regular and within the jurisdiction of the court. The writ prayed for in the petition before us, therefore, can not
be issued. The application is accordingly denied, with costs against the petitioners.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur. 

Johnson, J., reserves the right to prepare a separate opinion

Separate Opinions

MALCOLM, J., concurring:

I agree with the conclusion arrived at in the majority decision. I am clearly of the opinion that the alternative application for a
writ of certiorari or prohibition should not be granted. An analysis into their simplest elements of the various questions presented
may easily be made as follows: 1. The power of the Philippine Government in eminent domain; (2) The constitutional prohibition
that (A) private property (B) shall not be taken for public use (C) without just compensation; and 3. The constitutional prohibition
that no money shall be paid out of the treasury except in pursuance of an appropriation by law.

1. The power of eminent domain is expressly vested in the Government of the Philippine Islands be section 63 of the Act of
Congress of July 1, 1902, commonly known as the Philippine Bill. The Philippine Legislature has, in turn by section 64 (h) of the
Administrative Code of 1917, expressly delegated to the Governor-General the specific power and duty to determine when it is
necessary or advantageous to exercise the right of eminent domain in behalf of the Government of the Philippine Islands. This
delegation of legislative power to the Governor-General was authorized in view of the nature of eminent domain, which
necessitates administrative agents for its execution, in view of the previous attitude assumed by the Judiciary with relation to
similar delegations of power, and in view of the undeniable fact that the Governor-General is a part of the same Government of
the Philippine Islands to which was transferred the right of eminent domain by the Congress of the United States. (See
Government of the Philippine Islands vs. Municipality of Binangonan [1916], 34 Phil. 518.) When, therefore, the Governor-
General directed the Attorney-General to cause condemnation proceedings to be begun in the Court of First Instance of Rizal
with the object of having the Government obtain title to the site commonly known as "Camp Tomas Claudio," the Governor-
General was merely acting as a mouthpiece of American sovereignty, pursuant to a delegated power transmitted by the Congress
of the United States to the Government of the Philippine Islands and lodged by this latter Government in the Chief Executive.
Any other holding would mean that section 64 (h) of the Administrative Code is invalid, a result to be avoided.lawphi1.net

2. In the existing Philippine Bill of Rights (last sentence, paragraph 1, section 3, Act of Congress of August 29, 1916) is a
provision that "private property shall not be taken for public use without just compensation." It seems undeniable (A) that Camp
Claudio was "private property," and (B) that it was being "taken for public use," namely, for military and aviation purposes. The
only remaining point concerns "just compensation," which can better be discussed under our division 3.

3. Another provision of the Philippine Bill of Rights (paragraph 15, section 3, Act of Congress of August 29, 1916) is, "that no
money shall be paid out of the treasury except in pursuance of an appropriation by law." The same Auditor who shall "audit, in
accordance with law and administrative regulations, all expenditure of funds or property pertaining to, or held in trust, by the
Government." His administrative jurisdiction is made "exclusive." The Philippine Legislature could, of course, have specifically
appropriated an amount for the purchase of the Camp Claudio site just as it could have specifically enacted a law for the
condemnation of such site, but instead it preferred to include in the general Appropriation Acts, under the heads of The Philippine
National Guard or Philippine Militia, a large amount to be expended in the discretion of the Militia Commission, which may "use
the funds appropriated for other purposes, as the efficiency of the service may require." This transfer of power of the Militia
Commission, like the delegation of some of the general legislative power to the Governor-General, raises no constitutional bar.
The Insular Auditor has stated that there is in the treasury over a million pesos available for the condemnation of Camp Claudio,
and this decision for present purposes must be taken as final and conclusive. The six hundred thousand pesos deposit is merely
the provisional determination of the value of the land by the competent court, and in no way jeopardizes the financial interests of
the owners of the property. No additional security is required since the sovereign power has waived its right to be sued, has
pledged the public faith, and cannot obtain title until the owners receive just compensation for their property. (See
Sweet vs. Rechel [1895], 159 U. S., 380.)

In resume, therefore, the Governor-General of the Philippine Islands had the right to authorize the condemnation of this land for
military and aviation purposes, and no constitutional provision has been violated. The Court of First Instance of Rizal has merely
acted in strict accord with law, and its action should, consequently, be sustained.
 SUPREME COURT
Manila

EN BANC

G.R. No. L-14355             October 31, 1919

THE CITY OF MANILA, plaintiff-appellant, 

vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.

City Fiscal Diaz for appellant. 

Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and Ramon Salinas for appellees.

JOHNSON, J.:

The important question presented by this appeal is: In expropriation proceedings by the city of Manila, may the courts inquire
into, and hear proof upon, the necessity of the expropriation?

That question arose in the following manner:

On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First Instance of said city, praying that
certain lands, therein particularly described, be expropriated for the purpose of constructing a public improvement. The
petitioner, in the second paragraph of the petition, alleged:

That for the purpose of constructing a public improvement, namely, the extension of Rizal Avenue, Manila, it is
necessary for the plaintiff to acquire ownership in fee simple of certain parcels of land situated in the district of
Binondo of said city within Block 83 of said district, and within the jurisdiction of this court.
The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of the plaintiff,
alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine Islands, having for its
purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it was the owner of parcels one and
two of the land described in paragraph 2 of the complaint; that it denied that it was either necessary or expedient that the said
parcels be expropriated for street purposes; that existing street and roads furnished ample means of communication for the public
in the district covered by such proposed expropriation; that if the construction of the street or road should be considered a public
necessity, other routes were available, which would fully satisfy the plaintiff's purposes, at much less expense and without
disturbing the resting places of the dead; that it had a Torrens title for the lands in question; that the lands in question had been
used by the defendant for cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said
expropriation be carried into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum
of money in the transfer or removal of the bodies to some other place or site and in the purchase of such new sites, would involve
the destruction of existing monuments and the erection of new monuments in their stead, and would create irreparable loss and
injury to the defendant and to all those persons owning and interested in the graves and monuments which would have to be
destroyed; that the plaintiff was without right or authority to expropriate said cemetery or any part or portion thereof for street
purposes; and that the expropriation, in fact, was not necessary as a public improvement.

The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of the complaint, and alleged that
said expropriation was not a public improvement; that it was not necessary for the plaintiff to acquire the parcels of land in
question; that a portion of the lands in question was used as a cemetery in which were the graves of his ancestors; that
monuments and tombstones of great value were found thereon; that the land had become quasi-public property of a benevolent
association, dedicated and used for the burial of the dead and that many dead were buried there; that if the plaintiff deemed it
necessary to extend Rizal Avenue, he had offered and still offers to grant a right of way for the said extension over other land,
without cost to the plaintiff, in order that the sepulchers, chapels and graves of his ancestors may not be disturbed; that the land
so offered,free of charge, would answer every public necessity on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of the other defendants,
answering separately, presented substantially the same defense as that presented by the Comunidad de Chinos de Manila and
Ildefonso Tambunting above referred to.

The foregoing parts of the defense presented by the defendants have been inserted in order to show the general character of the
defenses presented by each of the defendants. The plaintiff alleged that the expropriation was necessary. The defendants each
alleged (a) that no necessity existed for said expropriation and (b) that the land in question was a cemetery, which had been used
as such for many years, and was covered with sepulchres and monuments, and that the same should not be converted into a street
for public purposes.

Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judge, in a very
elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that there was no
necessity for the expropriation of the particular strip of land in question, and absolved each and all of the defendants from all
liability under the complaint, without any finding as to costs.

From that judgment the plaintiff appealed and presented the above question as its principal ground of appeal.

The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate land, it may
expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain the value of the land in
question; that neither the court nor the owners of the land can inquire into the advisible purpose of purpose of the expropriation or
ask any questions concerning the necessities therefor; that the courts are mere appraisers of the land involved in expropriation
proceedings, and, when the value of the land is fixed by the method adopted by the law, to render a judgment in favor of the
defendant for its value.

That the city of Manila has authority to expropriate private lands for public purposes, is not denied. Section 2429 of Act No.
2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn private property for public use."

The Charter of the city of Manila contains no procedure by which the said authority may be carried into effect. We are driven,
therefore, to the procedure marked out by Act No. 190 to ascertain how the said authority may be exercised. From an
examination of Act No. 190, in its section 241, we find how the right of eminent domain may be exercised. Said section 241
provides that, "The Government of the Philippine Islands, or of any province or department thereof, or of any municipality, and
any person, or public or private corporation having, by law, the right to condemn private property for public use, shall exercise
that right in the manner hereinafter prescribed."
Section 242 provides that a complaint in expropriation proceeding shall be presented; that the complaint shall state with certainty
the right of condemnation, with a description of the property sought to be condemned together with the interest of each defendant
separately.

Section 243 provides that if the court shall find upon trial that the right to expropriate the land in question exists, it shall then
appoint commissioners.

Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provides for an appeal
from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the Supreme Court authority to
inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on appeal shall determine that no right of
expropriation existed, it shall remand the cause to the Court of First Instance with a mandate that the defendant be replaced in the
possession of the property and that he recover whatever damages he may have sustained by reason of the possession of the
plaintiff.

It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the right to expropriate
exists," means simply that, if the court finds that there is some law authorizing the plaintiff to expropriate, then the courts have
no other function than to authorize the expropriation and to proceed to ascertain the value of the land involved; that the necessity
for the expropriation is a legislative and not a judicial question.

Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene except for the
purpose of determining the value of the land in question, there is much legal legislature. Much has been written upon both sides
of that question. A careful examination of the discussions pro and con will disclose the fact that the decisions depend largely
upon particular constitutional or statutory provisions. It cannot be denied, if the legislature under proper authority should grant
the expropriation of a certain or particular parcel of land for some specified public purpose, that the courts would be without
jurisdiction to inquire into the purpose of that legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to expropriate private
land for public purposes, we think the courts have ample authority in this jurisdiction, under the provisions above quoted, to
make inquiry and to hear proof, upon an issue properly presented, concerning whether or not the lands were private and whether
the purpose was, in fact, public. In other words, have no the courts in this jurisdiction the right, inasmuch as the questions relating
to expropriation must be referred to them (sec. 241, Act No. 190) for final decision, to ask whether or not the law has been
complied with? Suppose in a particular case, it should be denied that the property is not private property but public, may not the
courts hear proof upon that question? Or, suppose the defense is, that the purpose of the expropriation is not public butprivate, or
that there exists no public purpose at all, may not the courts make inquiry and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for public purposes. Can it be possible that said authority
confers the right to determine for itself that the land is private and that the purpose is public, and that the people of the city of
Manila who pay the taxes for its support, especially those who are directly affected, may not question one or the other, or both, of
these questions? Can it be successfully contended that the phrase used in Act No. 190, "and if the court upon trial shall find that
such right exists," means simply that the court shall examine the statutes simply for the purpose of ascertaining whether a law
exists authorizing the petitioner to exercise the right of eminent domain? Or, when the case arrives in the Supreme Court, can it
be possible that the phrase, "if the Supreme Court shall determine that no right of expropriation exists," that that simply means
that the Supreme Court shall also examine the enactments of the legislature for the purpose of determining whether or not a law
exists permitting the plaintiff to expropriate?

We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an inherent
power in a municipal corporation, and before it can exercise the right some law must exist conferring the power upon it. When
the courts come to determine the question, they must only find (a) that a law or authority exists for the exercise of the right of
eminent domain, but (b) also that the right or authority is being exercised in accordance with the law. In the present case there are
two conditions imposed upon the authority conceded to the City of Manila: First, the land must be private; and, second, the
purpose must be public. If the court, upon trial, finds that neither of these conditions exists or that either one of them fails,
certainly it cannot be contended that the right is being exercised in accordance with law.

Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. Whether the land is public, is
a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine Islands the right to
ascertain upon trial whether the right exists for the exercise of eminent domain, it intended that the courts should inquire into,
and hear proof upon, those questions. Is it possible that the owner of valuable land in this jurisdiction is compelled to stand mute
while his land is being expropriated for a use not public, with the right simply to beg the city of Manila to pay him the value of
his land? Does the law in this jurisdiction permit municipalities to expropriate lands, without question, simply for the purpose of
satisfying the aesthetic sense of those who happen for the time being to be in authority? Expropriation of lands usually calls for
public expense. The taxpayers are called upon to pay the costs. Cannot the owners of land question the public use or the public
necessity?

As was said above, there is a wide divergence of opinion upon the authority of the court to question the necessity or advisability
of the exercise of the right of eminent domain. The divergence is usually found to depend upon particular statutory or
constitutional provisions.

It has been contended — and many cases are cited in support of that contention, and section 158 of volume 10 of Ruling Case
Law is cited as conclusive — that the necessity for taking property under the right of eminent domain is not a judicial question.
But those who cited said section evidently overlooked the section immediately following (sec. 159), which adds: "But it is
obvious that if the property is taken in the ostensible behalf of a public improvement which it can never by any possibility serve,
it is being taken for a use not public, and the owner's constitutional rights call for protection by the courts. While many courts
have used sweeping expression in the decisions in which they have disclaimed the power of supervising the power of supervising
the selection of the sites of public improvements, it may be safely said that the courts of the various states would feel bound to
interfere to prevent an abuse of the discretion delegated by the legislature, by an attempted appropriation of land in utter
disregard of the possible necessity of its use, or when the alleged purpose was a cloak to some sinister scheme." (Norwich
City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry.
etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., 620.)

Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention of the appellant, says:

The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for
appropriating private property for a particular improvement for public use, and it may select the exact location of the
improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public
necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the
consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to
determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of
the people.

Practically every case cited in support of the above doctrine has been examined, and we are justified in making the statement that
in each case the legislature directly determined the necessity for the exercise of the right of eminent domain in the particular case.
It is not denied that if the necessity for the exercise of the right of eminent domain is presented to the legislative department of
the government and that department decides that there exists a necessity for the exercise of the right in a particular case, that then
and in that case, the courts will not go behind the action of the legislature and make inquiry concerning the necessity. But, in the
case of Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in
support of the doctrine laid down in section 158 above quoted, the court said:

But when the statute does not designate the property to be taken nor how may be taken, then the necessity of
taking particular property is a question for the courts. Where the application to condemn or appropriate is made
directly to the court, the question (of necessity) should be raised and decided in limene.

The legislative department of the government was rarely undertakes to designate the precise property which should be taken for
public use. It has generally, like in the present case, merely conferred general authority to take land for public use when a
necessity exists therefor. We believe that it can be confidently asserted that, under such statute, the allegation of the necessity for
the appropriation is an issuable allegation which it is competent for the courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42
Am. St. Rep., 402, 407].)

