epublic of the Philippines

SUPREME COURT
Manila

EN BANC

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 c
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
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 Avenu
is necessary for the plaintiff to acquire ownership in fee simple of certain parcels of land situated
district of Binondo of said city within Block 83 of said district, and within the jurisdiction of this c

The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of
alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine Islands,
its purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it was the owne
one and two of the land described in paragraph 2 of the complaint; that it denied that it was either necessary or ex
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 th
road should be considered a public necessity, other routes were available, which would fully satisfy the plaintiff's
at much less expense and without disturbing the resting places of the dead; that it had a Torrens title for the lands
question; that the lands in question had been used by the defendant for cemetery purposes; that a great number of
were buried in said cemetery; that if said expropriation be carried into effect, it would disturb the resting places o
would require the expenditure of a large sum of money in the transfer or removal of the bodies to some other pla
and in the purchase of such new sites, would involve the destruction of existing monuments and the erection of n
monuments in their stead, and would create irreparable loss and injury to the defendant and to all those persons o
interested in the graves and monuments which would have to be destroyed; that the plaintiff was without right or
expropriate said cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, wa
necessary as a public improvement.

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

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

The foregoing parts of the defense presented by the defendants have been inserted in order to show the general ch
the defenses presented by each of the defendants. The plaintiff alleged that the expropriation was necessary. The
each alleged (a) that no necessity existed for said expropriation and (b) that the land in question was a cemetery,
been used as such for many years, and was covered with sepulchres and monuments, and that the same should no
converted into a street for public purposes.

Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judg
elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that ther
necessity for the expropriation of the particular strip of land in question, and absolved each and all of the defenda
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 expropria
may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain the
the land in question; that neither the court nor the owners of the land can inquire into the advisible purpose of pu
expropriation or ask any questions concerning the necessities therefor; that the courts are mere appraisers of the
involved in expropriation proceedings, and, when the value of the land is fixed by the method adopted by the law
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
2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn private property for publi

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

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

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

Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provide
appeal from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the Suprem
authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on appeal sha
that no right of expropriation existed, it shall remand the cause to the Court of First Instance with a mandate that
defendant be replaced in the possession of the property and that he recover whatever damages he may have susta
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 ex
exists," means simply that, if the court finds that there is some law authorizing the plaintiff to expropriate, then th
have no other function than to authorize the expropriation and to proceed to ascertain the value of the land involv
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 interven
the purpose of determining the value of the land in question, there is much legal legislature. Much has been writt
both sides of that question. A careful examination of the discussions pro and con will disclose the fact that the de
depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the legislature under
authority should grant the expropriation of a certain or particular parcel of land for some specified public purpos
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 ex
private land for public purposes, we think the courts have ample authority in this jurisdiction, under the provision
quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or not the lands
private and whether the purpose was, in fact, public. In other words, have no the courts in this jurisdiction the rig
inasmuch as the questions relating to expropriation must be referred to them (sec. 241, Act No. 190) for final dec
whether or not the law has been complied with? Suppose in a particular case, it should be denied that the propert
private property but public, may not the courts hear proof upon that question? Or, suppose the defense is, that the
the expropriation is not public but private, or that there exists no public purpose at all, may not the courts make i
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
confers the right to determine for itself that the land is private and that the purpose is public, and that the people o
of Manila who pay the taxes for its support, especially those who are directly affected, may not question one or th
both, of these questions? Can it be successfully contended that the phrase used in Act No. 190, "and if the court u
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
arrives in the Supreme Court, can it be possible that the phrase, "if the Supreme Court shall determine that no rig
expropriation exists," that that simply means that the Supreme Court shall also examine the enactments of the leg
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
power in a municipal corporation, and before it can exercise the right some law must exist conferring the power u
When the courts come to determine the question, they must only find (a) that a law or authority exists for the exe
right of eminent domain, but (b) also that the right or authority is being exercised in accordance with the law. In
case there are two conditions imposed upon the authority conceded to the City of Manila: First, the land must be
and, second, the purpose must be public. If the court, upon trial, finds that neither of these conditions exists or th
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 l
public, is a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine
right to ascertain upon trial whether the right exists for the exercise of eminent domain, it intended that the court
inquire into, and hear proof upon, those questions. Is it possible that the owner of valuable land in this jurisdictio
compelled to stand mute while his land is being expropriated for a use not public, with the right simply to beg the
Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities to expropriate lan
question, simply for the purpose of satisfying the aesthetic sense of those who happen for the time being to be in
Expropriation of lands usually calls for public expense. The taxpayers are called upon to pay the costs. Cannot th
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
advisability of the exercise of the right of eminent domain. The divergence is usually found to depend upon parti
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
Case Law is cited as conclusive — that the necessity for taking property under the right of eminent domain is not
question. But those who cited said section evidently overlooked the section immediately following (sec. 159), wh
"But it is obvious that if the property is taken in the ostensible behalf of a public improvement which it can never
possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for protection by
While many courts have used sweeping expression in the decisions in which they have disclaimed the power of s
the power of supervising the selection of the sites of public improvements, it may be safely said that the courts of
states would feel bound to interfere to prevent an abuse of the discretion delegated by the legislature, by an attem
appropriation of land in utter disregard of the possible necessity of its use, or when the alleged purpose was a clo
sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544
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 appe

