Mabelle O.

Nebres | Local Governments Case Digests

Alvarez v. Guingona Facts: HB 8817, entitled "An Act Converting the Municipality of Santiago into an Independent Component City to be known as the City of Santiago," was filed in the HoR, subsequently passed by the HoR, and transmitted to the Senate. A counterpart of HB 8817, SB 1243 was filed in the Senate, and was passed as well. The enrolled bill was submitted to and signed by the Chief Executive as RA 7720. When a plebiscite on the Act was held on July 13, 1994, a great majority of the registered voters of Santiago voted in favor of the conversion of Santiago into a city. Issue: Constitutionality of RA 7720. SC: YES, petition denied, presumption of constitutionality, no clear and unequivocal breach of the Consti. 1. WON Internal Revenue Allotments (IRAs) must be included in determining the average annual income for purposes of conversion.YES For a municipality to be converted into an independent component city, its average annual income for the last two consecutive years (at that time, based on 1991 constant prices) must be at least 20M. Petitioners contend that the IRAs must be deducted from the municipalitys income because they are not income but transfers and/or budgetary aid from the NG and that they fluctuate depending on different factors. The court in its discussion of what an LGU is said that: a. it is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. b. It is an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio c. It is autonomous in the sense that it is given more powers, authority, responsibilities and resources. Since the LGU is given broadened powers and increased responsibilities, it now operates on a much wider scale. More extensive operations, in turn, entail more expenses. The vesting of duty, responsibility and accountability in every LGU is accompanied with a provision for reasonably adequate resources to discharge its powers and effectively carry out its functions. Availment of such resources is effectuated through the vesting in every LG unit of (1) the right to create and broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share being in the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the utilization and development of the national wealth, if any, within its territorial boundaries. The court held that the IRAs were properly included because they are items of income and form part of the gross accretion of the funds of the LGU. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the LG unit. They thus constitute income which the LG can invariably rely upon as the source of much needed funds. LGC, Sec 450 (c): "the average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income." DOF Order 35-93: ANNUAL INCOME: revenues and receipts realized by provinces, cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Secs 284, 290 and 291 of the Code, but exclusive of non-recurring receipts, such as other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others. 1. WON considering that the Senate passed SB 1243, its own version of HB 8817, RA 7720 can be said to have originated in the HoR. YES Bills of local application are required to originate exclusively in the HoR. Petitioners contend that since a bill of the same import was passed in the Senate, it cannot be said to have originated in the HoR. Such is untenable because it cannot be denied that the HB was filed first (18 Apr 1993). The SB was filed 19 May. The HB was approved on third reading 17 Dec, and was transmitted to the Senate 28 Jan 1994. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, does not

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contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House bill. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the HoR, does not contravene the constitutional requirement that a bill of local application should originate in the HoR, for as long as the Senate does not act thereupon until it receives the House bill. Tolentino v. SoF: what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the HoR on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. Basco v. PAGCOR Facts: PAGCOR was created under PD 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law. To attain its objectives (centralize and integrate the right and authority to operate and conduct games of chance, generate additional revenue to fund infrastructure and socio-civic project, expand tourism, minimize evils prevalent in conduct and operation of gambling clubs) PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended or modified. Issues: 1. WON PD 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees. NO The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes. Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it." Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the "inherent power to tax" The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" which has the power to "create and abolish municipal corporations" due to its "general legislative powers." Congress, therefore, has the power of control over LGs. And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of LGs to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by PD 771 and was vested exclusively on the NG. Only the NG has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila. LGs have no power to tax instrumentalities of the NG. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the NG. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers. PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere LG. The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the operation of constitutional laws enacted by Congress to

Mabelle O. Nebres | Local Governments Case Digests

carry into execution the powers vested in the federal government.--> "supremacy" of the NG over LGs. Holmes: absence of power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States mere creatures of the State can defeat National policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" WON the Local Autonomy Clause of the Constitution will be violated by PD 1869. NO. Art x Sec 5, Consti: Each LG unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the LG. power of LG to "impose taxes and fees" is subject to "limitations" which Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of LGs to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy. principle of local autonomy under the 1987 Constitution simply means "decentralization." It does not make LGs sovereign within the state or an "imperium in imperio." LG: political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, LGs can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. LG in such a system can only mean a measure of decentralization of the function of government. Vilas v. City of Manila Facts: Vilas, Trigas, and aguado are creditors of Manila as it existed before the cession of the Philippine Islands (PI) to the US by the treaty of Paris. According to them, under its present charter from 1. the Government of the PI is the same juristic person and liable upon the obligations of the old city. PI SC: different entity. Issue: WON notwithstanding the cession of the PI to the US followed by a reincorporation of the city, present municipality liable for obligations of old city. YES The city as now incorporated has succeeded to all of the property rights of the old city and to the right to enforce all its causes of action. There is identity of purpose between Sp and Am charters and substantial identity of municipal powers, area, and inhabitants. Argument against liability: ayuntamiento of Manila was a corporation entity created by the Sp government . when the sovereignty of Sp ceased, municipality, ceased as well.--> analogy to doctrine of principal and agent, death of principal=death of agent Dual Character of Municipal Corporations: 1. Governmental: exercises by delegation a part of the sovereignty of the state 2. Private/Business: mere legal entity or juristic person. Stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred In view of the dual character of municipal corporations, there is no public reason for presuming their total dissolution as a mere consequence of military occupation or territorial cession. McKinleys instruction: relinquishment or cession cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds Property rights of municipal corporations and individuals were safeguarded. The cession did not operate as an extinction or dissolution of corporations. The legal entity survived both military occupation and cession. The corporate identity and liability of the city was not extinguished. TVA: entitled to proceed to judgment. Lidasan v. COMELEC Facts: RA 4790 (An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur) was signed into law. Dianaton is composed of Barrios Togaig, Madalum, Bayanga, Langkong,

Mabelle O. Nebres | Local Governments Case Digests

Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan, Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain,Matimos and Magolatung. It was later found out that Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Katbo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan were not within Lanao del Sur but within Cotabato. The COMELEC adopted a resolution recognizing the new municipality for purposes of election. Meanwhile, the Office of the President recommended that the COMELEC that the operation of the statute be suspended until clarified by correcting legislation. This triggered petitioner to file action. Issue: WON RA 4790 is unconstitutional. YES The constitution requires that no bill must be enacted which shall embrace more than one subject which shall be expressed in the title of the bill. While the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein, the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. Test of the sufficiency of a title: whether or not it is misleading; technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth. In this case, not the slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in this new Lanao del Sur town. The phrase "in the Province of Lanao del Sur," read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a two-pronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur. Respondents: change in boundaries merely incidental. SC: NO! Transfer of a sizeable portion of territory from one province to another of necessity involves reduction of area, population and income of the first and the corresponding increase of those of the other. This is as important as the creation of a municipality. And yet, the title did not reflect this fact. Felwa case: cannot be considered by the court, in this case, while no reference to elective officials were made, such were incidental to the creation of B, MP,I, and K-A. Hume v. Village of Fruitport: An act to incorporate the village of Fruitport, in the County of Muskegon but statute included Ottawa. Declared unconstitutional for having more than one subject. Contention: in the County of Muskegon a mere surplusage. SC: the court cannot reject a part of the title for the purpose of saving the act. RA 4790 cannot be salvaged with reference to the nine remaining towns. While where a portion of a statute is rendered unconstitutional and the remainder valid, the parts will be separated, and the constitutional portion upheld, it is not so when the parts of the statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them. Municipal corporations perform twin functions. Firstly. They serve as an instrumentality of the State in carrying out the functions of government. Secondly. They act as an agency of the community in the administration of local affairs. It is in the latter character that they are a separate entity acting for their own purposes and not a subdivision of the State. several factors come to the fore in the consideration of whether a group of barrios is capable of maintaining itself as an independent municipality. Amongst these are population, territory, and income Speaking of the original twenty-one barrios which comprise the new municipality, the explanatory note reads: the territory is now a progressive community; the

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aggregate population is large; and the collective income is sufficient to maintain an independent municipality. This bill, if enacted into law, will enable the inhabitants concerned to govern themselves and enjoy the blessings of municipal autonomy. Obviously, what was in the mind of the proponent was the 21 barrios, and not the nine remaining. Republic v. City of Davao Facts: Davao filed an application for a Certificate of Non-Coverage (CNC) for its proposed project, the Davao City Artica Sports Dome, with the Environmental Management Bureau (EMB), Region XI. The EMB denied the application after finding that the proposed project was within an environmentally critical area and ruled that, pursuant to Sec 2, PD 1586 (Environmental Impact Statement System), in relation to Sec 4, PD 1151, (Philippine Environment Policy), Davao must undergo the environmental impact assessment (EIA) process to secure an Environmental Compliance Certificate (ECC), before it can proceed with the construction of its project. Davao filed a petition for mandamus and injunction with the RTC of Davao alleging that its proposed project was neither an environmentally critical project nor within an environmentally critical area; thus outside the scope of the EIS system. Hence, it was the ministerial duty of the DENR, through the EMB, to issue a CNC in favor of respondent upon submission of the required documents. RTC: for Davao. LGUs not required by PDs 1586 & 1511 to comply with the EIS law. Only agencies and instrumentalities of the NG, including GOCCs, as well as private corporations, firms and entities are mandated to go through the EIA process for their proposed projects which have significant effect on the quality of the environment. An LGU, not being an agency or instrumentality of the NG, is deemed excluded under the principle of expressio unius est exclusio alterius. MR: denied Issue: WON Davao is required to comply with the EIS law. YES. **Davao already expressed agreement that it must secure an ECC for proposed project, hence moot and academic, but the SC decided to still discuss issues to educate the bench and bar. Davao cannot claim exemption from coverage of PD 1586. LGU a body politic and corporate endowed with powers to be exercised by it in conformity with law. It performs dual functions: (1) Governmental functions are those that concern the health, safety and the advancement of the public good or welfare as affecting the public generally. LGU is an agency of the NG (2) Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for private advantage and benefit. LGU agent of the community in the administration of local affairs. Sec 16 LGC: duty of the LGUs to promote the peoples right to a balanced ecology. As a body politic endowed with governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD 1586. Sec 4 of PD 1586 clearly states that no person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an ECC issued by the President or his duly authorized representative. The CC defines a person as either natural or juridical. The state and its political subdivisions, LGUs are juridical persons. Undoubtedly therefore, LGUs are not excluded from the coverage of PD 1586. State policy: achieve a balance between socio-economic development and environmental protection, which are the twin goals of sustainable development. This can only be possible if we adopt a comprehensive and integrated environmental protection program where all the sectors of the community are involved, i.e., the government and the private sectors. The LGUs, as part of the machinery of the government, cannot therefore be deemed as outside the scope of the EIS system. *other issue: Davao must be granted ECC, it has duly proven that the dome will not be constructed in an environmentally critical area, hence, it becomes the ministerial duty of the DENR to issue the CNC. San Juan v. CSC Facts: When the Provinicial Board Officer position was left vacant, Rizal Governor San Juan informed Director Abella of the Department of Budget and Management that a certain Santos had assumed office as acting PBO and requested Abella to endorse Santos appointment. Abella, however recommended Almajose on

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the basis of a comparative study of all MBOs which included San Juans nominees. According to Abella, Almajose was the most qualified since she was the only CPA among the contenders. DMB Usec Cabuquit signed Almajoses appointment papers upon Abellas recommendation. Unaware of Almajoses appointment, San Juan reiterated his request for Santos appointment in a letter to Sec. Carague. DBM Reg. Dir. Galvez wrote San Jose that Santos and his other recommendees did not meet the minimum requirements under Local Budget Circular 31 for the position of local budget officer and required San Jose to submit at least three other nominees. After finding out about Almajoses appointment San Juan wrote Carague protesting against the said appointment on the grounds that Cabuquit is not legally authorized to appoint the PBO; that Almajose lacks the required three years work experience as provided in LBC 31; and that under EO 112, it is the Gov., not the RD or a Congressman, who has the power to recommend nominees for the position of PBO. DBM, through its Director of the Bureau of Legal & Legislative Affairs (BLLA) Afurung, issued a Memorandum ruling that the San Juan's letter-protest is not meritorious considering that DBM validly exercised its prerogative in filling-up the contested position since none of the his nominees met the prescribed requirements. San Juan then moved for a reconsideration of the BLLA ruling. Such was denied. He then wrote the CSC which issued resolutions upholding Almajoses appointment. Issue: WON the DBM can appoint anyone in the event that the Governor recommends unqualified persons. NO. issue is not merely about validity of appointment of PBO, but involves the application of a most important constitutional policy and principle, local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy. McKinley's Instructions: establishment of municipal governments, natives afforded the opportunity to manage their own local officers to the fullest extent of which they are capable and subject to the least degree of supervision and control 1935 Constitution: limited the executive power over local governments to "general supervision . . . as may be provided by law." Tecson v. Salas: presidential competence is not even supervision in general, but general supervision as may be provided by law. He could not thus go beyond the applicable statutory provisions, which bind and fetter his discretion on the matter. Supervision goes no further than "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties." Control "means the power of an officer to alter or modify or nullify or set aside what a subordinate had done in the performance of their duties and to substitute the judgment of the former for that of the latter." RA 2264, "An Act Amending the Law Governing Local Governments by Increasing Their Autonomy and Reorganizing Local Governments" was passed. It was followed in 1967 when Republic Act No. 5185, the Decentralization Law was enacted, giving "further autonomous powers to local governments governments." 1973 Constitution: the state shall guarantee and promote the autonomy of LGUs, especially the barangay to ensure their fullest development as self-reliant communities. article on Local Government was incorporated into the Constitution. It called for a LGC defining more responsive and accountable local government structures. The exercise of greater local autonomy is even more marked in the present Constitution. Article II, Section 25 on State Policies provides: Sec. 25. The State shall ensure the autonomy of local governments The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in greater detail the provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of Article X provide:

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Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. Sec. 3. The Congress shall enact a LGC which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different LGUs their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local governments to develop self-reliance and resoluteness in the handling of their own funds, the goal of meaningful local autonomy is frustrated and set back. The right given by Local Budget Circular No. 31 which states: Sec. 6.0 The DBM reserves the right to fill up any existing vacancy where none of the nominees of the local chief executive meet the prescribed requirements. is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications. The PBO is expected to synchronize his work with DBM. More important, however, is the proper administration of fiscal affairs at the local level. Provincial and municipal budgets are prepared at the local level and after completion are forwarded to the national officials for review. They are prepared by the local officials who must work within the constraints of those budgets. They are not formulated in the inner sanctums of an all-knowing DBM and unilaterally imposed on local governments whether or not they are relevant to local needs and resources. It is for this reason that there should be a genuine interplay, a balancing of viewpoints, and a harmonization of proposals from both the local and national officials. It is for this reason that the nomination and appointment process involves a sharing of power between the two levels of government. It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices and Judges. Under Article VIII of the Constitution, nominations for judicial positions are made by the Judicial and Bar Council. The President makes the appointments from the list of nominees submitted to her by the Council. She cannot apply the DBM procedure, reject all the Council nominees, and appoint another person whom she feels is better qualified. There can be no reservation of the right to fill up a position with a person of the appointing power's personal choice. The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez required the Provincial Governor to submit at least three other names of nominees better qualified than his earlier recommendation. It was a meaningless exercise. The appointment of the private respondent was formalized before the Governor was extended the courtesy of being informed that his nominee had been rejected. The complete disregard of the local government's prerogative and the smug belief that the DBM has absolute wisdom, authority, and discretion are manifest. In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local governments as institutions of democracy is measured by the degree of autonomy that they enjoy. Citing Tocqueville, he stated that "local assemblies of citizens constitute the strength of free nations. . . . A people may establish a system of free government but without the spirit of municipal institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706). Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based. Pimentel v. Aguirre Facts: Tan v. COMELEC Facts: Ganzon v. CSC

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Facts: Cordillera Broad Coalition v. COA Facts: Limbona v. Mangelin Facts:

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Mabelle O. Nebres | Local Governments Case Digests

him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of said EOs and/or any disbursement by said municipalities. Pelaez claims that RA 2370 had already impliedly repealed Sec 68. RA 2370, Sec 3:Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress; All barrios existing at the time of the passage of this Act shall come under the provisions hereof. When RA 2370 became effective, barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the proposed barrio is situated." ISSUE: If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities? NO. The statutory denial of the presidential authority to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. On delegation of legislative power: While the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities the authority to create municipal corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" or "solely and exclusively the exercise of legislative power. " Municipal corporations are purely the creatures of statutes. Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) fix a standard the

Pelaez v. Auditor General Facts: Pursuant to Sec 68 of the RAC, the President issued EOs 93121, 124, and 126-129 which created 33 provinces. Pelaez instituted the present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain

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limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. Schechter case: NIRA unconstitutional. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code making authority thus conferred is an unconstitutional delegation of legislative power. If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a broader connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a statutory grant of authority to the President to do anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the democratic system established by our Constitution, which it is the special duty and privilege of this Court to uphold. the executive orders in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be given. On the Presidents power of control: Sec 10 (1), Art. VII, Consti: The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed. The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned. LGUs: fundamental law permits him to wield no more authority than that of checking whether said local governments or the officers thereof perform their duties as provided by statutory enactments. The President cannot interfere with local governments, so long as the same or its officers act Within the scope of their authority. Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect,

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exercising over them the power of control denied to him by the Constitution. Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words, Sec 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has over said executive departments, bureaus or offices. In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment. Municipality of Kapalong v. Moya Facts: Pres. Garcia created the Municipality of Santo Tomas from portions of the Municipality of Kapalong. Sto. Tomas now asserts jurisdiction over eight barrios of Kapalong. Sto. Tomas then filed a complaint against Kapalong for settlement of the municipal boundary dispute. Issue: WON Santo Tomas legally exists. NO. As ruled in the Pelaez case, the President has no power to create a municipality. Since private respondent has no legal personality, it can not be a party to any civil action, and as such, Judge Moya should have dismissed the case, since further proceedings would be pointless. The Rules of Court expressly provides that only "entities authorized by law may be parties in a civil action. Alvarez v. Guingona (supra, see p.1) Cawaling v. COMELEC Facts: President Estrada signed into law RA 8806 (Act Creating The City Of Sorsogon By Merging The Municipalities Of Bacon And Sorsogon In The Province Of Sorsogon, And Appropriating Funds Therefor). The COMELEC conducted a plebiscite in Bacon and Sorsogon and submitted the matter for ratification. The Plebiscite City Board of Canvassers (PCBC) then proclaimed the creation of the City of Sorsogon as having been ratified and approved by the majority of the votes cast in the plebiscite. Cawaling, invoking his rights as a taxpayer, filed a petition for certiorari seeking the annulment of the plebiscite and challenging RA 8806. Issues: 1. WON the creation of Sorsogon City by merging two municipalities violates Section 450(a) LGC (in relation to Section 10, Article X of the Constitution) which requires that only "a municipality or a cluster of barangays may be converted into a component city" NO. Criteria for the creation of a city: SECTION 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-

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created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of specific funds, transfers, and non-recurring income." Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase "A municipality or a cluster of barangays may be converted into a component city" is not a criterion but simply one of the modes by which a city may be created. Section 10, Article X of the Constitution, quoted earlier and which petitioner cited in support of his posture, allows the merger of LGUs to create a province city, municipality or barangay in accordance with the criteria established by the Code. The creation of an entirely new LGU through a division or a merger of existing LGUs is recognized under the Constitution, provided that such merger or division shall comply with the requirements prescribed by the Code. 1. WON it violates the one bill one subject rule. NO. Petitioner contends that R.A. No. 8806 actually embraces two principal subjects which are: (1) the creation of the City of Sorsogon, and (2) the abolition of the Municipalities of Bacon and Sorsogon. While the title of the Act sufficiently informs the public about the creation of Sorsogon City, petitioner claims that no such information has been provided on the abolition of the Municipalities of Bacon and Sorsogon. Contrary to petitioner's assertion, there is only one subject embraced in the title of the law, that is, the creation of the City of Sorsogon. The abolition/cessation of the corporate existence of the Municipalities of Bacon and Sorsogon due to their merger is not a subject separate and distinct from the creation of Sorsogon City. Such abolition/cessation was but the logical, natural and inevitable consequence of the merger. Otherwise put, it is the necessary means by which the City of Sorsogon was created. Hence, the title of the law, "An Act Creating the City of Sorsogon by Merging the Municipalities of Bacon and Sorsogon in the Province of Sorsogon, and Appropriating Funds Therefor," cannot be said to exclude the incidental effect of abolishing the two municipalities, nor can it be considered to have deprived the public of fair information on this consequence. 1. WON the plebiscite was timely conducted. YES. The law was first published in the August 25, 2000 issue of TODAY a newspaper of general circulation. Then on September 01, 2000, it was published in a newspaper of local circulation in the Province of Sorsogon. Thus, the publication of the law was completed on September 1, 2000, which date, according to the COMELEC, should be the reckoning point in determining the 120-day period within which to conduct the plebiscite, not from the date of its approval (August 16, 2000) when the law had not yet been published. The COMELEC argues that since publication is indispensable for the effectivity of a law, citing the landmark case of Taada vs. Tuvera, it could only schedule the plebiscite after the Act took effect. Thus, the COMELEC concludes, the December 16, 2000 plebiscite was well within the 120-day period from the effectivity of the law on September 1, 2000 the plebiscite shall be conducted within 120 days from the date of the effectivity of the law, not from its approval. While the same provision allows a law or ordinance to fix "another date" for conducting a plebiscite, still such date must be reckoned from the date of the effectivity of the law. Consequently, the word "approval" in Section 54 of R.A. No. 8806, which should be read together with Section 65 (effectivity of the Act) thereof, could only mean "effectivity" as used and contemplated in Section 10 of the Code. This construction is in accord with the fundamental rule that all provisions of the laws relating to the same subject should be

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read together and reconciled to avoid inconsistency or repugnancy to established jurisprudence Pelaez v. Auditor General (supra, see p.14) Municipality of Candijay v. CA Facts: The Municipalities of Alicia and Candijay were in dispute over barrio/barangay Pagahat. The RTC ruled in favor of Candijay. CA : 1. Court rejected the boundary line being claimed by petitioner since it would in effect place "practically all of Barrio Pagahat . . . , part of Barrio Cagongcagong and portions of Barrio Putlongcam and La Hacienda and all of Barrio Mahayag and Barrio del Monte within the territorial jurisdiction of Candijay." Candijay will not only engulf the entire barrio of Pagahat, but also of the barrios of Putlongcam, Mahayag, Del Monte, Cagongcagong, and a part of the Municipality of Mabini. Candijay will eat up a big chunk of territories far exceeding her territorial jurisdiction under the law creating her. 2. Trial court erred in relying on Exh. X-Commissioner [exhibit for petitioner], because, in effect, it included portions of Barrios Putlongcam and La Hacienda within the jurisdiction of Candijay when said barrios are undisputedly part of Alicias territory under EO265 creating the latter" 3. After an examination of the respective survey plans of petitioner and respondent submitted as exhibits, court: "both plans are inadequate insofar as identifying the monuments of the boundary line between Candijay and the Municipality of Mabini (which is not a party to this case) as declared by the Provincial Board of Bohol. Neither plan shows where Looc-Tabasan, Lomislis Island, Tagtang Canlirong, mentioned in the aforequoted boundary line declared by the Provincial Board of Bohol, are actually located." The respondent Court, after weighing and considering the import of certain official acts, including EO. 265 dated September 16, 1949 (which created the municipality of Alicia from out of certain barrios of the municipality of Mabini), and Act 968 of the Philippine Commission dated October 31, 1903 (which set forth the respective component territories of the municipalities of Mabini and Candijay), concluded that "Barrio Bulawan from where barrio Pagahat originated is not mentioned as one of the barrios constituted as part of defendant-appellant Municipality of Alicia. Neither do they show that Barrio Pagahat forms part of plaintiff-appellant Municipality of Candijay." 4. CA: there is an equiponderance of evidence When the scale shall stand upon an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant. Under said principle, the plaintiff must rely on the strength of his evidence and not on the weakness of defendant's claim. Even if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance of evidence on his side if such evidence is insufficient in itself to establish his cause of action Issues: 1. WON the CA erred in its application of the principle of "equiponderance of evidence", for having based its ruling against petitioner on documentary evidence which, petitioner claims, are void, 2. that the challenged Decision "does not solve the problem of both towns but throws them back again to their controversy." With respect to the first and second grounds, we find that the issues of fact in this case had been adequately passed upon by respondent Court in its Decision, which is well-supported by the evidence on record. The determination of equiponderance of evidence by the respondent Court involves the appreciation of evidence by the latter tribunal, which will not be reviewed by this Court unless shown to be whimsical or capricious; here, there has been no such showing. Neither party was able to make out a case; neither side could establish its cause of action and prevail with the evidence it had. As a consequence thereof, the courts can only leave them as they are. In such cases, courts have no choice but to dismiss the complaints/petitions. 3.Alicias purported lack of juridical personality, as a result of having been created under a void executive order Candijay commenced its collateral attack on the juridical personality of Alicia some thirty five years after it first came into existence in 1949. It appears that, after presentation of its evidence, Candijay asked the trial court to bar Alicia from presenting its evidence on the ground that it had no juridical

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personality. Candijay contended that EO 265 issued by is null and void ab initio, inasmuch as Sec 68 of the RAC, on which said EO was based, constituted an undue delegation of legislative powers to the President of the Philippines, and was therefore declared unconstitutional, per this Court's ruling in Pelaez vs. Auditor General. Municipality of San Narciso, Quezon vs. Mendez, Sr: EO 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal district, and later the Municipality of San Andres, began and continued to exercise the powers and authority of a duly created LGU. Granting that EO 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of EO 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez vs. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of EO 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State's recognition of the continued existence of the Municipality of San Andres: 1. EO 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement. 2. Under AO 33, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon. 3. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon. 4. Section 442 (d) of the LGC to the effect that municipal districts "organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities." No pretension of unconstitutionality per se of Section 442 (d) of the LGC is proffered. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442 (d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving "validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with," are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights. All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded.

Alicia's situation in the instant case is strikingly

similar to that of the municipality of San Andres. Alicia was created by virtue of EO 265 in 1949, or ten years ahead of the municipality of San Andres, and therefore had been in existence for all of sixteen years when Pelaez vs. Auditor General was promulgated. And various governmental acts throughout the years all indicate the State's recognition and acknowledgment of the existence thereof. For instance, under AO 33 above-mentioned, the Municipality of Alicia was covered by the 7th

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Municipal Circuit Court of Alicia-Mabini for the province of Bohol. Likewise, under the Ordinance appended to the 1987 Constitution, the Municipality of Alicia is one of twenty municipalities comprising the Third District of Bohol. Inasmuch as respondent municipality of Alicia is similarly situated as the municipality of San Andres, it should likewise benefit from the effects of Sec 442 (d) of the LGC, and should henceforth be considered as a regular, de jure municipality. Political units directly affected: residents of the political entity who would be economically dislocated by the separation of a portion thereof = units which would participate in the plebiscite. Tan v. COMELEC (supra, see p.8) Miranda v. Aguirre Facts: In 1994, RA 7720 converting the municipality of Santiago to an independent component city was signed into law and thereafter ratified in a plebiscite. Four years later, RA 8528 which amended RA 7720 was enacted, changing the status of Santiago from an ICC to a component city. Petitioners assail the constitutionality of RA 8528 because it does not provide for submitting the law for ratification by the people of Santiago City in a proper plebiscite. Issues: 1. WON petitioners have standing. YES. Rule: constitutionality of law can be challenged by one who will sustain a direct injury as a result of its enforcement Miranda was mayor when he filed the petition, his rights would have been greatly affected. Other petitioners are residents and voters of Santiago. 1. WON petition involves a political question. NO. PQ: concerned with issues dependent upon the wisdom, not legality, of a particular measure, Justiciable issue: implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right Case at bar=justiciable. WON petitioners have right to a plebiscite is a legal question. WON laws passed by Congress comply with the requirements of the Consti pose questions that this court alone can decide. 1. WON the change involved any creation, division, merger, abolition or substantial alteration of boundaries. YES. 2. WON a plebiscite is necessary considering the change was a mere reclassification from ICC to CC. YES. A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of LGUs involve a common denominator material change in the political and economic rights of the

Vilas v. City of Manila (supra, see p.3) Padilla v. COMELEC Facts: A plebiscite in the matter of the creation of the Municipality of Tulay-Na-Lupa was held in the municipality of Labo pursuant to RA 7155 and the Constitution. Only 2890 favored its creation while 339 voted against it. The Plebiscite Board of Canvassers declared the rejection and disapproval of the independent Municipality of TNL. Gov. Padilla seeks to set aside the plebiscite and prays that a new plebiscite be undertaken because the previous one was a complete failure and the results obtained were invalid and illegal because the plebiscite should have been conducted only in the political units affected, i.e., the 12 barangays comprising TNL, to the exclusion of the remaining areas of the mother unit. Issue: WON the plebiscite conducted is valid. YES. Padillas contention that the Tan ruling has been superseded by the ratification of the 1987 Constitution, hence reinstating the Paredes ruling is untenable. Old law: political unit or units New law: political units The deletion of the words unit or does not affect the Tan ruling. Concom debates: Davide asked for deletion of unit or because the plebiscite is to be conducted in all units affected.