There is a wide distinction between a legislative declaration that a municipality is given authority to exercise the right of eminent
domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a particular case. The first is
a declaration simply that there exist reasons why the right should be conferred upon municipal corporation, while the second is
the application of the right to a particular case. Certainly, the legislative declaration relating to the advisability of granting the
power cannot be converted into a declaration that a necessity exists for its exercise in a particular case, and especially so when,
perhaps, the land in question was not within the territorial authority was granted.

Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the right of eminent domain, is
a question with which the courts are not concerned. But when that right or authority is exercised for the purpose of depriving
citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to hear proof upon the necessity in
the particular case, and not the general authority.
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive authority upon the question
that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial question. Cyclopedia, at the
page stated, says:

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising
the right of eminent domain are questions essentially political and not judicial in their character. The determination of
those questions (the necessity and the expediency) belongs to the sovereign power; the legislative department is final
and conclusive, and the courts have no power to review it (the necessity and the expediency) . . . . It (the legislature)
may designate the particular property to be condemned, and its determination in this respect cannot be reviewed by the
courts.

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted. While time has not permitted an
examination of all of said citations, many of them have been examined, and it can be confidently asserted that said cases which
are cited in support of the assertion that, "the necessity and expediency of exercising the right of eminent domain are questions
essentially political and not judicial," show clearly and invariably that in each case the legislature itself usually, by a special law,
designated the particular case in which the right of eminent domain might be exercised by the particular municipal corporation
or entity within the state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park
Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598;
Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53;
U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351
[erroneously cited as 242 U.S.].)

In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United States said: "It is erroneous to
suppose that the legislature is beyond the control of the courts in exercising the power of eminent domain, either as to the nature
of the use or the necessity to the use of any particular property. For if the use be not public or no necessity for the taking exists,
the legislature cannot authorize the taking of private property against the will of the owner, notwithstanding compensation may
be required."

In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339, 356), we find the Supreme Court of Porto Rico,
speaking through Justice MacLeary, quoting approvingly the following, upon the question which we are discussing: "It is well
settled that although the legislature must necessarily determine in the first instance whether the use for which they
(municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities, etc.) determination is not final, but
is subject to correction by the courts, who may undoubtedly declare the statute unconstitutional, if it shall clearly appear that the
use for which it is proposed to authorize the taking of private property is in reality not public but private." Many cases are cited in
support of that doctrine.

Later, in the same decision, we find the Supreme Court of Porto Rico says: "At any rate, the rule is quite well settled that in the
cases under consideration the determination of the necessity of taking a particular piece or a certain amount of land rests
ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .

In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court of
Connecticut approvingly quoted the following doctrine from Lewis on Eminent Domain (3d ed.), section 599: "In all such cases
the necessity of public utility of the proposed work or improvement is a judicial question. In all such cases, where the authority is
to take property necessary for the purpose, the necessity of taking particular property for a particular purpose is a judicial one,
upon which the owner is entitled to be heard." (Riley vs.Charleston, etc. Co., 71 S. C., 457, 489 [110 Am. St. Rep., 579];
Henderson vs. Lexington 132 Ky., 390, 403.)

The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of the state,
is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to delegate.
(Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co.,
132 Ky., 692, 697.)

In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of the State of Maryland,
discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain) where the legislature has
left it to depend upon the necessity that may be found to exist, in order to accomplish the purpose of the incorporation, as in this
case, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity
for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations,
would likely lead to oppression and the sacrifice of private right to corporate power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is not a general
power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist. Such necessity
must appear upon the face of the petition to condemn. If the necessary is denied the burden is upon the company (municipality) to
establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)

It is true that naby decisions may be found asserting that what is a public use is a legislative question, and many other decisions
declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or statutory provision denying
the right to take land for any use other than a public use, it occurs to us that the question whether any particular use is a public
one or not is ultimately, at least, a judicial question. The legislative may, it is true, in effect declare certain uses to be public, and,
under the operation of the well-known rule that a statute will not be declared to be unconstitutional except in a case free, or
comparatively free, from doubt, the courts will certainly sustain the action of the legislature unless it appears that the particular
use is clearly not of a public nature. The decisions must be understood with this limitation; for, certainly, no court of last resort
will be willing to declare that any and every purpose which the legislative might happen to designate as a public use shall be
conclusively held to be so, irrespective of the purpose in question and of its manifestly private character Blackstone in his
Commentaries on the English Law remarks that, so great is the regard of the law for private property that it will not authorize the
least violation of it, even for the public good, unless there exists a very great necessity therefor.

In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of the United States said: "That government can
scarcely be deemed free where the rights of property are left solely defendant on the legislative body, without restraint. The
fundamental maxims of free government seem to require that the rights of personal liberty and private property should be held
sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them
— a power so repugnant to the common principles of justice and civil liberty — lurked in any general grant of legislature
authority, or ought to be implied from any general expression of the people. The people ought no to be presumed to part with
rights so vital to their security and well-being without very strong and direct expression of such intention." (Lewis on Eminent
Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann., 182.)

Blackstone, in his Commentaries on the English Law said that the right to own and possess land — a place to live separate and
apart from others — to retain it as a home for the family in a way not to be molested by others — is one of the most sacred rights
that men are heirs to. That right has been written into the organic law of every civilized nation. The Acts of Congress of July 1,
1902, and of August 29, 1916, which provide that "no law shall be enacted in the Philippine Islands which shall deprive any
person of his property without due process of law," are but a restatement of the time-honored protection of the absolute right of
the individual to his property. Neither did said Acts of Congress add anything to the law already existing in the Philippine
Islands. The Spaniard fully recognized the principle and adequately protected the inhabitants of the Philippine Islands against the
encroachment upon the private property of the individual. Article 349 of the Civil Code provides that: "No one may be deprived
of his property unless it be by competent authority, for some purpose of proven public utility, and after payment of the proper
compensation Unless this requisite (proven public utility and payment) has been complied with, it shall be the duty of the
courts to protect the owner of such property in its possession or to restore its possession to him , as the case may be."

The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily in
derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of property is held
by individuals with greater tenacity, and none is guarded by the constitution and laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes with that right, and, for greater public purposes, appropriates the land of
an individual without his consent, the plain meaning of the law should not be enlarged by doubtly interpretation.
(Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec., 576].)

The statutory power of taking property from the owner without his consent is one of the most delicate exercise of government
authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the inviolable sanctity
which all free constitutions attach to the right of property of the citizens, constrains the strict observance of the substantial
provisions of the law which are prescribed as modes of the exercise of the power, and to protect it from abuse. Not only must the
authority of municipal corporations to take property be expressly conferred and the use for which it is taken specified, but the
power, with all constitutional limitation and directions for its exercise, must be strictly pursued. (Dillon on Municipal
Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

It can scarcely be contended that a municipality would be permitted to take property for some public use unless some public
necessity existed therefor. The right to take private property for public use originates in the necessity, and the taking must be
limited by such necessity. The appellant contends that inasmuch as the legislature has given it general authority to take private
property for public use, that the legislature has, therefore, settled the question of the necessity in every case and that the courts are
closed to the owners of the property upon that question. Can it be imagined, when the legislature adopted section 2429 of Act No.
2711, that it thereby declared that it was necessary to appropriate the property of Juan de la Cruz, whose property, perhaps, was
not within the city limits at the time the law was adopted? The legislature, then, not having declared the necessity, can it be
contemplated that it intended that a municipality should be the sole judge of the necessity in every case, and that the courts, in the
face of the provision that "if upon trial they shall find that a right exists," cannot in that trial inquire into and hear proof upon the
necessity for the appropriation in a particular case?

