APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R.

L - 14355 Republic of the Philippines SUPREME COURT Manila En Banc THE CITY OF MANILA Plaintiff - Appellant -versus Copy No. ________

G.R. No. 92013 Civil Case No. 78973 CFI of Manila, For: Chinese Community Expropriation Case

CHINESE COMMUNITY OF MANILA Defendants Appellee x --------------------------------------------------x

APPELLEES BRIEF CHINESE COMMUNITY OF MANILA (REVIEW OF EXPROPRIATION PROCEEDING)

The Chinese Community of Manila Represented by

Atty. Donrick Mendenilla Atty. Marlon Rivera Atty. Gian Tan Atty. Erick Saysay October 1919

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

TABLE OF CONTENTS
SUBJECT INDEX PREFATORY STATEMENT.. COUNTER-STATEMENT OF FACTS.. COUNTER ARGUMENTS. DISCUSSION.. ... PRAYER..

Cases Cited (Order of Appearance)

Law and Annotations Cited

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

APPELLES BRIEF Defendants-appellee CHINESE COMMUNITY OF MANILA, represented by Mendenilla, Rivera, Saysay and Tan in answer to the allegations raised by the accused-appellant inhis Brief, respectfully states:

PREFATORY STATEMENT Through this appeal, plaintiff-appellant assails the judgement dated October 1919 rendered by Honorable Judge Simplicio del Rosario finding that there was no necessity for the expropriation of the particular strip of land in question, and absolved each and all of the defendants from all liability under the complaint, without any finding as to costs.

COUNTER-STATEMENT OF FACTS

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

COUNTER-ARGUMENTS

The defendants-appellee raises the following counter-arguments to the assignment of errors raised by the plaintiff-appellant:

1. The clear and convincing authorities used in support for the decision of the court are sufficient to conclude that courts have the power of restricting the exercise of eminent domain to the actual reasonable necessities of the case and for the purposes designated by the law.

2. The court correctly decided that there was no necessity for the expropriation because there was an alternative strip of land that would be less expensive and would serve the same public purpose.

3. The court correctly identified the strip of land in question was a quasi-public property of a benevolent association, thus, cannot be expropriated for another different public purpose.

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

DISCUSSION

1. The clear and convincing authorities used in support for the decision of the court are sufficient to conclude that courts have the power of restricting the exercise of eminent domain to the actual reasonable necessities of the case and for the purposes designated by the law.

It is well settled that the power of eminent domain rests upon the legislature but it is erroneous to say that this power is beyond the review of the courts.

The appellant argued that courts have no jurisdiction over the case on the ground that the courts function is only to ascertain the valu e of the land in question and neither the court nor the owners of the land can inquire into the advisable purpose of the expropriation or ask any questions concerning the necessities therefor. That statement is false because private owners may be prejudiced of their right to their property if the power of eminent domain is absolute and not subject for review by the courts.

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

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

Section 2429 of Act 2711 (Charter of the city of Manila) provides that the city of Manila may condemn private property for public use; however, the same does not contain the procedure by which the said authority may be carried into effect. Therefore, a complementary statute is used in determining the procedure, which would be Act No. 190. In section 243 of the Act No. 190, it states that if the court shall find upon trial that the right to expropriate the land in question exists, it shall then appoint commissioners.

With that, it could be said that the court has jurisdiction in deciding whether there is a right to expropriate private lands for public use.

Suppose in a particular case, it should be denied that the property is not private property but public, may not the courts hear proof upon that question? Or, suppose the defense is, that the purpose of the expropriation is not public but private, or that there exists no public purpose at all, may not the courts make inquiry and hear proof upon that question?

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

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

phrase, "if the Supreme Court shall determine that no right of expropriation exists," that that simply means that the Supreme Court shall also examine the enactments of the legislature for the purpose of determining whether or not a law exists permitting the plaintiff to expropriate?

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

Henderson vs.Lexington 132 Ky., 390, 403.) The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of the state, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky., 692, 697.)

In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of the State of Maryland, discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain) where the legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the purpose of the incorporation, as in this case, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

almost indiscriminate delegation of the right to corporations, would likely lead to oppression and the sacrifice of private right to corporate power." In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is not a general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist. Such necessity must appear upon the face of the petition to condemn. If the necessary is denied the burden is upon the company (municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)

Therefore, the power of eminent domain is not absolute and may be reviewed by the courts to ascertain if the authority to exists to expropriate a private land for public use.