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LGUs directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the people "in the political units directly affected." Sec 10, Art X addressed the undesirable practice in the past whereby LGUs were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the LGU directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of LGUs. It is one instance where the people in their sovereign capacity decide on a matter that affects them direct democracy of the people as opposed to democracy thru people's representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to LGUs. The changes that will result from the downgrading of the city of Santiago from an independent component city to a component city are many and cannot be characterized as insubstantial. The independence of the city as a political unit will be diminished: The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be shared with the province. When RA 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when RA 8528 downgrades the status of their city. There is more reason to consult the people when a law substantially diminishes their right. Rule II, Art 6, paragraph (f) (1) of the IRRs of the LGC is in accord with the Constitution when it provides that no creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date. The rules cover all conversions, whether upward or downward in character, so long as they result in a material change in the LGU directly affected, especially a change in the political and economic rights of its people. Tobias v. Abalos Facts: Prior to the enactment of RA 7675 (An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known as the City of Mandaluyong) the municipalities of Mandaluyong and San Juan belonged to only one legislative district. Pursuant to the LGC, a plebiscite was held where the people of Mandaluyong were asked whether they approved of the conversion of the Municipality of Mandaluyong into a highly urbanized city. The turnout at the plebiscite was only 14.41% of the voting population. Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By virtue of these results, RA 7675 was deemed ratified and in effect. Petitioners, invoking their rights as taxpayers and as residents of Mandaluyong, come before the court to assail the constitutionality of RA 7675. Issue: WON RA 7675 unconstitutional. YES. 1. RA 7675 contravenes the "one subject-one bill" rule. Sec. 26(1), Consti: Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Petitioners: inclusion of the assailed Section 49 in the subject law resulted in the latter embracing two principal subjects: (1) the conversion of

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Mandaluyong into a highly urbanized city; and (2) the division of the congressional district of San Juan/Mandaluyong into two separate districts. the statutory conversion of Mandaluyong into a highly urbanized city with a population of not less than two hundred fifty thousand indubitably ordains compliance with the "one city-one representative" proviso in the Constitution: Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" (Article VI, Section 5(3), Constitution). Hence, it is in compliance with the aforestated constitutional mandate that the creation of a separate congressional district for the City of Mandaluyong is decreed under Article VIII, Section 49 of R..A. No. 7675. The creation of a separate congressional district for Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly urbanized city but is a natural and logical consequence of its conversion into a highly urbanized city. Verily, the title of R.A. No. 7675, "An Act Converting the Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong" necessarily includes and contemplates the subject treated under Section 49 regarding the creation of a separate congressional district for Mandaluyong. Sumulong v. Comelec: the constitutional requirement as now expressed in Article VI, Section 26(1) "should be given a practical rather than a technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions are germane to that general subject." Lidasan v. Comelec: Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill and the public, of the nature, scope and consequences of the proposed law and its operation" 1. WON the division of San Juan and Mandaluyong into separate congressional districts under Section 49 of the assailed law resulting in an increase in the composition of the House of Representatives beyond that provided in Article VI, Sec. 5(1) of the Constitution. Sec. 5(1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party list system of registered national, regional and sectoral parties or organizations. Limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, "unless otherwise provided by law." The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by RA 7675 is not unconstitutional. 1. WON the division was made pursuant to a census showing that the subject municipalities have attained the minimum population requirements. NO. Petitioners: there is no mention in the assailed law of any census to show that Mandaluyong and San Juan had each attained the minimum requirement of 250,000 inhabitants to justify their separation into two legislative districts. Such does not suffice to strike down the validity of RA 7675. The said Act enjoys the presumption of having passed through the regular congressional processes, including due consideration by the members of Congress of the minimum requirements for the establishment of separate legislative

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districts. At any rate, it is not required that all laws emanating from the legislature must contain all relevant data considered by Congress in the enactment of said laws. WON Section 49 has the effect of preempting the right of Congress to reapportion legislative districts. NO. Sec. 5(4): Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this section. Petitioners: Section 49 of RA 7675 preempts the right of Congress to reapportion legislative districts argument borders on the absurd since petitioners overlook the glaring fact that it was Congress itself which drafted, deliberated upon and enacted the assailed law, including Section 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself. WON the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong. WON the subject law has resulted in "gerrymandering," which is the practice of creating legislative districts to favor a particular candidate or party. NO. As correctly observed by the Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed law, is the incumbent representative of the former San Juan/Mandaluyong district, having consistently won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamora's constituency has in fact been diminished, which development could hardly be considered as favorable to him. Cruz v. Paras Facts: Ordinance 84 was passed by the Municipality of Bocaue. Petitioners are business owners who had been previously issued licenses by the Municipal Mayor of Bocaue Issues: 1. WON a municipality may rely on its police power to justify the enactment of the assailed ordinance. NO. Police power granted to municipal corporations: "General power of council to enact ordinances and make regulations.- The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." US v. Abendan: An ordinance enacted by virtue of police power is valid unless it contravenes the fundamental law, an act of the legislature, against public policy, or is unreasonable, partial, discriminating or in derogation of a common right. US v. Salaveria: The general welfare clause has two branches: 1. attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. 2.It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. It is a general rule that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State. If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would

1.

1.

1.

Dela

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pass the test of validity. **reasonableness, consonance with the general powers and purposes of municipal corporations, consistency with the laws or policy of the State. It is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed. 1. WON a municipality has no authority to prohibit a lawful business, occupation or calling. NO. RA 938: the municipal or city board or council of each chartered city shall have the power to regulate by ordinance the establishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within its territorial jurisdiction: . . . Then on May 21, 1954, the first section was amended to include not merely "the power to regulate, but likewise "prohibit . . ." The title, however, remained the same and the exact wording was followed. The power granted remains that of regulation, not prohibition. There is thus support for the view advanced by petitioners that to construe RA 938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question. There is a wide gap between the exercise of a regulatory power "to provide for the health and safety, promote the prosperity, improve the morals," in the language of the Administrative Code, such competence extending to all "the great public needs," and to interdict any calling, occupation, or enterprise. It is clear that municipal corporations cannot prohibit the operation of might clubs. They may be regulated, but not prevented from carrying on their business. Technology Developers v. CA Facts: TD received a letter from acting mayor Cruz, ordering the full cessation of the operation of its plant located at Guyong, Sta. Maria, Bulacan, until further order. The letter likewise requested its plant manager to bring with him to the office of the mayor the following: a) Building permit; b) Mayor's permit; c) Region IIIPollution of Environment and Natural Resources Anti-Pollution Permit. In compliance with said undertaking, petitioner commenced to secure "Region III-Department of Environmental and Natural Resources Anti-Pollution Permit," although among the permits previously secured prior to the operation of petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued by the then National Pollution Control Commission (now Environmental Management Bureau) and is now at a stage where the Environmental Management Bureau is trying to determine the correct kind of anti-pollution devise to be installed as part of petitioner's request for the renewal of its permit. TD's attention having been called to its lack of mayor's permit, it sent its representatives to the office of the mayor to secure the same but were not entertained. On April 6, 1989, without previous and reasonable notice upon petitioner, respondent acting mayor ordered the Municipality's station commander to padlock the premises of petitioner's plant, thus effectively causing the stoppage of its operation. RTC: action for certiorari, prohibition, mandamus with preliminary injunction. Closure order was issued in grave abuse of discretion. Judge issued of the writ of preliminary mandatory injunction. MR: RTC issued an order (a) setting aside the order which granted a Writ of Preliminary Mandatory Injunction, and (b) dissolving the writ consequently issued. CA: certiorari and prohibition with preliminary injunction. In due course the petition was denied for lack of merit. MR: denied. Issue: WON the appellate court committed a grave abuse of discretion in rendering its question decision and resolution. NO. The authority of the local executive to protect the community from pollution is the center of this controversy. The following circumstances militate against the maintenance of the writ of preliminary injunction sought by petitioner:

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1. No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control if not prohibition of the operation of a business is essentially addressed to the then National Pollution Control Commission of the Ministry of Human Settlements, now the Environmental Management Bureau of the Department of Environment and Natural Resources, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virture of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriate measures are taken to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also affect the health of the residents in the area," so that petitioner was ordered to stop its operation until further orders and it was required to bring its permits (see facts) This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic Guina who in her report of December 8, 1988 observed that the fumes emitted by the plant of petitioner goes directly to the surrounding houses and that no proper air pollution device has been installed. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati on March 6,1987. 6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988. Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community. TD: huge investment. SC: such is concomitant with the need to promote investment and contribute to the growth of the economy is the equally essential imperative of protecting the health, nay the very lives of the people, from the deleterious effect of the pollution of the environment. Chua Huat v. CA Facts: Manuel Uy and Sons, Inc., requested the City Engineer and Building Official of Manila, to condemn the dilapidated structures located at 1271 to 1277 Pedro Gil St. and 1553 to 1557 Paz St., Paco, Manila, all occupied by petitioners. Notices of condemnation were issued, stating that the subject buildings were found to be in dangerous condition and therefore condemned, subject to the confirmation of the Mayor as required by Section 276 of the Compilation of Ordinances of the City of Manila. The orders were based on the inspection reports made by Architect Oscar D. Andres and the Memorandum-Reports made by the Evaluation Committee of the Office of the City Engineer, which all showed that the subject buildings suffer from structural deterioration by more than 50% and as much as 80%. Civil Engineer Romulo C. Molas, a private practitioner, inspected the abovementioned structures upon the request of petitioners herein. In his evaluation report, he stated that although the buildings are old, they are still structurally sound and have a remaining economic life of at least eight years. Three months after the notices of condemnation were issued, petitioners formally protested against said notices of condemnation on the ground that the buildings are still in good physical condition and are structurally sound based on the abovementioned certification of Civil Engineer Romulo C. Molas.

2.

3.

4.

5.

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On 26 April 1983, Maria Gamboa, one of the petitioners herein, was informed of the issuance by the City Engineer of the demolition order with respect to the building located at 1565 Paz St., Paco, Manila, and was told to vacate the premises within 15 days from notice. On 2 May 1983, petitioners filed the instant Petition for Prohibition, with Preliminary Injunction and/or Restraining Order, against City Mayor Ramon Bagatsing, City Engineer and Building Officer Romulo del Rosario and Manuel Uy and Sons, Inc., praying that a restraining order or preliminary injunction be issued enjoining respondents from proceeding with the announced demolition of the subject buildings, this petition be given due course, and after hearing, respondents be prohibited from demolishing said buildings. They alleged a grave abuse of discretion amounting to lack of jurisdiction and that there is no other plain, speedy, and adequate remedy. The Mayor confirmed the rest of the condemnation orders issued by the respondent City Engineer. City Mayor and City Engineer: petition should be dismissed on the following grounds: (a) that it involves questions of facts which should be ventilated before the Regional Trial Court of Manila; (b) the subject buildings were condemned and ordered removed after it was established that they had suffered from defects or deterioration thereby posing perils to the lives and limbs not only of petitioners but also to the public in general; (c) the power to condemn buildings and structures in the City of Manila falls within the exclusive domain of the City Engineer pursuant to Sections 275 and 276 of its Compilation of Ordinances (also Revised Ordinances 1600); (d) the power to condemn and remove buildings and structures is an exercise of the police power granted the City of Manila to promote public safety; and (e) administrative decisions falling within the executive jurisdiction cannot be set aside by courts of justice except on proof of grave abuse of discretion, fraud or error of law. Manuel Uy and Sons, Inc: petition is premature, unreasonable and deserves no consideration as petitioners have not exhausted readily-available administrative remedies and that the validity of the questioned condemnation and demolition orders entails questions of facts not entertainable in this petition. It alleges that the condemnation orders were not immediately executory, as the finding of the City Engineer/Building Official is still subject to the approval of the Mayor per Section 276 of the Compilation of Ordinances of the City of Manila. Moreover, under Section 5.3, Rule VII of the Implementing Rules and Regulations of P.D. No. 1096, the owner of a building may appeal to the Secretary of Public Works and Communications, whose decision is final, the finding or declaration of the Building Official and ask that a reinspection or re-investigation of the building or structure be made; for not availing of this remedy, petitioners failed to exhaust administrative remedies. Issue: WON the mayor and city engineer committed grave abuse of discretion amounting to lack of jurisdiction in issuing the condemnation orders. NO. It is patently obvious that petitioners have no valid grievance for the remedy of certiorari under Rule 65 of the Rules of Court to be available to them. It is explicitly clear from Section 1 of Rule 65 of the Rules of Court that for certiorari to be available: (a) a tribunal, board or office exercising judicial function acted without or in excess of its or his jurisdiction, or with grave abuse of discretion, and (b) that there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. Petitioners failed to show the presence of both elements. The power to condemn buildings and structures in the City of Manila falls within the exclusive jurisdiction of the City Engineer, who is at the same time the Building Official (Sec. 206, P.D. 1096). Sections 275 and 276 of the Compilation of Ordinances of the City of Manila (also Revised Ordinances 1600), provide: "SEC. 275. Deterioration and Defects. All buildings or parts of buildings which show defects in any essential parts shall be repaired and put in safe condition at once, or if the deterioration be greater than fifty per centum of the value of the building, as estimated by the city engineer, they shall be removed. SEC. 276. Condemnation Proceedings. Whenever in the judgment of the City Engineer any building or portion of building has been damaged by any cause to such an extent as to be dangerous for use, he may condemn the same and shall immediately

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notify the owner and the Mayor of his action. If the owner or his agent be not willing to abide by thus order of condemnation, he may make formal objection within the period of seven days following such notification. The Mayor shall hear the owner or his agent and his experts and also the city engineer, deciding the case on the evidence presented. If the Mayor confirms the action of the city engineer, the owner or his agent shall immediately proceed to remove the building within fifteen days from the date on which he was notified of such final action. Should the owner or his agent not comply with the decision of the Mayor the building shall be removed at his expense and the city will proceed to recover against him for the amount expended." Section 215 of P.D. 1096, otherwise known as the National Building Code, also states the authority of the Building Official with respect to dangerous buildings, to wit: "When any building or structure is found or declared to be dangerous or ruinous, the Building official shall order its repair, vacation or demolition depending upon the degree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines." From the abovementioned provisions, it is unquestionable that the Building Official has the authority to order the condemnation and demolition of buildings which are found to be in a dangerous or ruinous condition. It is also clear from the Compilation of Ordinances of the City of Manila that the Mayor has the power to confirm or deny the action taken by the Building Official with respect to the dangerous or ruinous buildings. City Engineer and Building Official, Romulo M. del Rosario, can, therefore, validly issue the questioned condemnation and demolition orders. This is also true with the respondent Mayor who can approve or deny the condemnation orders as provided in Section 276 of the Compilation of Ordinances of the City of Manila. It is a settled doctrine that there is grave abuse of discretion amounting to lack of jurisdiction "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." We find no grave abuse of discretion on the part of the respondent City Engineer because the orders were made only after thorough ocular inspections were conducted by the City's Building Inspectors. The results of the inspections were set forth in a memorandum dated 16 November 1982 where it was shown that all the buildings had architectural, structural, sanitary, plumbing and electrical defects of up to 80%. The Mayor's act of approving the condemnation orders was likewise done in accordance with law. The protest made by petitioners was submitted only on 22 February 1983, or three months after the notices of condemnation were issued, and clearly beyond the seven days prescribed under Section 276 of the Compilation of Ordinances of the City of Manila. Moreover, appeal was likewise available to petitioners. The Implementing Rules and Regulations promulgated by the then Ministry of Public Works to implement P.D. No. 1096, under the title Abatement/Demolition of Buildings, provide: "5. Procedure for Demolition of Buildings. The following steps shall be observed in the abatement/demolition of buildings under this Rule: 5.1. There must be a finding or declaration by the Building Official that the building or structure is a nuisance, ruinous or dangerous . . .5.3. Within the fifteen-day period, the owner may, if he so desires, appeal to the Secretary the finding or declaration of the Building Official and ask that a re-inspection or re-investigation of the

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building or structure be made . . .5.6. The decision of the Secretary on the appeal shall be final." Certiorari will not be then because petitioners failed to exhaust all the administrative remedies. This Court has long upheld the doctrine of exhaustion of administrative remedies because it rests on the assumption that the administrative body, board or officer, if given the chance to correct its/his mistake or error, may amend its/his decision on a given matter. Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. There are, of course, exceptions to this rule, but none is available to petitioners. implementation thereof. The program was stayed by COA Decision No. 1159. Issues: 1. WON R 60 is a valid exercise of police power under the general welfare clause. YES. Police power is inherent in the state but not in municipal corporations. Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people. Municipal governments exercise this power under the general welfare clause: authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." Sec 7 of BP 337: every LGU shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the LGU, and preserve the comfort and convenience of the inhabitants therein."

Binay v. Domingo Facts: Resolution 60 confirming the ongoing burial assistance program initiated by the mayors office. Under this program, bereaved families whose gross family income does not exceed 2k/month will receive a 500php cash relief to be taken out of unappropriated available funds existing in the municipal treasury. The Metro Manila Commission approved Resolution 60. Thereafter, the municipal secretary certified a disbursement of P400,000 for the implementation of the Burial Assistance Program. R 60 was referred to the Commission on Audit for its expected allowance in audit. Based on its preliminary findings, COA disapproved R 60 and disallowed in audit the disbursement of funds for the

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Police power: power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers; greatest and most powerful attribute of the government; elastic and must be responsive to various social conditions. COA: there is no perceptible connection or relation between the objective sought to be attained under R 60 and the alleged public safety, general welfare. etc. of the inhabitants of Makati Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public safety, general welfare, etc. of the inhabitants of Makati ." Police power of a municipal corporation: broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation. Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power. COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. OSG: "the drift is towards social welfare legislation geared towards state policies to provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for human rights. (Section 11, Ibid." The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good. There is no violation of the equal protection clause in classifying paupers as subject of legislation. Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the disabled, emancipating the tenantfarmer from the bondage of the soil, housing the urban poor, etc. The resolution is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete. The loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life, should have more in law." Tatel v. Municipality of Virac Facts: Based on complaints received by the residents of barrio Sta. Elena against the disturbance caused by the operation of the abaca bailing machine inside Tatels warehouse, Resolution 291 was enacted by the Municipal Council of Virac declaring Tatels warehouse a public nuisance within the purview of Article 694 of the Civil Code and directing the petitioner to remove and transfer said warehouse to a more suitable place within two months from receipt of the said resolution. The municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance 13, prohibiting the construction of warehouses near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire. Tatel contends

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that said ordinance is unconstitutional, contrary to the due process and equal protection clause of the Constitution and null and void for not having been passed in accordance with law. Issue: 1. WON Ordinance No. 13 is unconstitutional. NO Ordinance 13, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with the police powers in order to effectively accomplish and carry out the declared objects of their creation. Its authority emanates from the general welfare clause under the Administrative Code, which reads: The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. Ordinance 13 meets these criteria. In spite of its fractured syntax, what is regulated by the ordinance is the construction of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property in case of fire which is one of the primordial obligation of the government. The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government. Tamin v. CA Facts: The municipality of Dumingag file d a case for the ejectment of Medina and Rosellon. According to the municipality, it is the owner of a parcel of residential land located at Poblacion, Dumingag, Zamboanga del Sur with an area of 5,894 square meters more or less; that the parcel of land was reserved for public plaza under PP 365 and that the incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958, the municipality leased an Area of 1,350 square meters to M&R subject to the condition that they should vacate the place in case it is needed for public purposes; that the defendants religiously paid the rentals until 1967. M&R, however refused to pay the rentals as well as vacate the area. Hence, despite the national governments allotment for the construction of a municipal gymnasium within the public plaza, such construction which was already started could not continue because of the presence of the buildings constructed by the defendants. According to the municipality, the appropriation for the construction of the gymnasium might be reverted back to the national government which would result to "irreparable damage, injury and prejudice" to the municipality and its people who are expected to derive benefit from the accomplishment of the project. RTC: Judge Tamin issued an order setting the preliminary hearing for the issuance of a writ of preliminary mandatory injunction and/or writ of possession, and instead of filing an answer, the

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respondents filed an MTD alleging the lack of jurisdiction of the TC, since the complaint is for illegal detainer which is within the original jurisdiction of the municipal court and the pendency of a cadastral case between the parties over the ownership of the same parcel of land. Tamin denied the MTD and granted the municipality's motion for a writ of possession "with the ancillary writ of demolition to place in possession the plaintiff on the land subject of this case, to the end that the public construction thereon will not be jeopardized." According to Tamin, the municipality alleges that M&R are claiming ownership over the land which was previously rented to them. This action is, therefore, an accion de reivindicacion, a real action within the jurisdiction of this court. As the complaint is for recovery of ownership of the land not to enforce the contract, the Statute of Fraud does not apply. The land subject of this case is covered by PD 365, withdrawing this land from sale of settlement and reserving the same for school site purposes under the administration of the Director of Public School and public plaza under the administration of the Municipality of Dumingag, therefore the Cadastral court has no jurisdiction over the land involved in this case. Tamin justified his granting the motion for a writ of possession with the ancillary writ of demolition by applying the rule an eminent domain in analogy in that under this Rule the complainant is given the right to the writ of possession in order that public construction and projects will not be delayed. According to him, the necessity of a writ of possession is greater in the instant case considering that the parcel of land is covered by a PP and the on-going construction thereon is being endangered to be left unfinished on account of the buildings standing on the parcel of land because the appropriation for the construction might be reverted back to the national treasury. M&R filed an omnibus MR with motion to set aside order and to quash writ of possession and demolition but this was denied. The municipality implemented the writ of possession and ancillary writ of demolition issued by the petitioner Judge resulting in the dispossession of the private respondents from the parcel of land and the demolition of structures and buildings thereon owned by the respondents. M&Rs answer: The parcel of land has been owned, occupied and possess by respondent Vicente Medina since 1947 when he bought the subject parcel from a Subanan native; that the other respondent Fortunata Rosellon leased from Medina a portion of the parcel of land; that the respondents were never lessees of the petitioner municipality; that Proclamation 365 issued on March 15, 1968 recognized "private rights"; and, that a case is pending before the Cadastral court between respondent Medina and petitioner municipality as regards the ownership of the subject parcel of land. Before the petitioner Judge could further act on the case, the private respondents filed a petition for certiorari with the CA questioning the orders of the petitioner Judge. Petition was given due course and a TRO was issued enjoining the petitioner Judge from proceeding with the hearing of the case and from enforcing the orders. CA: RTC committed an error when it applied by analogy the rule on eminent domain to justify the issuance of the writ of possession and writ of demolition. The appellate court pointed out that under this rule: (i) There is clear statutory authority for the taking of possession by the government and (ii) The authority is premised on the government depositing the value of the land to be taken. In the case at bar, there is neither statutory authority for the trial court's action nor bond given to compensate the petitioners for the deprivation of their possession and the destruction of their houses if it turns out that the land belongs to them. For this reason, we think the trial courts order is arbitrary and void. For the fact is that petitioners claim ownership of the land in question and until that question is resolved either in the case pending before the respondent judge or in the cadastral proceeding, it would be unjust to deprive petitioners of its possession. Issue: 1. WON the allegations in the complaint constitute a cause of action for abatement of public nuisance under Article 694 of the Civil Code. Applying these criteria, we agree with the petitioners that the complaint alleges factual circumstances of a complaint for abatement of public nuisance. Art. 694, CC A nuisance is any act, omission, establishment, business, condition of property or anything else which: (5) Hinders or impairs the use of property. Art. 695, CC Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance,

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danger or damage upon individuals may be unequal. .. Thus, the complaint states: that petitioner municipality is the owner of a parcel of land covered by Presidential Proclamation No 365 which is reserved for a public plaza; that the private respondents by virtue of a contract of lease entered into by the former mayor occupied a portion of the parcel of land constructing buildings thereon; that the private respondents refused to vacate the premises despite demands; that the municipality is constructing a municipal gymnasium in the area financed by appropriations provided by the national government; and that the appropriations are in danger of being reverted to the national treasury because the construction had to be stopped in view of the refusal of the private respondents to vacate the area. 1. WON the municipality is entitled to a writ of possession and a writ of demolition even before the trial of the case starts. Article 699 of the Civil Code provides for the following remedies against a public nuisance: (1) A prosecution under the Penal Code or any local ordinance; or(2) A civil action; or (3) Abatement, without judicial proceedings. The petitioner municipality had three remedies from which to select its cause of action. It chose to file a civil action for the recovery of possession of the parcel of land occupied by the private respondents. Obviously, petitioner municipality was aware that under the then LGC (B.P. Blg. 337) the Sangguniang Bayan has to first pass an ordinance before the municipality may summarily abate a public nuisance. (Sec. 149(z) (ee). On the premise that the parcel of land forms part of a public plaza, the petitioners now contend that the Judge was justified in issuing the writ of possession and writ of demolition. A public plaza is outside the commerce of man and constructions thereon can be abated summarily by the municipality, citing a case: Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869-870) where the Supreme Court declared: There is absolutely no question that the town plaza cannot be used for the construction of market stalls, specially of residences, and that such structures constitute a nuisance subject to abatement according to law. Town plazas are properties of public dominion, to be devoted to public use and to be made available to the public in general. They are outside the commerce of man and cannot be disposed of or even leased by the municipality to private parties. Applying this well-settled doctrine, we rule that petitioners had no right in the first place to occupy the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts. They should have realized and accepted this earlier, considering that even before Civil Case No. 2040 was decided, the municipal council of San Fernando had already adopted Resolution No. 29, series of 1964, declaring this area as the parking place and public plaza of the municipality. It is the decision in Civil Case No. 2040 and the said resolution of the municipal council of San Fernando that respondent Macalino was seeking to enforce when he ordered the demolition of the stalls constructed in the disputed area. As officer-in-charge of the office of the mayor, he had the duty to clear the area and restore it to its intended use as a parking place and public plaza of the municipality of San Fernando, conformably to the aforementioned orders from the court and the council. It is, therefore, not correct to say that he had acted without authority or taken the law into his hands in issuing his order.

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The Court observes that even without such investigatiom and recommendation, the respondent mayor was justified in ordering the area cleared on the strength alone of its status as a public plaza as declared by the judicial and legislative authorities. . If, therefore, the allegations in the complaint are true and that the parcel of land being occupied by the private respondents is indeed a public plaza, then the writ of possession and writ of demolition would have been justified. In fact, under such circumstances, there would have been no need for a writ of possession in favor of the petitioner municipality since the private respondents' occupation over the subject parcel of land can not be recognized by any law. A writ of demolition would have been sufficient to eject the private respondents. However, not only did the municipality avoid the use of abatement without judicial proceedings, but the status of the subject parcel of land has yet to be decided. We have to consider the fact that Proclamation No. 365 dated March 15, 1968 recognizes private rights which may have been vested on other persons, to wit: BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO. 365 RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND PLAYGROUND PURPOSES CERTAIN PARCELS OF LAND OF THE PUBLIC DOMAIN SITUATED IN THE MUNICIPALITY OF DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLAND OF MINDANAO. Upon recommendation of the Secretary of Agriculture and Natural Resources and pursuant to the authority vested in me by law, I FERDINAND E. MARCOS, PRESIDENT OF THE PHILIPPINES, do hereby withdraw from sale or settlement and under the administration of the Director of Public Schools administration of the Municipal Government of Dumingag, subject to private rights, if any there be, certain parcels of land of the public domain situated in the Municipality of Dumingag, Province of Zamboanga del Sur, Island of Mindanao, It is to be noted that even before the Proclamation, the parcel of land was the subject of cadastral proceedings before another branch of the Regional Trial Court of Zamboanga del Sur. At the time of the filing of the instant case, the cadastral proceedings intended to settle the ownership over the questioned portion of the parcel of land under Proclamation No. 365 were still pending. One of the claimants in the cadastral proceedings is private respondent Vicente Medina who traced his ownership over the subject parcel of land as far back as 1947 when he allegedly bought the same from a Subanan native. Under the cadastral system, the government through the Director of Lands initiates the proceedings by filing a petition in court after which all owners or claimants are compelled to act and present their answers otherwise they lose their right to their own property. The purpose is to serve the public interests by requiring that the titles to any lands "be settled and adjudicated." (Section 1 Cadastral Act [No. 22593] Government of the Philippine Islands v. Abural, 39 Phil. 996 [1919]. It is a proceeding in rem somewhat akin to a judicial inquiry and investigation leading to a judicial decree. (Director of Lands v. Roman Archbishop of Manila, 41 Phil. 120 [1920]) Considering therefore, the nature and purpose of the Cadastral proceedings, the outcome of said proceedings becomes a prejudicial question which must be addressed in the resolution of the instant case. We apply by analogy the ruling in the case of Quiambao v. Osorio (158 SCRA 674 [1988]), to wit: The

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instant controversy boils down to the sole question of whether or not the administrative case between the private parties involving the lot subject matter of the ejectment case constitutes a prejudicial question which would operate as a bar to said ejectment case. A prejudicial question is understood in law to be that which arises in a case the resolution of which is a logical antecedent of the issue involved in said case and the cognizance of which pertains to another tribunal. (Zapanta v. Montesa, 4 SCRA 510 [1962]; People v. Aragon, 50 O.G.. No. 10, 4863) The doctrine of prejudicial question comes as in to play generally in a situation where civil and criminal actions are pending and the issues involved in bath cases are similar or so closely-related that an issue must be preemptively resolved in the civil case before the criminal action can proceed. Thus, the existence it a prejudicial question in a civil case is alleged in the criminal case to cause the suspension of the latter pending final determination of the former. The essential elements of a prejudicial question as provided under Section 5, Rule 111 of the Revised Rules of Court area: [a] the civil action involves an issue similar or intimately related to the issue in the criminal action; and [b] the resolution of such issue determines whether or not the criminal action may proceed. The actions involved in the case at bar being respectively civil and administrative in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two [2] proceedings, stemming from the fact that the right of private respondents to eject petitioner from the disputed portion depends primarily on the resolution of the pending administrative case. For while it may be true that private respondents had prior possession of the lot in question, at the time of the institution of the ejectment case, such right of possession had been terminated, or at the very least, suspended by the cancellation by the Land Authority of the Agreement to Sell executed in their favor. Whether or not private respondents can continue to exercise their right of possession is but a necessary, logical consequence of the issue involved in the pending administrative case assailing the validity of the cancellation of the Agreement to Sell and the subsequent award of the disputed portion to petitioner. If the cancellation of the agreement, to Sell and the subsequent award to petitioner are voided, then private respondent's right of possession is lost and so would their right to eject petitioner from said portion. Faced with these distinct possibilities, the more prudent course for the trial court to have taken is to hold the ejectment proceedings in abeyance until after a determination of the administrative case. Indeed, logic and pragmatism, if not jurisprudence, dictate such move. To allow the parties to undergo trial notwithstanding the possibility of petitioner's right of possession being upheld in the pending administrative case is to needlessly require not only the parties but the court as well to expend time, effort in what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d tells us: The court in which an action is pending may, in the exercise of a sound discretion, upon proper application for a stay of that action, hold the action in abeyance to abide the outcome of another pending in another court, especially where the parties and the issues are the same, for there is power inherent in every court to control the

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disposition of causes an its dockets with economy of time and effort for itself, for counsel, and for litigants. Where the rights of parties in the record action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed. While this rule is properly applicable to instances involving two [2] court actions, the existence in the instant case of the same considerations of identity of parties and issues, economy of time and effort for the court, the counsels and the parties as well as the need to resolve the parties' right of possession before the ejectment case may be properly determined, justifies the rule's analogous application to the case at bar. Technically, a prejudicial question shall not rise in the instant case since the two actions involved are both civil in nature. However, we have to consider the fact that the cadastral proceedings will ultimately settle the real owner/s of the disputed parcel of land. In case respondent Vicente Medina is adjudged the real owner of the parcel of land, then the writ of possession and writ of demolition would necessarily be null and void. Not only that. The demolition of the constructions in the parcel of land would prove truly unjust to the private respondents. Patalinhug v. CA Facts: The Sangguniang Panlungsod of Davao City enacted Ordinance 363, series of 1982 otherwise known as the "Expanded Zoning Ordinance of Davao City," Section 8 of which states: Sec. 8. USE REGULATIONS IN C-2 DISTRICTS (Shaded light red in the Expanded Zoning Map) AC-2 District shall be dominantly for commercial and compatible industrial uses as provided hereunder: 3.1 Funeral Parlors/Memorial Homes with adequate off street parking space (see parking standards of P.D. 1096) and provided that they shall be established not less than 50 meters from any residential structures, churches and other institutional buildings. Upon prior approval and certification of zoning compliance by Zoning Administrator issued on February 10, 1987 Building Permit No. 870254 in favor of petitioner for the construction of a funeral parlor in the name and style of Metropolitan Funeral Parlor at Cabaguio Avenue, Agdao, Davao City. Thereafter, petitioner commenced the construction of his funeral parlor. Acting on the complaint of several residents of Barangay Agdao, Davao City that the construction of petitioner's funeral parlor violated Ordinance No. 363, since it was allegedly situated within a 50-meter radius from the Iglesia ni Kristo Chapel and several residential structures, the Sangguniang Panlungsod conducted an investigation and found that "the nearest residential structure, owned by Wilfred G. Tepoot is only 8 inches to the south. . . . ." Notwithstanding the findings of the Sangguniang Panlungsod, petitioner continued to construct his funeral parlor which was finished on November 3, 1987. Consequently, private respondents filed on September 6, 1988 a case for the declaration of nullity of a building permit with preliminary prohibitory and mandatory injunction and/or restraining order with the trial court. Issue: 1. WON the CA erred in concluding that the Tepoot building adjacent to petitioner's funeral parlor is residential simply because it was allegedly declared as such for taxation purposes, in complete disregard of Ordinance 363 declaring the subject area as dominantly for commercial and compatible industrial uses. YES. A tax declaration is not conclusive of the nature of the property for zoning purposes. A property may have been declared by its owner as residential for real estate taxation purposes but it may well be within a commercial zone. A discrepancy may thus exist in the determination of the nature of property for real estate taxation purposes vis-a-vis the determination of a property for zoning purposes. Even if we are to examine the evidentiary value of a tax declaration under the Real Property Tax Code, a tax declaration only enables the assessor to identify the same for assessment levels. In fact, a tax declaration does not bind a provincial/city assessor, for under Sec. 22 of the Real