The Charter of the city of Manila authorizes the taking of private property for public use. Suppose the owner of the property
denies and successfully proves that the taking of his property serves no public use: Would the courts not be justified in inquiring
into that question and in finally denying the petition if no public purpose was proved? Can it be denied that the courts have a right
to inquire into that question? If the courts can ask questions and decide, upon an issue properly presented, whether the use is
public or not, is not that tantamount to permitting the courts to inquire into the necessity of the appropriation? If there is no public
use, then there is no necessity, and if there is no necessity, it is difficult to understand how a public use can necessarily exist. If
the courts can inquire into the question whether a public use exists or not, then it seems that it must follow that they can examine
into the question of the necessity.

The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public
character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo,
Ry. etc. Co., 72 Ohio St., 368.)

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in aparticular case.
The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to
exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities
must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts
to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring
the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the
legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions
imposed by the general authority, is a question which the courts have the right to inquire into.

The conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain is purely
legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing the exercise of the right
of eminent domain instead of in the question of the right to exercise it in a particular case. (Creston Waterworks Co. vs. McGrath,
89 Iowa, 502.)

By the weight of authorities, the courts have the power of restricting the exercise of eminent domain to the actual reasonable
necessities of the case and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48 Minn., 540.)

And, moreover, the record does not show conclusively that the plaintiff has definitely decided that their exists a necessity for the
appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate that the municipal board
believed at one time that other land might be used for the proposed improvement, thereby avoiding the necessity of distributing
the quiet resting place of the dead.

Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend that the street in
question should not be opened through the cemetery. One of the defendants alleges that said cemetery is public property. If that
allegations is true, then, of course, the city of Manila cannot appropriate it for public use. The city of Manila can only
expropriate private property.

It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general community, or
neighborhood, or church, while the latter is used only by a family, or a small portion of the community or neighborhood. (11 C.
J., 50.)

Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses under a general
authority. And this immunity extends to the unimproved and unoccupied parts which are held in good faith for future use. (Lewis
on Eminent Domain, sec. 434, and cases cited.)

The cemetery in question seems to have been established under governmental authority. The Spanish Governor-General, in an
order creating the same, used the following language:
 The cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and
fraternal contribution of their protector, merchants and industrials, benefactors of mankind, in consideration of their
services to the Government of the Islands its internal administration, government and regime must necessarily be
adjusted to the taste and traditional practices of those born and educated in China in order that the sentiments which
animated the founders may be perpetually effectuated.

It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which fact, in the
general acceptation of the definition of a public cemetery, would make the cemetery in question public property. If that is true,
then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila has no authority or right under
the law to expropriate public property.

But, whether or not the cemetery is public or private property, its appropriation for the uses of a public street, especially during
the lifetime of those specially interested in its maintenance as a cemetery, should be a question of great concern, and its
appropriation should not be made for such purposes until it is fully established that the greatest necessity exists therefor.

While we do not contend that the dead must not give place to the living, and while it is a matter of public knowledge that in the
process of time sepulchres may become the seat of cities and cemeteries traversed by streets and daily trod by the feet of millions
of men, yet, nevertheless such sacrifices and such uses of the places of the dead should not be made unless and until it is fully
established that there exists an eminent necessity therefor. While cemeteries and sepulchres and the places of the burial of the
dead are still within 
the memory and command of the active care of the living; while they are still devoted to pious uses and sacred regard, it is
difficult to believe that even the legislature would adopt a law expressly providing that such places, under such circumstances,
should be violated.

In such an appropriation, what, we may ask, would be the measure of damages at law, for the wounded sensibilities of the living,
in having the graves of kindred and loved ones blotted out and desecrated by a common highway or street for public travel? The
impossibility of measuring the damage and inadequacy of a remedy at law is too apparent to admit of argument. To disturb the
mortal remains of those endeared to us in life sometimes becomes the sad duty of the living; but, except in cases of necessity, or
for laudable purposes, the sanctity of the grave, the last resting place of our friends, should be maintained, and the preventative
aid of the courts should be invoked for that object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery
Association vs. The City of New Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.)

In the present case, even granting that a necessity exists for the opening of the street in question, the record contains no proof of
the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent lands have been offered to
the city free of charge, which will answer every purpose of the plaintiff.

For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is hereby affirmed, with costs
against the appellant. So ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Separate Opinions

MALCOLM, J., concurring:

The Government of the Philippine Islands is authorized by the Philippine Bill to acquire real estate for public use by the exercise
of the right of eminent domain. (Act of Congress of July 1, 1902, sec. 63.) A portion of this power has been delegated by the
Philippine Legislature to the city of Manila, which is permitted to "condemn private property for public use." (Administrative
Code of 1917, sec. 2429.) The Code of Civil Procedure, in prescribing how the right of eminent domain may be exercised, also
limits the condemnation to "private property for public use." (Sec. 241.) As under the facts actually presented, there can be no
question that a public street constitutes a public use, the only remaining question is whether or not the Chinese Cemetery and the
other property here sought to be taken by the exercise of the right of eminent domain is "private property."

As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public and private. A public cemetery is
one used by the general community, or neighborhood, or church; while a private cemetery is one used only by a family, or small
portion of a community. (Lay vs. State, 12 Ind. App., 362; Cemetery Association vs.Meninger [1875], 14 Kan., 312.) Our specific
question, then, is, whether the Chinese Cemetery in the city of Manila is a public, or a private graveyard. If it be found to be the
former, it is not subject to condemnation by the city of Manila; if it be found to be the latter, it is subject to condemnation.
The Chinese Cemetery of Manila was established during the Spanish administration in the Philippines by public spirited Chinese.
The order of the Governor-General giving governmental recognition to the cemetery reads as follows: "The cemetery and general
hospital for indigent Chinese having been founded and maintained by the spontaneous and fraternal contribution of their
protectors, merchants and industrials, benefactors of mankind, in consideration of their services to the Government of the Islands,
its internal administration, government and regime, must necessarily be adjusted to the taste and traditional practices of those
born and educated in China in order that the sentiments which animated the founders may be perpetually effectuated." Sometimes
after the inauguration of the new regime in the Philippines, a corporation was organized to control the cemetery, and a Torrens
title for the lands in question was obtained.

From the time of its creation until the present the cemetery has been used by the Chinese community for the burial of their dead.
It is said that not less than four hundred graves, many of them with handsome monuments, would be destroyed by the proposed
street. This desecration is attempted as to the las t resting places of the dead of a people who, because of their peculiar and
ingrained ancestral workship, retain more than the usual reverence for the departed. These facts lead us straight to the conclusion
that the Chinese Cemetery is not used by a family or a small portion of a community but by a particular race long existing in the
country and of considerable numbers. The case, then, is one of where the city of Manila, under a general authority permitting it to
condemn private property for public use, is attempting to convert a property already dedicated to a public use to an entirely
different public use; and this, not directly pursuant to legislative authority, but primarily through the sole advice of the consulting
architect.