2. The court correctly decided that there was no necessity for the expropriation because there was an alternative strip of land that would be less expensive and would serve the same public purpose. The plaintiff-appellant alleged that there is necessity for the expropriation which is the construction of a road that would serve the public. The defendants-appellee do not contend that the purpose of the expropriation is for public use; on the other hand, necessity does not only rests upon the purpose but also upon the alternative options that could be less expensive and more beneficial for all parties involved. The courts having the jurisdiction to review expropriation cases such as the present case, shall decide whether there exists a necessity for the expropriation. The Supreme Court of Porto Rico says: "At any rate, the rule is quite well settled that in the cases under consideration the determination of the

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

necessity of taking a particular piece or a certain amount of land rests ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) Moving on, the necessity to expropriate the strip of land in question ceases upon the offer by the defendants-appellee for an alternative route that would fully satisfy the same purpose intended by the plaintiff. The alternative route offered would be less expensive on the part of the plaintiff as it would not incur additional costs on removal and transfer of the bodies, destruction of existing monuments and erection of new monuments on a newly purchased site. It would be wrong and expensive, given that the money to be used is tax money, if the expropriation of the disputed land would be the only option, thus making the expropriation necessary.

The element of necessity to expropriate ceases upon the availability of alternative options that could serve the same purpose which then makes the expropriation unnecessary and invalid, as one of the elements to make a valid expropriation is lacking.

3. The court correctly identified the strip of land in question was a quasipublic property of a benevolent association, thus, cannot be expropriated for another different public purpose.

Given that the courts have jurisdiction to review on cases regarding the exercise of the power of eminent domain, the expropriation of the particular strip of land in question by the City of Manila shall be implemented by the latter in accordance with the requirements of 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 purpose alleged by the

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

appellant is not contended but the first requisite which states that the land shall be private in nature is not complied with. The disputed land herein is a quasi-public property in nature because it is a cemetery open for public which purpose is public in nature.

In defining a cemetery whether it would be considered as a public cemetery or a private cemetery lies on the actual usage of it by the people. A public cemetery is one used by the general community, or neighborhood, or church; while a private cemetery is one used only by a family, or small portion of a community. (Lay vs. State, 12 Ind. App., 362; Cemetery Association vs. Meninger [1875], 14 Kan., 312.)

The Chinese Cemetery of Manila was established during the Spanish administration in the Philippines by public spirited Chinese. The order of the Governor-General giving governmental recognition to the cemetery reads as follows: "The cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and fraternal contribution of their protectors, merchants and industrials, benefactors of mankind, in consideration of their services to the Government of the Islands, its internal administration, government and regime, must necessarily be adjusted to the taste and traditional practices of those born and educated in China in order that the sentiments which animated the founders may be perpetually effectuated." Sometimes after the

inauguration of the new regime in the Philippines, a corporation was organized to control the cemetery, and a Torrens title for the lands in question was obtained.

Two well considered decisions coming from the American state courts on almost identical facts are worthy of our consideration. The first is the case of The Evergreen Cemetery Association vs. The City of New Haven

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

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

The

second

decision

is

that

of

Memphis

State

Line

Railroad

Company vs. Forest Hill Cemetery Co. ([1906], 116 Tenn., 400.) Here the purpose of the proceedings was to condemn a right of way for the railway company through the Forest Hill Cemetery. The railroad proposed to run

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

through the southeast corner of the cemetery where no bodies were interred. The cemetery had been in use for about eight years, and during this period thirteen hundred bodies had been buried therein. The cemetery was under the control of a corporation which, by its character, held itself out as being willing to sell lots to any one who applies therefor and pays the price demanded, except to members of the Negro race.

Considering the foregoing, the disputed land is considered a public land which the appellant cannot expropriate for only private lands can be expropriated.

APPELLEES BRIEF City of Manila vs. Chinese Community of Manila S.C. G.R. L - 14355

PRAYER VIEWED IN THE FOREGOING LIGHT, it is respectfully prayed for that the

instant appeal be DENIED for lack of merit. Other relief and remedies as are just and equitable, are likewise prayed for.October 1919 Manila City, Philippines