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Estate Tax Code, appraisal and assessment are based on the actual use irrespective of "any previous assessment or taxpayer's valuation thereon," which is based on a taxpayer's declaration. In fact, a piece of land declared by a taxpayer as residential may be assessed by the provincial or city assessor as commercial because its actual use is commercial. The trial court's determination that Mr. Tepoot's building is commercial and, therefore, Sec. 8 is inapplicable, is strengthened by the fact that the Sangguniang Panlungsod has declared the questioned area as commercial or C-2. Consequently, even if Tepoot's building was declared for taxation purposes as residential, once a local government has reclassified an area as commercial, that determination for zoning purposes must prevail. While the commercial character of the questioned vicinity has been declared thru the ordinance, private respondents have failed to present convincing arguments to substantiate their claim that Cabaguio Avenue, where the funeral parlor was constructed, was still a residential zone. Unquestionably, the operation of a funeral parlor constitutes a "commercial purpose," as gleaned from Ordinance 363. The declaration of the said area as a commercial zone thru a municipal ordinance is an exercise of police power to promote the good order and general welfare of the people in the locality. Corollary thereto, the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Persons may be subjected to certain kinds of restraints and burdens in order to secure the general welfare of the state and to this fundamental aim of government, the rights of the individual may be subordinated. The ordinance which regulates the location of funeral homes has been adopted as part of comprehensive zoning plans for the orderly development of the area covered thereunder. Greater Balanga Development Corp. v. Municipality of Balanga Facts: This case involves a parcel of land situated in Barrio San Jose, Municipality of Balanga, Province of Bataan. It is registered in the name of petitioner Greater Balanga Development Corporation. GBDC is a domestic corporation owned and controlled by the Camacho family, which donated to the Municipality of Balanga the present site of the Balanga Public Market. The lot in dispute lies behind the Balanga Public Market. In 1987, GBDC conducted a relocation survey of the area. It discovered that certain portions of the property had been "unlawfully usurped and invaded" by the Municipality of Balanga, which had "allowed/tolerated/abetted" the construction of shanties and market stalls while charging market fees and market entrance fees from the occupants and users of the area. GBDC then applied with the Office of the Mayor of Balanga for a business permit to engage in business in the said area. On the same day, Mayor Melanio S. Banzon, Jr. issued Mayor's Permit No. 2729, granting petitioner the privilege of a "real estate dealer/privately-owned public market operator" under the trade name of Balanga Public Market. However, the Sangguniang Bayan of Balanga passed Resolution No. 12, s-88 annulling the Mayor's permit issued to petitioner and advising the Mayor to revoke the permit "to operate a public market." Pursuant to said Resolution, Mayor Banzon, on March 7, 1988, issued Executive Order No. 1, s-88 revoking the permit insofar as it authorized the operation of a public market. GBDC filed the instant petition with a prayer for the issuance of a writ of preliminary mandatory and prohibitory injunction or restraining order aimed at the reinstatement of the Mayor's permit and the curtailment of the municipality's collection of market fees and market entrance fees. The Court did not issue the preliminary reliefs prayed for. Issue: WON the Mayor may issue, deny or revoke municipal licenses and permits. Respondent: as the local chief executive, the Mayor may issue, deny or revoke municipal licenses and permits. They contended that Resolution No. 12, s-88 of the Sangguniang Bayan, the basis of Executive Order No. 1, s-88, was a legitimate exercise of local legislative authority and, as such, the revocation of petitioner's permit was not tainted with any grave abuse of discretion. GBDC asserted that the executive order and the resolution in question were quasijudicial acts and not mere exercises of police power. It questioned respondents' failure to observe due process in revoking the permit and challenged the legality of the collection of the market and entrance fees by the municipality.

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The authority of the Mayor to revoke a permit he issued is premised on a violation by the grantee of any of the conditions for which the permit had been granted. Respondents claimed that petitioner had violated the provisions of Section 3A-06(b) of the Balanga Revenue Code when it failed to inform the Mayor that the lot in controversy was the subject of adverse claims for which a civil case was filed. Section 3A-06(b) of the Balanga Revenue Code reads: (b) The application for a Mayor's permit shall state the name, residence and citizenship of (sic) the applicant's full description of the business, the particular place where (sic) the same shall be conducted, and such other pertinent information and date (sic) as any (sic) be required. If the applicant deliberately makes a false statement in the application form, the Municipal Mayor may revoke the permit and the applicant may be prosecuted and penalized in accordance with the pertinent provisions of penal laws. In case a person desires to conduct the same kind or line of business in another place within the Municipality, in addition to or aside from the establishment specified in his permit, he shall secure a separate permit for each business and pay the corresponding fee imposed in this article. If a person desires to engage in more than one kind or line of business, he shall pay the fee imposed on each separate business, notwithstanding the fact that he may conduct or operate all distinct business (sic), trades or occupation in one place only (h) Revocation of Permit. The Municipal Mayor may revoke a permit, in effect close the establishment, upon a violation of existing ordinance regulating business establishments or any provisions of this article, in addition to the fine and imprisonment that they (sic) may be imposed by the court for violation of this article Respondents claim that petitioner (1) deliberately made a false statement in the application form when it failed to provide the information that their place of business is the subject of adverse claims; and (2) failed to apply for two separate permits for the two lines of business it proposed to engage in. The application for Mayor's permit in the case at bench requires the applicant to state what type of "business", profession, occupation and/or calling privileges" is being applied for. Petitioner left this entry bank in its application form (Rollo, p. 324). It is only in the Mayor's permit itself that petitioner's lines of business appear, which in this case are two separate types, one as real estate dealer and another as public market operator. The permit should not have been issued without the required information given in the application form itself. Revoking the permit, however, because of a false statement in the application form cannot be justified under the aforementioned provision. There must be proof of willful misrepresentation and deliberate intent to make a false statement. Good faith is always presumed, and as it happened, petitioner did not make any false statement in the pertinent entry. Neither was petitioner's applying for two businesses in one permit a ground for revocation. The question of ownership over Lot 261-B had already been settled with finality by the Supreme Court in 1983 in G.R. No. 62223. Entry of judgment was likewise, made in the same year. When the Mayor's permit was revoked on February 19, 1988, five years had already elapsed since the case was decided. Petitioner was able to survey the land and have the survey approved on March 21, 1984 (Rollo, pp. 15-16), and on January 11, 1988, petitioner obtained in its name TCT No. 120152 "without any memorandum of encumbrance or encumbrances pertaining to any decision rendered in any civil case" Clearly, for all intents and purposes, petitioner appeared to be the true owner of Lot 261-B-6-A-3 when respondents revoked its permit to engaged in business on its own land. Assuming arguendo that Lot 261-B-6-A-3 was actually one of those awarded to the plaintiffs in Civil Case No. 3803 and the Transfer Certificate of Title of petitioner is spurious, this still does not justify the revocation of the Mayor's permit. A close scrutiny of the records reveals that the Sangguniang Bayan did not establish or maintain any public market on the subject lot. The resolution merely mentioned the plan to acquire the lot for expansion of the public market adjacent thereto. Until expropriation proceedings are instituted in court, the landowner cannot be deprived of its right over the land.

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Of course, the Sangguniang Bayan has the duty in the exercise of its police powers to regulate any business subject to municipal license fees and prescribe the conditions under which a municipal license already issued may be revoked (B.P. Blg. 337, Sec. 149 [1] [r]). But the "anxiety, uncertainty, restiveness" among the stallholders and traders cannot be a valid ground for revoking the permit of petitioner. After all, the stallholders and traders were doing business on property not belonging to the Municipal government. Indeed, the claim that the executive order and resolution were measures "designed to promote peace and order and protect the general welfare of the people of Balanga" is too amorphous and convenient an excuse to justify respondents' acts (Villacorta v. Bernardo, 143 SCRA 480 [1986]). In view of the undisputed fact that the respondent Municipality is not the owner of Lot 261-B-6-A-3, then there is no legal basis for it to impose and collect market fees and market entrance fees. Only the owner has the right to do so. Tano v. Socrates Facts: Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which banned the shimpment of live fisha and lobster outside Puerto Princesa City from 01 Jan 1993-1998. While the Sangguniang Panlalawigan, Provincial Government of Palawan enacted Resolution No. 33 which prohibited the catching, gathering, possessing, buying, selling, and shipment of love marine coral dwelling aquatic organisms for a period of 5 years in and coming from Palawan waters. Ordinance No. 2 Ordinance Prohibiting the catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms was also enacted. The respondents implemented the said ordinances, depriving all the fishermen of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers Association of Palawan and other marine merchants from performing their lawful occupation and trade. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were charged criminally on the basis of the ordinances. The petitioners filed this action claiming that first, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution. Second, Office Order No. 23 contained no regulation nor condition under which the Mayors permit could be granted or denied; in other words, the Mayor had the absolute authority to determine whether or not to issue permit. Third, as the Ordinance No. 2 altogether prohibited the catching, gathering, possession, buying, selling and shipping of live marine coral dwelling organisms, without any distinction whether it was caught or gathered through lawful fishing method, the Ordinance took away the right of petitioners-fishermen to earn their livelihood in lawful ways. Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon against petitioners Tano and the others have to be dismissed. Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No.2 as a valid exercise of the Provincial Government power under the general welfare clause (Section 16 of the LGC of 1991 [hereafter, LGC]), and its specific power to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such powers, the Province of Palawan had the right and responsibilty to insure that the remaining coral reefs, where fish dwells [sic], within its territory remain healthy for the future generation. The Ordinance, they further asserted, covered only live marine coral dwelling aquatic organisms which were enumerated in the ordinance and excluded other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for only five (5) years to protect and preserve the pristine coral and allow those damaged to regenerate. They likewise maintained that there was no violation of due process and equal protection clauses of the Constitution. As to the former, public hearings were conducted before the enactment of the Ordinance which, undoubtedly, had a lawful purpose and employed reasonable means; while as to the latter, a substantial distinction existed between a fisherman who catches live fish with the intention of selling it live, and a fisherman who catches live fish with no intention at all of selling it live, i.e., the former uses sodium cyanide while the latter does not. Further, the Ordinance applied equally to all those belonging to one class.

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There are actually two sets of petitioners in this case. The primary interest of the first set of petitioners is to prevent the prosecution, trial and determination of the criminal cases until the constitutionality or legality of the Ordinances they allegedly violated shall have been resolved. The second set of petitioners merely claim that they being fishermen or marine merchants, they would be adversely affected by the ordinances. The petitioners claim that as subsistence or marginal fishermen, they are entitled to the protection of the State as enshrined in Section 2 of Article XII of the Constitution. Issue: their enjoyment may be guaranteed not only for the present generation, but also for the generations to come. The so-called "preferential right" of subsistence or marginal fishermen to the use of marine resources is not at all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their "exploration, development and utilization . . . shall be under the full control and supervision of the State." Whether the ordinances in question are unconstitutional? NO. Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC "shall be liberally interpreted to give more powers to the LGUs in accelerating economic development and upgrading the quality of life for the people of the community." The LGC vests municipalities with the power to grant fishery privileges in municipal waters and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the general welfare of the municipality and its inhabitants, which shall include, inter alia, ordinances that "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance." Finally, the centerpiece of LGC is the system of decentralization as expressly mandated by the Constitution.. Indispensable to decentralization is devolution and the LGC expressly provides that "[a]ny provision on a power of a LGU shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower LGU. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the LGU concerned." Devolution refers to the act by which the National Government confers

1.

1. Whether petitioners are subsistence or marginal

fishermen? NO. Since the Constitution does not specifically provide a definition of the terms "subsistence" or "marginal" fishermen, they should be construed in their general and ordinary sense. A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish, while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood. Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or fisherman as "an individual engaged in subsistence farming or fishing which shall be limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family." It bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions. Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress on the duty of the State to protect the nation's marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but of their protection, development and conservation. As hereafter shown, the ordinances in question are meant precisely to protect and conserve our marine resources to the end that

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power and authority upon the various LGUs to perform specific functions and responsibilities. In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted therein to LGUs under Section 16 (the General Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the questioned Ordinances cannot be doubted. Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 June 1992. This statute adopts a "comprehensive framework for the sustainable development of Palawan compatible with protecting and enhancing the natural resources and endangered environment of the province". It is clear to the Court that the Ordinances have two principal objectives or purposes: (1) to establish a "closed season" for the species of fish or aquatic animals covered therein for a period of five years; and (2) to protect the coral in the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due to illegal fishing activities. The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the establishment of "closed seasons." The devolution of such power has been expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and the Department of Interior and Local Government. The realization of the second objective clearly falls within both the general welfare clause of the LGC and the express mandate to cities and provinces to protect the environment and impose appropriate penalties for acts which endanger the environment. Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should be sought would be that of the Secretary of the Department of Agriculture. However, the requirement of approval by the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting fishing and fisheries in municipal waters has been dispensed with in view of the following reason: (1) As discussed earlier, under the general welfare clause of the LGC, LGUs have the power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. It likewise specifically vests municipalities with the power to grant fishery privileges in municipal waters, and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. Finally, it imposes upon the sangguniang bayan, the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance.

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Sangalang v. IAC Facts: Studies were made by Mayor Yabut et al, on the feasibility of opening streets in Bel-Air calculated to alleviate traffic congestion along the public streets adjacent to Bel-Air. Based on the studies, it was deemed necessary, in the interest of the general public to open to traffic Amapola, Mercedes, Zodia, Jupiter, Neptune, Orbit, and Paseo de Roxas streets. According to Bel-Air they own the streets and as such, should not be deprived of them without just compensation. Issue: WON the mayor acted arbitrarily in opening up Jupiter and Orbit streets. NO.

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The opening of Jupiter was warranted by the demands of the common good, in terms of traffic decongestion and public convenience. The same is upheld in the case of Orbit street. There is not merit in BAVAs claims that the demolition of the gates at Orbit and Jupiter amounts to deprivation of property without due process of law or expropriation without just compensation. There is no taking involved in this case. The act of the mayor is in the concept of police power. PASEI v. Drilon: Police Power: state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Consists of: 1. An imposition of restraint upon liberty or property 2. In order to foster the common good The police power of the state is a power coextensive with self-protection and it is not inaptly termed the law of overwhelming necessity. It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. Bill of rights: even liberty itself, the greatest of all rights, is not unrestricted license to act accordingly to ones will. It is subject to the far more overriding demands and requirements of the greater number. However, it may not be done arbitrarily or unreasonably. Burden of showing that it is unjustified lies on aggrieved party. In the case at bar. BAVA has failed to show that the opening was unjustified or that the mayor acted unreasonably. Art. 701: summary abatement may be carried out by the mayor himself Cabrera v. CA Facts: The Provincial Board of Catanduanes adopted Resolution No. 158 closing the old road leading to the new Capitol Building of this province to traffic and giving the owners of the properties traversed by the new road equal area as per survey by the Highway District Engineer's office from the old road adjacent to the respective remaining portion of their properties. Pursuant thereto, Deeds of Exchange were executed under which the Province of Catanduanes conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the Capitol Building. In 1978, part of the northern end of the old road fronting the petitioner's house was planted to vegetables in 1977 by Eulogia Alejandro. Anselmo Pea, who had bought Angeles Vargas's share, also in the same part of the road, converted it into a piggery farm. Learning about Resolution 158, the petitioner filed on December 29, 1978, a complaint with the Court of First Instance of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public road owned by the Province of Catanduanes in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so too was the closure of the northern portion of the said road. In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while holding that the land in question was not a declared public road but a mere "passageway" or "short-cut," nevertheless sustained the authority of the provincial board to enact Resolution No. 158 under existing law. 1 Appeal was taken to the respondent court, 2 which found that the road was a public road and not a trail but just the same also upheld Resolution 158. It declared: Pursuant to Republic Act No. 5185, municipal authorities can close, subject to the approval or direction of the Provincial Board, thoroughfares under Section 2246 of the Revised Administrative Code. Although in this case the road was not closed by the municipality of Catanduanes but by the provincial board of Catanduanes, the closure, nevertheless, is valid since it was ordered by the approving authority itself. However, while it could do so, the provincial government of Catanduanes could close the road only if the persons prejudiced thereby were indemnified, Section 2246 of the Revised Administrative Code being very explicit on this. Before us now, the petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board.

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The petitioner alleges that the closure of the road has especially injured him and his family as they can no longer use it in going to the national road leading to the old capitol building but must instead pass through a small passageway. For such inconvenience, he is entitled to damages in accordance with law. Issue: WON the provincial board can order the closure of a road and use/ convey it for other purposes. YES. The authority of the provincial board to close that road and use or convey it for other purposes is derived from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative Code: R.A. No. 5185, Section 11 (II) (a): II. The following actions by municipal officials or municipal councils, as provided for in the pertinent sections of the Revised Administrative Code shall take effect without the need of approval or direction from any official of the national government: Provided, That such actions shall be subject to approval or direction by the Provincial Board: (a) Authority to close thoroughfare under Section 2246; Sec. 2246. Authority to close thoroughfare. With the prior authorization of the Department Head, a municipal council may close any municipal road, street, alley, park, or square; but no such way or place aforesaid or any part thereof, shall be closed without indemnifying any person prejudiced thereby. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed. Cebu Oxygen and Acetylene Co., Inc. v. Bercilles: closure of a city street is within the powers of the city council under the Revised Charter of Cebu City. It sustained the subsequent sale of the land as being in accordance not only with the charter but also with Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." Favis vs. City of Baguio: appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. While it is true that the above cases dealt with city councils and not the provincial board, there is no reason for not applying the doctrine announced therein to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province of Catanduanes for the construction of provincial roads. The lower court found the petitioner's allegation of injury and prejudice to be without basis because he had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the CA ruled that the he "was prejudiced by the closure of the road which formerly fronted his house. He and his family were undoubtedly inconvenienced by the loss of access to their place of residence for which we believe they should be compensated." Favis: The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. Richmond v. City of Hinton : The Constitution does not undertake to guarantee to a property owner the public

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maintenance of the most convenient route to his door. The law will not permit him to be cut off from the public thoroughfares, but he must content himself with such route for outlet as the regularly constituted public authority may deem most compatible with the public welfare. When he acquires city property, he does so in tacit recognition of these principles. If, subsequent to his acquisition, the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is damnum absque injuria. petitioner is not entitled to damages because the injury he has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. As the trial judge acutely observed, whatever inconvenience the petitioner has suffered "pales in significance compared to the greater convenience the new road, which is wide and concrete, straight to the veterans fountain and down to the pier, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town of Virac but also to the whole province of Catanduanes." For the enjoyment of those benefits, every individual in the province, including the petitioner, must be prepared to give his share Dacanay v. Asistio Facts: MMC Ordinance No. 79-02 was enacted by the Metropolitan Manila Commission, designating certain city and municipal streets, roads and open spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened up seven (7) flea markets in that city. One of those streets was the "Heroes del '96" where the petitioner lives. Upon application of vendors, the respondents city mayor and city engineer, issued them licenses to conduct vending activities on said street. Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition of the market stalls on Heroes del '96, V. Gozon and Gonzales streets. To stop Mayor Martinez' efforts, stallowners filed an action for prohibition against the City of Caloocan, the OIC City Mayor and the City Engineer and/or their deputies, praying the court to issue a writ of preliminary injunction ordering these city officials to discontinue the demolition of their stalls during the pendency of the action.. LC: PI Granted. But petition was later dismissed. (1) Observed that MMC Ordinance No. 79-02 expressly provides that the use of certain streets as flee markets are subject to the approval of the Metropolitan Manila Commission. (2) Found that Heroes del '96, Gozon and Gonzales streets are of public dominion, hence, outside the commerce of man. This means that they cannot be alienated or leased or otherwise be the subject matter of contracts (Municipality of Cavite vs. Rojas). Such lease, if ever, is null and void. This principle was supported by City of Manila vs. Gerardo Garcia, which stated that: The property being a public one, the Manila Mayors did not have the authority to give permits, written or oral, to the squatters, and that the permits granted are therefore considered null and void. (3) Opined that the officials have the right to demolish the subject stalls of the plaintiffs, more so due to Section 185, par. 4 of Batas Pambansa Blg. 337, otherwise known as the LGC. However, shortly after the LC decision came out, the city administration in Caloocan City changed hands. City Mayor Asistio, Jr., as successor of Mayor Martinez, did not pursue the latter's policy of clearing and cleaning up the city streets. Invoking the trial court's decision in Civil Case No. C-12921, Dacanay wrote a letter to Mayor Asistio, Jr., calling his attention to the illegally-constructed stalls on Heroes del '96 Street and asked for their demolition. Followed up but to no avail. Hence, this case. Issue: WON public streets or thoroughfares may be leased or licensed to market stallholders by virtue of a city ordinance or resolution of the Metro Manila Commission. NO. There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside the commerce of man. Being outside the commerce of man, it may not be the subject of lease or other contract. As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through

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contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect. The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians. Macasiano v. Diokno Facts: Paranaque passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions. On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent municipality subject to the following conditions: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose the establishment of the flea market/vending areas thereon; 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; 3. That the time during which the vending area is to be used shall be clearly designated; 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas. On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter shall operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the municipal government of Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets. On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag. On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall be dismantled. Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus with damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of preliminary injunction. On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16, 1990 pending the hearing on the motion for writ of preliminary injunction. On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag. Issue: WON the ordinance authorizing the flea markets on public streets is valid NO. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article 424 of Civil Code states: Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities. All other property possessed by any

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of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws. J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and are therefore considered public properties of respondent municipality. Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress. Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress. One such example of this authority given by Congress to the local governments is the power to close roads as provided in Section 10, Chapter II of the LGC, which states: Sec. 10. Closure of roads. - A LGU may likewise, through its head acting pursuant to a resolution of its sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or place or any part of thereof shall be close without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed. However, the aforestated legal provision which gives authority to LGUs to close roads and other similar public places should be read and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting such authority of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic principle that properties of public dominion devoted to public use and made available to the public in general are outside the commerce of man and cannot be disposed of or leased by the LGU to private persons. Aside from the requirement of due process, which should be complied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other public property from public use when circumstances show that such property is no longer intended or necessary for public use or public service. When it is already withdrawn from public use, the property then becomes patrimonial property of the LGU concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L--40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality can "use or convey them for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as LGC. In one case, the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not being included in the City Development Plan. Thereafter, the City Council passes another resolution authorizing the sale of the said abandoned road through public bidding. We held therein that the City of Cebu is empowered to close a city street and to vacate or withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily used for vehicular traffic are still considered public property devoted to public use. In such case, the local government has no power to use it for another purpose or to dispose of or lease it to private persons. Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent municipality of the conditions imposed by the former for the approval of the ordinance. Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of the ordinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of the residents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will show that this first condition has been met. Likewise, the designation by respondents of a time schedule during which the flea market shall operate is absent.

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Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. The powers of a LGU are not absolute. They are subject to limitations laid down by toe Constitution and the laws such as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the community. Every LGU has the sworn obligation to enact measures that will enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective, the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare. Dacanay case: the general public have a legal right to demand the demolition of the illegally constructed stalls in public roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city streets and restore them to their specific public purpose. The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws applicable during its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already been repealed by Republic Act No. 7160 known as LGC of 1991 which took effect on January 1, 1992. Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other source of prestation involving a LGU shall be governed by the original terms and conditions of the said contracts or the law in force at the time such rights were vested. Pilapil v. CA Facts: The Colomidas own a parcel of land which has a road right of way leading to the national highway. Such road ends at the Pilapils land. According to the Colomidas, a camino vecinal leading to the national highway exists while the Pilapils deny such fact. The Colomidas tried to improve the camino for the publics convenience but such was met with threats from the Pilapils. The Pilapils also threatened to fence off the camino vecinal. The Colomidas then filed a petition for injunction and damages with a prayer for a writ of PM or prohibitory injunction which sought to prevent the Pilapils from harassing them as well as fencing off the camino vecinal. The Pilapils also filed a case against the Colomidas alleging that no such camino exists on their land. In trial, the Municipal Planning and Development Coordinator of Liloan testified that according to the zoning map of Liloan, the camino does not traverse, but runs along the side of the Pilapils property Issue: WON the Municipality of Liloan has authority to close or abandon the camino vecinal. YES. It is beyond dispute that the establishment, closure or abandonment of the camino vecinal is the sole prerogative of the Municipality of Liloan. No private party can interfere with such a right. Thus, even if We are to agree with both the trial court and public respondent that Longakit and Pepito were telling the truth, the decision of the Municipality of Liloan with respect to the said camino vecinal in sitio Bahak must prevail. It is thus pointless to concentrate on the testimonies of both witnesses since the same have, for all intents and purposes, become irrelevant. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property. The first consists of the provincial roads, city streets, municipal streets, squares, fountains, public waters, promenades, and public works for public service paid for by the said provinces, cities or municipalities. They are governed by the same principles as property of public dominion of the same character. 42 Under the applicable law in this case, Batas Pambansa Blg. 337 (The LGC), the Sangguniang Bayan, the legislative body of the municipality, 43 had the power to adopt zoning and subdivision ordinances or regulations subject to the provisions of existing laws, and to provide for the construction, improvement, repair and maintenance of municipal streets, avenues, alleys, sidewalks, bridges, parks and other public places, regulate the use thereof and prohibit the construction or placing of obstacles or encroachments on

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them 44 Section 10, Chapter 2, Title One, Book I of said Code provided: 45 Sec. 10. Closure of roads. A LGU may likewise, through its head acting pursuant to a resolution of its Sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or place or any part thereof shall be closed without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed. A camino vecinal is a municipal road. It is also property for public use. Pursuant, therefore, to the above powers of a LGU, the Municipality of Liloan had the unassailable authority to (a) prepare and adopt a land use map, (b) promulgate a zoning ordinance which may consider, among other things, the municipal roads to be constructed, maintained, improved or repaired and (c) close any municipal road. In the instant case, the Municipality of Liloan, through the Sangguniang Bayan, approved the Urban Land Use Plan; this plan was duly signed by the Municipal Mayor (Exhibit "1"). By doing so, the said legislative body determined, among others, the location of the camino vecinal in sitio Bahak. The unrebutted testimony of Engineer Epifanio Jordan shows that the same was approved by the Sangguniang Bayan. The reluctance of the trial court and public respondent to give due weight to the testimony of Engineer Jordan stemmed from a doubt as to his authority to prepare the plan. There is also some confusion regarding the party who directed him to do so. Both courts observed that while on direct examination, he testified that the Sangguniang Bayan instructed him to prepare the zoning map, 47 during crossexamination, he stated that he prepared it upon the Mayor's oral order. 48 Such inconsistency is quite trivial and hence, did not affect the preparation and subsequent approval of the zoning map. In the first place, under the applicable law, the mayor was both a member and the presiding officer of the Sangguniang Bayan. Secondly, what invested the zoning map with legal effect was neither the authority of the person who ordered its preparation nor the authority of the person who actually prepared it, but its approval by the Sangguniang Bayan. Furthermore, with or without the order of the Mayor or Sangguniang Bayan, Engineer Jordan, as the then Municipal Planning and Development Coordinator, had the authority to prepare the plan and admit it to the Sangguniang Bayan for approval. Among his functions under the governing law at the time was to formulate an integrated economic, social, physical and other development objectives and policies for the consideration and approval of the sangguniang bayan and the municipal mayor, and prepare municipal comprehensive plans and other development planning document. 50 Thus, even if he had not been instructed by anyone to prepare the map, he could nevertheless, on his own initiative and by virtue of his functions, make one. The trial court and public respondent then failed to appreciate the role and function of a Municipal Planning and Development Coordinator. As further declared by Engineer Jordan, this camino vecinal in sitio Bahak "passes the side of the land of Socrates Pilapil. This is the proposed road leading to the national highway." The Colomidas presented no rebuttal witness to show that by the approval of the zoning map by the Sangguniang Bayan, they were effectively deprived of access to the national highway from their property. Of course, they may argue that the zoning map was prepared for and approved by the Sangguniang Bayan after the filing of their petition in Civil Case No. R-20732. Be that as it may, this preparation and approval, clearly a supervening event, was relied upon, introduced in evidence without objection on the part of the Colomidas and evaluated by the trial court. In short, the latter allowed the issue raised by the supervening event to be tried. There was nothing procedurally objectionable to this; on the contrary, Section 5, Rule 10 of the Rules of Court allows it. Said section reads: Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to amend does not affect the

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result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleading, to be amended and shall do so freely when the presentation on the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. Such supervening fact, duly proved to be an official act of the Municipality of Liloan, binds not only the Pilapils and the Colomidas, but also the general public. The solemn declarations of old people like Sesenando Longakit and Florentino Pepito cannot overturn the decision of the Municipality of Liloan. MMDA v. Bel-Air Facts: BAVA is the registered owner of Neptune Street, a road inside Bel-Air Village. Neptune runs parallel to Kalayaan Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates. On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. On the same day, respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136, Makati City, Civil Case No. 96001 for injunction. Respondent prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. RTC: issued TRO, after due hearing, the trial court denied issuance of a preliminary injunction. CA: MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. Issue: WON the MMDA has the mandate to open Neptune Street to public traffic pursuant to its regulator and police powers. MMDA: it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court. From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public. Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or LGUs. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." The LGC of 1991 defines a LGU as a "body politic and corporate", one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory.