Two well considered decisions coming from the American state courts on almost identical facts are worthy of our consideration.
The first is the case of The Evergreen Cemetery Association vs. The City of New Haven ([1875], 43 Conn., 234), of cited by
other courts. Here the City of New Haven, Connecticut, under the general power conferred upon it to lay out, construct, and
maintain all necessary highways within its limits, proceeded to widen and straighten one of its streets and in so doing took a
small piece of land belonging to the Evergreen Cemetery Association. This association was incorporated under the general
statute. The city had no special power to take any part of the cemetery for such purposes. It was found that the land taken was
needed for the purposes of the cemetery and was not needed for the purpose of widening and straightening the avenue. The court
said that it is unquestionable that the Legislature has the power to authorize the taking of land already applied to one public use
and devote it to another. When the power is granted to municipal or private corporations in express words, no question can arise.
But, it was added, "The same land cannot properly be used for burial lots and for a public highway at the same time. . . . Land
therefore applied to one use should not be taken for the other except in cases on necessity. . . . There is no difficulty in effecting
the desired improvement by taking land on the other side of the street. . . . The idea of running a public street, regardless of
graves, monuments, and the feelings of the living, through one of our public cemeteries, would be shocking to the moral sense of
the community, and would not be tolerated except upon the direst necessity." It was then held that land already devoted to a
public use cannot be taken by the public for another use which is inconsistent with the first, without special authority from the
Legislature, or authority granted by necessary and reasonable implication.

The second decision is that of Memphis State Line Railroad Company vs. Forest Hill Cemetery Co. ([1906], 116 Tenn., 400.)
Here the purpose of the proceedings was to condemn a right of way for the railway company through the Forest Hill Cemetery.
The railroad proposed to run through the southeast corner of the cemetery where no bodies were interred. The cemetery had been
in use for about eight years, and during this period thirteen hundred bodies had been buried therein. The cemetery was under the
control of a corporation which, by its character, held itself out as being willing to sell lots to any one who applies therefor and
pays the price demanded, except to members of the Negro race.1awph!l.net

It was found that there were two other routes along which the railroad might be located without touching the cemetery, while the
present line might be pursued without interfering with Forest Hill Cemetery by making a curve around it. In the court below the
railroad was granted the right of condemnation through the cemetery and damages were assessed. On appeal,
the certiorari applied for was granted, and the supersedeas awarded. The court, in effect, found that the land of the Cemetery
Company was devoted to a public purpose, and that under the general language of the Tennessee statute of eminent domain it
could not be taken for another public purpose. The court said that in process of time the sepulchres of the dead "are made the
seats of cities, and are traversed by streets, and daily trodden by the feet of man. This is inevitable in the course of ages. But
while these places are yet within the memory and under the active care of the living, while they are still devoted to pious uses,
they are sacred, and we cannot suppose that the legislature intended that they should be violated, in the absence of special
provisions upon the subject authorizing such invasion, and indicating a method for the disinterment, removal, and reinterment of
the bodies buried, and directing how the expense thereof shall be borne." Two members of the court, delivering a separate
concurring opinion, concluded with this significant and eloquent sentence: "The wheels of commerce must stop at the grave."

For the foregoing reasons, and for others which are stated in the principal decision, I am of the opinion that the judgment of the
lower court should be affirmed.

STREET, J., dissenting:
It may be admitted that, upon the evidence before us, the projected condemnation of the Chinese Cemetery is unnecessary and
perhaps ill-considered. Nevertheless I concur with Justice Moir in the view that the authorities of the city of Manila are the proper
judges of the propriety of the condemnation and that this Court should have nothing to do with the question of the necessity of
the taking.

MOIR, J., dissenting:

I dissent from the majority opinion in this case, which has not yet been written, and because of the importance of the question
involved, present my dissent for the record.

This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue north. The petition for
condemnation was opposed by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and various other who obtained
permission of the trial court to intervene in the case.

All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts through a part of the Chinese
Cemetery, North of Manila, and necessitates the destruction of many monuments and the removal of many graves.

The Court of First Instance of Manila, Honorable S. del Rosario, judge after hearing the parties, decided that there was no need
for constructing the street as and where proposed by the city, and dismissed the petition.

The plaintiff appealed and sets up the following errors:

1. The court erred in deciding that the determination of the necessity and convenience of the expropriation of the lands
of the defendants lies with the court and not with the Municipal Board of the city of Manila.

2. The court erred in permitting the presentation of proofs over the objection and exception of the plaintiff tending to
demonstrate the lack of necessity of the projected street and the need of the lands in question.

3. The court erred in declaring that the plaintiff had no right to expropriate the lands in question.

4. The court erred in dismissing the complaint.

The right of the plaintiff to expropriate property for public use cannot be denied. The "right of eminent domain is inherent in all
sovereignties and therefore would exist without any constitutional recognition . . . . The right of eminent domain antedates
constitutions . . . . The right can only be denied or restricted by fundamental law and is right inherent in society." (15 Cyc., pp.
557-8.) .

This general right was recognized in the Philippine Code of Civil Procedure effective October 1st, 1901, which prescribed the
manner of exercising the right. (Sections 241 et seq.)

It was further recognized in the Organic Act of July 1st, 1902, which provides in section 74 "that the Government of the
Philippine Islands may grant franchises . . . including the authority to exercise the right of eminent domain for the construction
and operation of works of public utility and service, and may authorize said works to be constructed and maintained over and
across the public property of the United States including . . . reservations." This provisions is repeated in the Jones Law of
August, 1916.

The legislature of the Islands conferred the right on the city of Manila. (Section 2429, Administrative Code of 1917; section
2402, Administrative Code of 1916.)

Clearly having the right of expropriation, the city of Manila selected the line of its street and asked the court by proper order to
place the plaintiff in possession of the land described in the complaint, and to appoint Commissioners to inspect the property,
appraise the value, and assess the damages. Instead of doing so, the court entered upon the question of the right of the city to take
the property and the necessity for the taking.

The court says:

 The controversy relates to whether or not the Chinese Cemetery, where a great majority of this race is buried and other
persons belonging to other nationalities have been formerly inhumed, is private or public; whether or not said
cemetery, in case it is public, would be susceptible to expropriation for the purpose of public improvements
proposed by the city of Manila; whether or not the latter is justified of the necessity and expediency of similar
expropriation before its right to the same would be upheld by the courts of justice; and whether or not the appreciation
of said necessity pertains to the legislative or the judicial department before which the expropriation proceedings have
been brought.

Relative to the first point, it is not necessary for the court to pass upon its consideration, in view of the conclusion it has
arrived at the appreciation of the other points connected with each other.

From the testimony of two reputable engineers produced by some of the defendants, it appears that the land chosen by
the plaintiff for the extension of Rizal Avenue to the municipality of Caloocan is not the best or the less expensive,
although upon it there may be constructed a straight road, without curves or winding; but that in order to construct said
road upon said land, the city of Manila would have to remove and transfer to other places about four hundred graves
and monuments, make some grubbings, undergo some leveling and build some bridges — the works thereon, together
with the construction of the road and the value of the lands expropriated, would mean an expenditure which will not be
less than P180,000.