The legislature, in providing for the exercise of the power of eminent domain, may directly determ
necessity for appropriating private property for a particular improvement for public use, and it ma
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 constructin
suitableness of the location selected and the consequent necessity of taking the land selected for it
all questions exclusively for the legislature to determine, and the courts have no power to interfere
 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 th
that in each case the legislature directly determined the necessity for the exercise of the right of eminent domain
particular case. It is not denied that if the necessity for the exercise of the right of eminent domain is presented to
legislative department of the government and that department decides that there exists a necessity for the exercise
right in a particular case, that then and in that case, the courts will not go behind the action of the legislature and
inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St
Am. St. rep., 622, 628]), which was cited in support of the doctrine laid down in section 158 above quoted, the co

But when the statute does not designate the property to be taken nor how may be taken, then the n
taking particular property is a question for the courts. Where the application to condemn or appro
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 shou
for public use. It has generally, like in the present case, merely conferred general authority to take land for public
necessity exists therefor. We believe that it can be confidently asserted that, under such statute, the allegation of
necessity for the appropriation is an issuable allegation which it is competent for the courts to decide. (Lynch vs.
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
eminent domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a p
case. The first is a declaration simply that there exist reasons why the right should be conferred upon municipal c
while the second is the application of the right to a particular case. Certainly, the legislative declaration relating t
advisability of granting the power cannot be converted into a declaration that a necessity exists for its exercise in
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 emi
domain, is a question with which the courts are not concerned. But when that right or authority is exercised for th
of depriving citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to hear p
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 u
question that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial questi
Cyclopedia, at the page stated, says:

In the absence of some constitutional or statutory provision to the contrary, the necessity and expe
exercising the right of eminent domain are questions essentially political and not judicial in their c
The determination of those questions (the necessity and the expediency) belongs to the sovereign
legislative department is final and conclusive, and the courts have no power to review it (the nece
the expediency) . . . . It (the legislature) may designate the particular property to be condemned, an
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
permitted an examination of all of said citations, many of them have been examined, and it can be confidently as
said cases which are cited in support of the assertion that, "the necessity and expediency of exercising the right o
domain are questions essentially political and not judicial," show clearly and invariably that in each case the legis
usually, by a special law, designated the particular case in which the right of eminent domain might be exercised
particular municipal corporation or entity within the state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125
Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. C
S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U
U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron
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 err
suppose that the legislature is beyond the control of the courts in exercising the power of eminent domain, either
nature of the use or the necessity to the use of any particular property. For if the use be not public or no necessity
taking exists, the legislature cannot authorize the taking of private property against the will of the owner, notwith
compensation may be required."