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LGUs are the provinces, cities, municipalities and barangays. They are also the territorial and political subdivisions of the state. Our Congress delegated police power to the LGUs in the LGC of 1991. LGUs exercise police power through their respective legislative bodies. The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is the sangguniang barangay. The LGC of 1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the [province, city municipality] provided under the Code. The same Code gives the sangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon." Metropolitan or Metro Manila is a body composed of several LGUs - i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, , Navotas, , Pateros, San Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924 [24] in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. "Metro-wide services" are those "services which have metrowide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual LGUs comprising Metro Manila." There are seven (7) basic metrowide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following: "(b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;" The scope of the MMDAs function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the LGUs,

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there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority."It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, peoples organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature. Contrary to petitioners claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. It was the MMC itself that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMCs approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. Under the 1987 Constitution, the LGUs became primarily responsible for the governance of their respective political subdivisions. The MMAs jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the LGUs technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly." When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected LGUs." The character of the MMDA was clearly defined in the legislative debates enacting its charter. Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. It is thus beyond doubt that the MMDA is not a LGU or a public corporation endowed with legislative power.

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It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in LGUs, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA under R. A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the LGUs, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent CA did not err in so ruling. RTC at Prosperidad, Agusan del Sur. The 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. RTC: granted respondent municipality's motion to take possession of the land, 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 LGC 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. MR: denied. CA: the public purpose for the expropriation is clear from R 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare R 43-89 invalid, expropriation of petitioners' property could proceed. MR: denied. 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. Pet: seeks the reversal of the decision and resolution of the CA and a declaration that R 43-89 of the Municipality of Bunawan is null and void. Court issued TRO enjoining and restraining public respondent Judge from enforcing her 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. Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a Resolution 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. Bustillo paid the fine and manifested that he lost in the election. 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.

Moday v. CA Facts: The Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed R 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." R 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the Sangguniang Panlalawigan for its approval. 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." Bunawan filed a petition for Eminent Domain against petitioner Percival Moday, as well as his parents before the

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Pet: contend that the CA erred in upholding the legality of the condemnation proceedings initiated by the municipality. According to petitioners, the expropriation was politically motivated and R 4389 was correctly disapproved by the Sangguniang Panlalawigan, there being other municipal properties available for the purpose. Petitioners also pray that the former Mayor Bustillo be ordered to pay damages for insisting on the enforcement of a void municipal resolution. CA: 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. Issue: WON a municipality may expropriate private property by virtue of a municipal resolution which was disapproved by the Sangguniang Panlalawigan. NO. Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. 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. 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 LGC 18 in force at the time expropriation proceedings were initiated. Section 9 of said law states: A LGU 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 R 43-89.

Section 153 of B.P. Blg. 337: 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. The Sangguniang Panlalawigan's disapproval of Municipal R 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, 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

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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. Sangguniang Panlalawigan was without the authority to disapprove Municipal R 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. Accusation of political oppression: it is alleged that Percival Moday incurred the ire of then Mayor 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. 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. 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. 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." 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. Camarines Sur v. CA Facts: The Sangguniang Panlalawigan of the Province of Camsur passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. Camsur filed expropriation cases against the San Joaquins as well as a motion for the issuance of writ of possession. The SJs failed to appear at the hearing of the motion. They moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. RTC: denied the motion to dismiss and authorized the Camsur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. Issued a writ of possession. The San Joaquins filed a motion for relief from the order and a motion to admit an amended motion to dismiss. Both motions were denied. CA: SJs asked: (a) that the Res. be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order denying the motion to dismiss and allowing Camsur to take possession of the property subject of the expropriation and the order denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of injunction. Camsur: claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of LGC (B.P. Blg. 337) and that the expropriations are for a public purpose. SG: under Section 9 of the LGC (B.P. Blg. 337), there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. Expressed the view that the Province of Camsur must first secure the approval of the Department of Agrarian

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Reform of the plan to expropriate the lands of petitioners for use as a housing project. CA: set aside the order of the trial court, allowing the Province of Camsur to take possession of private respondents' lands and the order denying the admission of the amended motion to dismiss. It also ordered the trial court to suspend the expropriation proceedings until after Camsur shall have submitted the requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non-agricultural land. Camsur: its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law (R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the Department of Agrarian Reform before a parcel of land can be reclassified from an agricultural to a non-agricultural land. CA, following the recommendation of the Solicitor General, held that the Province of Camsur must comply with the provision of Section 65 of the Comprehensive Agrarian Reform Law and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the SJs Issue: WON the expropriation of agricultural lands by LGUs is subject, to the prior approval of the Secretary of the Agrarian Reform, as the implementator of the agrarian reform program. When the CA ordered the suspension of the proceedings until the Province of Camsur shall have obtained the authority of the Department of Agrarian Reform to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use. Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SC.RA 461 [1987]). The expropriation of the property authorized by the questioned resolution is for a public purpose. The establishment of a pilot development center would inure to the direct benefit and advantage of the people of the Province of Camsur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced.. The housing project also satisfies the public purpose requirement of the Constitution. As held in Sumulong v. Guerrero, 154 SCRA 461, "Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum the general welfare." The Solicitor General denigrated the power to expropriate by the Province of Camsur by stressing the fact that LGUs exercise such power only by delegation. (Comment, pp. 1415; Rollo, pp. 128-129) Heirs of Juancho Ardana v. Reyes: Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest," it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8,970 square meters formed part of the resort complex. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program. It is true that LGUs have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature. It is also true that in delegating the power to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments. While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations.

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Mabelle O. Nebres | Local Governments Case Digests Resolution No. 129, Series of 1988, was promulgated
pursuant to Section 9 of B.P. Blg. 337, the LGC, which provides: A LGU 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. Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by LGUs to the control of the Department of Agrarian Reform. The closest provision of law that the CA could cite to justify the intervention of the Department of Agrarian Reform in expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law, which reads: Sec. 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for, agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his obligation. The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication. To sustain the CA would mean that the LGUs can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. Ordinarily, it is the legislative branch of the LGU that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use. There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto. The Republic of the Philippines, as sovereign, or its political subdivisions, as holders of delegated sovereign powers, cannot be bound by provisions of law couched in general term.

Meycauayan v. IAC Facts: The Philippine Pipes and Merchandising Corporation filed with the Office of the Municipal Mayor of Meycauayan, Bulacan, an application for a permit to fence a parcel of land. The fencing of said property was allegedly to enable the storage of the respondent's heavy equipment and various finished products such as large diameter steel pipes, pontoon pipes for ports, wharves, and harbors, bridge components, pre-stressed girders and piles, large diameter concrete pipes, and parts for low cost housing. In the same year, the Municipal Council of Meycauayan, headed by then Mayor Celso R. Legaspi, passed Resolution No. 258, Series of 1975, manifesting the intention to expropriate the respondent's

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parcel of land. The Special Committee recommended that the Provincial Board of Bulacan disapprove or annul the resolution in question because there was no genuine necessity for the Municipality of Meycauayan to expropriate the respondent's property for use as a public road. On the basis of this report, the Provincial Board of Bulacan passed Resolution No. 238, Series of 1976, disapproving and annulling Resolution No. 258, Series of 1975, of the Municipal Council of Meycauayan. PPMC, then, reiterated to the Office of the Mayor its petition for the approval of the permit to fence the aforesaid parcels of land. The Municipal Council of Meycauayan, now headed by Mayor Adriano D. Daez, passed Resolution No. 21, Series of 1983, for the purpose of expropriating anew the respondent's land. The Provincial Board of Bulacan approved the aforesaid resolution on January 25, 1984. Thereafter, the petitioner, on February 14, 1984, filed with the Regional Trial Court of Malolos, Bulacan, Branch VI, a special civil action for expropriation. Upon deposit of the amount of P24,025.00, which is the market value of the land, with the Philippine National Bank, the trial court on March 1, 1984 issued a writ of possession in favor of the petitioner. On August 27, 1984, the trial court issued an order declaring the taking of the property as lawful and appointing the Provincial Assessor of Bulacan as court commissioner who shall hold the hearing to ascertain the just compensation for the property. The respondent went to the Intermediate Appellate Court on petition for review. On January 10, 1985, the appellate court affirmed the trial court's decision. However, upon motion for reconsideration by the respondent, the decision was re-examined and reversed. The appellate court held that there is no genuine necessity to expropriate the land for use as a public road as there were several other roads for the same purpose and another more appropriate lot for the proposed public road. The court, taking into consideration the location and size of the land, also opined that the land is more Ideal for use as storage area for respondent's heavy equipment and finished products. MR: denied. Issue: WON there is a genuine necessity to expropriate this strip of land for use as a public road. NO. The petitioner's purpose in expropriating the respondent's property is to convert the same into a public road which would provide a connecting link between Malhacan Road and Bulac Road in Valenzuela, Bulacan and thereby ease the traffic in the area of vehicles coming from MacArthur Highway. The records, however, reveals that there are other connecting links between the aforementioned roads. The petitioner itself admits that there are four such cross roads in existence. The respondent court stated that with the proposed road, there would be seven. The Sketch Plan clearly and conclusively shows that petitioner does not need this strip of land as a private road. The Sketch Plan clearly shows that petitioner's factory site is adjacent to Bulac Road which has a width of about seven meters, more or less. Petitioner can use Bulac Road in reaching McArthur Highway on the west or in reaching the Manila North Expressway on the east for the purpose of transporting its products. Petitioner does not need to go to Malhacan Road via this so-called private road before going to McArthur Highway or to the Manila North Expressway. Why should petitioner go first to Malhacan Road via this so called "private road" before going to McArthur Highway or to the Manila North Expressway when taking the Bulac Road in going to McArthur Highway or to the Manila North Expressway is more direct, nearer and more advantageous. Hence, it is beyond doubt that petitioner acquired this strip of land for the storage of its heavy equipments and various finished products and for growth and expansion and never to use it as a private road. This is the very reason why petitioner filed an application with the Office of the Municipal Mayor of Meycauayan, Bulacan to fence with hollow blocks this strip of land. From the foregoing facts, it appears obvious to this Special Committee that there is no genuine necessity for the Municipality of' Meycauayan to expropriate the aforesaid property of the Philippine Pipes and Merchandising Corporation for use as a public road. Considering that in the vicinity there are other available road and vacant lot offered for sale situated similarly as the lot in question and lying Idle, unlike the lot sought to be expropriated which was found by the Committee to be badly needed by the company as a site for its heavy equipment after it is fenced together with the adjoining vacant lot, the justification to condemn the same does not appear to be very imperative and necessary and would only cause unjustified damage to

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the firm. The desire of the Municipality of Meycauayan to build a public road to decongest the volume of traffic can be fully and better attained by acquiring the other available roads in the vicinity maybe at lesser costs without causing harm to an establishment doing legitimate business therein. Or, the municipality may seek to expropriate a portion of the vacant lot also in the vicinity offered for sale for a wider public road to attain decongest (sic) of traffic because as observed by the Committee, the lot of the Corporation sought to be taken will only accommodate a one-way traffic lane and therefore, will not suffice to improve and decongest the flow of traffic and pedestrians in the Malhacan area. ... It must be noted that this strip of land covered by Transfer Certificates of Titles Nos. 215165 and 37879 were acquired by petitioner from Dr. Villacorta. The lot for sale and lying Idle with an area of 16,071 square meter which is adjacent and on the western side of the aforesaid strip of land and extends likewise from Bulac Road to Malhacan Road belongs also to Dr. Villacorta. This lot for sale and lying Idle is most Ideal for use as a public road because it is more than three (3) times wider that the said strip of land. Since there is another lot ready for sale and lying Idle, adjacent and on the western side of the strip of land, and extending also from Malhacan Road to Bulac Road and most Ideal for a public road because it is very much wider than the lot sought to be expropriated, it seems that it is more just, fair, and reasonable if this lot is the one to be expropriated. The petitioner objects to the appellate court's findings contending that they were based on facts obtaining long before the present action to expropriate took place. We note, however, that there is no evidence on record which shows a change in the factual circumstances of the case. There is no showing that some of the six other available cross roads have been closed or that the private roads in the subdivision may not be used for municipal purposes. What is more likely is that these roads have already been turned over to the government. The petitioner alleges that surely the environmental progress during the span of seven years between the first and second attempts to expropriate has brought about a change in the facts of the case. This allegation does not merit consideration absent a showing of concrete evidence attesting to it. There is no question here as to the right of the State to take private property for public use upon payment of just compensation. What is questioned is the existence of a genuine necessity therefor. City of Manila v. Chinese Community of Manila: this Court held that the foundation of the right to exercise the power of eminent domain is genuine necessity and that necessity must be of a public character. Condemnation of private property is justified only if it is for the public good and there is a genuine necessity of a public character. Consequently, the courts have the power to inquire into the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity therfor. De Knecht v. Bautista, this court further ruled that the government may not capriciously choose what private property should be taken. Citing the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration (supra), the Court held: With due recognition then of the power of Congress to designate the particular property to be taken and how much thereof may be condemned in the exercise of the power of expropriation, it is still a judicial question whether in the exercise of such competence, the party adversely affected is the victim of partiality and prejudice. That the equal protection clause will not allow. There is absolutely no showing in the petition why the more appropriate lot for the proposed road which was offered for sale has not been the subject of the petitioner's attempt to expropriate assuming there is a real need for another connecting road.

Napocor v. Jocson Facts: The NPC filed for the acquisition of a right-of-way easement over portions of the parcels of land described in the complaints for its Negros-Panay Interconnection Project, particularly the BacolodTomonton Transmission Line. Provisional values were fixed on the basis of the market value and the daily opportunity profit petitioner may derive. Respondents sought a re-evaluation. Judge increased value without hearing and directing the defendants to manifest within twenty-four (24) hours whether or not they are accepting

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and withdrawing the amounts, representing the provisional values, deposited by the plaintiff for each of them as "final and full satisfaction of the value of their respective property (sic); " Judge declared the provisional values as the final values and directing the release of the amounts deposited, in full satisfaction thereof, to the defendants even if not all of them made the manifestation; and suspended the issuance of the writ of possession until after the suspending the amounts shall have been released to and received by defendants. Issue: WON Judge Jocson committed grave abuse of discretion amounting to lack of jurisdiction. YES. Municipality of Bian vs. Hon. Jose Mar Garcia, et al: there are two (2) stages in every action of expropriation: 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 of 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." An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard." The second phase of the eminent domain action 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. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. . . . However, upon the filing of the complaint or at any time thereafter, the petitioner has the right to take or enter upon the possession of the property involved upon compliance with P.D. No. 42 which requires the petitioner, after due notice to the defendant, to deposit with the Philippine National Bank in its main office or any of its branches or agencies, "an amount equivalent to the assessed value of the property for purposes of taxation." This assessed value is that indicated in the tax declaration. P.D. No. 42 repealed the "provisions of Rule 67 of the Rules of Court and of any other existing law contrary to or inconsistent" with it. Accordingly, it repealed Section 2 of Rule 67 insofar as the determination of the provisional value, the form of payment and the agency with which the deposit shall be made, are concerned. Said section reads in full as follows: Sec. 2. Entry of plaintiff upon depositing value with National or Provisional Treasurer. Upon the filing of the complaint or at any time thereafter the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionally and promptly ascertained and fixed by the court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a depository of the Republic of the Philippines payable on demand to the National or Provincial Treasurer, as the case may be, in the amount directed by the court to be deposited. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved. It will be noted that under the aforequoted section, the court has the discretion to determine the provisional value which must be deposited by the plaintiff to enable it "to take or enter upon the possession of the property." Notice to the parties is not indispensable. In interpreting a similar provision of Act No. 1592, this Court, in the 1915 case of Manila Railroad Company, et al. vs. Paredes, et al., 45 held: The statute directs that, at the very outset, "when condemnation proceedings are brought by any railway corporation" the amount of the deposit is to be "provisionally and promptly ascertained and fixed by the court." It is very clear that it was not the intention of the

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legislator that before the order fixing the amount of the deposit could lawfully be entered the court should finally and definitely determine who are the true owners of the land; and after doing so, give them a hearing as to its value, and assess the true value of the land accordingly. In effect, that would amount to a denial of the right of possession of the lands involved until the conclusion of the proceedings, when there would no need for the filing of the deposit. Of course, there is nothing in the statute which denies the right of the judge to hear all persons claiming an interest in the land, and courts should ordinarily give all such persons an opportunity to be heard if that be practicable, and will cause no delay in the prompt and provisional ascertainment of the value of the land. But the scope and extent of the inquiry is left wholly in the discretion of the court, and a failure to hear the owners and claimants of the land, who may or may not be known at the time of the entry of the order, in no wise effects the validity of the order. . . . P.D. No. 42, however, effectively removes the discretion of the court in determining the provisional value. What is to be deposited is an amount equivalent to the assessed value for taxation purpose. No hearing is required for that purpose. All that is needed is notice to the owner of the property sought to be condemned. Clearly, therefore, respondent Judge either deliberately disregarded P.D. No. 42 or was totally unaware of its existence and the cases applying the same. In any event, petitioner deposited the provisional value fixed by the court. As a matter of right, it was entitled to be placed in possession of the property involved in the complaints at once, pursuant to both Section 2 of Rule 67 and P.D. No. 42. Respondent Court had the corresponding duty to order the sheriff or any other proper officer to forthwith place the petitioner in such possession. Instead of complying with the clear mandate of the law, respondent Judge chose to ignore and overlook it. Moreover, upon separate motions for reconsideration filed by the defendants in Civil Cases Nos. 5938 and 5939, he issued a new Order increasing the provisional values of the properties involved therein. No hearing was held on the motions. As a matter of fact, as the records show, the motion for reconsideration filed by defendants Jesus Gonzaga, et al. in Civil Case No. 5938 is dated 11 July 1990 while the Order granting both motions was issued the next day, 12 July 1990. The motion for reconsideration in Civil Case No. 5938 does not even contain a notice of hearing. It is then a mere scrap of paper; it presents no question which merits the attention and consideration of the court. It is not even a mere motion for it does not comply with the rules, more particularly Sections 4 and 5, Rule 15 of the Rules of Court; the Clerk of Court then had no right to receive it. 50 There was, moreover, a much stronger reason why the respondent Court should not have issued the 12 July 1990 Order increasing the provisional values of the Gonzaga lots in Civil Cases Nos. 5938 and 5939. After having fixed these provisional values, albeit erroneously, and upon deposit by petitioner of the said amounts, respondent Judge lost, as was held in Manila Railroad Company vs. Paredes, "plenary control over the order fixing the amount of the deposit, and has no power to annul, amend or modify it in matters of substance pending the course of the condemnation proceedings." The reason for this is that a contrary ruling would defeat the very purpose of the law which is to provide a speedy and summary procedure whereby the peaceable possession of the property subject of the expropriation proceedings "may be secured without the delays incident to prolonged and vexatious litigation touching the ownership and value of such lands, which should not be permitted to delay the progress of the work." Compounding the above error and the capriciousness with which it was committed is respondent Judge's refusal to place the petitioner in possession of the property or issue the writ of possession despite the fact that the latter had likewise deposited the additional amount called for by the 12 July 1990 Order. Instead, respondent Judge issued the 16 July 1990 Order directing the defendants to state in writing within twenty-four (24) hours whether or not they would accept and withdraw the amounts deposited by the petitioner for each of them " as final and full satisfaction of the value of their respective property (sic) affected by the expropriation" and stating at the same time that the writ will be issued after such manifestation and acceptance and receipt of the amounts. The above Order has absolutely no legal basis even as it also unjustly, oppressively and

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capriciously compels the petitioner to accept the respondent Judge's determination of the provisional value as the just compensation after the defendants shall have manifested their conformity thereto. He thus subordinated his own judgment to that of the defendants' because he made the latter the final authority to determine such just compensation. This Court ruled in Export Processing Zone Authority vs. Dulay, et al. 52 that the determination of just compensation in eminent domain cases is a judicial function; accordingly, We declared as unconstitutional and void, for being, inter alia, impermissible encroachment on judicial prerogatives which tends to render the Court inutile in a matter which, under the Constitution, is reserved to it for final determination, the method of ascertaining just compensation prescribed in P.D. Nos. 76 464, 794 and 1533, to wit: the market value as declared by the owner or administrator or such market value as determined by the assessor, whichever is lower in the first three (3) decrees, and the value declared by the owner or administrator or anyone having legal interest in the property or the value as determined by the assessor, pursuant to the Real Property Tax Code, whichever is lower, prior to the recommendation or decision of the appropriate Government office to acquire the property, in the last mentioned decree. If the legislature or the executive department cannot even impose upon the court how just compensation should be determined, it would be far more objectionable and impermissible for respondent Judge to grant the defendants in an eminent domain case such power and authority. Without perhaps intending it to be so, there is not only a clear case of abdication of judicial prerogative, but also a complete disregard by respondent Judge of the provisions of Rule 67 as to the procedure to be followed after the petitioner has deposited the provisional value of the property. It must be recalled that three (3) sets of defendants filed motions to dismiss pursuant to Section 3, Rule 67 of the Rules of Court; Section 4 of the same rule provides that the court must rule on them and in the event that it overrules the motions or, when any party fails to present a defense as required in Section 3, it should enter an order of condemnation declaring that the petitioner has a lawful right to take the property sought to be condemned. As may be gleaned from the 25 June 1990 Order, the respondent Judge found that the petitioner has that right and that "there will be a (sic) paramount public interest to be served by the expropriation of the defendants' properties." Accordingly, considering that the parties submitted neither a compromise agreement as to the just compensation nor a stipulation to dispense with the appointment of commissioners and to leave the determination of just compensation to the court on the basis of certain criteria, respondent Judge was duty bound to set in motion Section 5 of Rule 67; said section directs the court to appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to it regarding the just compensation for the property sought to be taken. Such commissioners shall perform their duties in the manner provided for in Section 6; upon the filing of their report, the court may, after a period of ten (10) days which it must grant to the parties in order that the latter may file their objections to such report, and after hearing pursuant to Section 8, accept and render judgment in accordance therewith or, for cause shown, recommit the same to the commissioners for further report of facts. The court may also set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the petitioner the property essential to the exercise of its right of condemnation, and to the defendant just compensation for the property so taken. Not satisfied with the foregoing violations of law and insisting upon his own procedure, respondent Judge declared in his Order of 18 July 1990 that the provisional amounts he fixed, later increased with respect to the properties of the Gonzagas, shall be considered as the full payment of the value of the properties after the defendants in Civil Cases Nos. 5938, 5939, 5940, 5942 and 5943 shall have filed their manifestations; he also ruled that the writ of possession will be issued only after the latter shall have received the said amounts. This Order and the records before this Court do not disclose that the defendants in Civil Cases Nos. 5941 and 5944 filed any manifestation; yet, in the Order, respondent Judge whimsically and arbitrarily considered the so-called provisional values fixed therein as

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the final values. By such Order, the case was in fact terminated and the writ of execution then became a mere incident of an execution of a judgment. The right of the petitioner to take or enter into possession of the property upon the filing of the complaint granted by Section 2 of Rule 67 and P.D. No. 42 was totally negated despite compliance with the deposit requirement under the latter law. City Government of Toledo City vs. Fernandos, et al: does not apply to the instant petition because at the pre-trial conference held therein, the petitioner submitted to the discretion of the court as to the correct valuation, private respondents stated that they have no objections and are in conformity with the price of P30.00 per square meter as reasonable compensation for their land and the City Assessor informed the court of the current market and appraisal values of the properties in the area and the factors to be considered in the determination of such. The parties presented their documentary exhibits. In effect, therefore, the parties themselves agreed to submit to a judicial determination on the matter of just compensation and that judgment be rendered based thereon. In the instant case, no pre-trial was conducted; the proceedings were still at that state where the provisional value was yet to be determined; and the parties made no agreement on just compensation. Quezon City v. Ericta Facts: QC passed an Ordinance regulating the establishment, maintenance and operation of private memorial type cemetery or burial ground within the jurisdiction of QC. Section 9 of the Ordinance provides that at least 6% of the total area of a memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers & have been residents of QC for at least 5 years prior to their death. Seven years after the enactment of the Ordinance, the QC Council passed a resolution requesting the City Engineer to stop any further selling of memorial parks in QC where the owners have failed to donate the required 6% cemetery space. The City Engineer notified Himlayang Pilipino, Inc. that the Ordinance would be enforced, so Himlayan filed a petition with the CFI seeking to annul Sec 9 of the Ordinance. CFI declared Sec 9 null and void. MR: denied Issue: WON the ordinance is authorized under QC Charter and a valid exercise of police power. NO. Restatement of certain basic principles: Occupying the forefront in the bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution). On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty. Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most essential insistent and illimitable Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human

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foresight. Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957). The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable. It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms. It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation. There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the LGC, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to homeowners. As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations. City of Manila v. Arellano College Facts: Section 1 of Republic Act No. 267 authorizes cities and municipalities to contract loans from the Reconstruction Finance Corporation, the Philippine National Bank, and/or other entity or person at the rate of interest not exceeding eight per cent annum for the purpose of purchasing or expropriating homesites within their respective territorial jurisdiction and reselling them at cost to

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residents of the said cities and municipalities. The court below ruled that this provision empowers cities to purchase but not to expropriate lands for the purpose of subdivision and resale, and so dismissed the present action, which seeks to condemn, for the purpose just stated, several parcels of land having a combined area of 7,270 square meters and situated on Legarda Street, City of Manila. Issue: WON Act 267 empowers cities to expropriate as well as to purchase lands for homesites. YES. The word "expropriating," taken singly or with the text, is susceptible of only meaning. But this power to expropriate is necessarily subject to the limitations and conditions noted in the decisions above cited. (See below.) The National Government may not confer its instrumentalities authority which itself may not exercise. Guido vs. Rural Progress Administration: extent of the Philippine Government's power to condemn private property for resale: It has been truly said that the assertion of the right on the part of the legislature to take the property of one citizen and transfer it to another, even for a full compensation, when the public interest is not promoted thereby, is claiming a despotic power, and one inconsistent with every just principle and fundamental maxim of a free government. In a broad sense, expropriation of large estates, trusts in perpetuity, and land that embraces a whole town, or large section of a town or city, bears direct relation to the public welfare. The size of the land expropriated, the large number of people benefited, and the extent of social and economic reform secured by the condemnation, clothes the expropriation with public interest and public use. The expropriation in such cases tends to abolish economic slavery, feudalistic practices, endless conflicts between landlords and tenants, and other evils inimical to community prosperity and contentment and public peace and order. Although courts are not in agreement as to the tests to applied in determining whether the use is public or not, some go so far in the direction of a liberal construction as to hold that public use is synonymous with public benefit, public utility, or public advantage, and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interest involved are of considerable magnitude. In some instances, slumsites have been acquired by condemnation. The highest court of New York State has ruled that slum clearance and erection of houses for lowincome families were public purpose for which New York City Housing authorities could exercise the power of condemnation. and this decision was followed by similar ones in other states. The underlying reasons for these decisions are that the destruction of congested areas and unsanitary dwellings diminished the potentialities of epidemics, crime and waste, prevents the spread of crime and diseases to unaffected areas, enhances the physical and moral value of the surrounding communities, and promote the safety and welfare of the public in general. The condemnation of a small property in behalf of 10, 20 or 50 persons and their families does not insure to the benefit of the public to a degree sufficient to give the use public character. The expropriation proceedings at bar have been instituted for the economic relief of a few families devoid of any consideration of public peace and order, or other public advantage. No fixed line of demarcation between what taking is for public use and what is not can made; each case has to be judged according to its peculiar circumstances. It suffices to say for the purpose of this decision that the case under consideration is far wanting in those elements which make for public convenience or public use. If upheld, this case would open the gates to more oppressive expropriations. If this expropriation be constitutional, we see no reason why a 10-, 15-, or 25-hectare farm land might not be expropriated and subdivided, and sold to those who want to own a portion of it. to make the analogy closer, we find no reason why the Rural Progress Administration could not take by condemnation an urban lot containing and area of 1,000 or 2,000 square meters for subdivision into tiny lots for resale to its occupations or those who want to build thereon. Viewed from another angle, the case at bar is weaker for the condemnor. In the first place, the land that is the subject of the present expropriation is only one-third of the land sought to be taken in the Guido case, and about two-thirds of that involved in the Borja condemnation proceeding. In

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the second place, the Arellano Colleges' land is situated in a highly commercial section of the city and is occupied by persons who are not bona fide tenants. Lastly, this land was brought by the defendant for a university site to take the place of rented buildings that are unsuitable for schools of higher learning. To authorize the condemnation of any particular land by a grantee of the power of eminent domain, a necessity must exist for the taking thereof for the proposed uses and purposes. In City of Manila vs. Manila Chinese Community, this Court, citing American decision, laid done this rule: 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. "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 exist a very great necessity thereof." Necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefits. But measured even by this standard, and forgetting for a moment the private character of the intended use, necessity for the condemnation has not been shown. The land in question has cost the owner P140,000. The people for whose benefit the condemnation is being undertaken are so poor they could ill afford to meet this high price, unless they intend to borrow the money with a view to disposing of the property later for a profits. Cheaper lands not dedicated to a purpose so worthy as a school and more suited to the occupants' needs and means, if really they only want to own their own homes, are plenty elsewhere. On the other hand, the defendant not only has invested a considerable amount for its property but had the plans for construction ready and would have completed the project a long time ago had it not been stopped by the city authorities. And again, while a handful of people stand to profits by the expropriation, the development of a university that has a present enrollment of 9,000 students would be sacrificed. Any good that would accrue to the public from providing homes to a few families fades into insignificance in comparison with the preparation of a young men and young women for useful citizenship and for service to the government and the community, a task which the government alone is not in a position to undertake. As the Rural Progress Administration, the national agency lands for resale as homesites and to which the petition to purchase the land in question on behalf of the occupants was referred by the President, turning down the occupants request after proper investigation, commented that "the necessity of the Arellano Law College to acquire a permanent site of its own is imperative not only because denial of the same would hamper the objectives of that educational institution, but it would likewise be taking a property intended already for public benefit." The Mayor of the City of Manila himself confessed that he believes the plaintiff is entitled to keep this land.