Beside that considerable amount, the road would have a declivity of 3 per cent which, in order to cover a distance of
one kilometer, would require an energy equivalent to that which would be expanded in covering a distance of two and
one-half kilometers upon a level road.

On the other hand, if the road would be constructed with the deviation proposed by Ildefonso Tambunting, one of the
defendants, who even offered to donate gratuitously to the city of Manila part of the land upon which said road will
have to be constructed, the plaintiff entity would be able to save more than hundreds of thousand of pesos, which can
be invested in other improvements of greater pressure and necessity for the benefit of the taxpayers; and it will not have
to employ more time and incur greater expenditures in the removal and transfer of the remains buried in the land of the
Chinese Community and of Sr. Tambunting, although with the insignificant disadvantage that the road would be little
longer by a still more insignificant extension of 426 meters and 55 centimeters less than one-half kilometer, according
to the plan included in the records; but it would offer a better panorama to those who would use it, and who would not
have to traverse in their necessary or pleasure-making trips or walks any cemetery which, on account of its nature,
always deserves the respect of the travellers. It should be observed that the proposed straight road over the cemetery,
which the city of Manila is proposing to expropriate, does not lead to any commercial, industrial, or agricultural center,
and if with said road it is endeavored to benefit some community or created interest, the same object may be obtained
by the proposed deviation of the road by the defendants. The road traced by the plaintiffs has the disadvantage that the
lands on both sides thereof would not serve for residential purposes, for the reason that no one has the pleasure to
construct buildings upon cemeteries, unless it be in very overcrowded cities, so exhausted of land that every inch
thereof represents a dwelling house.

And it is against the ruling, that it lies with the court to determine the necessity of the proposed street and not with the municipal
board, that the appellant directs its first assignment of error.

It is a right of the city government to determine whether or not it will construct streets and where, and the court's sole duty was to
see that the value of the property was paid the owners after proper legal proceedings ascertaining the value.

The law gives the city the right to take private property for public use. It is assumed it is unnecessary to argue that a public road
is a public use.

But it is argued that plaintiff must show that it is necessary to take this land for a public improvement. The law does not so read,
and it is believed that the great weight of authority, including the United States Supreme Court, is against the contention.

The question of necessity is distinct from the question of public use, and former question is exclusively for the
legislature, except that if the constitution or statute authorizes the taking of property only in cases of necessity, then the
necessity becomes a judicial question. (McQuillen Municipal Corporations, Vol. IV, pp. 3090-3091.)

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising
the right of eminent domain are questions essentially political and not judicial in their character. The determination of
those questions belongs to the sovereign power; the legislative determination is final and conclusive, and the courts
 have no power to review it. It rests with the legislature not only to determine when the power of eminent domain may
be exercised, but also the character, quality, method, and extent of such exercise. And this power is unqualified, other
than by the necessity of providing that compensation shall be made. Nevertheless, under the express provisions of the
constitution of some states the question of necessity is made a judicial one, to be determined by the courts and not by
the legislature.

While the legislature may itself exercise the right of determining the necessity for the exercise of the power of eminent
domain, it may, unless prohibited by the constitution, delegate this power to public officers or to private corporations
established to carry on enterprises in which the public are interested, and their determination that a necessity for the
exercise of the power exists is conclusive. There is no restraint upon the power except that requiring compensation to
be made. And when the power has been so delegated it is a subject of legislative discretion to determine what
prudential regulations shall be established to secure a discreet and judicious exercise of the authority. It has been held
that in the absence of any statutory provision submitting the matter to a court or jury the decision of the question of
necessity lies with the body of individuals to whom the state has delegated the authority to take, and the legislature may
be express provision confer this power on a corporation to whom the power of eminent domain is delegated unless
prohibited by the constitution. It is of course competent for the legislature to declare that the question shall be a judicial
one, in which case the court and not the corporation determines the question of necessity. (15 Cyc., pp. 629-632.)

To the same effect is Lewis on Eminen Domain (3d Edition, section 597).

I quote from the notes to Vol. 5, Encyclopedia of United States Supreme Court Reports, p. 762, as follows:

Neither can it be said that there is any fundamental right secured by the constitution of the United States to have the
questions of compensation and necessity both passed upon by one and the same jury. In many states the question of
necessity is never submitted to the jury which passes upon the question of compensation. It is either settled
affirmatively by the legislature, or left to the judgment of the corporation invested with the right to take property by
condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the
lawmaking branch of the government. (Boom Co. vs.Patterson, 98 U.S., 403, 406 [25 L. ed., 206]; United
States vs. Jones, 109 U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street Union Depot Co., 169 U.S., 557, 568 [42 L.
ed., 853].)

Speaking generally, it is for the state primarily and exclusively, to declare for what local public purposes private
property, within its limits may be taken upon compensation to the owner, as well as to prescribe a mode in which it
may be condemned and taken. (Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S., 239, 252 [49 L. ed., 462].)

Courts have no power to control the legislative authority in the exercise of their right to determine when it is necessary
or expedient to condemn a specific piece of property for public purposes. (Adirondack R. Co. vs.New York States, 176
U.S., 335 [44 L. ed., 492].)

10 R. C. L. (p. 183), states the law as follows:

158. Necessity for taking ordinarily not judicial question. — The legislature, in providing for the exercise the power of
eminent domain, may directly determine the necessity for appropriating private property for a particular improvement
or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of
the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the
suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all
questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their
own views for these of the representatives of the people. Similarly, when the legislature has delegated the power of
eminent domain to municipal or public service corporation or other tribunals or bodies, and has given them discretion
as to when the power is to be called into exercise and to what extent, the court will not inquire into the necessity or
propriety of the taking.

The United States Supreme Court recently said:

The uses to which this land are to be put are undeniably public uses. When that is the case the propriety or expediency
of the appropriation cannot be called in question by any other authority. (Cinnati vs. S. & N. R. R. Co., 223 U.S., 390,
quoting U.S. vs. Jones, 109, U.S., 519.)
And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:

Plaintiff contends that the ordinance is void because the general statute which authorized the appropriation violates
both Article 1, paragraph 10, of the Federal Constitution, and the Fourteenth Amendment, in that it authorizes the
municipality to determine the necessity for the taking of private property without the owners having an opportunity to
be hear as to such necessity; that in fact no necessity existed for any taking which would interfere with the company's
project; since the city might have taken water from the Little Cuyahoga or the Tuscarawas rivers; and furthermore, that
it has taken ten times as much water as it can legitimately use. It is well settled that while the question whether the
purpose of a taking is a public one is judicial (Hairston vs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup.
Ct. Rep., 331; 13 Ann. Cas., 1008]), the necessity and the proper extent of a taking is a legislative
question. (Shoemaker vs. United States, 147 U.S., 282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United
States vs. Gettysburg Electric R. Co., 160 U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United
States vs. Chandler-Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup. Ct. Rep., 667].)

I think the case should be decided in accordance with foregoing citations, but one other point has been argued so extensively that
it ought to be considered.

It is contended for the defense that this Chinese Cemetery is a public cemetery and that it cannot therefore be taken for public
use. In its answer the "Comunidad de Chinos de Manila" says it is "a corporation organized and existing under and by virtue of
the laws of the Philippine Islands," and that it owns the land which plaintiff seeks to acquire. The facts that it is private
corporation owning land would seem of necessity to make the land it owns private land. The fact that it belongs to the Chinese
community deprives it of any public character.