In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339, 356), we find the Supreme Court of Po
speaking through Justice MacLeary, quoting approvingly the following, upon the question which we are discussi
well settled that although the legislature must necessarily determine in the first instance whether the use for whic
(municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities, etc.) determinatio
final, but is subject to correction by the courts, who may undoubtedly declare the statute unconstitutional, if it sh
appear that the use for which it is proposed to authorize the taking of private property is in reality not public but p
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 set
the cases under consideration the determination of the necessity of taking a particular piece or a certain amount o
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 C
Connecticut approvingly quoted the following doctrine from Lewis on Eminent Domain (3d ed.), section 599: "In
cases the necessity of public utility of the proposed work or improvement is a judicial question. In all such cases,
authority is to take property necessary for the purpose, the necessity of taking particular property for a particular
a judicial one, upon which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71 S. C., 457, 489 [1
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 inhabita
state, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to dele
(Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs
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
discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain) where th
legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the purpose
incorporation, as in this case, the party claiming the right to the exercise of the power should be required to show
reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscrimin
delegation of the right to corporations, would likely lead to oppression and the sacrifice of private right to corpor

In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is no
power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist.
necessity must appear upon the face of the petition to condemn. If the necessary is denied the burden is upon the
(municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens' Water &
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 o
decisions declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or st
provision denying the right to take land for any use other than a public use, it occurs to us that the question wheth
particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is true, in ef
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 acti
legislature unless it appears that the particular use is clearly not of a public nature. The decisions must be underst
this limitation; for, certainly, no court of last resort will be willing to declare that any and every purpose which th
legislative might happen to designate as a public use shall be conclusively held to be so, irrespective of the purpo
question and of its manifestly private character Blackstone in his Commentaries on the English Law remarks that
the regard of the law for private property that it will not authorize the least violation of it, even for the public goo
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 gover
scarcely be deemed free where the rights of property are left solely defendant on the legislative body, without res
fundamental maxims of free government seem to require that the rights of personal liberty and private property s
held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate
disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked in any gen
of legislature authority, or ought to be implied from any general expression of the people. The people ought no to
presumed to part with rights so vital to their security and well-being without very strong and direct expression of
intention." (Lewis on Eminent Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7
182.)

Blackstone, in his Commentaries on the English Law said that the right to own and possess land — a place to liv
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 th
sacred rights that men are heirs to. That right has been written into the organic law of every civilized nation. The
Congress of July 1, 1902, and of August 29, 1916, which provide that "no law shall be enacted in the Philippine I
which shall deprive any person of his property without due process of law," are but a restatement of the time-hon
protection of the absolute right of the individual to his property. Neither did said Acts of Congress add anything t
already existing in the Philippine Islands. The Spaniard fully recognized the principle and adequately protected th
inhabitants of the Philippine Islands against the encroachment upon the private property of the individual. Article
Civil Code provides that: "No one may be deprived of his property unless it be by competent authority, for some
proven public utility, and after payment of the proper compensation Unless this requisite (proven public utility an
has been complied with, it shall be the duty of the courts to protect the owner of such property in its possession o
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 necessa
derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species o
held by individuals with greater tenacity, and none is guarded by the constitution and laws more sedulously, than
the freehold of inhabitants. When the legislature interferes with that right, and, for greater public purposes, appro
land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtly interpr
(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 governmen
inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict o
of the substantial provisions of the law which are prescribed as modes of the exercise of the power, and to protec
abuse. Not only must the authority of municipal corporations to take property be expressly conferred and the use
is taken specified, but the power, with all constitutional limitation and directions for its exercise, must be strictly
(Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phi

It can scarcely be contended that a municipality would be permitted to take property for some public use unless s
necessity existed therefor. The right to take private property for public use originates in the necessity, and the tak
limited by such necessity. The appellant contends that inasmuch as the legislature has given it general authority t
private property for public use, that the legislature has, therefore, settled the question of the necessity in every ca
the courts are closed to the owners of the property upon that question. Can it be imagined, when the legislature ad
section 2429 of Act No. 2711, that it thereby declared that it was necessary to appropriate the property of Juan de
whose property, perhaps, was not within the city limits at the time the law was adopted? The legislature, then, no
declared the necessity, can it be contemplated that it intended that a municipality should be the sole judge of the
every case, and that the courts, in the face of the provision that "if upon trial they shall find that a right exists," ca
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 t
denies and successfully proves that the taking of his property serves no public use: Would the courts not be justif
inquiring into that question and in finally denying the petition if no public purpose was proved? Can it be denied
courts have a right to inquire into that question? If the courts can ask questions and decide, upon an issue properl
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 und
how a public use can necessarily exist. If the courts can inquire into the question whether a public use exists or n
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
character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the land.
vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, R
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
case. The power of the legislature to confer, upon municipal corporations and other entities within the State, gene
authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority o
municipalities or entities must not be confused with the right to exercise it in particular instances. The moment th
corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompany
authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminen
admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercisin
in a particular case under the conditions imposed by the general authority, is a question which the courts have the
inquire into.

The conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent dom
purely legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing t
of the right of eminent domain instead of in the question of the right to exercise it in a particular case. (Creston W
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
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 n
the appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate that the
board believed at one time that other land might be used for the proposed improvement, thereby avoiding the nec
distributing the quiet resting place of the dead.

Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend t
street in question should not be opened through the cemetery. One of the defendants alleges that said cemetery is
property. If that allegations is true, then, of course, the city of Manila cannot appropriate it for public use. The cit
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 com
neighborhood, or church, while the latter is used only by a family, or a small portion of the community or neighb
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
general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good fai
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-G
an order creating the same, used the following language:

The cemetery and general hospital for indigent Chinese having been founded and maintained by th
spontaneous and fraternal contribution of their protector, merchants and industrials, benefactors o
in consideration of their services to the Government of the Islands its internal administration, gove
regime must necessarily be adjusted to the taste and traditional practices of those born and educate
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, wh
the general acceptation of the definition of a public cemetery, would make the cemetery in question public prope
is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila has no au
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, esp
during the lifetime of those specially interested in its maintenance as a cemetery, should be a question of great co
its appropriation should not be made for such purposes until it is fully established that the greatest necessity exist

While we do not contend that the dead must not give place to the living, and while it is a matter of public knowle
the process of time sepulchres may become the seat of cities and cemeteries traversed by streets and daily trod by
millions of men, yet, nevertheless such sacrifices and such uses of the places of the dead should not be made unle
it is fully established that there exists an eminent necessity therefor. While cemeteries and sepulchres and the pla
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 re
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 sensibilit
living, in having the graves of kindred and loved ones blotted out and desecrated by a common highway or street
travel? The impossibility of measuring the damage and inadequacy of a remedy at law is too apparent to admit of
To disturb the mortal remains of those endeared to us in life sometimes becomes the sad duty of the living; but, e
cases of necessity, or for laudable purposes, the sanctity of the grave, the last resting place of our friends, should
maintained, and the preventative aid of the courts should be invoked for that object. (Railroad Company vs. Cem
116 Tenn., 400; Evergreen Cemetery Association vs. The City of New Haven, 43 Conn., 234; Anderson vs. Ache
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 conta
proof of the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent la
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 affir
costs against the appellant. So ordered.

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

Separate Opinions

MALCOLM, J., concurring:

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

As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public and private. A pub
cemetery is one used by the general community, or neighborhood, or church; while a private cemetery is one use
family, or small portion of a community. (Lay vs. State, 12 Ind. App., 362; Cemetery Association vs. Meninger [
Kan., 312.) Our specific question, then, is, whether the Chinese Cemetery in the city of Manila is a public, or a p
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
latter, it is subject to condemnation.