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City of Manila v. Chinese Community of Manila Facts: The City of Manila alleged that for the purpose of constructing the extension of Rizal Avenue, Manila , it is necessary for it to acquire ownership of certain parcels of land situated in Binondo, some of which were owned and used by the Chinese Community of Manila for cemetery purposes. The Chinese Community of Manila denied that it was necessary or expedient that the said parcels be expropriated for street purposes; 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 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

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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. cannot authorize the taking of private property against the will of the owner, notwithstanding compensation may be required." 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. 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 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. 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 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. 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. The cemetery in

Issue: WON the courts may inquire into, and hear proof upon, the necessity of the expropriation? YES. 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, 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. 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 not 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. 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. "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

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question seems to have been established under governmental authority by the Spanish Governor-General. 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. 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. Camarines Sur v. CA (supra, see p. 51) Municipality of Paranaque v. V.M. Realty Corporation Facts: Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, the Municipality of Paraaque filed a Complaint for expropriation against V.M. Realty Corporation over two parcels of land. Allegedly, the complaint was filed "for the purpose of alleviating the living conditions of the underprivileged by providing homes for the homeless through a socialized housing project." Parenthetically, it was also for this stated purpose that petitioner, pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, previously made an offer to enter into a negotiated sale of the property with private respondent, which the latter did not accept. RTC: gave due course to petition and authorized petitioner to take possession of the subject property upon deposit with its clerk of court of an amount equivalent to 15 percent of its fair market value based on its current tax declaration. VM alleged that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as required by the LGC and (b) the cause of action, if any, was barred by a prior judgment or res judicata. Case dismissed, MR denied. CA: affirmed. Issues: 1. WON a resolution duly approved by the municipal council has the same force and effect of an ordinance. NO Pque: a resolution approved by the municipal council for the purpose of initiating an expropriation case "substantially complies with the requirements of the law" because the terms "ordinance" and "resolution" are synonymous for "the purpose of bestowing authority [on] the LGU through its chief executive to initiate the expropriation proceedings in court in the exercise of the power of eminent domain." Article 36, Rule VI of the Rules and Regulations Implementing the LGC: "If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU may expropriate said property through a resolution of the Sanggunian authorizing its chief executive to initiate expropriation proceedings." The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter's control and restraints, imposed "through the law conferring the power or in other legislations." In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. It provides as follows: Sec. 19. Eminent Domain. A LGU 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 LGU 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

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the fair market value at the time of the taking of the property. Essential requisites for the exercise the power of eminent domain: (1) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. (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. In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. Pque cites Camarines Sur vs. CA to show that a resolution may suffice to support the exercise of eminent domain by an LGU. This case, however, is not in point because the applicable law at that time was BP 337, the previous LGC, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160, 31 the present LGC which was already in force when the Complaint for expropriation was filed, explicitly required an ordinance for this purpose. 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. If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous LGC. But Congress did not. In a clear divergence from the previous LGC, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance. Indeed, "[l]egislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice." In the instant case, there is no reason to depart from this rule, since the law requiring an ordinance is not at all impossible, absurd, or unjust. Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people. Accordingly, the manifest change in the legislative language from "resolution" under BP 337 to "ordinance" under RA 7160 demands a strict construction. "No species of property is held by individuals with greater tenacity, and 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 doubtful interpretation." Pque 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 act pursuant to an ordinance. In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the Constitution, which provides that "territorial and political subdivisions shall enjoy local autonomy." It merely upholds the law as worded in RA 7160. We stress that an LGU is created by law and all its powers and rights are sourced therefrom. It has therefore no power to amend or act beyond the authority given and the limitations imposed on it by law. Strictly speaking, the

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power of eminent domain delegated to an LGU is in reality not eminent but "inferior" domain, since it must conform to the limits imposed by the delegation, and thus partakes only of a share in eminent domain. 38 Indeed, "the national legislature is still the principal of the LGUs, which cannot defy its will or modify or violate it." WON the complaint states a cause of action. NO. In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation. This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was mentioned by private respondent, and only in passing. In any event, this allegation does not cure the inherent defect of petitioner's Complaint for expropriation filed on September 23, 1993. It is hornbook doctrine that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted before the court for determination is the sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is beside the point, for their truth is hypothetically admitted by the motion. The issue rather is: admitting them to be true, may the court render a valid judgment in accordance with the prayer of the complaint? The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently, the Court of Appeals committed no reversible error in affirming the trial court's Decision which dismissed the expropriation suit. WON the principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily involved. YES. Eminent Domain Not Barred by Res Judicata. As correctly found by the Court of Appeals and the trial court, all the requisites for the application of res judicata are present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it. However, RJ which finds application in generally all cases and proceedings, cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can "reach every form of property which the State might need for public use." "All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it." Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. By the same token, our ruling that petitioner cannot exercise its delegated power of eminent domain through a mere resolution will not bar it from reinstituting similar proceedings, once the said legal requirement and, for that matter, all others are properly complied with. Parenthetically and by parity of reasoning, the same is also true of the principle of "law of the case." In Republic vs. De Knecht, the Court ruled that the power of the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the property to be expropriated has become the law of the case as to the

2.

2.

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parties. The State or its authorized agent may still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule otherwise will not only improperly diminish the power of eminent domain, but also clearly defeat social justice. City of Cebu v. Spouses Dedamo Facts: The City of Cebu filed in Civil Case No. CEB-14632 a complaint for eminent domain against respondents spouses Apolonio and Blasa Dedamo for a public purpose, i.e., for the construction of a public road which shall serve as an access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the back of Magellan International Hotel Roads in Cebu City. The lots are the most suitable site for the purpose. The total area sought to be expropriated is 1,624 square meters with an assessed value of P1,786.400. Petitioner deposited with the Philippine National Bank the amount of P51,156 representing 15% of the fair market value of the property to enable the petitioner to take immediate possession of the property pursuant to Section 19 of R.A. No. 7160. The Dedamos filed a motion to dismiss the complaint because the purpose for which their property was to be expropriated was not for a public purpose but for benefit of a single private entity, the Cebu Holdings, Inc. Cebu could simply buy directly from them the property at its fair market value if it wanted to, just like what it did with the neighboring lots. Besides, the price offered was very low in light of the consideration of P20,000 per square meter, more or less, which petitioner paid to the neighboring lots. Finally, the Dedamos alleged that they have no other land in Cebu City. Cebu filed a motion for the issuance of a writ of possession pursuant to Section 19 of R.A. No. 7160. The motion was granted by the trial court. The parties executed and submitted to the trial court an Agreement wherein they declared that they have partially settled the case and in consideration thereof they agreed: 1. That the SECOND PARTY hereby conforms to the intention to [sic] the FIRST PARTY in expropriating their parcels of land in the above-cited case as for public purpose and for the benefit of the general public; 2. That the SECOND PARTY agrees to part with the ownership of the subject parcels of land in favor of the FIRST PARTY provided the latter will pay just compensation for the same in the amount determined by the court after due notice and hearing; 3. That in the meantime the SECOND PARTY agrees to receive the amount of ONE MILLION SEVEN HUNDRED EIGHTY SIX THOUSAND FOUR HUNDRED PESOS (1,786,400.00) as provisional payment for the subject parcels of land, without prejudice to the final valuation as maybe determined by the court; 4. That the FIRST PARTY in the light of the issuance of the Writ of Possession Order dated September 21, 1994 issued by the Honorable Court, agreed to take possession over that portion of the lot sought to be expropriated where the house of the SECOND PARTY was located only after fifteen (15) days upon the receipt of the SECOND PARTY of the amount of P1,786,400.00; 5. That the SECOND PARTY upon receipt of the aforesaid provisional amount, shall turn over to the FIRST PARTY the title of the lot and within the lapse of the fifteen (15) days grace period will voluntarily demolish their house and the other structure that may be located thereon at their own expense; 6. That the FIRST PARTY and the SECOND PARTY jointly petition the Honorable Court to render judgment in said Civil Case No. CEB-14632 in accordance with this AGREEMENT; 7. That the judgment sought to be rendered under this agreement shall be followed by a supplemental judgment fixing the just compensation for the property of the SECOND PARTY after the Commissioners appointed by this Honorable Court to determine the same shall have rendered their report and approved by the court. Pursuant to said agreement, the trial court appointed three commissioners to determine the just compensation of the lots sought to be expropriated. The commissioners were Palermo M. Lugo, who was nominated by petitioner and who was designated as Chairman; Alfredo Cisneros, who was nominated by respondents; and Herbert E. Buot, who was designated by the trial court. The parties agreed to their appointment. Thereafter, the commissioners submitted their report, which contained their respective assessments of and recommendation as to the valuation of the property. On the basis of the commissioners' report and after due deliberation thereon, the trial court rendered its decision ordering Cebu to pay the Dedamos P24,865.930.00 representing the compensation mentioned in the Complaint. Petitioner filed a motion for reconsideration on the ground that the commissioners' report was inaccurate since it included an area which was not subject to expropriation. More specifically, it contended that Lot No. 1528 contains 793 square meters but the actual area to be expropriated

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is only 478 square meters. The remaining 315 square meters is the subject of a separate expropriation proceeding in Civil Case No. CEB-8348, then pending before Branch 9 of the Regional Trial Court of Cebu City. The commissioners submitted an amended assessment for the 478 square meters of Lot No. 1528 and fixed it at P12,824.10 per square meter, or in the amount of P20,826,339.50. The assessment was approved as the just compensation thereof by the trial court in its Order of 27 December 1996. Accordingly, the dispositive portion of the decision was amended to reflect the new valuation. Petitioner elevated the case to the Court of Appeals, which docketed the case as CA-G.R. CV No. 59204. Petitioner alleged that the lower court erred in fixing the amount of just compensation at P20,826,339.50. The just compensation should be based on the prevailing market price of the property at the commencement of the expropriation proceedings. CA Affirmed RTC. Issue: WON just compensation should be determined as of the date of the filing of the complaint. It asserts that it should be, which in this case should be 17 September 1993 and not at the time the property was actually taken in 1994, pursuant to the decision in NPC vs. CA Dedamos: Court of Appeals did not err in affirming the decision of the trial court because (1) the trial court decided the case on the basis of the agreement of the parties that just compensation shall be fixed by commissioners appointed by the court; (2) petitioner did not interpose any serious objection to the commissioners' report of 12 August 1996 fixing the just compensation of the 1,624-square meter lot at P20,826,339.50; hence, it was estopped from attacking the report on which the decision was based; and (3) the determined just compensation fixed is even lower than the actual value of the property at the time of the actual taking in 1994. Eminent domain is a fundamental State power that is inseparable from sovereignty. It is the Government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose.9 However, the Government must pay the owner thereof just compensation as consideration therefor. In the case at bar, the applicable law as to the point of reckoning for the determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that just compensation shall be determined as of the time of actual taking. The Section reads as follows: 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 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. NPC Ruling misread! We did not categorically rule in that case that just compensation should be determined as of the filing of the complaint. We explicitly stated therein that although the general rule in determining just compensation in eminent domain is the value of the property as of the date of the filing of the complaint, the rule "admits of an exception: where this Court fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings." Also, the trial court followed the then governing procedural law on the matter, which was Section 5 of Rule 67 of the Rules of Court, which provided as follows: SEC. 5. Ascertainment of compensation. Upon the entry of the order of condemnation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report is to be filed with the court.

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More than anything else, the parties, by a solemn document freely and voluntarily agreed upon by them, agreed to be bound by the report of the commission and approved by the trial court. The agreement is a contract between the parties. It has the force of law between them and should be complied with in good faith. Article 1159 and 1315 of the Civil Code explicitly provides: Art. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Art. 1315. Contracts are perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. Furthermore, during the hearing on 22 November 1996, petitioner did not interpose a serious objection. It is therefore too late for petitioner to question the valuation now without violating the principle of equitable estoppel. Estoppel in pais arises when one, by his acts, representations or admissions, or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. Records show that petitioner consented to conform with the valuation recommended by the commissioners. It cannot detract from its agreement now and assail correctness of the commissioners' assessment. Finally, while Section 4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation, such law cannot prevail over R.A. 7160, which is a substantive law. Hagonoy Market Vendors Assn v. Municipality of Hagonoy Facts: On October 1, 1996, the Sangguniang Bayan of Hagonoy, Bulacan, enacted an ordinance, Kautusan Blg. 28, which increased the stall rentals of the market vendors in Hagonoy. Article 3 provided that it shall take effect upon approval. The subject ordinance was posted from November 4-25, 1996. In the last week of November, 1997, the petitioners members were personally given copies of the approved Ordinance and were informed that it shall be enforced in January, 1998. On December 8, 1997, the petitioners President filed an appeal with the Secretary of Justice assailing the constitutionality of the tax ordinance. Petitioner claimed it was unaware of the posting of the ordinance. Respondent opposed the appeal. It contended that the ordinance took effect on October 6, 1996 and that the ordinance, as approved, was posted as required by law. Hence, it was pointed out that petitioners appeal, made over a year later, was already time-barred. The Secretary of Justice dismissed the appeal on the ground that it was filed out of time, i.e., beyond 30 days from the effectivity of the Ordinance on October 1, 1996, as prescribed under Section 187 of the 1991 LGC. Citing the case of Taada vs. Tuvera, the Secretary of Justice held that the date of effectivity of the subject ordinance retroacted to the date of its approval in October 1996, after the required publication or posting has been complied with, pursuant to Section 3 of said ordinance. After its motion for reconsideration was denied, petitioner appealed to the Court of Appeals. Petitioner did not assail the finding of the Secretary of Justice that their appeal was filed beyond the reglementary period. Instead, it urged that the Secretary of Justice should have overlooked this mere technicality and ruled on its petition on the merits. Unfortunately, its petition for review was dismissed by the Court of Appeals for being formally deficient as it was not accompanied by certified true copies of the assailed Resolutions of the Secretary of Justice. Undaunted, the petitioner moved for reconsideration but it was denied. Issues: 1. WON the CA was correct in dismissing the petition for review for petitioners failure to attach certified true copies of the assailed Resolutions of the Secretary of Justice. YES. In its Motion for Reconsideration before the Court of Appeals, the petitioner satisfactorily explained the circumstances relative to its failure to attach to its appeal certified true copies of the assailed Resolutions of the Secretary of Justice, thus: during the preparation of the petition on October 21, 1998, it was raining very hard due to (t)yphoon Loleng. When the petition was completed, copy was served on the Department of Justice at about (sic) past 4:00 p.m. of October 21, 1998, with (the) instruction to have

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the Resolutions of the Department of Justice be stamped as certified true copies. However, due to bad weather, the person in charge (at the Department of Justice) was no longer available to certify to (sic) the Resolutions. The following day, October 22, 1998, was declared a nonworking holiday because of (t)yphoon Loleng. Thus, petitioner was again unable to have the Resolutions of the Department of Justice stamped certified true copies. In the morning of October 23, 1998, due to time constraint(s) , herein counsel served a copy by personal service on (r)espondents lawyer at (sic) Malolos, Bulacan, despite the flooded roads and heavy rains. However, as the herein counsel went back to Manila, (official business in) government offices were suspended in the afternoon and the personnel of the Department of Justice tasked with issuing or stamping certified true copies of their Resolutions were no longer available. To avoid being timebarred in the filing of the (p)etition, the same was filed with the Court of Appeals as is. CA erred in dismissing petitioners appeal on the ground that it was formally deficient. It is clear from the records that the petitioner exerted due diligence to get the copies of its appealed Resolutions certified by the Department of Justice, but failed to do so on account of typhoon Loleng. Under the circumstances, respondent appellate court should have tempered its strict application of procedural rules in view of the fortuitous event considering that litigation is not a game of technicalities 2. WON the appeal was time-barred. YES. The applicable law is Section 187 of the 1991 LGC which provides: SEC. 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory Public Hearings. - The procedure for the approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and accrual and payment of the tax, fee or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings. The aforecited law requires that an appeal of a tax ordinance or revenue measure should be made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even during its pendency, the effectivity of the assailed ordinance shall not be suspended. In the case at bar, Municipal Ordinance No. 28 took effect in October 1996. Petitioner filed its appeal only in December 1997, more than a year after the effectivity of the ordinance in 1996. Clearly, the Secretary of Justice correctly dismissed it for being time-barred. At this point, it is apropos to state that the timeframe fixed by law for parties to avail of their legal remedies before competent courts is not a mere technicality that can be easily brushed aside. The periods stated in Section 187 of the LGC are mandatory. Ordinance No. 28 is a revenue measure adopted by the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood, collection of revenues by the government is of paramount importance. The funds for the operation of its agencies and provision of basic services to its inhabitants are largely derived from its revenues and collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable length of time. Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue measures and tax ordinances. 2. WON the period to appeal should be counted not from the time the ordinance took effect in 1996 but from the time its

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members were personally given copies of the approved ordinance in November 1997. NO Petitioner insists that it was unaware of the approval and effectivity of the subject ordinance in 1996 on two (2) grounds: first, no public hearing was conducted prior to the passage of the ordinance and, second, the approved ordinance was not posted. Petitioners bold assertion that there was no public hearing conducted prior to the passage of Kautusan Blg. 28 is belied by its own evidence. In petitioners two (2) communications with the Secretary of Justice, it enumerated the various objections raised by its members before the passage of the ordinance in several meetings called by the Sanggunian for the purpose. These show beyond doubt that petitioner was aware of the proposed increase and in fact participated in the public hearings therefor. The respondent municipality likewise submitted the Minutes and Report of the public hearings conducted by the Sangguniang Bayans Committee on Appropriations and Market on February 6, July 15 and August 19, all in 1996, for the proposed increase in the stall rentals. Petitioner cannot gripe that there was practically no public hearing conducted as its objections to the proposed measure were not considered by the Sangguniang Bayan. To be sure, public hearings are conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or ordinance. These views, however, are not binding on the legislative body and it is not compelled by law to adopt the same. Sanggunian members are elected by the people to make laws that will promote the general interest of their constituents. They are mandated to use their discretion and best judgment in serving the people. Parties who participate in public hearings to give their opinions on a proposed ordinance should not expect that their views would be patronized by their lawmakers. On the issue of publication or posting, Section 188 of the LGC provides: Section 188. Publication of Tax Ordinance and Revenue Measures. Within ten (10) days after their approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue measures shall be published in full for three (3) consecutive days in a newspaper of local circulation; Provided, however, That in provinces, cities and municipalities where there are no newspapers of local circulation, the same may be posted in at least two (2) conspicuous and publicly accessible places. Sangguniang Bayan of the Municipality of Hagonoy, Bulacan, presented evidence which clearly shows that the procedure for the enactment of the assailed ordinance was complied with. Municipal Ordinance No. 28 was enacted by the Sangguniang Bayan of Hagonoy on October 1, 1996. Then Acting Municipal Mayor Maria Garcia Santos approved the Ordinance on October 7, 1996. After its approval, copies of the Ordinance were given to the Municipal Treasurer on the same day. On November 9, 1996, the Ordinance was approved by the Sangguniang Panlalawigan. The Ordinance was posted during the period from November 4 - 25, 1996 in three (3) public places, viz: in front of the municipal building, at the bulletin board of the Sta. Ana Parish Church and on the front door of the Office of the Market Master in the public market. Posting was validly made in lieu of publication as there was no newspaper of local circulation in the municipality of Hagonoy. This fact was known to and admitted by petitioner. Thus, petitioners ambiguous and unsupported claim that it was only sometime in November 1997 that the Provincial Board approved Municipal Ordinance No. 28 and so the posting could not have been made in November 1996 was sufficiently disproved by the positive evidence of respondent municipality. Given the foregoing circumstances, petitioner cannot validly claim lack of knowledge of the approved ordinance. The filing of its appeal a year after the effectivity of the subject ordinance is fatal to its cause.

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**Even on the substantive points raised, the petition must fail. Section 6c.04 of the 1993 Municipal Revenue Code and Section 191 of the LGC limiting the percentage of increase that can be imposed apply to tax rates, not rentals. Neither can it be said that the rates were not uniformly imposed or that the public markets included in the Ordinance were unreasonably determined or classified. To be sure, the Ordinance covered the three (3) concrete public markets: the two-storey Bagong Palengke, the burnt but reconstructed Lumang Palengke and the more recent Lumang Palengke with wet market. However, the Palengkeng Bagong Munisipyo or Gabaldon was excluded from the increase in rentals as it is only a makeshift, dilapidated place, with no doors or protection for security, intended for transient peddlers who used to sell their goods along the sidewalk. Republic v. CA Facts: Petitioner instituted expropriation proceedings covering contiguous land situated along MacArthur Highway, Malolos, Bulacan, to be utilized for the continued broadcast operation and use of radio transmitter facilities for the Voice of the Philippines project. Petitioner, through the Philippine Information Agency, took over the premises after the previous lessee, the Voice of America, had ceased its operations thereat. The national government failed to pay to herein respondents the compensation pursuant to the foregoing decision, such that a little over five years later, respondents filed a manifestation with a motion seeking payment for the expropriated property. In the meantime, President Estrada issued Proclamation No. 22, transferring 20 hectares of the expropriated property to the Bulacan State University for the expansion of its facilities and another 5 hectares to be used exclusively for the propagation of the Philippine carabao. The remaining portion was retained by the PIA. The Santos heirs remained unpaid, and no action was taken on their case until petitioner filed its manifestation and motion to permit the deposit in court of the amount of P4,664,000.00 by way of just compensation for the expropriated property of the late Luis Santos subject to such final computation as might be approved by the court. This time, the Santos heirs, opposing the manifestation and motion, submitted a counter-motion to adjust the compensation from P6.00 per square meter previously fixed in the 1979 decision to its current zonal valuation pegged at P5,000.00 per square meter or, in the alternative, to cause the return to them of the expropriated property. Assailing the finding of prescription by the trial court, petitioner here posited that a motion which respondents had filed on 17 February 1984, followed up by other motions subsequent thereto, was made within the reglementary period that thereby interrupted the 5-year prescriptive period within which to enforce the 1979 judgment. Furthermore, petitioner claimed, the receipt by respondents of partial compensation in the sum of P72,683.55 on 23 July 1984 constituted partial compliance on the part of petitioners and effectively estopped respondents from invoking prescription expressed in Section 6, Rule 39, of the Rules of Court. In opposing the petition, respondents advanced the view that pursuant to Section 6, Rule 39, of the Rules of Court, the failure of petitioner to execute the judgment, dated 26 February 1979, within five years after it had become final and executory, rendered it unenforceable by mere motion. The motion for payment, dated 09 May 1984, as well as the subsequent disbursement to them of the sum of P72,683.55 by the provincial treasurer of Bulacan, could not be considered as having interrupted the five-year period, since a motion, to be considered otherwise, should instead be made by the prevailing party, in this case by petitioner. Respondents maintained that the P72,683.55 paid to them by the provincial treasurer of Bulacan pursuant to the 1984 order of the trial court was part of the initial deposit made by petitioner when it first entered possession of the property in 1969 and should not be so regarded as a partial payment. Respondents further questioned the right of PIA to transfer ownership of a portion of the property to the Bulacan State University even while the just compensation due the heirs had yet to be finally settled. Issue: WON the expropriated property may be returned. NO. The right of eminent domain is usually understood to be an ultimate right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose. Fundamental to the independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. In the hands of the legislature, the power is inherent, its scope

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matching that of taxation, even that of police power itself, in many respects. It reaches to every form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property whenever the public interest so requires it. The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings. Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking. Obviously, however, the power is not without its limits: first, the taking must be for public use, and second, that just compensation must be given to the private owner of the property. These twin proscriptions have their origin in the recognition of the necessity for achieving balance between the State interests, on the one hand, and private rights, upon the other hand, by effectively restraining the former and affording protection to the latter. In determining public use, two approaches are utilized - the first is public employment or the actual use by the public, and the second is public advantage or benefit. It is also useful to view the matter as being subject to constant growth, which is to say that as society advances, its demands upon the individual so increases, and each demand is a new use to which the resources of the individual may be devoted. The expropriated property has been shown to be for the continued utilization by the PIA, a significant portion thereof being ceded for the expansion of the facilities of the Bulacan State University and for the propagation of the Philippine carabao, themselves in line with the requirements of public purpose. Respondents question the public nature of the utilization by petitioner of the condemned property, pointing out that its present use differs from the purpose originally contemplated in the 1969 expropriation proceedings. The argument is of no moment. The property has assumed a public character upon its expropriation. Surely, petitioner, as the condemnor and as the owner of the property, is well within its rights to alter and decide the use of that property, the only limitation being that it be for public use, which, decidedly, it is. In insisting on the return of the expropriated property, respondents would exhort on the pronouncement in Provincial Government of Sorsogon vs. Vda. de Villaroya where the unpaid landowners were allowed the alternative remedy of recovery of the property there in question. It might be borne in mind that the case involved the municipal government of Sorsogon, to which the power of eminent domain is not inherent, but merely delegated and of limited application. The grant of the power of eminent domain to local governments under Republic Act No. 7160 cannot be understood as being the pervasive and allencompassing power vested in the legislative branch of government. For local governments to be able to wield the power, it must, by enabling law, be delegated to it by the national legislature, but even then, this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as the real authority would want it to be. The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on the basis of nonpayment, respondents ignore the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy

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of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance. Private respondents, although not entitled to the return of the expropriated property, deserve to be paid promptly on the yet unpaid award of just compensation already fixed by final judgment of the Bulacan RTC on 26 February 1979 at P6.00 per square meter, with legal interest thereon at 12% per annum computed from the date of "taking" of the property, i.e., 19 September 1969 (institution of condemnation proceedings) , until the due amount shall have been fully paid. A city, like Zamboanga, may impose, in lieu of the graduated fixed tax prescribed under Section 19 of the Local Tax Code, a percentage tax on the gross sales for the preceding calendar year of nonessential commodities at the rate of not exceeding two per cent and on the gross sales of essential commodities at the rate of not exceeding one per cent. The Ordinance is ultra vires as it is not within the authority of the City to impose said tax. The authority of the City is limited to the imposition of a percentage tax on the gross sales or receipts of said product which, being non-essential, shall be at the rate of not exceeding 2% of the gross sales or receipts of the softdrinks for the preceding calendar year. The tax being imposed under said Ordinance is based on the output or production and not on the gross sales or receipts as authorized under the Local Tax Code. Even if the Secretary of Finance failed to review or act on the Ordinance within the prescribed period of 120 days it does not follow as a legal consequence thereof that an otherwise invalid ordinance is thereby validated. Much less can it be interpreted to mean that the Secretary of Finance can no longer act by suspending and/or revoking an invalid ordinance even after the lapse of the 120-day period. All that the law says is that after said period, the tax ordinance shall remain in force. The prescribed period for review is only directory and the Secretary of Finance may still review the ordinance and act accordingly even after the lapse of the said period provided he acts within a reasonable time. Consequently even after the prescribed period has lapsed, should the Secretary of Finance, upon review, find that the tax or fee levied or imposed is unjust, excessive, oppressive, confiscatory, or not among those that the particular local government may impose in the exercise of its power in accordance with this Code; or when the tax ordinance is, in whole or in part, contrary to the

Estanislao v. Costales Facts: The Sangguniang Panglunsod of Zamboanga City passed Ordinance No. 44 which imposes a P0.01 tax per liter of softdrinks produced, manufactured, and/or bottled within the city. The Minister of Finance sent a letter to the Sanggunian suspending the effectivity of the Ordinance on the ground that it contravenes Sec 19 (a) of the Local Tax Code. Zamboanga appealed the suspension in the RTC. RTC: the tax imposed by the Ordinance is not among those that the Sanggunian may impose under the Local Tax Code, but upheld its validity saying that the Finance Minister did not act on it w/in 120 days from receipt of the petition. Finance Secretary appealed. Issue: WON Ordinance 44 is valid. NO.

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declared national economic policy; or when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade, the Secretary of Finance may certainly suspend the effectivity of such ordinance and revoke the same, without prejudice to the right to appeal to the courts within 30 days after receipt of the notice of suspension. The same rule should apply to the provincial and city treasurers, as the case may be, under Section 44 of the Local Tax Code. Ordinance No. 44: null and void. Any taxes paid under protest thereunder should be accordingly refunded to the taxpayers concerned. Philippine Petroleum Corporation v. Municipality of Pililia Facts: PPC is engaged in the manufacture of lubricated oil basestock which is a petroleum product with its refinery plant in Malaya, Pililia, Rizal. Sec. 142 (NIRC of 1939): Manufactured oils and other fuels are subject to specific tax. PD 231: Local Tax Code: Municipality may impose taxes on business, except those for which fixed taxes are provided on manufacturers, importers or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, and compounders of liquors, distilled spirits, and/ or wines. Finance Secretary issued Provincial Circular No. 26-73 which directed all LGU treasurers to refrain from collecting any local tax imposed in old or new ordinances in the business of manufacturing, wholesaling, retailing or dealing in petroleum products subject to specific tax under the NIRC; and Provincial Circular No. 26 A-73: Instructed treasurers to stop collecting any local tax imposed on the businesses of manufacturing, wholesaling, retailing, or dealing in, petroleum products subject to the specific tax under the NIRC pursuant to ordinances enacted before or after the effectivity of the Local Tax Code on 1 July 1973. Municipality of Pililia imposed Municipal Tax Ordinance No. 1 (Pililia Tax Code) Sec 9&10 imposed a tax on business, except for those which fixed taxes are provided in the LTC on manufacturers, importers or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, and compounders of liquors, distilled spirits, and/ or wines as well as mayors permit, sanitary inspection fee and storage permit fee for flammable, combustible, or explosive substances On April 13, 1974, P.D. 436 was promulgated increasing the specific tax on lubricating oils, gasoline, bunker fuel oil, diesel fuel oil and other similar petroleum products levied under Sections 142, 144 and 145 of the NIRC, as amended, and granting provinces, cities and municipalities certain shares in the specific tax on such products in lieu of local taxes imposed on petroleum products. The questioned Municipal Tax Ordinance No. 1 was reviewed and approved by the Provincial Treasurer of Rizal on January 13, 1975 (Rollo, p. 143), but was not implemented and/or enforced by the Municipality of Pililla because of its having been suspended up to now in view of Provincial Circular Nos. 26-73 and 26 A-73. Provincial Circular No. 6-77 dated March 13, 1977 was also issued directing all city and municipal treasurers to refrain from collecting the so-called storage fee on flammable or combustible materials imposed under the local tax ordinance of their respective locality, said fee partaking of the nature of a strictly revenue measure or service charge. On June 3, 1977, P.D. 1158 otherwise known as the NIRC of 1977 was enacted, Section 153 of which specifically imposes specific tax on refined and manufactured mineral oils and motor fuels. Enforcing the provisions of the above-mentioned ordinance, the respondent filed a complaint against PPC for the collection of the business tax from 1979 to 1986; storage permit fees from 1975 to 1986; mayor's permit and sanitary inspection fees from 1975 to 1984. PPC, however, have already paid the last-named fees starting 1985. RTC: PPC to pay business tax, storage permit fee, mayors permit fee, sanitary inspection fee, as well as costs of suit. MR denied. Issue: WON PPC whose oil products are subject to specific tax under the NIRC, is still liable to pay tax on business and storage fees, and mayor's permit and sanitary inspection fee unto Pililla based on Municipal Ordinance No. 1. PPC: (a) Provincial Circular No. 2673 declared as contrary to national economic policy the imposition of local taxes on the manufacture of petroleum products as they are already subject to specific tax under the NIRC; (b) the above declaration covers not only old tax ordinances but new ones, as well as those which may be enacted in the future; (c) both

