G.R. No.

L-14355 October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

City Fiscal Diaz for appellant.

JOHNSON, J.:

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

That question arose in the following manner:

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

That for the purpose of constructing a public improvement, namely, the extension of
Rizal Avenue, Manila, it is necessary for the plaintiff to acquire ownership in fee simple
of certain parcels of land situated in the district of Binondo of said city within Block 83
of said district, and within the jurisdiction of this court.

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

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

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

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

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

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

The theory of the plaintiff is, that once it has established the fact, under the law, that it has
authority to expropriate land, it may expropriate any land it may desire; that the only function of
the court in such proceedings is to ascertain the value of the land in question; that neither the
court nor the owners of the land can inquire into the advisible purpose of purpose of the
expropriation or ask any questions concerning the necessities therefor; that the courts are mere
appraisers of the land involved in expropriation proceedings, and, when the value of the land is
fixed by the method adopted by the law, to render a judgment in favor of the defendant for its
value.
That the city of Manila has authority to expropriate private lands for public purposes, is not
denied. Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city
(Manila) . . . may condemn private property for public use."

The Charter of the city of Manila contains no procedure by which the said authority may be
carried into effect. We are driven, therefore, to the procedure marked out by Act No. 190 to
ascertain how the said authority may be exercised. From an examination of Act No. 190, in its
section 241, we find how the right of eminent domain may be exercised. Said section 241
provides that, "The Government of the Philippine Islands, or of any province or department
thereof, or of any municipality, and any person, or public or private corporation having, by law,
the right to condemn private property for public use, shall exercise that right in the manner
hereinafter prescribed."

Section 242 provides that a complaint in expropriation proceeding shall be presented; that the
complaint shall state with certainty the right of condemnation, with a description of the property
sought to be condemned together with the interest of each defendant separately.

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

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

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

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

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

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

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

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

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

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

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

But when the statute does not designate the property to be taken nor how may be taken,
then the necessity of taking particular property is a question for the courts. Where the
application to condemn or appropriate is made directly to the court, the question (of
necessity) should be raised and decided in limene.
The legislative department of the government was rarely undertakes to designate the precise
property which should be taken for public use. It has generally, like in the present case, merely
conferred general authority to take land for public use when a necessity exists therefor. We
believe that it can be confidently asserted that, under such statute, the allegation of the necessity
for the appropriation is an issuable allegation which it is competent for the courts to decide.
(Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)

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

Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise
the right of eminent domain, is a question with which the courts are not concerned. But when
that right or authority is exercised for the purpose of depriving citizens of their property, the
courts are authorized, in this jurisdiction, to make inquiry and to hear proof upon the necessity in
the particular case, and not the general authority.

Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further
conclusive authority upon the question that the necessity for the exercise of the right of eminent
domain is a legislative and not a judicial question. Cyclopedia, at the page stated, says:

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

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted.
While time has not permitted an examination of all of said citations, many of them have been
examined, and it can be confidently asserted that said cases which are cited in support of the
assertion that, "the necessity and expediency of exercising the right of eminent domain are
questions essentially political and not judicial," show clearly and invariably that in each case the
legislature itself usually, by a special law, designated the particular case in which the right of
eminent domain might be exercised by the particular municipal corporation or entity within the
state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park
Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U.
S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water
Power Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining
Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)
In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United
States said: "It is erroneous to suppose that the legislature is beyond the control of the courts in
exercising the power of eminent domain, either as to the nature of the use or the necessity to the
use of any particular property. For if the use be not public or no necessity for the taking exists,
the legislature cannot authorize the taking of private property against the will of the owner,
notwithstanding compensation may be required."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Aside from insisting that there exists no necessity for the alleged improvements, the defendants
further contend that the street in question should not be opened through the cemetery. One of the
defendants alleges that said cemetery is public property. If that allegations is true, then, of
course, the city of Manila cannot appropriate it for public use. The city of Manila can only
expropriate private property.
It is a well known fact that cemeteries may be public or private. The former is a cemetery used
by the general community, or neighborhood, or church, while the latter is used only by a family,
or a small portion of the community or neighborhood. (11 C. J., 50.)

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

The cemetery in question seems to have been established under governmental authority. The
Spanish Governor-General, in an order creating the same, used the following language:

The cemetery and general hospital for indigent Chinese having been founded and
maintained by the spontaneous and fraternal contribution of their protector, merchants
and industrials, benefactors of mankind, in consideration of their services to the
Government of the Islands its internal administration, government and regime must
necessarily be adjusted to the taste and traditional practices of those born and educated in
China in order that the sentiments which animated the founders may be perpetually
effectuated.

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

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

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

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

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

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

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

Separate Opinions

MALCOLM, J., concurring:

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

As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public
and private. A public cemetery is one used by the general community, or neighborhood, or
church; while a private cemetery is one used only by a family, or small portion of a community.
(Lay vs. State, 12 Ind. App., 362; Cemetery Association vs. Meninger [1875], 14 Kan., 312.) Our
specific question, then, is, whether the Chinese Cemetery in the city of Manila is a public, or a
private graveyard. If it be found to be the former, it is not subject to condemnation by the city of
Manila; if it be found to be the latter, it is subject to condemnation.

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

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

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

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

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

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

STREET, J., dissenting:

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

MOIR, J., dissenting:

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

This is an action by the city of Manila for the expropriation of land for an extension of Rizal
Avenue north. The petition for condemnation was opposed by the "Comunidad de Chinos de
Manila" and Ildefonso Tambunting and various other who obtained permission of the trial court
to intervene in the case.
All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts
through a part of the Chinese Cemetery, North of Manila, and necessitates the destruction of
many monuments and the removal of many graves.

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

The plaintiff appealed and sets up the following errors:

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

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

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

4. The court erred in dismissing the complaint.

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

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

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

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

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

The court says:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The United States Supreme Court recently said:

The uses to which this land are to be put are undeniably public uses. When that is the
case the propriety or expediency of the appropriation cannot be called in question by any
other authority. (Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting U.S. vs. Jones, 109,
U.S., 519.)

And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:

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

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

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

But admitting that it is a public cemetery, although limited in its use to the Chinese Community
of the city of Manila, can it not be taken for public use? Must we let the reverence we feel for the
dead and the sanctity of their final resting-place obstruct the progress of the living? It will be
instructive to inquire what other jurisdictions have held on that point.
On the Application of Board of Street Openings of New York City to acquire St. Johns Cemetery
(133 N.Y., 329) the court of appeal said:

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

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

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

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

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

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

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

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

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

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

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

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

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