The Chinese Cemetery of Manila was established during the Spanish administration in the Philippines by public
Chinese. The order of the Governor-General giving governmental recognition to the cemetery reads as follows: "
cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and
contribution of their protectors, merchants and industrials, benefactors of mankind, in consideration of their servi
Government of the Islands, its internal administration, government and regime, must necessarily be adjusted to th
traditional practices of those born and educated in China in order that the sentiments which animated the founder
perpetually effectuated." Sometimes after the inauguration of the new regime in the Philippines, a corporation wa
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 buri
dead. It is said that not less than four hundred graves, many of them with handsome monuments, would be destro
proposed street. This desecration is attempted as to the las t resting places of the dead of a people who, because o
peculiar and ingrained ancestral workship, retain more than the usual reverence for the departed. These facts lead
to the conclusion that the Chinese Cemetery is not used by a family or a small portion of a community but by a p
race long existing in the country and of considerable numbers. The case, then, is one of where the city of Manila,
general authority permitting it to condemn private property for public use, is attempting to convert a property alre
dedicated to a public use to an entirely different public use; and this, not directly pursuant to legislative authority
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 ou
consideration. The first is the case of The Evergreen Cemetery Association vs. The City of New Haven ([1875], 4
234), of cited by other courts. Here the City of New Haven, Connecticut, under the general power conferred upon
out, construct, and maintain all necessary highways within its limits, proceeded to widen and straighten one of its
in so doing took a small piece of land belonging to the Evergreen Cemetery Association. This association was in
under the general statute. The city had no special power to take any part of the cemetery for such purposes. It wa
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 t
land already applied to one public use and devote it to another. When the power is granted to municipal or privat
corporations in express words, no question can arise. But, it was added, "The same land cannot properly be used
lots and for a public highway at the same time. . . . Land therefore applied to one use should not be taken for the
in cases on necessity. . . . There is no difficulty in effecting the desired improvement by taking land on the other
street. . . . The idea of running a public street, regardless of graves, monuments, and the feelings of the living, thr
our public cemeteries, would be shocking to the moral sense of the community, and would not be tolerated excep
direst necessity." It was then held that land already devoted to a public use cannot be taken by the public for anot
which is inconsistent with the first, without special authority from the Legislature, or authority granted by necess
reasonable implication.

The second decision is that of Memphis State Line Railroad Company vs. Forest Hill Cemetery Co. ([1906], 116
400.) Here the purpose of the proceedings was to condemn a right of way for the railway company through the F
Cemetery. The railroad proposed to run through the southeast corner of the cemetery where no bodies were interr
cemetery had been in use for about eight years, and during this period thirteen hundred bodies had been buried th
cemetery was under the control of a corporation which, by its character, held itself out as being willing to sell lot
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 cem
while the present line might be pursued without interfering with Forest Hill Cemetery by making a curve around
court below the railroad was granted the right of condemnation through the cemetery and damages were assessed
appeal, the certiorari applied for was granted, and the supersedeas awarded. The court, in effect, found that the la
Cemetery Company was devoted to a public purpose, and that under the general language of the Tennessee statut
eminent domain it could not be taken for another public purpose. The court said that in process of time the sepulc
dead "are made the seats of cities, and are traversed by streets, and daily trodden by the feet of man. This is inevi
course of ages. But while these places are yet within the memory and under the active care of the living, while th
devoted to pious uses, they are sacred, and we cannot suppose that the legislature intended that they should be vi
the absence of special provisions upon the subject authorizing such invasion, and indicating a method for the disi
removal, and reinterment of the bodies buried, and directing how the expense thereof shall be borne." Two memb
court, delivering a separate concurring opinion, concluded with this significant and eloquent sentence: "The whee
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 ju
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 unn
and perhaps ill-considered. Nevertheless I concur with Justice Moir in the view that the authorities of the city of
the proper judges of the propriety of the condemnation and that this Court should have nothing to do with the que
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
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 p
condemnation was opposed by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and various oth
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 o
Chinese Cemetery, North of Manila, and necessitates the destruction of many monuments and the removal of ma
The Court of First Instance of Manila, Honorable S. del Rosario, judge after hearing the parties, decided that ther
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 expro
the lands of the defendants lies with the court and not with the Municipal Board of the city of Man

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

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
all sovereignties and therefore would exist without any constitutional recognition . . . . The right of eminent doma
antedates constitutions . . . . The right can only be denied or restricted by fundamental law and is right inherent in
(15 Cyc., pp. 557-8.) .