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Provincial Circulars (PC) 26-73 and 26 A-73 are still effective, hence, unless and until revoked, any effort on the part of the respondent to collect the suspended tax on business from the petitioner would be illegal and unauthorized; and (d) Section 2 of P.D. 436 prohibits the imposition of local taxes on petroleum products. PC No. 26-73 and PC No. 26 A73 suspended the effectivity of local tax ordinances imposing a tax on business under Section 19 (a) of the Local Tax Code (P.D. No. 231), with regard to manufacturers, retailers, wholesalers or dealers in petroleum products subject to the specific tax under the NIRC NIRC, in view of Section 22 (b) of the Code regarding non-imposition by municipalities of taxes on articles, subject to specific tax under the provisions of the NIRC. There is no question that Pililla's Municipal Tax Ordinance No. 1 imposing the assailed taxes, fees and charges is valid especially Section 9 (A) which according to the trial court "was lifted in toto and/or is a literal reproduction of Section 19 (a) of the Local Tax Code as amended by P.D. No. 426." It conforms with the mandate of said law. But P.D. No. 426 amending the Local Tax Code is deemed to have repealed Provincial Circular Nos. 26-73 and 26 A-73 issued by the Secretary of Finance when Sections 19 and 19 (a), were carried over into P.D. No. 426 and no exemptions were given to manufacturers, wholesalers, retailers, or dealers in petroleum products. Well-settled is the rule that administrative regulations must be in harmony with the provisions of the law. In case of discrepancy between the basic law and an implementing rule or regulation, the former prevails. As aptly held by the court a quo: Necessarily, there could not be any other logical conclusion than that the framers of P.D. No. 426 really and actually intended to terminate the effectivity and/or enforceability of Provincial Circulars Nos. 26-73 and 26 A-73 inasmuch as clearly these circulars are in contravention with Sec. 19 (a) of P.D. 426-the amendatory law to P.D. No. 231. That intention to terminate is very apparent and in fact it is expressed in clear and unequivocal terms in the effectivity and repealing clause of P.D. 426 Furthermore, while Section 2 of P.D. 436 prohibits the imposition of local taxes on petroleum products, said decree did not amend Sections 19 and 19 (a) of P.D. 231 as amended by P.D. 426, wherein the municipality is granted the right to levy taxes on business of manufacturers, importers, producers of any article of commerce of whatever kind or nature. A tax on business is distinct from a tax on the article itself. Thus, if the imposition of tax on business of manufacturers, etc. in petroleum products contravenets a declared national policy, it should have been expressly stated in P.D. No. 436. The exercise by local governments of the power to tax is ordained by the present Constitution. To allow the continuous effectivity of the prohibition set forth in PC No. 26-73 (1) would be tantamount to restricting their power to tax by mere administrative issuances. Under Section 5, Article X of the 1987 Constitution, only guidelines and limitations that may be established by Congress can define and limit such power of local governments. Thus: Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy . . . Provincial Circular No. 6-77 enjoining all city and municipal treasurers to refrain from collecting the so-called storage fee on flammable or combustible materials imposed in the local tax ordinance of their respective locality frees petitioner PPC from the payment of storage permit fee. The storage permit fee being imposed by Pililla's tax ordinance is a fee for the installation and keeping in storage of any flammable, combustible or explosive substances. Inasmuch as said storage makes use of tanks owned not by the municipality of Pililla, but by

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petitioner PPC, same is obviously not a charge for any service rendered by the municipality as what is envisioned in Section 37 of the same Code. Section 10 (z) (13) of Pililla's Municipal Tax Ordinance No. 1 prescribing a permit fee is a permit fee allowed under Section 36 of the amended Code. As to the authority of the mayor to waive payment of the mayor's permit and sanitary inspection fees, the trial court did not err in holding that "since the power to tax includes the power to exempt thereof which is essentially a legislative prerogative, it follows that a municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax." The waiver partakes of the nature of an exemption. It is an ancient rule that exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority. Tax exemptions are looked upon with disfavor. Thus, in the absence of a clear and express exemption from the payment of said fees, the waiver cannot be recognized. As already stated, it is the law-making body, and not an executive like the mayor, who can make an exemption. Under Section 36 of the Code, a permit fee like the mayor's permit, shall be required before any individual or juridical entity shall engage in any business or occupation under the provisions of the Code. However, since the Local Tax Code does not provide the prescriptive period for collection of local taxes, Article 1143 of the Civil Code applies. Said law provides that an action upon an obligation created by law prescribes within ten (10) years from the time the right of action accrues. The Municipality of Pililla can therefore enforce the collection of the tax on business of petitioner PPC due from 1976 to 1986, and NOT the tax that had accrued prior to 1976. PREMISES CONSIDERED, with the MODIFICATION that business taxes accruing PRIOR to 1976 are not to be paid by PPC (because the same have prescribed) and that storage fees are not also to be paid by PPC (for the storage tanks are owned by PPC and not by the municipality, and therefore cannot be a charge for service by the municipality), the assailed DECISION is hereby AFFIRMED. Floro Cement Corp. v. Gorospe Facts: Municipality of Lugait, Misamis Oriental filed a complaint for collection of manufacturers and exporters taxes plus surcharges against Floro Cement Corporation. Lugait based it on Municipal Ordinance No. 5 (Municipal Revenue Code), passed pursuant to PD 231; and Ordinance No. 10. Floros defense: not liable since the plaintiffs power to levy fees on Mines, Mining Corporations and Mineral Products was limited by Sec. 52 of PD 463, and that it was granted by the Secretary of Agriculture and Natural Resources a certificate of tax exemption for a period of 5 years, which covers all taxes except income tax. Issues: 1. WON cement is a mineral product. NO. this Court has consistently held that it is not a mineral product but rather a manufactured product. While cement is composed of 80% minerals, it is not merely an admixture or blending of raw materials, as lime, silica, shale and others. It is the result of a definite process-the crushing of minerals, grinding, mixing, calcining adding of retarder or raw gypsum In short, before cement reaches its saleable form, the minerals had already undergone a chemical change through manufacturing process. 2. WON PPC may claim exemption from paying manufacturers and exporters taxes. NO. the power of taxation is a high prerogative of sovereignty, the relinquishment is never presumed and any reduction or diminution thereof with respect to its mode or its rate, must be strictly construed, and the same must be coached in clear and unmistakable terms in order that it may be applied. More specifically stated, the general rule is that any claim for exemption from the tax statute should be strictly construed against the taxpayer. He who claims an exemption must be able to point

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out some provision of law creating the right; it cannot be allowed to exist upon a mere vague implication or inference. It must be shown indubitably to exist, for every presumption is against it, and a well-founded doubt is fatal to the claim. The petitioner failed to meet this requirement. As held by the lower court, the exemption mentioned in Sec. 52 of P.D. No. 463 refers only to machineries, equipment, tools for production, etc., as provided in Sec. 53 of the same decree. The manufacture and the export of cement does not fall under the said provision for it is not a mineral product. It is not cement that is mined only the mineral products composing the finished product. Furthermore, by the parties' own stipulation of facts submitted before the court a quo, it is admitted that Floro Cement Corporation is engaged in the manufacturing and selling, including exporting of cement. As such, and since the taxes sought to be collected were levied on these activities pursuant to Sec. 19 of P.D. No. 231, Ordinances Nos. 5 and 10, which were enacted pursuant to P.D. No. 231 and P.D. No. 426, respectively, properly apply to petitioner Floro Cement Corporation. Tuzon and Mapagu v. CA Facts: The Sangguniang Bayan of Camalaniugan, Cagayan adopted Resolution No. 9 which solicits a 1% donation from thresher operators who apply for a permit to thresh within the municipalitys jurisdiction to help finance the construction of the municipalitys Sports and Nutrition Center. Such 1% shall come from the value of the palay threshed by them in the area. To implement the resolution, Municipal Treasurer Mapagu prepared an agreement to donate for signature of all thresher/owner/ operators applying for a mayors permit. Jurado sent his agent to the Treasurers office to pay the license fee for thresher operators. Mapagu refused to accept payment and required Jurado to first secure a mayors permit. Mayor Tuzon said that Jurado should first comply with Res 9 and sign the agreement before the permit could be issued. Jurado ignored the requirement and sent his license fee payment through postal money order. His payment was returned on the ground that he failed to comply with Res 9. Jurado filed a special civil action for mandamus w/ damages to compel the issuance of the mayors permit and license and a petition for declaratory judgment against Res 9 and the implementing agreement for being illegal either as a donation/tax measure RTC: Upheld Res 9 and implementing agreement, and dismissed claims for damages CA: Affirmed validity of Res 9 and implementing agreement, but found Mayor Tuzon and Treasurer Mapagu to have acted maliciously and in bad faith when they denied Jurados application. Issue: WON the tax measure contravenes the limitations on the taxing powers of LGUs under Sec 5 of the LGC. SC will not rule on validity of Res 9 and the implementing agreement because the issue has not been raised as an assigned error. However, it observes that that CA said no more than Res 9 was passed by the Sangguniang Bayan in the lawful exercise of its legislative powers in pursuance to (1) Art. XI, Sec. 5 1973 Consti subject to such limitation as may be provided by law and (2) Art. 4, Sec. 29 of PD 231 the barrio council may solicit monies, materials, and other contributions from private agencies and individuals. The SC said that this was an oversimplification. The CA failed to offer any explanation for its conclusion nor does it discuss its own concept of the nature of the resolution. If Res. 9 is claimed to be a solicitation: Implementing agreement makes the donationobligatory and a condition precedent to the issuance of a mayors permit. Therefore, it goes against the nature of a donation. If it is to be considered as a tax ordinance, it must be shown to have been enacted in accordance with the requirements of the Local Tax Code. It would include the holding of a public hearing on the measure, its subsequent approval by the Secretary of Finance, in addition to the requisites for publication of ordinances in general

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Drilon v. Lim Facts: Pursuant to Sec 187, LGC1, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. In Manilas petition for certiorari, the Manila RTC sustained the ordinance. It also declared Section 187 of the LGC as unconstitutional since it vests in the Justice Secretary the power of control over LGUs in violation of the policy of local autonomy mandated in the Constitution. Justice Secretary: It is constitutional and the procedural requirements for the enactment of tax ordinances as specified in the LGC had indeed not been observed. Issue: WON Sec 187 of the LGC is constitutional. YES. Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the LGC. As we see it, that was an act not of control but of mere supervision. An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision. Taule v. Santos cited in the decision has no application here because the jurisdiction claimed by the Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay was held to belong to the Commission on Elections by constitutional provision. The conflict was over jurisdiction, not supervision or control. Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as follows: A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the Secretary of Finance shall have authority to suspend the effectivity of any ordinance within one hundred and twenty days after receipt by

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

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him of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a whole, for a period of thirty days within which period the local legislative body may either modify the tax ordinance to meet the objections thereto, or file an appeal with a court of competent jurisdiction; otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time as the grounds for the suspension thereof shall have ceased to exist. That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions and noncompliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure. The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter. In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the Implementing Rules of the LGC nor were copies of the proposed ordinance published in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in accordance with Sec. 511(a) of the LGC. Finally, the Manila Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people for their information and guidance, conformably to Sec. 59(b) of the Code. Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court. To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation to it of the said exhibits. We have carefully examined every one of these exhibits and agree with the trial court that the procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3. The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general

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circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and not to tax ordinances. same code. MCIAA paid the tax account under protest but it filed a petition for declaratory relief saying that the powers of LGUs do not extend to the levy of taxes or fees of any kind on an instrumentality of the national government. TC: dismissed the petition for declaratory relief. MR denied. MCIAA: It is a GOCC mandated to perform functions in the same category as an instrumentality of the government and it is an attached agency of the DOTC. Thus, it may stand in the same footing as an agency or instrumentality of the national government. Hence, its tax exemption privilege under its charter cannot be considered as withdrawn with the passage of the LGC because Sec 133 specifically states that the taxing powers of LGUs shall not extend to the levy of taxes or fees or charges of any kind on the national government, its agencies or instrumentalities. Cebu has no power nor authority to impose realty taxes upon it based on Sec 133 of the LGC, cites Basco v. PAGCOR. In relation to Section 234, of the LGC that the legislature meant to exclude instrumentalities of the national government from the taxing power of the local government units. Cebu: as local a government unit and a political subdivision, it has the power to impose, levy, assess, and collect taxes within its jurisdiction. Such power is guaranteed by the Constitution and enhanced further by the LGC. While it may be true that under its Charter MCIAA was exempt from the payment of reality taxes, this exemption was withdrawn by Sec. 234 of the LGC. Sec. 234 does not distinguish between GOCCs performing governmental and purely proprietary functions. Issue 1. WON MCIAA is exempt from paying taxes. NO. As a general rule, the power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency who are to pay it. Nevertheless, effective limitations thereon may be imposed by the people through their Constitutions. Our Constitution, for instance, provides that the rule of taxation shall be uniform and equitable and Congress shall evolve a progressive system of taxation. So potent indeed is the power that it was once opined that "the power to tax involves the

Mactan Cebu International Airport Authority v. Marcos Facts: MCIAA was created by RA 6958 which provided that it be exempted from payment of realty taxes. The Office of the Treasurer of Cebu City demanded payment for realty taxes on several parcels of land belonging to MCIAA. MCIAA objected, claiming that it is exempt from payment of reality taxes. It also said that as it is an instrumentality of the government performing governmental functions, it is exempted as provided for by Sec. 133 of the LGC. The City insisted that MCIAA is not tax exempt as its exemption had been withdrawn by Sections 193 and 234 of the

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power to destroy." Verily, taxation is a destructive power which interferes with the personal and property for the support of the government. Accordingly, tax statutes must be construed strictly against the government and liberally in favor of the taxpayer. But since taxes are what we pay for civilized society, or are the lifeblood of the nation, the law frowns against exemptions from taxation and statutes granting tax exemptions are thus construed strictissimi juris against the taxpayers and liberally in favor of the taxing authority. A claim of exemption from tax payment must be clearly shown and based on language in the law too plain to be mistaken. Elsewise stated, taxation is the rule, exemption therefrom is the exception. However, if the grantee of the exemption is a political subdivision or instrumentality, the rigid rule of construction does not apply because the practical effect of the exemption is merely to reduce the amount of money that has to be handled by the government in the course of its operations. The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy. There can be no question that under Section 14 of R.A. No. 6958 the petitioner is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies, and instrumentalities. Nevertheless, since taxation is the rule and exemption therefrom the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The only exception to this rule is where the exemption was granted to private parties based on material consideration of a mutual nature, which then becomes contractual and is thus covered by the non-impairment clause of the Constitution. The LGC, enacted pursuant to Section 3, Article X of the constitution provides for the exercise by local government units of their power to tax, the scope thereof or its limitations, and the exemption from taxation. Section 133 of the LGC prescribes the common limitations on the taxing powers of local government units. The "taxes, fees or charges" referred to are "of any kind", hence they include all of these, unless otherwise provided by the LGC. The term "taxes" is well understood so as to need no further elaboration, especially in the light of the above enumeration. The term "fees" means charges fixed by law or Ordinance for the regulation or inspection of business activity, while "charges" are pecuniary liabilities such as rents or fees against person or property. Among the "taxes" enumerated in the LGC is real property tax, which is governed by Section 232. Section 234 of LGC provides for the exemptions from payment of real property taxes and withdraws previous exemptions therefrom granted to natural and juridical persons, including government owned and controlled corporations, except as provided therein. These exemptions are based on the ownership, character, and use of the property. Thus; (a) Ownership Exemptions. Exemptions from real property taxes on the basis of ownership are real properties owned by: (i) the Republic, (ii) a province, (iii) a city, (iv) a municipality, (v) a barangay, and (vi) registered cooperatives. (b) Character Exemptions. Exempted from real property taxes on the basis of their character are: (i) charitable institutions, (ii) houses and temples of prayer, and (iii) non profit or religious cemeteries. (c) Usage exemptions. Exempted from real property taxes on the basis of the actual, direct and exclusive use to which they are devoted are: (i) all lands buildings and improvements which are actually, directed and exclusively used for religious, charitable or

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educational purpose; (ii) all machineries and equipment actually, directly and exclusively used or by local water districts or by government-owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; and (iii) all machinery and equipment used for pollution control and environmental protection. Section 193 of the LGC is the general provision on withdrawal of tax exemption privileges. On the other hand, the LGC authorizes local government units to grant tax exemption privileges. Reading together Section 133, 232 and 234 of the LGC, we conclude that as a general rule, as laid down in Section 133 the taxing powers of local government units cannot extend to the levy of inter alia, "taxes, fees, and charges of any kind of the National Government, its agencies and instrumentalties, and local government units"; however, pursuant to Section 232, provinces, cities, municipalities in the Metropolitan Manila Area may impose the real property tax except on, inter alia, "real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial used thereof has been granted, for consideration or otherwise, to a taxable person", as provided in item (a) of the first paragraph of Section 234. As to tax exemptions or incentives granted to or presently enjoyed by natural or juridical persons, including government-owned and controlled corporations, Section 193 of the LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC, except upon the effectivity of the LGC, except those granted to local water districts, cooperatives duly registered under R.A. No. 6938, non stock and non-profit hospitals and educational institutions, and unless otherwise provided in the LGC. The latter proviso could refer to Section 234, which enumerates the properties exempt from real property tax. But the last paragraph of Section 234 further qualifies the retention of the exemption in so far as the real property taxes are concerned by limiting the retention only to those enumerated there-in; all others not included in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as the real property is owned by the Republic of the Philippines, or any of its political subdivisions covered by item (a) of the first paragraph of Section 234, the exemption is withdrawn if the beneficial use of such property has been granted to taxable person for consideration or otherwise. Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC, exemptions from real property taxes granted to natural or juridical persons, including government-owned or controlled corporations, except as provided in the said section, and the petitioner is, undoubtedly, a governmentowned corporation, it necessarily follows that its exemption from such tax granted it in Section 14 of its charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the petitioner can seek refuge under any of the exceptions provided in Section 234, but not under Section 133, as it now asserts, since, as shown above, the said section is qualified by Section 232 and 234. In short, the petitioner can no longer invoke the general rule in Section 133 that the taxing powers of the local government units cannot extend to the levy of: (o) taxes, fees, or charges of any kind on the National Government, its agencies, or instrumentalities, and local government units. In light of the petitioner's theory that it is an "instrumentality of the Government", it could only be within be first item of the first paragraph of the section by expanding the scope of the terms Republic of the Philippines" to embrace . . . . . . "instrumentalities" and "agencies" or expediency we quote: (a) real property owned by the Republic of the Philippines, or any of the Philippines, or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person. This view does not

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persuade us. In the first place, the petitioner's claim that it is an instrumentality of the Government is based on Section 133(o), which expressly mentions the word "instrumentalities"; and in the second place it fails to consider the fact that the legislature used the phrase "National Government, its agencies and instrumentalities" "in Section 133(o),but only the phrase "Republic of the Philippines or any of its political subdivision "in Section 234(a). The terms "Republic of the Philippines" and "National Government" are not interchangeable. The former is boarder and synonymous with "Government of the Republic of the Philippines" which the Administrative Code of the 1987 defines as the "corporate governmental entity though which the functions of the government are exercised through at the Philippines, including, saves as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous reason, the provincial, city, municipal or barangay subdivision or other forms of local government." These autonomous regions, provincial, city, municipal or barangay subdivisions" are the political subdivision. On the other hand, "National Government" refers "to the entire machinery of the central government, as distinguished from the different forms of local Governments." The National Government then is composed of the three great departments the executive, the legislative and the judicial. An "agency" of the Government refers to "any of the various units of the Government, including a department, bureau, office instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein;" while an "instrumentality" refers to "any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy; usually through a charter. This term includes regulatory agencies, chartered institutions and governmentowned and controlled corporations". If Section 234(a) intended to extend the exception therein to the withdrawal of the exemption from payment of real property taxes under the last sentence of the said section to the agencies and instrumentalities of the National Government mentioned in Section 133(o), then it should have restated the wording of the latter. Yet, it did not Moreover, that Congress did not wish to expand the scope of the exemption in Section 234(a) to include real property owned by other instrumentalities or agencies of the government including governmentowned and controlled corporations is further borne out by the fact that the source of this exemption is Section 40(a) of P.D. No. 646, otherwise known as the Real Property Tax Code, which reads: Sec 40. Exemption from Real Property Tax. The exemption shall be as follows: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions and any government-owned or controlled corporations so exempt by is charter: Provided, however, that this exemption shall not apply to real property of the above mentioned entities the beneficial use of which has been granted, for consideration or otherwise, to a taxable person. Note that as a reproduced in Section 234(a), the phrase "and any government-owned or controlled corporation so exempt by its charter" was excluded. The justification for this restricted exemption in Section 234(a) seems obvious: to limit further tax exemption privileges, especially in light of the general provision on withdrawal of exemption from payment of real property taxes in the last paragraph of property taxes in the last paragraph of Section 234. These policy considerations are consistent with the State policy to ensure autonomy to local governments 33 and the objective of the LGC that they enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them effective

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partners in the attainment of national goals. The power to tax is the most effective instrument to raise needed revenues to finance and support myriad activities of local government units for the delivery of basic services essential to the promotion of the general welfare and the enhancement of peace, progress, and prosperity of the people. It may also be relevant to recall that the original reasons for the withdrawal of tax exemption privileges granted to government-owned and controlled corporations and all other units of government were that such privilege resulted in serious tax base erosion and distortions in the tax treatment of similarly situated enterprises, and there was a need for this entities to share in the requirements of the development, fiscal or otherwise, by paying the taxes and other charges due from them. Secretary of Finance v. Ilarde Facts: Cabaluna failed to pay land taxes. A breakdown of the computation of the delinquent taxes and penalties on his lots and residential house as reflected in the various receipts issued by the City Treasurer's Office of Iloilo City, shows that more than twentyfour percent (24%) of the delinquent taxes were charged and collected by way of penalties. Cabaluna paid his land taxes and the corresponding receipts were issued to him by the City Treasurer's Office with the notation "paid under protest." Cabaluna filed a formal letter of protest with the City Treasurer of Iloilo City wherein he contends that the City Treasurer's computation of penalties was erroneous since the rate of penalty applied exceeded twenty-four percent (24%) in contravention of Section 66 of P.D. No. 464, otherwise known as the Real Property Tax Code, as amended. In response, however, Assistant City Treasurer Tulio, for and in behalf of the City Treasurer of Iloilo, turned down private respondent's protest, citing Sec. 4(c) of Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 of the then Ministry (now Department) of Finance. which reads: Sec. 4. Computation of Penalties on Delinquent Real Property Taxes. (a) Unless condoned, wholly or partially, in a duly approved resolution of the Local Sanggunian, delinquent real property taxes shall be subject to penalty at the rate of two per cent (2%) for every month of delinquency, provided that the total penalty for one tax year shall not exceed twenty-four percent (24%). (b) Failure to pay on time at least the first quarter installment of the real property tax shall constitute a waiver on the part of the property owner or administrator to avail of the privilege granted by law for him to pay without penalty his annual realty tax obligation in four (4) equal installment on or before the end of every quarter of the tax year. Accordingly, if the portion of the real property tax due for the first quarter of tax year is not paid on or before the thirty-first day of March of the same year, the penalty shall be reckoned from the first day of January at the rate of two per cent (2%) for every month of delinquency on the basis of the total amount due for the entire year and not only on the amount due for the said first quarter of the tax year. (c) The penalty of two percent (2%) per month of delinquency, or twenty-four percent (24%) per annum, as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that it is paid for in full. Cabaluna filed a Petition for Declaratory Relief with Damages on 06 July 1993 before the sala of respondent Judge, assailing Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 which, according to him, flouted Section 66 of P.D. No. 464 which fixed the maximum penalty for delinquency in the payment of real estate taxes at 24% of the delinquent tax. RTC: Section 4(c) of Joint Assessment Regulation No. 1-85 and Local Treasury Regulation No. 2-85 null and void. Penalty that should be imposed for delinquency in the payment of real property taxes should be two per centum on the amount of the delinquent tax for each month of delinquency or fraction thereof, until the delinquent tax is fully paid but in no case shall the total penalty exceed twenty-four per centum of the delinquent tax as provided for in Section 66 of P.D. 464 otherwise known as the Real Property Tax Code. Issue: WON Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 are valid. NO. The subject Regulations must be struck down for being repugnant to Section 66 of P.D. No. 464 or the Real Property Tax Code, which provides: That in no case shall the total penalty exceed twenty-four per centum of the delinquent tax. The rate of penalty for

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tax delinquency fixed herein shall be uniformly applied in all provinces and cities. Upon the other hand, Section 4(c) of the challenged Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 issued by respondent Secretary (formerly Minister) of Finance provides that "the penalty of two percent (2%) per month of delinquency or twenty-four percent (24%) per annum as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that the delinquency is paid for in full." As adeptly observed by the trial court, the penalty imposed under the assailed Regulations has no limit inasmuch as the 24% penalty per annum shall be continuously imposed on the unpaid tax until it is paid for in full unlike that imposed under Section 66 of the Real Property Tax Code where the total penalty is limited only to twenty-four percent of the delinquent tax. * The secretary anchors his claim on EO73 "The Minister of Finance shall promulgate the necessary rules and regulations to implement this Executive Order." E.O. No. 73 did not touch at all on the topic of amendment of rates of delinquent taxes or the amendment of rates of penalty on delinquent taxes. Neither did E.O. No. 1019 directly or indirectly vest upon the Department of Finance the right to fiddle with the rates of penalty to be assessed on delinquency taxes as contained in the Real Property Tax Code. Despite the promulgation of E.O. No. 73, P.D. No. 464 in general and Section 66 in particular, remained to be good law. NO repeal by implication itcab! Assuming argumenti that E.O. No. 73 has authorized the petitioner to issue the objected Regulations, such conferment of powers is void for being repugnant to the wellencrusted doctrine in political law that the power of taxation is generally vested with the legislature. The power delegated to the executive branch, in this case the Ministry of Finance, to lay down implementing rules must, nevertheless, be germane to the general law it seeks to apply. The implementing rules cannot add to or detract from the provisions of the law it is designed to implement. * the fact that private respondent Cabaluna was responsible for the issuance and implementation of Regional Office Memorandum Circular No. 04-89 which implemented Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 does not put him in estoppel from seeking the nullification of said Regulations at this point.

Benguet Corporation v. Central Board of Assessment Appeals Facts: BC seeks to annul and set aside the Decision of the CBAA of May 28, 1991, as well as the Resolution of July 1, 1991, denying its motion for reconsideration, which affirmed the decision of respondent Local Board of Assessment Appeals of the Province of Benguet declaring as valid the tax assessments made by the Municipal Assessor of Itogon, Benguet, on the bunkhouses of petitioner occupied as dwelling by its rank and file employees based on Tax Declarations Nos. 8471 and 10454. The Provincial Assessor of Benguet, through the Municipal Assessor of Itogon, assessed real property tax on the bunkhouses of petitioner Benguet Corporation occupied for residential purposes by its rank and file employees under Tax Declarations Nos. 8471 (effective 1985) and 10454 (effective 1986). According to the Provincial Assessor, the tax exemption of bunkhouses under Sec. 3 (a), P.D. 7452 (Liberalizing the Financing and Credit Terms for Low Cost Housing Projects of Domestic Corporations and Partnerships) , was withdrawn by P.D. 19553 (Withdrawing, Subject to Certain Conditions, the Duty and Tax Privileges Granted to Private Business Enterprises and/or Persons Engaged in Any Economic Activity, and Other Purposes). Petitioner appealed the assessment on Tax

"Section 3. Pursuant to the above incentive, such domestic corporations and partnerships shall enjoy tax exemption on: (a) real estate taxes on the improvements which will be used exclusively for housing their employees and workers . . ."