But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the city of Manila, can it not
be taken for public use? Must we let the reverence we feel for the dead and the sanctity of their final resting-place obstruct the
progress of the living? It will be instructive to inquire what other jurisdictions have held on that point.

On the Application of Board of Street Openings of New York City to acquire St. Johns Cemetery (133 N.Y., 329) the court of
appeal said:

. . . The board instituted this proceeding under the act to acquire for park purposes the title to land below One Hundred
and Fifty-fifth street known as St. John's cemetery which belonged to a religious corporation in the city of New York,
commonly called Trinity Church. It was established as a cemetery as early as 1801, and used for that purpose until
1839, during which time about ten thousand human bodies had been buried therein. In 1839 an ordinance was passed
by the city of New York forbidding interments south of Eighty-sixth street, and since that time no interments have been
made in the cemetery, but Trinity Church has preserved and kept it in order and prevented any disturbance thereof.

It is contended on behalf of Trinity Church that under the general authority given by statute of 1887, this land which
had been devoted to cemetery purposes could not be taken for a park. The authority conferred upon the board by the act
is broad and general. It is authorized to take for park purposes any land south of One Hundred and Fifty-fifth
street. . . . .

The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the
power of eminent domain. That is an absolute transcendent power belonging to the sovereign which can be exercised
for the public welfare whenever the sovereign authority shall determine that a necessity for its exercise exists. By its
existence the homes and the dwellings of the living, and the resting-places of the dead may be alike condemned.

It seems always to have been recognized in the laws of this state, that under the general laws streets and highways
could be laid out through cemeteries, in the absence of special limitation or prohibition. . . .

In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the Supreme Court of the State said:

This was an action for the opening of a street through a cemetery in the City of Philadelphia. It was contended for the
United American Mechanics and United Daughters of America Cemetery Association that by an act of the legislature
of the State approved March 20th, 1849, they were forever exempt from the taking of any their property for streets,
roads or alleys and this Act was formally accepted by the Cemetery Company on April 9th, 1849, and there was,
therefore, a contract between the Cemetery Company and the State of Pennsylvania, which would be violated by the
 taking of any part of their property for street purposes. It was further contended that there were 11,000 persons buried
in the cemetery.

The court held that property and contracts of all kinds must yield to the demand of the sovereign and that under the
power of eminent domain all properties could be taken, and that if there was a contract between the State of
Pennsylvania and the Cemetery Association, the contract itself could be taken for public use, and ordered the opening
of the street through the cemetery.

In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it is said:

Although it has been held, that where a state has delegated the power of eminent domain to a person or corporation and
where by its exercise lands have been subject to a public use, they cannot be applied to another public use without
specific authority expressed or implied to that effect, yet, the general rule seems to be that the fact that property is
already devoted to a public use, does not exempt it from being appropriated under the right of eminent domain but it
may be so taken for a use which is clearly superior or paramount to the one to which it is already devoted. (Citing many
United States Supreme Court decisions.)

A few cases have been cited where the courts refused to allow the opening of streets through cemeteries, but in my opinion they
are not as well considered as the cases and authorities relied upon herein.

The holding of this court in this case reverses well settled principles of law of long standing and almost universal acceptance.

The other assignments of error need not be considered as they are involved in the foregoing.

The decision should be reversed and the record returned to the Court of First Instance with instructions to proceed with the case
in accordance with this decision.

THIRD DIVISION

[G.R. No. 135087. March 14, 2000]

HEIRS OF ALBERTO SUGUITAN, petitioner, vs. CITY OF MANDALUYONG, respondent. frnaics

DECISION

GONZAGA_REYES, J.:

In this petition for review on certiorari under Rule 45, petitioners[1] pray for the reversal of the Order dated July 28, 1998 issued
by Branch 155 of the Regional Trial Court of Pasig in SCA No. 875 entitled "City of Mandaluyong v. Alberto S. Suguitan, the
dispositive portion of which reads as follows:
 WHEREFORE, in view of the foregoing, the instant Motion to Dismiss is hereby DENIED and an ORDER
OF CONDEMNATION is hereby issued declaring that the plaintiff, City of Mandaluyong, has a lawful right
to take the subject parcel of land together with existing improvements thereon more specifically covered by
Transfer Certificate Of Title No. 56264 of the Registry of Deeds for Metro Manila District II for the public
use or purpose as stated in the Complaint, upon payment of just compensation.

Accordingly, in order to ascertain the just compensation, the parties are hereby directed to submit to the
Court within fifteen (15) days from notice hereof, a list of independent appraisers from which the Court t will
select three (3) to be appointed as Commissioners, pursuant to Section 5, Rule 67, Rules of Court.

SO ORDERED.[2]ella

It is undisputed by the parties that on October 13, 1994, the Sangguniang Panlungsod of Mandaluyong City issued Resolution
No. 396, S-1994[3] authorizing then Mayor Benjamin S. Abalos to institute expropriation proceedings over the property of Alberto
Sugui located at Boni Avenue and Sto. Rosario streets in Mandaluyong City with an area of 414 square meters and more
particularly described under Transfer Certificate of Title No. 56264 of the Registry of Deeds of Metro Manila District II. The
intended purpose of the expropriation was the expansion of the Mandaluyong Medical Center.

Mayor Benjamin Abalos wrote Alberto Suguitan a letter dated January 20, 1995 offering to buy his property, but Suguitan
refused to sell.[4] Consequently, on March 13, 1995, the city of Mandaluyong filed a complaint [5] for expropriation with the
Regional Trial Court of Pasig. The case was docketed as SCA No. 875. novero

Suguitan filed a motion to dismiss[6] the complaint based on the following grounds -(1) the power of eminent domain is not being
exercised in accordance with law; (2) there is no public necessity to warrant expropriation of subject property; (3) the City of
Mandaluyong seeks to expropriate the said property without payment of just compensation; (4) the City of Mandaluyong has no
budget and appropriation for the payment of the property being expropriated; and (5) expropriation of Suguitan' s property is but
a ploy of Mayor Benjamin Abalos to acquire the same for his personal use. Respondent filed its comment and opposition to the
motion. On October 24, 1995, the trial court denied Suguitan's motion to dismiss. [7]

On November 14, 1995, acting upon a motion filed by the respondent, the trial court issued an order allowing the City of
Mandaluyong to take immediate possession of Suguitan's property upon the deposit of P621,000 representing 15% of the fair
market value of the subject property based upon the current tax declaration of such property. On December 15, 1995, the City of
Mandaluyong assumed possession of the subject property by virtue of a writ of possession issued by the trial court on December
14, 1995.[8] On July 28, 1998, the court granted the assailed order of expropriation.