This general right was recognized in the Philippine Code of Civil Procedure effective October 1st, 1901, which p
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 Governmen
Philippine Islands may grant franchises . . . including the authority to exercise the right of eminent domain for th
construction and operation of works of public utility and service, and may authorize said works to be constructed
maintained over and across the public property of the United States including . . . reservations." This provisions i
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 19
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 p
to place the plaintiff in possession of the land described in the complaint, and to appoint Commissioners to inspe
property, appraise the value, and assess the damages. Instead of doing so, the court entered upon the question 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 rac
and other persons belonging to other nationalities have been formerly inhumed, is private or publi
or not said cemetery, in case it is public, would be susceptible to expropriation for the purpose of
improvements proposed by the city of Manila; whether or not the latter is justified of the necessity
expediency of similar expropriation before its right to the same would be upheld by the courts of j
whether or not the appreciation of said necessity pertains to the legislative or the judicial departme
 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 o
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 tha
chosen by the plaintiff for the extension of Rizal Avenue to the municipality of Caloocan is not th
less expensive, although upon it there may be constructed a straight road, without curves or windi
in order to construct said road upon said land, the city of Manila would have to remove and transf
places about four hundred graves and monuments, make some grubbings, undergo some leveling
some bridges — the works thereon, together with the construction of the road and the value of the
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 c
distance of one kilometer, would require an energy equivalent to that which would be expanded in
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 Tam
one of the defendants, who even offered to donate gratuitously to the city of Manila part of the lan
which said road will have to be constructed, the plaintiff entity would be able to save more than h
thousand of pesos, which can be invested in other improvements of greater pressure and necessity
benefit of the taxpayers; and it will not have to employ more time and incur greater expenditures i
removal and transfer of the remains buried in the land of the Chinese Community and of Sr. Tamb
although with the insignificant disadvantage that the road would be little longer by a still more ins
extension of 426 meters and 55 centimeters less than one-half kilometer, according to the plan inc
records; but it would offer a better panorama to those who would use it, and who would not have t
in their necessary or pleasure-making trips or walks any cemetery which, on account of its nature,
deserves the respect of the travellers. It should be observed that the proposed straight road over th
which the city of Manila is proposing to expropriate, does not lead to any commercial, industrial,
agricultural center, and if with said road it is endeavored to benefit some community or created in
same object may be obtained by the proposed deviation of the road by the defendants. The road tr
plaintiffs has the disadvantage that the lands on both sides thereof would not serve for residential
for the reason that no one has the pleasure to construct buildings upon cemeteries, unless it be in v
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 wit
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
was to see that the value of the property was paid the owners after proper legal proceedings ascertaining the valu

The law gives the city the right to take private property for public use. It is assumed it is unnecessary to argue th
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 d
read, and it is believed that the great weight of authority, including the United States Supreme Court, is against th
contention.

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

In the absence of some constitutional or statutory provision to the contrary, the necessity and expe
exercising the right of eminent domain are questions essentially political and not judicial in their c
The determination of those questions belongs to the sovereign power; the legislative determination
and conclusive, and the courts have no power to review it. It rests with the legislature not only to d
when the power of eminent domain may be exercised, but also the character, quality, method, and
such exercise. And this power is unqualified, other than by the necessity of providing that compen
be made. Nevertheless, under the express provisions of the constitution of some states the question
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 t
of eminent domain, it may, unless prohibited by the constitution, delegate this power to public off
private corporations established to carry on enterprises in which the public are interested, and thei
determination that a necessity for the exercise of the power exists is conclusive. There is no restra
power except that requiring compensation to be made. And when the power has been so delegated
subject of legislative discretion to determine what prudential regulations shall be established to se
discreet and judicious exercise of the authority. It has been held that in the absence of any statutor
submitting the matter to a court or jury the decision of the question of necessity lies with the body
individuals to whom the state has delegated the authority to take, and the legislature may be expre
confer this power on a corporation to whom the power of eminent domain is delegated unless proh
the constitution. It is of course competent for the legislature to declare that the question shall be a
one, in which case the court and not the corporation determines the question of necessity. (15 Cyc
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
have the questions of compensation and necessity both passed upon by one and the same jury. In m
the question of necessity is never submitted to the jury which passes upon the question of compen
either settled affirmatively by the legislature, or left to the judgment of the corporation invested w
to take property by condemnation. The question of necessity is not one of a judicial character, but
for determination by the lawmaking branch of the government. (Boom Co. vs. Patterson, 98 U.S.,
[25 L. ed., 206]; United States vs. Jones, 109 U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street U
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 pu
 private property, within its limits may be taken upon compensation to the owner, as well as to pre
mode in which it may be condemned and taken. (Madisonville Tract. Co. vs. St. Bernard Min. Co.
239, 252 [49 L. ed., 462].)