"Section 1. The provisions of any special or general law to the contrary notwithstanding, all exemptions from or any preferential treatment in the payment of duties, taxes, fees, imposts and other charges heretofore granted to private business enterprises and/or persons engaged in any economic activity are hereby withdrawn, except those enjoyed by the following: . . . (e) Those that will be approved by the President of the Philippines upon the recommendation of the Minister of Finance,"

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Declarations Nos. 8471 and 10454 to the Local Board of Assessment Appeals (LBAA) of the Province of Benguet, docketed as LBAA Cases Nos. 42 and 43, respectively. Both were heard jointly. Meanwhile, the parties agreed to suspend hearings in LBAA Cases Nos. 42 and 43 to await the outcome of another case, LBAA Case No. 41, covering Tax Declaration No. 3534 (effective 1984), which involved the same parties and issue until the appeal was decided by the Central Board of Assessment Appeals (CBAA). On July 15, 1986, CBAA handed down its decision in LBAA Case No. 41 holding that the buildings of petitioner used as dwellings by its rank and file employees were exempt from real property tax pursuant to P.D. 745. Thereafter, the proceedings in LBAA Cases Nos. 42 and 43 proceeded after which a decision was rendered affirming the taxability of subject property of petitioner. On appeal, CBAA sustained the decision holding that the realty tax exemption under P.D. 745 was withdrawn by P.D. 1955 and E.O. 93, so that petitioner should have applied for restoration of the exemption with the Fiscal Incentives Review Board (FIRB) The decision of CBAA clarified that Case No. 41 was different because it was effective prior to 1985, hence, was not covered by P.D. 1955 nor by E.O. 93. Petitioner moved for reconsideration but was denied with CBAA holding that petitioner's "classification" of P.D. 745 is unavailing because P.D. 1955 and E.O. 93 do not discriminate against the socalled "social statutes". Hence, this petition. SC: should be read in connection with Ministry Order No. 39-84, Sec. 1 (d), of the then Ministry of Finance, which took effect October 15, 1984, states: "Section 1. The withdrawal of exemptions from, or any preferential treatment in, the payment of duties, taxes, fees, imposts and other charges as provided for under Presidential Decree No. 1955, does not apply to exemptions or preferential treatment embodied in the following laws: . . . (d) The Real Property Tax Code . . ." Executive Order No. 93, promulgated December 17, 1986, is also to the same effect. Both P.D. 1955 and F.O. 93 operate as wholesale withdrawal of tax incentives granted to private entities so that the government may re-examine existing tax exemptions and restore through the "review mechanism" of the Fiscal Incentives Review Board only those that are consistent with declared economic policy. Thus wise, the chief revenue source of the government will not be greatly, if not unnecessarily, eroded since tax exemptions that were granted on piecemeal basis, and which have lost relevance to existing programs, are eliminated. Issues: 1. WON respondent Assessors may validly assess real property tax on the properties of petitioner considering the proscription in The Local Tax Code (P.D 231) and the Mineral Resources Development Decree of 1974 (P.D. 463) against imposition of taxes on mines by local governments. YES. On the first issue, petitioner contends that local government units are without any authority to levy realty taxes on mines pursuant to Sec. 52 of P.D. 463, which states: Sec. 52. Power to Levy Taxes on Mines Mining Operations and Mineral Products. Any law to the contrary notwithstanding, no province, city, municipality, barrio or municipal district shall levy and collect taxes, fees, rentals, royalties or charges of any kind whatsoever on mines, mining claims, mineral products, or any operation, process or activity connected, therewith, and Sec. 5 (m) of The Local Tax Code, as amended by P.D. 426 (reiterated in Secs. 17 [d] and 22 [c], same Code), which provides: Sec. 5. Common limitations on the taxing powers of local governments. The exercise of the taxing powers of provinces, cities, municipalities and barrios shall not extend to the imposition of the following: . . . (m) Taxes on mines, mining operations; and minerals, mineral products, and their by-products when sold domestically by the operator. The Solicitor General observes that the petitioner is estopped from raising the question of lack of authority to issue the challenged assessments inasmuch as it was never raised before, hence, not passed upon by, the municipal and provincial assessors, LBAA and CBAA. This observation is well taken. The rule that the issue of jurisdiction over subject matter may be raised anytime, even during appeal, has been qualified where its application results in mockery of the tenets of fair play, as in this case when the issue could have been disposed of earlier and more authoritatively by any of the respondents who are supposed to be experts in the field of realty tax assessment. As We held in Suarez v. Court of Appeals: . . . It is settled that any

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decision rendered. without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this Court. The only exception is where the party raising the issue is barred by estoppel. Tijam v. Sibonghanoy: While petitioner could have prevented the trial court from exercising jurisdiction over the case by seasonably taking exception thereto, they instead involved the very same jurisdiction by filing an answer and seeking affirmative relief from it. What is more, they participated in the trial of the case by crossexamining respondent. Upon the premises, petitioner cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the court to which they had submitted themselves voluntarily Aguinaldo Industries Corporation v. Commissioner of Internal Revenue and the Court of Tax Appeals:"To allow a litigant to assume a different posture when he comes before the court and challenge the position he had accepted at the administrative level, would be to sanction a procedure whereby the court which is supposed to review administrative determinations would not review, but determine and decide for the first time, a question not raised at the administrative forum. This cannot be permitted, for the same reason that underlies the requirement of prior exhaustion of administrative remedies to give administrative authorities the prior opportunity to decide controversies within its competence, and in much the same way that, on the judicial level, issues not raised in the lower court cannot be raised for the first time on appeal." Besides, the special civil action of certiorari is available to pass upon the determinations of administrative bodies where patent denial of due process is alleged as a consequence of grave abuse of discretion or lack of jurisdiction, or question of law is raised and no appeal is available. In this case, petitioner may not complain of denial of due process since it had enough opportunity, but opted not, to raise the issue of jurisdiction in any of the administrative bodies to which the case may have been brought. BC: realty taxes are local taxes because they are levied by local government units; citing Sec. 39 of P.D. 464, which provides: Sec. 39. Rates of Levy. The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities . . . While local government units are charged with fixing the rate of real property taxes, it does not necessarily follow from that authority the determination of whether or not to impose the tax. In fact, local governments have no alternative but to collect taxes as mandated in Sec. 38 of the Real Property Tax Code, which states: Sec. 38. Incidence of Real Property Tax. There shall be levied, assessed and collected in all provinces, cities and municipalities an annual ad valorem tax on real property, such as land, buildings, machinery and other improvements affixed or attached to real property not hereinafter specifically exempted." It is thus clear from the foregoing that it is the national government, expressing itself through the legislative branch, that levies the real property tax. Consequently, when local governments are required to fix the rates, they are merely constituted as agents of the national government in the enforcement of the Real Property Tax Code. The delegation of taxing power is not even involved here because the national government has already imposed realty tax in Sec. 38 above-quoted, leaving only the enforcement to be done by local governments. The challenge of petitioner against the applicability of Meralco Securities Industrial Corporation v. Central Board of Assessment Appeals, et al., 3 is unavailing, absent any cogent reason to overturn the same. Thus "Meralco Securities argues that the realty tax is a local tax or levy and not a tax of general application. This argument is untenable because the realty tax has always been imposed by

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the lawmaking body and later by the President of the Philippines in the exercise of his lawmaking powers, as shown in Sections 342 et seq. of the Revised Administrative Code, Act No. 3995, Commonwealth Act No 470 and Presidential Decree No. 464. "The realty tax is enforced throughout the Philippines and not merely in a particular municipality or city but the proceeds of the tax accrue to the province, city, municipality and barrio where the realty taxed is situated (Sec. 86, P.D. No. 464). In contrast, a local tax is imposed by the municipal or city council by virtue of the Local Tax Code, Presidential Decree No. 231, which took effect on July 1, 1973 (69 O.G. 6197)." Consequently, the provisions of Sec. 52 of the Mineral Resources Development Decree of 1974 (P.D. 463), and Secs. 5 (m), 17 (d) and 22 (c) of The Local Tax Code (P.D. 231) cited by petitioner are mere limitations on the taxing power of local government units, they are not pertinent to the issue before Us and, therefore, cannot and should not affect the imposition of real property tax by the national government. 2. WON the real tax exemption granted under P.D. 745 (promulgated July 15, 1975) was withdrawn by P.D. 1955 (took effect October 15, 1984) and E.O. 93. YES. Court held that it has no recourse but to apply the express provision of P.D. No. 1955 and rule in favor of the withdrawal of the real property tax exemption provided under P.D. No. 745. As regards the second issue, petitioner, which claims that E.O. 93 does not repeal social statutes like P.D. 745, in the same breath takes refuge in Sec. 1 (e) of the same E.O. 93, to wit: Section 1. The provisions of any general or special law to the contrary notwithstanding, all tax and duty incentives granted to government and private entities are hereby withdrawn except: . . . (e) those conferred under the four basic codes, namely: . . . (iv) the Real Property Tax Code, as amended . . . in relation to Sec. 40 of the Real Property Tax Code, which provides: Sec. 40. Exemptions from Real Property Tax. The exemption shall be as follows: . . . (g) Real property exempt under other laws, and concluding that P.D. 745 is one of the "other laws" referred to. We do not agree. If We are to sanction this interpretation, then necessarily all real properties exempt by any law would be covered, and there would be no need for the legislature to specify "Real Property Tax Code, as amended", instead of stating clearly "realty tax exemption laws". Indubitably, the intention is to limit the application of the "exception clause" only to those conferred by the Real Property Tax Code. This is not only a logical construction of the provisions but more so in keeping with the principle of statutory construction that tax exemptions are construed strictly against taxpayers, hence, they cannot be created by mere implication but must be clearly provided by law. Nonexemption, in case of doubt, is favored. Quite obviously, the exception in Sec. 1 (e), (iv), of E.O. 93, refers to "those conferred under . . . Real Property Tax Code, as amended", and that the exemption claimed by petitioner is granted not by the Real Property Tax Code but by P.D. 745. When Sec. 40 (g) of the Property Tax Code provides that "[T]he exemption shall be as follows: . . . Real Property exempt under other laws". the Code merely recognizes realty tax exemptions provided by other laws, otherwise, it may unwittingly repeal those "other laws". The argument of petitioner that P.D. 745 is a social statute to give flesh to the Constitutional provisions on housing, hence, not covered by P.D. 1955, was squarely met by respondent CBAA in its Resolution of July 1, 1991, to which We fully agree "The phrase 'any special or general law' explicitly indicates that P.D. No. 1955 did not distinguish between a social statute and an economic or tax legislation. Hence, where the law does not distinguish, we cannot distinguish. In view thereof, we have no recourse but to apply the express provision of P.D. No. 1955 and rule in favor of the withdrawal of the real property tax

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exemption provided under P.D. No. 745. We also find without merit the contention of PetitionerAppellan t that B.P. No. 391 (Investment Incentives Policy Act of 1983) is the source and reason for the existence of P.D. No. 1955; therefore, the scope of P.D. No. 1955 is limited to investment incentives. Although Section 20 of said B.P. which authorizes the President to restructure investment incentives systems/legislation s to align them with the overall economic development objectives is one of the declared policies of P.D. No. 1955, its primary aim is the formulation of national recovery program to meet and overcome the grave emergency arising from the current economic crisis. Hence, it cannot be maintained that its provisions apply only to investment incentives. Besides, even granting that its scope is limited, it is noted that P.D. No. 745 also speaks of investment incentives in Sections 2 and 3 thereof . . ." National Development Co. v. Cebu City Facts: Proclamation No. 430 was issued by the President which reserved Block no. 4, Reclamation Area No. 4, of Cebu City, consisting of 4,599 square meters, for warehousing purposes under the administration of National Warehousing Corporation. Subsequently, a warehouse with a floor area of 1,940 square meters more or less, was constructed thereon. NWC dissolved, NDC took over. Commencing 1948, Cebu assessed and collected from NDC real estate taxes on the land and the warehouse thereon. By the first quarter of 1970, a total of P100,316.31 was paid by NDC of which only P3,895.06 was under protest. On 20 March 1970, NDC wrote the City Assessor demanding full refund of the real estate taxes paid claiming that the land and the warehouse standing thereon belonged to the Republic and therefore exempt from taxation. Cebu did not acquiesce in the demand, hence, the present suit filed 25 October 1972 in the Court of First Instance of Manila. CFI: Cebu to refund the real estate taxes paid by NDC for the parcel of land covered by Presidential Proclamation No. 430 of August 10, 1939, and the warehouse erected thereon from and after October 25, 1966 CA: certified the case to SC as one involving pure questions of law, pursuant to Sec. 17, R.A. 296. Issue: WON NDC is exempted from payment of the real estate taxes on the land reserved by the President for warehousing purposes as well as the warehouse constructed thereon, and in the affirmative, whether NDC may recover in refund unprotested real estate taxes it paid from 1948 to 1970. Section, 3 par. (a), of the Assessment Law, on which NDC claims real estate tax exemption, provides Section 3. Property exempt from tax. The exemptions shall be as follows: (a) Property owned by the United States of America, the Commonwealth of the Philippines, any province, city, municipality at municipal district . . . The same opinion of NDC was passed upon in National Development Co. v. Province of Nueva Ecija where We held that its properties were not comprehended in Sec. 3, par (a), of the Assessment Law. In part, We stated: 1. Commonwealth Act No. 182 which created NDC contains no provision exempting it from the payment of real estate tax on properties it may acquire . . . There is justification in the contention of plaintiff-appellee that . . . [I]t is undeniable that to any municipality the principal source of revenue with which it would defray its operation will came from real property taxes. If the National Development Company would be exempt from paying real property taxes over these properties, the town of Gabaldon will be deprived of much needed revenues with which it will maintain itself and finance the compelling needs of its inhabitants 2. Defendant-appellant NDC does not come under classification of municipal or public corporation in the sense that it may sue and be sued in the same manner as any other private corporations, and in this sense, it is an entity different from the government, defendant corporation may be sued without its consent, and is subject to taxation. In the case NDC vs. Jose Yulo Tobias, 7 SCRA 692, it was held that . . . plaintiff is

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neither the Government of the Republic nor a branch or subdivision thereof, but a government owned and controlled corporation which cannot be said to exercise a sovereign function. it is a business corporation, and as such, its causes of action are subject to the statute of limitations. . . . That plaintiff herein does not exercise sovereign powers and, hence, cannot invoke the exemptions thereof but is an agency for the performance of purely corporate, proprietary or business functions, is apparent from its Organic Act (Commonwealth Act 182, as amended by Commonwealth Act 311) pursuant to Section 3 of which it "shall be subject to the provisions of the Corporation Law insofar as they are not inconsistent" with the provisions of said Commonwealth Act, "and shall have the general powers mentioned in said" Corporation Law, and, hence, "may engage in commercial, industrial, mining, agricultural, and other enterprises which may be necessary or contributory to the economic development of the country, or important in the public interest," as well as "acquire, hold, mortgage and alienate personal and real property in the Philippines or elsewhere; . . . make contracts of any kind and description" , and "perform any and all acts which a corporation or natural persons is authorized to perform under the laws now existing or which may be enacted hereafter." We find no compelling reason why the foregoing ruling, although referring to lands which would eventually be transferred to private individuals, should not apply equally to this case. NDC cites Board of Assessment Appeals, Province of Laguna v. Court of Tax Appeal and National Waterworks and Sewerage Authority (NWSA). In that case, We held that properties of NWSA, a GOCC, were exempt from real estate tax because Sec. 3, par (c), of R.A. 470 did not distinguish between those possessed by the government in sovereign/governmen tal/political capacity and those in private/proprietary /patrimonial character.

The conflict between NDC v. Nueva Ecija, supra, and

BAA v. CTA and NWSA, supra, is more superficial than real. The NDC decision speaks of properties owned by NDC, while the BAA ruling concerns properties belonging to the Republic. The latter case appears to be exceptional because the parties therein stipulated 1. That the petitioner National Waterworks and Sewerage Authority (NAWASA) is a public corporation created by virtue of Republic Act. No. 1383, and that it is owned by the Government of the Philippines as well as all property comprising waterworks and sewerage systems placed under it (Emphasis supplied). There, the Court observed: "It is conceded, in the stipulation of facts, that the property involved in this case "is owned by the Government of the Philippines. " Hence, it belongs to the Republic of the Philippines and falls squarely within letter of the above provision." In the case at bar, no similar statement appears in the stipulation of facts, hence, ownership of subject properties should first be established. For, while it may be stated that the Republic owns NDC, it does not necessary follow that properties owned by NDC, are also owned by Republic in the same way that stockholders are not ipso factoowners of the properties of their corporation. The Republic, like any individual, may form a corporation with personality and existence distinct from its own. The separate personality allows a GOCC to hold and possess properties in its own name and, thus, permit greater independence and flexibility in its operations. It may, therefore, be stated that tax exemption of property owned by the Republic of the Philippines "refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities). The foregoing discussion does not mean that because NDC, like most GOCC's engages in commercial enterprises all properties of the government and its unincorporated agencies possessed in propriety character are taxable.

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Similarly, in the case at bar, NDC proceeded on the premise that the BAA ruling declared all properties owed by GOCC's as properties in the name of the Republic, hence, exempt under Sec. 3 of the Assessment Law. To come within the ambit of the exemption provided in Art. 3, par. (a), of the Assessment Law, it is important to establish that the property is owned by the government or its unincorporated agency, and once government ownership is determined, the nature of the use of the property, whether for proprietary or sovereign purposes, becomes immaterial. What appears to have been ceded to NWC (later transferred to NDC), in the case before Us, is merely the administration of the property while the government retains ownership of what has been declared reserved for warehousing purposes under Proclamation No. 430. Incidentally, the parties never raised the issued the issue of ownership from the court a quo to this Court. A reserved land is defined as a "[p]ublic land that has been withheld or kept back from sale or disposition. " The land remains "absolute property of the government." The government "does not part with its title by reserving them (lands), but simply gives notice to all the world that it desires them for a certain purpose." Absolute disposition of land is not implied from reservation; it merely means "a withdrawal of a specified portion of the public domain from disposal under the land laws and the appropriation thereof, for the time being, to some particular use or purpose of the general government." As its title remains with the Republic, the reserved land is clearly recovered by the tax exemption provision. Cebu: reservation of the property in favor of NWC or NDC is a form of disposition of public land which, subjects the recipient (NDC ) to real estate taxation under Sec. 115 of the Public Land Act. as amended by R.A. 436. As We view it, the effect of reservation under Sec. 83 is to segregate a piece of public land and transform it into non-alienable or non-disposable under the Public Land Act. Section 115, on the other hand, applies to disposable public lands. Clearly, therefore, Sec. 115 does not apply to lands reserved under Sec. 83. Consequently, the subject reserved public land remains tax exempt. As regards the warehouse constructed on a public reservation, a different rule should apply because "[t]he exemption of public property from taxation does not extend to improvements on the public lands made by pre-emptioners, homesteaders and other claimants, or occupants, at their own expense, and these are taxable by the state . . ." Consequently, the warehouse constructed on the reserved land by NWC (now under administration by NDC), indeed, should properly be assessed real estate tax as such improvement does not appear to belong to the Republic. Since the reservation is exempt from realty tax, the erroneous tax payments collected by Cebu should be refunded to NDC. This is in consonance with Sec. 40, par. (a) of the former Real Property Tax Code which exempted from taxation real property owned by the Republic of the Philippines or any of its political subdivisions, as well as any GOCC so exempt by its charter. As regards the requirement of paying under protest before judicial recourse, CEBU argues that in any case NDC is not entitled to refund because Sec. 75 of R.A. 3857, the Revised Charter of the City of Cebu, requires paymentunder protest before resorting to judicial action for tax refund; that it could not have acted on the first demand letter of NDC of 20 May 1970 because it was sent to the City Assessor and not to the City Treasurer; that, consequently, there having been no appropriate prior demand, resort to judicial remedy is premature; and, that even on the premise that there was proper demand, NDC has yet to exhaust administrative remedies by way of appeal to the Department of Finance and/or Auditor General before taking judicial action.

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NDC exempt from real estate tax on the reserved land but liable for the warehouse erected thereon. Province of Tarlac v. Judge Alcantara Facts: Tarlac Enterprises is the owner of a parcel of land, an ice drop factory, a machinery shed all located at Mabini, Tarlac, Tarlac, machinery of Diesel Elect.. Sets. Real estate taxes of the aforesaid properties from 1974 to December 31, 1982, in the total amount of P532,435.55 including principals and penalties has not been paid. Tarlac now prays for payment as well as damages and costs of suit. TE moved to dismiss. LC denied. MR denied. Thereafter, Tarlac set the auction sale of TE's properties to satisfy the real estate taxes due. This prompted TE to file a motion praying that petitioner be directed to desist from proceeding with the public auction sale. LC: issued an order granting said motion to prevent mootness of the case considering that the properties to be sold were the, subjects of the complaint. TEs answer: demands for the payment of, real property taxes had been made but it refused to pay the same for the reason that under Sec. 40, paragraph (g) of PD 464 in relation to P.D. No.. 551, as amended, it was exempt from paying said tax. It also raised as affirmative defenses that the complaint stated no cause of action and that the claims had been waived, abandoned or otherwise extinguished or barred by the statute of limitations. LC: dismissed the complaint. It ruled that P.D. No. 551 expressly exempts private respondent from paying the real property taxes demanded, it being a grantee of a franchise to generate, distribute and sell electric current for light. The court held that in lieu of said taxes, private respondent had been required to pay two percent (2%) franchise tax in line with the intent of the law to give assistance to operators such as the private respondent to enable the consumers to enjoy cheaper rates. Butuan Sawmill, Inc. v. City of Butuan: the court ruled that local-governments are without power to tax the electric companies already subject to franchise tax unless their franchise allows the imposition of additional tax. MR: denied. ISSUE: WON TE is exempt from the payment of real property tax under Sec. 40 (g) of P.D. No. 464 in relation to P.D. No. 551, as amended. NO. Sec. 40(g) of P.D. No. 464, the Real Property Tax Code: SEC. 40. Exemptions from Real Property Tax. The exemption shall be as follows:(g) Real property exempt under other laws. TE contends that the "other laws" referred to in this Section is P.D. No. 551 (Lowering the Cost to Consumers of Electricity by Reducing the Franchise Tax Payable by Electric Franchise Holders and the Tariff on Fuel Oils for the Generation of Electric Power by Public Utilities). Its pertinent provisions state: SECTION 1. Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax payable by all grantees of franchises to generate, distribute and sell electric current for light, heat and power shall be two (2%) of their gross receipts received from the sale of electric current and from transactions incident to the generation, distribution and sale of electric current. Such franchise tax shall be payable to the Commissioner of Internal Revenue or his duly authorized representative on or before the twentieth day of the month following the end of each calendar quarter or month as may be provided in the respective franchise or pertinent municipal regulation and shall, any provision of the Local Tax Code or any other law to the contrary notwithstanding, be in lieu of all taxes assessments of whatever nature imposed by any national or authority on earnings, receipts, income and privilege of generation, distribution and sale of electric current." P.D. No. 551 was amended on December 19. 1975 by P.D. No. 852 10 with the insertion of the phrase "and for the manufacture, distribution and sale of city gas" between the phrases ". . . light, heat and power" and "shall be two (2%) . . . ." We do not agree with the lower court that the phrase "in lieu of all taxes and assessments of whatever nature" in the second paragraph of Sec. 1 of P.D. No. 551 expressly exempts private respondent from paying real property taxes. As correctly observed by the petitioner, said proviso is

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modified and delimited by the phrase "on earnings, receipts. income and privilege of generation, distribution and sale" which specifies the kinds of taxes and assessments which shall not be collected in view of the imposition of the franchise tax. Said enumerated items upon which taxes shall not be imposed, have no relation at all to, and are entirely different from. real properties subject to tax. If the intention of the law is to exempt electric franchise grantees from paying real property tax and to make the two (2%) percent franchise tax the only imposable tax, then said enumerated items would not have been added when P.D. No. 852 was enacted to amend P.D. No. 551. The legislative authority would have simply stopped after the phrase "national or local authority" by putting therein a period. On the contrary, it went on to enumerate what should not be subject to tax thereby delimiting the extent of the exemption. We likewise do not find merit in private respondent's contention that the real properties being taxed, viz., the machinery for the generation and distribution of electric power, the building housing said machinery, and the land on which said building is constructed, are necessary for the operation of its business of generation, distribution and sale of electric current and, therefore, they should be exempted from taxation. Private respondent apparently does not quite comprehend the distinction among the subject matters or objects of the taxes involved. It bears emphasis that P.D. No. 551 as amended by P.D. No. 852 deals with franchise tax and tariff on fuel oils and the "earnings, receipts, income and privilege of generation, distribution and sale of electric current" are the items exempted from taxation by the imposition of said tax or tariff duty. On the other hand, the collection complaint filed by petitioner specified only taxes due on real properties. While P.D. No. 551 was intended to give "assistance to the franchise holders by reducing some of their tax and tariff obligations, " to construe said decree as having granted such franchise holders exemption from payment of real property tax would unduly extend the ambit of exemptions beyond the purview of the law. The annexes attached to private respondent's comment on the petition to prove by contemporaneous interpretation its claimed tax exemption are not of much help to it. Department Order No. 35-74 dated September 16, 1974 regulating the implementation of P.D. No. 551 merely reiterates the "in lieu of all taxes" proviso. Local Tax Regulations 3-75 12 issued by then Secretary of Finance Cesar Virata and addressed to all Provincial and City Treasurers enjoins strict compliance with the directive that "the franchise tax imposed under Local Tax Ordinances pursuant to Section 19 of the Local Tax Code, as amended, shall be collected from business holding franchises but not from establishments whose franchise contains the in lieu of all taxes' proviso," thereby clearly indicating that said proviso exempts taxpayers like private respondent from paying the franchise tax collected by the provinces under the Local Tax Code. Lastly, the letter of the then BIR Acting Commissioner addressed to the Matic Law Office granting exemption to the latter's client from paying the "privilege tax which is an excise tax on the privilege of engaging in business" clearly excludes realty tax from such exemption. We also find misplaced the lower court's and the private respondent's reliance on Butuan Sawmill. v. City of Butuan. In that case, the questioned tax is a tax on the gross sales or receipts of said sawmill while the tax involved herein is a real property tax. The City of Butuan is categorically prohibited therein by Sec. 2(j) of the Local Autonomy Act from imposing "taxes of any kindon person paying franchise tax." On the other hand, P.D. No. 551 is not as all-encompassing as said provision of the Local Autonomy Act for it enumerates the items which are not taxable by virtue of the payment of franchise tax.

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It has always been the rule that "exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority" primarily because "taxes are the lifeblood of government and their prompt and certain availability is an imperious need." Thus, to be exempted from payment of taxes, it is the taxpayer's duty to justify the exemption "by words too plain to be mistaken and too categorical to be misinterpreted. Private respondent has utterly failed to discharge this duty. Lower court erred in exempting TE from paying real property tax on its properties which are enumerated in the complaint. However, in its decision, the lower court found that private respondent owns only three real properties consisting of the parcel of land, machinery shed and machinery, noticeably omitting the ice drop factory mentioned in its complaint by the petitioner. In view, however, of the petitioner's failure to assign such omission as an error, the same should be considered waived. Casio v. CA Facts: The Sangguniang Panglungsod of Gingoog passed Resolution 49 which classified certain areas, including Casios coliseum which was licensed as a cockpit. The classification led to the cancellation of Casios license to operate such cockpit. The ordinance provides that changes in the zoning ordinance as a result of the review by the Local Review Committee shall be treated as an amendment provided that such is carried out through a resolution of three fourths vote of the SP. Said amendments shall take effect only after approval and authentication by the HSRC. On August 13, 1985, Resolution No. 378, Code Ordinance, Series of 1985, reclassified Block 125 as within the recreational zone, thus allegedly amending Resolution No. 49. Nine (9) members of the said SP, participated, with four (4) members voting for the amendment, while four (4) voted against, and with one (1) abstention. The vice-mayor, as presiding officer, broke the deadlock by voting for the amendment. When Resolution No. 378 was transmitted to then City Mayor Miguel Paderanga for approval, he returned the same to the SP within ten days, without any action, stating that his approval thereof was not necessary since it did not involve a disposition of city government funds, as provided by Section 180 of the LGC and Section 14 of the charter of Gingoog City. By virtue of said Resolution No. 378, Mayor Lugod, issued to petitioner the aforestated permit to operate a cockpit dated April 2, 1986, which was renewed by another permit issued on January 5, 1987. Gingoog Gallera protested the operation of Coliseum before the Philippine Gamefowl Commission. The protest was founded on the fact that no certificate of registration had as yet been issued by the PGC, although city mayor's permits were issued to petitioner. On April 11, 1986, the PGC, through OIC Orog sent a telegram to the Station Commander of Gingoog City to suspend in the meantime the operation of the cockpit. On April 24, 1986, the PGC eventually sent a telegram to the city mayor to stop any cockfight in the Coliseum in view of its failure to register with the PGC. Thereafter, an action for prohibition and mandamus with preliminary injunction was filed by Gallera before the RTC against petitioner, on the ground that Resolution No. 378, purportedly amending zoning Ordinance No. 49, is invalid. It asserted that the classification of Coliseum's site as still within the residential zone of Gingoog City was accordingly maintained and unchanged, thereby

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rendering the mayor's permits issued to the latter null and void for being in violation of Section 6 of the Rules and Regulations of the PGC. On April 25, 1986, the trial court issued a writ of preliminary injunction enjoining petitioner to desist from operating the Coliseum until the PGC shall have finally decided the controversy between petitioner and private respondent Gallera. RTC: declared the aforesaid mayor's permits null and void and ordered Casio and all persons representing him or acting in his behalf from further operating the cockpit in question. MR denied. Issues: 1. WON the PGC controls the operations of the Don Romulo Rodriguez Coliseum with respect to the local/ordinary cockfights during Sundays, holidays and fiestas in Gingoog City, despite the fact that the Mayor of Gingoog City issued a mayor's permit for 1986 and 1987 with the concurrence of the sangguniang panlungsod. YES. PGC has the power not of control but only of review and supervision. This power was validly exercised by said commission over Coliseum when it sought to stop the former's operations through the local officials. It did not whimsically order the suspension and the consequent stoppage of Coliseum's operations. Rather, PGC only exercised its power of review over the acts performed by the local authorities in relation to or which affect the exercise of its functions. The power of review is exercised to determine whether it is necessary to correct the acts of the subordinate and to see to it that he performs his duties in accordance with law. This the PGC did by bringing to the attention of the local authorities the non-compliance by petitioner with the rules involved in this case which we find reasonable and necessary in the discharge of the regulatory functions of PGC. PGC may, for that purpose and as it did here, indicate its disapproval of the acts of the local officials concerned to stress and perform its role with respect to the regulation of cockpits. The decision of the First Division of this Court in Gingoog Gallera, Inc. vs. PGC is not "diametrically opposed to" the decision rendered in this case in regard to the primacy of the power/authority between the local officials of the City of Gingoog and the PGC. Both decisions are in accord with one another. The decision of the First Division that it is the Municipal/City Mayor with the authorization of the Sangguniang Bayan that has the primary power to issue licenses for the operation of ordinary cockpits is of the same tenor and effect as the decision of this case as can be seen in the following wordings: The task of granting licenses to operate cockpits is lodged with City and Municipal Mayor with the concurrence of their respective Sanggunians. This is specifically granted to them by Section 4 of Presidential Decree No. 1802 as amended by Presidential Decree No. 1802-A which states: Sec. 4. City and Municipal Mayors with the concurrence of their respective Sanggunians shall have the authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated by the Commission and subject to its review and supervision. While this Court agrees with the movant that a mayor's permit/ license is a condition precedent to the issuance of the PGC Registration Certificate, in the case at bar, the city mayor's permits issued to movant were null and void as they were granted pursuant to Resolution No. 578 which never took effect because of non-compliance with the procedure prescribed in Resolution No. 49. And because of the nullity of the Mayor's permit, the Registration Certificate No. C-86816 issued to movant is likewise null and void. The spring cannot rise higher than its source 2. WON the mayor's permits issued by the Mayor of Gingoog City for the years 1986 and 1987 are null and void because Resolution 378 did not amend Section 6.44 of Resolution 49, Code Ordinance of 1984, the three-fourths (3/4) votes not having been obtained in passing said Resolution 378. YES. Petitioner: legal because the same was passed by the sanggunian by a majority of five affirmative votes as against four negative votes. He contends

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that the three-fourths vote requirement under Section 6.44, Resolution No. 49, aside from its being merely a formal requirement, is an enactment of the sanggunian which is ultra vires. SC: Resolution No. 378 was declared invalid by the Court of Appeals for failure to comply with the required votes necessary for its validity. Although the charter of the City of Gingoog and the LGC require only a majority for the enactment of an ordinance, Resolution No. 49 cannot be validly amended by the resolution in question without complying with the categorical requirement of a three-fourths vote incorporated in the very same ordinance sought to be amended. The pertinent provisions in the aforesaid city charter and the LGC obviously are of general application and embrace a wider scope or subject matter. In the enactment of ordinances in general, the application of the aforementioned laws cannot be disputed. Undeniably, however, Section 6.44 of said ordinance regarding amendments thereto is a specific and particular provision for said ordinance and explicitly provides for a different number of votes. Where there is in the same statute a particular enactment and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general statement must be taken to affect only such cases within its language as are not within the provisions of the particular enactment. In the instant case, although the general law on the matter requires a mere majority, the higher requisite vote in Resolution No. 49 shall govern since municipal authorities are in a better position to determine the evils sought to be prevented by the inclusion or incorporation of particular provisions in enacting a particular statute and, therefore, to pass the appropriate ordinance to attain the main object of the law. This more stringent requirement on the necessary votes for amendments to Resolution No. 49 apparently forestalled the apprehended contingency for, to borrow the words of respondent court, "in an apparent attempt to get rid of this legal stumbling block (the prohibition against a cockpit in a residential zone under Proclamation 49), the Sangguniang Panglunsod of Gingoog City passed Resolution No. 378, Code Ordinance, series of 1985," . . . "thereby reclassifying Block 125 into a recreational zone." Withal, it is legally permissible, as exceptions to the general provisions on measures covered by city charters and the LGC, that the vote requirement in certain ordinances may be specially provided for, as in the case of Section 6.44 of Resolution No. 49, instead of the usual majority Vote. Block 125 where Coliseum is located remains classified as a residential area, hence the operation of a cockpit therein is prohibited. This weighty consideration, which should actually be the principal basis for the nullification by respondent court of the two mayor's permits issued. In the case at bar, there was no registration certificate issued, much less authorization to operate given by the PGC to the private respondentappellant, a condition precedent before a grant of mayors permit or license to conduct cockfighting. Therefore, the mayor's permits issued to private respondent are null and void. Obviously, the PGC did not grant the private respondent-appellant the proper registration certificate to operate his cockpit because the same was not constructed within the appropriate areas as prescribed in zoning laws or ordinances of Gingoog City pursuant to Section 6 of Rules and Regulation of the PGC. Gamboa v. Aguirre Facts: In the 1995 elections, Coscolluela, Gamboa, Jr. and Aguirre, Jr., and Araneta were elected Negros Occidental Governor, ViceGovernor and SP members, respectively. Sometime in August of 1995, the governor designated Gamboa as Acting Governor for the duration of the former's official trip abroad until his return. When the SP held its regular session on September 6, 1995, Aguirre and