Petitioner assert that the city of Mandaluyong may only exercise its delegated power of eminent domain by means of an
ordinance as required by section 19 of Republic Act (RA) No. 7160, [9] and not by means of a mere resolution.[10] Respondent
contends, however, that it validly and legally exercised its power of eminent domain; that pursuant to article 36, Rule VI of the
Implementing Rules and Regulations (IRR) of RA 7160, a resolution is a sufficient antecedent for the filing of expropriation
proceedings with the Regional Trial Court. Respondent's position, which was upheld by the trial court, was explained, thus: [11]

...in the exercise of the respondent City of Mandaluyong's power of eminent domain, a "resolution"
empowering the City Mayor to initiate such expropriation proceedings and thereafter when the court has
already determine[d] with certainty the amount of just compensation to be paid for the property expropriated,
then follows an Ordinance of the Sanggunian Panlungosd appropriating funds for the payment of the
expropriated property. Admittedly, title to the property expropriated shall pass from the owner to the
expropriator only upon full payment of the just compensation. [12] novero

Petitioners refute respondent's contention that only a resolution is necessary upon the initiation of expropriation proceedings and
that an ordinance is required only in order to appropriate the funds for the payment of just compensation, explaining that the
resolution mentioned in article 36 of the IRR is for purposes of granting administrative authority to the local chief executive to
file the expropriation case in court and to represent the local government unit in such case, but does not dispense with the
necessity of an ordinance for the exercise of the power of eminent domain under section 19 of the Code. [13]

The petition is imbued with merit.

Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public
welfare.[14] It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the
common need and advance the general welfare. [15] Thus, the right of eminent domain appertains to every independent government
without the necessity for constitutional recognition.[16] The provisions found in modern constitutions of civilized countries
relating to the taking of property for the public use do not by implication grant the power to the government, but limit a power
which would otherwise be without limit.[17] Thus, our own Constitution provides that "[p]rivate property shall not be taken for
public use without just compensation."[18] Furthermore, the due process and equal protection clauses [19] act as additional
safeguards against the arbitrary exercise of this governmental power.

Since the exercise of the power of eminent domain affects an individual's right to private property, a constitutionally-protected
right necessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and
liberty,[20] the need for its circumspect operation cannot be overemphasized. In City of Manila vs. Chinese Community of
Manila we said:[21]

The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is
necessarily in derogation of private rights, and the rule in that case is that the authority must be strictly
construed. No species of property is held by individuals with greater tenacity, and none is guarded by the
constitution and the laws more sedulously, than the right to the freehold of inhabitants. When the legislature
interferes with that right, and, for greater public purposes, appropriates the land of an individual without his
consent, the plain meaning of the law should not be enlarged by doubt[ful] interpretation. (Bensley vs.
Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec. 576].)

The statutory power of taking property from the owner without his consent is one of the most delicate
exercise of governmental authority. It is to be watched with jealous scrutiny. Important as the power may be
to the government, the inviolable sanctity which all free constitutions attach to the right of property of the
citizens, constrains the strict observance of the substantial provisions of the law which are prescribed as
modes of the exercise of the power, and to protect it from abuse. ...(Dillon on Municipal Corporations [5th
Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that such power may be validly
delegated to local government units, other public entities and public utilities, although the scope of this delegated legislative
power is necessarily narrower than that of the delegating authority and may only be exercised in strict compliance with the terms
of the delegating law.[22] micks

The basis for the exercise of the power of eminent domain by local government units is section 19 of RA 7160 which provides
that:

A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, purpose, or welfare for the benefits of the poor and the landless,
upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent
laws; Provided, however, That the power of eminent domain may not be exercised unless a valid and definite
offer has been previously made to the owner, and such offer was not accepted; Provided, further,That the
local government unit may immediately take possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of the property to be
expropriated; Provided, finally, That the amount to be paid for the expropriated property shall be determined
by the proper court, based on the fair market value at the time of the taking of the property.

Despite the existence of this legislative grant in favor of local governments, it is still the duty of the courts to determine whether
the power of eminent domain is being exercised in accordance with the delegating law. [23] In fact, the courts have adopted a more
censorious attitude in resolving questions involving the proper exercise of this delegated power by local bodies, as compared to
instances when it is directly exercised by the national legislature. [24]

The courts have the obligation to determine whether the following requisites have been complied with by the local government
unit concerned:

1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of
the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over
a particular private property .calr
 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor
and the landless.

3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and
other pertinent laws.

4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated,
but said offer was not accepted.[25]

In the present case, the City of Mandaluyong seeks to exercise the power of eminent domain over petitioners' property by means
of a resolution, in contravention of the first requisite. The law in this case is clear and free from ambiguity. Section 19 of the
Code requires an ordinance, not a resolution, for the exercise of the power of eminent domain. We reiterate our ruling
in Municipality of Paraaque v. V.M. Realty Corporation[26] regarding the distinction between an ordinance and a resolution. In
that 1998 case we held that:miso

We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous.
A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a
declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a
general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted
differently -a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by
a majority of all the Sanggunian members.

We cannot uphold respondent's contention that an ordinance is needed only to appropriate funds after the court has determined
the amount of just compensation. An examination of the applicable law will show that an ordinance is necessary to authorize the
filing of a complaint with the proper court since, beginning at this point, the power of eminent domain is already being exercised.

Rule 67 of the 1997 Revised Rules of Court reveals that expropriation proceedings are comprised of two stages:

(1) the first is concerned with the determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in the context of the facts involved in the suit; it ends with
an order, if not in a dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to
take the property sought to be condemned, for the public use or purpose described in the complaint, upon the
payment of just compensation to be determined as of the date of the filing of the complaint;

(2) the second phase is concerned with the determination by the court of the just compensation for the
property sought to be taken; this is done by the court with the assistance of not more than three (3)
commissioners.[27]

Clearly, although the determination and award of just compensation to the defendant is indispensable to the transfer of ownership
in favor of the plaintiff, it is but the last stage of the expropriation proceedings, which cannot be arrived at without an initial
finding by the court that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or
purpose described in the complaint. An order of condemnation or dismissal at this stage would be final, resolving the question of
whether or not the plaintiff has properly and legally exercised its power of eminent domain.

Also, it is noted that as soon as the complaint is filed the plaintiff shall already have the right to enter upon the possession of the
real property involved upon depositing with the court at least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated. [28] Therefore, an ordinance promulgated by the local legislative
body authorizing its local chief executive to exercise the power of eminent domain is necessary prior to the filing by the latter of
the complaint with the proper court, and not only after the court has determined the amount of just compensation to which the
defendant is entitled.basra

Neither is respondent's position improved by its reliance upon Article 36 (a), Rule VI of the IRR which provides that:

If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, LGU may
expropriate said property through a resolution of the sanggunian authorizing its chief executive to initiate
expropriation proceedings.
The Court has already discussed this inconsistency between the Code and the IRR, which is more apparent than real,
in Municipality of Paraaque vs. V.M. Realty Corporation,[29] which we quote hereunder:

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to
authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the
law itself, surely prevails over said rule which merely seeks to implement it. It is axiomatic that the clear
letter of the law is controlling and cannot be amended by a mere administrative rule issued for its
implementation. Besides, what the discrepancy seems to indicate is a mere oversight in the wording of the
implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent
domain, the chief executive of the LGU must act pursuant to an ordinance.

Therefore, while we remain conscious of the constitutional policy of promoting local autonomy, we cannot grant judicial sanction
to a local government unit's exercise of its delegated power of eminent domain in contravention of the very law giving it such
power.

It should be noted, however, that our ruling in this case will not preclude the City of Mandaluyong from enacting the necessary
ordinance and thereafter reinstituting expropriation proceedings, for so long as it has complied with all other legal requirements.
[30]

WHEREFORE, the petition is hereby GRANTED. The July 28, 1998 decision of Branch 155 of the Regional Trial Court of
Pasig in SCA No. 875 is hereby REVERSED and SET ASIDE.akin

SO ORDERED.