Courts have no power to control the legislative authority in the exercise of their right to determine
necessary or expedient to condemn a specific piece of property for public purposes. (Adirondack R
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 e
power of eminent domain, may directly determine the necessity for appropriating private property
particular improvement or public use, and it may select the exact location of the improvement. In
it is well settled that the utility of the proposed improvement, the extent of the public necessity for
construction, the expediency of constructing it, the suitableness of the location selected and the co
necessity of taking the land selected for its site, are all questions exclusively for the legislature to
and the courts have no power to interfere, or to substitute their own views for these of the represe
the people. Similarly, when the legislature has delegated the power of eminent domain to municip
service corporation or other tribunals or bodies, and has given them discretion as to when the pow
called into exercise and to what extent, the court will not inquire into the necessity or propriety of

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 pro
expediency of the appropriation cannot be called in question by any other authority. (Cinnati vs. S
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 appr
violates both Article 1, paragraph 10, of the Federal Constitution, and the Fourteenth Amendment
authorizes the municipality to determine the necessity for the taking of private property without th
having an opportunity to be hear as to such necessity; that in fact no necessity existed for any taki
would interfere with the company's project; since the city might have taken water from the Little C
or the Tuscarawas rivers; and furthermore, that it has taken ten times as much water as it can legit
It is well settled that while the question whether the purpose of a taking is a public one is judicial
vs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. Cas., 1008
necessity and the proper extent of a taking is a legislative question. (Shoemaker vs. United States,
282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United States vs. Gettysburg Electric R. Co
668, 685 [40 L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-Dunbar Water P
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
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 tak
public use. In its answer the "Comunidad de Chinos de Manila" says it is "a corporation organized and existing u
virtue of the laws of the Philippine Islands," and that it owns the land which plaintiff seeks to acquire. The facts t
private corporation owning land would seem of necessity to make the land it owns private land. The fact that it b
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 Ma
not be taken for public use? Must we let the reverence we feel for the dead and the sanctity of their final resting-p
obstruct the progress of the living? It will be instructive to inquire what other jurisdictions have held on that poin

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

. . . The board instituted this proceeding under the act to acquire for park purposes the title to land
Hundred and Fifty-fifth street known as St. John's cemetery which belonged to a religious corpora
city of New York, commonly called Trinity Church. It was established as a cemetery as early as 1
used for that purpose until 1839, during which time about ten thousand human bodies had been bu
therein. In 1839 an ordinance was passed by the city of New York forbidding interments south of
sixth street, and since that time no interments have been made in the cemetery, but Trinity Church
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 188
which had been devoted to cemetery purposes could not be taken for a park. The authority conferr
board by the act is broad and general. It is authorized to take for park purposes any land south of O
Hundred and Fifty-fifth street. . . . .

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

It seems always to have been recognized in the laws of this state, that under the general laws stree
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 wa
contended for the United American Mechanics and United Daughters of America Cemetery Assoc
by an act of the legislature of the State approved March 20th, 1849, they were forever exempt from
of any their property for streets, roads or alleys and this Act was formally accepted by the Cemete
Company on April 9th, 1849, and there was, therefore, a contract between the Cemetery Company
State of Pennsylvania, which would be violated by the taking of any part of their property for stree
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 a
under the power of eminent domain all properties could be taken, and that if there was a contract b
State of Pennsylvania and the Cemetery Association, the contract itself could be taken for public u
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 pers
corporation and where by its exercise lands have been subject to a public use, they cannot be appl
another public use without specific authority expressed or implied to that effect, yet, the general ru
be that the fact that property is already devoted to a public use, does not exempt it from being app
under the right of eminent domain but it may be so taken for a use which is clearly superior or par
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 m
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 procee
case in accordance with this decision.

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