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Araneta questioned the authority of petitioner to preside therein in view of his designation as Acting Governor and asked him to vacate the Chair. Gamboa, however, refused to do so. In another session, seven (7) members of the SP voted to allow petitioner to continue presiding while four (4) others voted against with one (1) abstention. On September 22, 1995, A&A filed before the lower court a petition for declatory relief and prohibition. In the meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and declared petitioner as "temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the Acting Governor." Aggrieved, Gamboa filed a petition for review raising the issue earlier mentioned. Issue: WON an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan. Sec. 49(a) and 466(a) (1) of the LGC provide that the Vice-Governor shall be the presiding officer of the SP. In addition to such function, he "become(s)" the Governor and "assume(s)" the higher office for the unexpired term of his predecessor, in case of "permanent vacancy" therein. When the vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise the powers (subject to certain limitations) and perform the duties and functions" of the Governor. It may be noted that the code provides only for modes of succession in case of permanent vacancy in the office of the Governor and the Vice-Governor (whether single or simultaneously) as well as in case of a temporary vacancy in the office of the Governor. But, no such contingency is provided in case of temporary vacancy in the office of the Vice-Governor, just like the 1983 LGC. It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of the Governor, he does not assume the latter office. He only "acts" as the Governor but does not "become" the Governor. His assumption of the powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title as Vice-Governor by merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of the higher officer. But the problem is, while in such capacity, does he temporarily relinquish the powers, functions, duties and responsibilities of the Vice-Governor, including the power to preside over the sessions of the SP? LGC silent, but YES. A Vice-Governor who is concurrently an Acting Governor is actually a quasiGovernor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board perform functions partaking of a legislative character. This is because the authority vested by law in the provincial boards involves primarily a delegation of some legislative powers of Congress. Unlike under the old Code, where the Governor is not only the provincial Chief Executive, but also the presiding officer of the local legislative body, the new Code delineated the union of the executive-legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is no longer considered a member thereof. This is clear from the law, when it provides that "local legislative power shall be vested in the SP," which is "the legislative body of the province," and enumerates therein membership consisting of the: Vice-Governor, as presiding officer, regular elective SP members, three elective sectoral representatives, and those ex-officio members, namely president of the provincial chapter of the liga ng mga barangay, president of the panlalawigang pederasyon ng mga sangguniang kabataan, president of the provincial federation of sangguniang members of municipalities and component cities. None being included in the

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enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province is vested alone in the Governor. 13 Consequently, the union of legislative-executive powers in the office of the local chief executive under the former Code has been disbanded, so that either department now comprises different and nonintermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two. It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the ViceMayor should discharge the duties of the mayor during the latter's absence. This doctrine should equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably construed to mean "effective" absence, that is, one that renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. By virtue of the foregoing definition, it can be said that the designation, appointment or assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during such contingency. Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy occurring in the same office. This is so because in the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the ViceGovernor. Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the provincial Governor call for a full-time occupant to discharge them. Such is not only consistent with but also appears to be the clear rationale of the new Code wherein the policy of performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding temporary vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an "inability" on the part of the regular presiding officer (Vice Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the LGC concerning the election of a temporary presiding officer. The continuity of the Acting Governor's (Vice Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), "(i)n the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer." Garcia v. COMELEC Facts: In its Pambayang Kapasyahan Blg. 10, Serye 1993, the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accord with RA 7227. On May 24, 1993, petitioners filed a petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993 and sought to allow the inclusion of Morong subject to certain conditions. The municipality of Morong did not take any action on the petition within 30 days after its submission. Petitioners then resorted to their power of initiative under the LGC. They started to solicit the required number of signatures to cause the repeal of said

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resolution. Unknown to the petitioners, however, the Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993 to the Executive Director of COMELEC requesting the denial of the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productivity and futility. In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground that its subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." On July 13, 1993, the COMELEC en banc further resolved to direct Provincial Election Supervisor to hold action on the authentication of signatures being gathered by petitioners. COMELEC opposed the petition. Through the Solicitor General, it contends that under the LGC, a resolution cannot be the subject of a local initiative. The same stance is assumed by the Sangguniang Bayan of Morong. Issue: WON Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Resp: under the LGC, only an ordinance can be the subject of initiative. section 120, Chapter 2, Title XI, Book I: Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. SC: The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of Article VI: "The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution. Black: defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature, including not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . . ." It is basic that a law should be construed in harmony with and not in violation of the constitution. In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used." The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of initiatives on local legislations, viz: Sec. 3. Definition of Terms: For purposes of this Act, the following terms shall mean; (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. There are three (3) systems of initiative, namely: a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution. a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution, or ordinance. Section 16: "Limitations Upon Local Legislative Bodies Any proposition on ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom. On January 16, 1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on National and Local Laws." It likewise recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules states: "Scope of power of initiative The power of initiative may be exercised to amend the Constitution, or to enact a national legislation, a regional, provincial,

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city, municipal or barangay law, resolution or ordinance.." There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper subjects of local initiatives. Respondents do not give any reason why resolutions should not be the subject of a local initiative. Distinction between a resolution and an ordinance: a resolution is used whenever the legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is intended to permanently direct and control matters applying to persons or things in general. Thus, resolutions are not normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business affairs of a city. In the case at bench, however, it cannot be argued that the subject matter of the resolution of the municipality of Morong merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose, Providing Funds Therefor and For Other Purposes." Considering the lasting changes that will be wrought in the social, political, and economic existence of the people of Morong by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not material that the decision of the municipality of Morong for the inclusion came in the form of a resolution for what matters is its enduring effect on the welfare of the people of Morong. Through an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. Article VI: Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives except to the extent reserved to the people by the provisions on initiative and referendum. Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereto. Subic Bay Metropolitan Authority v. COMELEC Facts: On March 13, 1992, Congress enacted the BCDA (RA 7227) which provided for the creation of the Subic Economic Zone. In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence, as required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone. On September 5, 1993, the Sangguniang Bayan of Morong submitted Pambayang Kapasyahan Bilang 10, Serye 1993 to the Office of the President. On May 24, 1993, respondents Garcia, Calimbas and their companions filed a petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia, Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines so amend certain provisions of RA 7227. Not satisfied, and within 30 days from submission of their petition, herein respondents resorted to their power initiative under the LGC Sec. 122 paragraph (b) which provides that if no favorable action thereon is taken by the sanggunian concerned, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sangguniang concerned. On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-1623 denied the petition for local initiative by herein private respondents on the ground that the subject thereof

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was merely a resolution (pambayang kapasyahan) and not an ordinance. On July 13, 1993, public respondent Comelec En Banc (thru Comelec Resolution no. 93-1676) further directed its Provincial Election Supervisor to hold action on the authentication of signatures being solicited by private respondents. On August 15, 1993, private respondents instituted a petition for certiorari and mandamus before this Court against the Commission on Elections and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec Resolution No. 93-1623 insofar as it disallowed the conduct of a local initiative to annul Pambayang Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No. 93-1676 insofar as it prevented the Provincial Election Supervisor of Bataan from proceeding with the authentication of the required number of signatures in support of the initiative and the gathering of signatures. On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the Philippines issued Proclamation No. 532 defining the metes and bounds of the SSEZ. Said proclamation included in the SSEZ all the lands within the former Subic Naval Base, including Grande Island and that portion of the former naval base within the territorial jurisdiction of the Municipality of Morong. On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting therein a "Calendar of Activities for local referendum on certain municipal ordinance passed by the Sangguniang Bayan of Morong, Bataan", and which indicated, among others, the scheduled Referendum Day (July 27, 1996, Saturday). On June 27, 1996, the Comelec promulgated the assailed Resolution No. 2848 providing for "the rules and guidelines to govern the conduct of the referendum proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan". On July 10, 1996, petitioner instituted the present petition for certiorari and prohibition contesting the validity of Resolution No. 2848 and alleging, inter alia, that public respondent "is intent on proceeding with a local initiative that proposes an amendment of a national law. . . . Issues: 1. WON a bar by final judgment exists. Garcia contends that this Court had already ruled with finality in Enrique T. Garcia, et al. vs. Commission on Elections, et al. on "the very issue raised in (the) petition: whether or not there can be an initiative by the people of Morong, Bataan on the subject proposition the very same proposition, it bears emphasizing, the submission of which to the people of Morong, Bataan is now sought to be enjoined by petitioner. SC: The only issue resolved in the earlier Garcia case is whether a municipal resolution as contradistinguished from an ordinance may be the proper subject of an initiative and/or referendum. The sole issue presented by the pleadings was the question of "whether or not a Sangguniang Bayan Resolution can be the subject of a valid initiative or referendum" In the present case, petitioner is not contesting the propriety of a municipal resolution as the form by which these two new constitutional prerogatives of the people may be validly exercised. What is at issue here is whether Pambayang Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and substance for submission to the people for their approval; in fine, whether the Comelec acted properly and juridically in promulgating and implementing Resolution No. 2848. WON the COMELEC committed a grave abuse of discretion in promulgating and implementing Resolution No. 2848. YES. To begin with, the process started by private respondents was an INITIATIVE but Comelec made preparations for a REFERENDUM only. In fact, in the body of the Resolution 11 as reproduced in the footnote below, the word "referendum" is repeated at least 27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a "Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the documents were called "referendum returns"; the canvassers, "Referendum Board of Canvassers" and the ballots themselves bore the description "referendum". To repeat, not once was the word "initiative" used in said body of Resolution No. 2848. And yet, this exercise is unquestionably an INITIATIVE. "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the

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purpose. 3 systems: 1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; 2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and 3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. "Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. "Referendum" is the power of the electorate to approve or reject a legislation through an election called for the purpose. It may be of two classes, namely: 1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and 2. Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. Cruz: Initiative - "power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly." referendum - "is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become a law." LGC: Local initiative is the legal process whereby the registered voters of local government unit may directly propose, enact, or amend any ordinance. Local referendum is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the control and direction of the Comelec within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of baranggays. The Comelec shall certify and proclaim the results of the said referendum. SC: initiative is resorted to (or initiated) by the people directly either because the law-making body fails or refuses to enact the law, ordinance, resolution or act that they desire or because they want to amend or modify one already existing. Under Sec. 13 of R.A. 6735, the local legislative body is given the opportunity to enact the proposal. If it refuses/neglects to do so within thirty (30) days from its presentation, the proponents through their duly-authorized and registered representatives may invoke their power of initiative, giving notice thereof to the local legislative body concerned. Should the proponents be able to collect the number of signed conformities within the period granted by said statute, the Commission on Elections "shall then set a date for the initiative (not referendum) at which the proposition shall be submitted to the registered voters in the local government unit concerned . On the other hand, in a local referendum, the lawmaking body submits to the registered voters of its territorial jurisdiction, for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law-making authority. Said referendum shall be conducted also under the control and direction of the Commission on Elections. While initiative is entirely the work of the electorate, referendum is begun and consented to by the lawmaking body. Initiative is a process of law-making by the people themselves without the participation and against the wishes of their elected representatives, while referendum consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body. Hence, the process and the voting in an initiative are understandably more complex than in a referendum where expectedly the voters will simply write either "Yes" of "No" in the ballot. From the above differentiation, it follows that there is need for the Comelec to supervise an initiative more closely, its authority thereon extending not only to the counting and canvassing of votes but

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also to seeing to it that the matter or act submitted to the people is in the proper form and language so it may be easily understood and voted upon by the electorate. This is especially true where the proposed legislation is lengthy and complicated, and should thus be broken down into several autonomous parts, each such part to be voted upon separately. Care must also be exercised that "(n)o petition embracing more than one subject shall be submitted to the electorate," although "two or more propositions may be submitted in an initiative". In initiative and referendum, the Comelec exercises administration and supervision of the process itself, akin to its powers over the conduct of elections. These law-making powers belong to the people, hence the respondent Commission cannot control or change the substance or the content of legislation. In the exercise of its authority, it may (in fact it should have done so already) issue relevant and adequate guidelines and rules for the orderly exercise of these "people-power" features of our Constitution. WON Withdrawal of Adherence and Imposition of Conditionalities are Ultra Vires. SC: premature! The municipal resolution is still in the proposal stage. It is not yet an approved law. Should the people reject it, then there would be nothing to contest and to adjudicate. It is only when the people have voted for it and it has become an approved ordinance or resolution that rights and obligations can be enforced or implemented thereunder. At this point, it is merely a proposal and the writ or prohibition cannot issue upon a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual controversies, not hypothetical questions or cases. Ortiz v. Posadas Facts: Seven of the thirteen members present, including the president, of the municipal council of Tabaco, Albay, voted in favor of Ordinance No. 25, concerning cockpits, and six members voted against the ordinance, with three members absent. ISSUE: WON the ordinance is valid. NO. Section 224 of the Administrative Code reads as follows: Journal of Proceedings Majorities necessary for transaction of business. The council shall keep a journal of its own proceedings. The ayes and noes shall be taken upon the passage of all ordinances, upon all propositions to create any liability against the municipality, and upon any other proposition, upon the request of any member, and they shall be entered upon the journal. The affirmative vote of a majority of all the members of the municipal council shall be necessary to the passage of any ordinance or of any proposition creating indebtedness; but other measures, except as otherwise specially provided, shall prevail upon the majority vote of the members present at any meeting duly called and held. The law is clear. It needs only application, not interpretation. While the Spanish text may be ambiguous, the English text which governs is not. The law is entirely consistent in context. The ayes and noes are taken upon (1) the passage of all ordinances, (2) all propositions to create any liability against the municipality, and (3) any other proposition, upon the request of any member. The same idea is carried into the succeeding sentence. For the passage of (1) any ordinance or (2) any proposition creating indebtedness , the affirmative vote of a majority of all the members of the municipal council shall be necessary. Other measures prevail upon the majority vote of the members present "Creating indebtedness" refers to "proposition" and not to "ordinance." The contention that only ordinances creating indebtedness require the approval of a majority of all the members of the municipal council, is devoid of merit. Corroborative authority is really superfluous. Nevertheless we would invite attention to the case of McLean vs. City of East St. Louis ([1906], 222 Ill.,

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510). Section 13 of the Act for the incorporation of cities and villages in the State of Illinois provided: "The yeas and nays shall be taken upon the passage of all ordinances and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, and in all other cases at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: Provided, it shall require two-thirds of all the aldermen elect to sell any city or school property" Commenting on this provision of law, the Supreme Court of Illinois, through Justice Cartwright, observed: Some of the counsel for appellee argue that section 13 relates only to ordinances and propositions creating a liability against a city or providing for the expenditure or appropriation of its money, and that all other ordinances may be passed by a majority of a quorum. They say that it is not unusual for courts, in the construction of statutes, to substitute one word for another where the plain meaning of the statute will justify it, and that by eliminating some words and substituting others this section will express what they think was the intention of the legislature. It is the rule that where the intention of the legislature is ascertained with reasonable certainty and it appears that words have been used inconsistent with such intention, a word erroneously used for another may be eliminated and the proper word substituted. Where the context affords the means of correcting a mistake in the use of language, the correction may be made for the purpose of giving effect to the intention plainly manifested in the act as a whole. But we do not agree with the theory that the legislature, in this instance, intended to limit the requirement of a majority vote to ordinances creating a liability or appropriating money. In our opinion, to make the changes suggested would be merely juggling with the words of the statute to give it a different meaning from that which was intended. The law the passage of all ordinances, and the concurrence of a majority of the legislative body is necessary to their passage. We recognized that construction of the statute in Hibbard & Co. vs. City of Chicago, 173 Ill., 91. If a proposition not in the form of an ordinance creates any liability or provides for the expenditure or appropriation of money, the requirement is the same, while as to other propositions, whether the yeas and nays are entered upon the journal or not, the majority of a quorum is sufficient. The basic idea of the legislative body to make impossible the approval of ordinances or of propositions creating indebtedness by minority votes of municipal councils, at meetings hastily called is wise. Legislative intention should be effectuated. Section 2224 of the Administrative Code, requiring in mandatory language the affirmative vote of a majority of all the members of the municipal council for the passage of any ordinance, whether or not an ordinance creating indebtedness, an ordinance passed by less than that majority is invalid. Ordinance No. 25 of Tabaco, Albay, is void. City of Manila v. Laguio Facts: The Malate Tourist Development Corporation (MTDC) built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the DOTC as a hotel. MTDC filed a petition for declaratory relief against the City of Manila, Lim (mayor), Atienza (vice-mayor), and the members of the city council of Manila, praying that the Ordinance they enacted which prohibited motels and inns be declared unconstitutional. The Ordinance prohibited the establishment or operation of businesses providing amusement, services, or entertainment where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community in the Ermita-Malate area. Such businesses include sauna parlors, massage parlors, karaoke bars, clubs, dance halls, motels and inns. MTDC: Motels and inns should not have been prohibited as they are not establishments for amusement or entertainment; neither were

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they services or facilities for entertainment and did not use women as tools, etc. Also, the Ordinance was unconstitutional and void because (1) The City Council has no power to prohibit the operation of motels as the LGC granted only the power to regulate the establishment, operation and maintenance of motels, etc. (2) It is violative of PD 499 which declared portions of the Ermita-Malate area as a commercial zone, with restrictions (3) It is not a proper exercise of police power as there is no relation to legitimate municipal interests sought to be protected, (4) It is an ex post facto law, and (5) It violates MTDCs constitutional rights, confiscatory and is an invasion of property rights, also violates the equal protection clause. Manila: The City Council had the power to prohibit certain forms of entertainment in order to protect the social and moral welfare of the community, as provided in Sec. 458 (a) 4 (vii) of the LGC. Kwong Sing vs. City of Manila: power of regulation includes the power to control, govern, and restrain places of exhibition and amusement. This is also in conjunction with its police power as found in Revised Charter of Manila. Judge Laguio issued an ex-parte TRO against the enforcement of the Ordinance. After trial, he rendered a decision enjoining the City of Manila from implementing the Ordinance. The City of Manila then filed a petition assailing the Decision rendered by Laguio. Issue: WON the Ordinance is unconstitutional. YES. To be valid, an ordinance must conform to the following substantive requirements: (1) It must not contravene the Constitution or any statute; (2) Must not be unfair or oppressive; (3) Must not be partial or discriminatory; (4) Must not prohibit but may regulate trade; (5) Must be general and consistent with public policy; (5) Must not be unreasonable. As regards the first criterion, there are 2 requirements: It must pass muster under the test of constitutionality and the test of consistency with prevailing laws. LGUs are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from Congress. The delegate cannot be superior to the principal. The means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property. Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate be it stressed that their sexual conduct within the motel's premises consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception. Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone it is the most comprehensive of rights and is the beginning of all freedom and the right most valued by civilized men. The right to privacy is a constitutional right, the invasion of which should be justified by a compelling state interest. The Ordinance was passed by the City Council in the exercise of its police power as found in Sec. 16 of the LGC. This police power, while far-reaching, is subordinate to constitutional limitations the exercise must be reasonable and for the public good. The Ordinance violates the 1987 Constitution, the relevant provisions of which are Art. II, Secs. 5 and 14, and Art. III, Secs. 1 and 9. To be constitutional, the exercise of police power, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. It must be evident that no other alternative for the accomplishment of the purpose less intrusive of

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private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment. In this case, the means employed is oppressive and unreasonable. The Ordinance was enacted to address and arrest the social ills purportedly spawn as it substantially divests the respondent of the beneficial use of its property. The Ordinance in Section 1 forbids the running of the enumerated businesses in the ErmitaMalate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it cannot be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation. It is intrusive and violative of the private property rights of individuals. The City of Manila cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a "wholesome" property to a use which cannot reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious or intended for noxious purposes may not, by zoning, be destroyed without compensation. Distinction should be made between destruction from necessity and eminent domain. Property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore "wholesome." If it be of public benefit that a wholesome property remains unused or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private property for public used by the establishments in the Ermita-Malate area.

The closing down and transfer of businesses or their

conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. Due process furnishes a standard to which governmental action should conform in order that deprivation of life, liberty, or property is valid. The Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments. Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions. Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." There are no comprehensible standards to guide the law enforcers in carrying out its provisions. Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and

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not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class. According to the SC: (1) No substantial distinctions between motels, inns, pension houses, hotels, lodging houses, and other similar establishments. All are commercial establishments providing lodging. The classification is thus invalid (similar subjects are not similarly treated) and arbitrary (it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance) (2) No logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. (3) The standard "where women are used as tools for one of the hinted entertainment" is also discriminatory as prostitution ills the Ordinance is not a profession exclusive aims to banish to women. Both men and women have an equal propensity to engage in prostitution. This discrimination based on gender violates equal protection as it is not substantially related to important government objectives. As to consistency with prevailing laws: (1) The Ordinance contravenes the LGC. Under the LGC, LGUs are empowered to regulate, and not prohibit the establishments enumerated in Sec. 1 of the Ordinance. The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), while its power to regulate the establishment, operation and maintenance of any entertainment or amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii). Clearly, then, the only power of the City Council to legislate relative to these establishments is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. The word regulate includes the power to control, govern, and restrain, but it should not be construed as synonymous with suppress or prohibit. As a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld. Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City Council may suspend, suppress or prohibit. The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council. Moreover, it is a general rule in statutory construction that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Also, the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. As

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between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will. In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at variance with the latter's provisions granting the City Council mere regulatory powers. Manila also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It cannot be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention. The City Council was conferred powers to prevent and prohibit certain activities and establishments in Section 458 (1) (v). If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of the matters it may prohibit under the abovequoted Section. The Ordinance now vainly attempts to lump these establishments with houses of illrepute and expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only be regulated in their establishment, operation and maintenance. It is important to distinguish the punishable activities from the establishments themselves. That these establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and activities. (2) The Ordinance also contravenes the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law. Perez v. de la Cruz Facts: In 1968 during a private conference held at the office of the petitioner Naga vice-mayor Perez with 7 councilors , the matter of

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selecting the secretary of the municipal board of the city as well as the chairmen of the various standing committees came up for discussion. At the indication by the 4 Nacionalista Party councilors of their desire to vote for a particular person as secretary of the board and to hold the chairmanship of the committee on markets for one of them, Perez expressed her intention to vote, in the deliberation of such matters, to create a tie vote and to then exercise her power to break such deadlock. The four aforesaid councilors filed with the Court of First Instance of Camarines Sur a petition for prohibition with writ of preliminary injunction to prevent Perez from casting her vote in the selection of the secretary of the municipal board and in the choice of chairmen and members of the different standing committees, except in the event of a tie vote, and from voting on any legislative proposal or measure or in any proceeding of the said board except when the members thereof are equally divided. Respondents alleged that the vice-mayor of Naga City is not a member of the municipal board but only its presiding officer. A writ was issued hence vice-mayor Perez assailed the issuance of the writ as undue interference in matters purely legislative in character, at the same time that she denied the existence of a threatened invasion of the rights of the four councilors. Subsequently, Liberal councilors passed an amendment to the Rules of Procedure of the Naga municipal board granting the chairman thereof the right to vote as a member, and as presiding officer the right to vote again in case of a tie. Issues: 1. WON the vice-mayor of Naga city, besides being the presiding officer of the municipal board, also a member thereof? NO. upon approval of Republic Act 2259 3 making elective the offices of mayor, vice-mayor and councilors in chartered cities, the position of vicemayor, among others was created. Thus section 3 of said law provides: The position of Vice-Mayor is hereby created in chartered cities which at present have no position for Vice-Mayor by provision of their corporate charters: Provided, That the Vice-Mayor shall be the presiding officer of the City Council or Municipal Board in all chartered cities. Perez now contends that since under the Naga City charter the mayor was the presiding officer of the municipal board, and since under Republic Act 2259 creating the position of vice-mayor who was made the presiding officer, the vice-mayor simply replaced the mayor as "presiding officer" of the municipal board, the vice-mayor acquired all the rights and prerogatives of the presiding officer under the charter, one of which is "membership in the municipal board." Quiem v. Seria: the silence of Rep. Act 2259 on whether the vice-mayor, the presiding officer, is a member of the board, was not enough ground for excluding the vice-mayor from membership in the board. But the legal setting and premises in Quiem are widely disparate from those in the case at bar. In the first place, in Quiem we found that "by express legal mandate, the vice-mayor of Cagayan de Oro City is a member of the board" because "that city's original charters calls for an appointive ViceMayor who 'shall be a member of the Municipal Board'." In the case at bar, however, in contrast with sec. 11 of Republic Act 521 creating the city of Cagayan de Oro which explicitly made the vicemayor a member of the municipal board, section 11 of Republic Act 305 creating the City of Naga failed to provide even for the position of vice-mayor. In the second place, Republic Act 1325, 10 particularly section 1 thereof, amending the Cagayan de Oro charter, expressly reiterated that the vice-mayor "shall be a member of the Municipal Board;" as such similar statutory basis can be cogently invoked for the petitioner Perez. Bagasao, et al. vs. Tumangan: the vice-mayor "as the presiding officer of the Municipal Board of the City of Cabanatuan is a member thereof" and "he may exercise his right to vote as a member on any proposed ordinance, resolution or motion." But we so held because "both the unamended and amended provisions of section 11 of the Charter of the City of Cabanatuan provide that the presiding officer of the Municipal Board is a member thereof. And as we have re repeatedly stated, there is no provision whatever in Republic Act 305 creating the City of Naga that provides for the position of vice-

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mayor; and the amendatory provisions of Republic Act 2259 making the vice-mayor the presiding officer of the municipal board does not make him a constituent member thereof. Paragraph (g) of Rule III of the Rules of Procedure adopted by the municipal board of Naga City, which recites: (g) The chairman cannot vote, except in case of a tie. However, a member of the Board acting as chairman may vote as a member and as chairman to break a tie. The petitioner insists, however, that the above provision was amended by the 6th municipal board, headed by her, to read as follows: (g) The Chairman, as member of the Board can vote and as a Presiding Officer may vote again in case of a tie. In the same manner, a member of the Board acting as chairman, may vote as a member and as Chairman, to break the tie. Such insistence is a sheer exercise in futility because (1) the amended rule presupposes that the chairman is a "member of the Board" an assumption that is without legal basis; (2) the said amendatory rule was passed on March 5, 1968, almost two months after the filing on January 15, 1968, by the private respondents of their petition in civil case 6504, that is, pendente lite; and (3) although on the date the said amendment was passed, that restraining order dated February 20, 1968 of the Court of Appeals was in force, there was no quorum in the board, as the four respondents councilors had walked out of the session hall, leaving only the three Liberal Party councilors and the petitioner. The proposed amendment was, therefore, a complete nullity. Petitioners theory that since the mayor of Naga City, who was a member of the municipal board under Rep. Act 305, was replaced by the vice-mayor as presiding officer thereof, the vice-mayor must, perforce, be deemed a member of the municipal board. Pressing her bid, she asserts that Republic Act 2259 effected a mere change in the officer who will preside the meetings of the board, and since the vice-mayor replaced the mayor as "presiding officer" thereof, the vice-mayor acquired all the rights and prerogatives of the presiding officer, one of which is membership in the board. This contention finds no support either in law or logic. For, section 3 of Rep. Act 2259 simply installs the vice-mayor as the presiding officer of the board in all chartered cities. It does not install the vice-mayor as a member thereof. This is especially true in the case of Naga where the position of vice-mayor (whether appointive or elective) was originally not even provided for in its charter the official nextin-rank to the mayor being the city treasurer. 2. WON she can vote twice: to create a deadlock and then to break it. NO. The petitioner now argues that as vice-mayor she merely stepped into the shoes of the mayor as presiding officer of the board, and since the mayor was considered a member thereof, she too became a member entitled to the same rights, powers and prerogatives of voting as the mayor. There is no gainsaying the fact that prior, to the approval of Rep. Act 2259, the mayor of a municipality was a member of the municipal council, 25 besides being the presiding officer thereof, but his right to vote could be exercised only in "case of a tie." 26 Certainly, the vice-mayor who merely stepped into the shoes of the mayor could have no greater power than that possessed by the mayor who could not create a tie vote and then break it. 3. WON the judge has jurisdiction to issue the writ of prohibitory injunction against Perez. YES. The petitioner's final contention is that as a legislative official, performing legislative functions, she is not subject to any prohibitory process by the courts. She invokes Vera, et al. vs. Avelino, et al. (77 Phil. 192) where we held: Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to proceedings of any tribunal, corporation, board or person exercising functions, judicial or ministerial. As respondents do not exercise such kind of functions, theirs being legislative, it is clear that the dispute falls beyond the scope of such special remedy.

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Mabelle O. Nebres | Local Governments Case Digests Invocation of this ruling is completely inapposite. The
doctrine therein laid down is based on the principle of separation of powers and cheeks and balances and is not applicable to local governments. Moreover, executives at the local or municipal level are vested with both legislative and sometimes judicial functions, in addition to their purely executive duties. By explicit statutory command, courts are given authority to determine the validity of municipal proceedings. It is not disputed that the present proceeding for prohibition has for its objective to prevent the petitioner from "participating in the election of Secretary of the Board, chairmanship of different committees and in voting in other legislative matters, proposals and proceedings, other than to break a tie." It is our view that the petitioner, in insisting to exercise the right to vote twice in the municipal board, acted without jurisdiction and power to do so, and may be validly prevented and restrained by a writ of prohibition. In reply to the petitioner's assertion that the acts sought to be restrained are mere "probable individual actuations" beyond the reach of a prohibitory writ, suffice it to state that prohibition is essentially a "preventive remedy" and is "not intended to provide for a remedy for acts already accomplished." Withal, petitioner's threat of voting twice in the municipal board was not an empty or meaningless gesture, for the record shows that on March 5, 1968, soon after the writ complained of was lifted by the Court of Appeals through the latter's restraining order of February 20, 1968, the petitioner proceeded to act by voting twice for the approval of an alleged amendment to the rules of procedure of the municipal board. Homeowners Association of the Philippines v. Municipal Board of Manila Facts: The City of Manila passed Municipal Ordinance No. 4841 which regulates rentals of lots and buildings for residential purposes. The Homeowners' Association of the Philippines, Inc. and its President sought to nullify the ordinance. CFI: ordinance is ultra vires, unconstitutional, illegal and void ab initio. LC: struck down the questioned ordinance upon the ground that the power to "declare a state of emergency ... exclusively pertains to Congress"; that "there is no longer any state of emergency" which may justify the regulation of house rentals; that said ordinance constitutes an unreasonable and unjustified limitation on the use of private properties and arbitrarily encroaches on the constitutional rights of property owners"; that the power of the City of Manila to "regulate the business of ... letting or subletting of lands and buildings" does not include the authority to prohibit what is forbidden in said ordinance; and that the same cannot be deemed sanctioned by the general welfare clause in the City Charter. Issue: WON the Ordinance is valid. NO. The authority of municipal corporations to regulate is essentially police power. Inasmuch as the same generally entails a curtailment of the liberty, the rights and/or the property of persons, which are protected and even guaranteed by the Constitution, the exercise of police power is necessarily subject to a qualification, limitation or restriction demanded by the regard, the respect and the obedience due to