Untitled
Untitled
Untitled
SUPREME COURT available as a source of power for the taking of the property in this case
Manila because it refers to "the power of promoting the public welfare by
restraining and regulating the use of liberty and property." The respondent
points out that if an owner is deprived of his property outright under the
FIRST DIVISION
State's police power, the property is generally not taken for public use but is
urgently and summarily destroyed in order to promote the general welfare.
G.R. No. L-34915 June 24, 1983 The respondent cites the case of a nuisance per se or the destruction of a
house to prevent the spread of a conflagration.
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF
QUEZON CITY, petitioners, We find the stand of the private respondent as well as the decision of the
vs. respondent Judge to be well-founded. We quote with approval the lower
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First court's ruling which declared null and void Section 9 of the questioned city
Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, ordinance:
INC., respondents.
The issue is: Is Section 9 of the ordinance in question a
City Fiscal for petitioners. valid exercise of the police power?
Manuel Villaruel, Jr. and Feliciano Tumale for respondents. An examination of the Charter of Quezon City (Rep. Act
No. 537), does not reveal any provision that would
justify the ordinance in question except the provision
granting police power to the City. Section 9 cannot be
justified under the power granted to Quezon City to tax,
GUTIERREZ, JR., J.: fix the license fee, and regulate such other business,
trades, and occupation as may be established or
practised in the City.' (Subsections 'C', Sec. 12, R.A.
This is a petition for review which seeks the reversal of the decision of the 537).
Court of First Instance of Rizal, Branch XVIII declaring Section 9 of
Ordinance No. 6118, S-64, of the Quezon City Council null and void.
The power to regulate does not include the power
to prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J.
REGULATING THE ESTABLISHMENT, MAINTENANCE AND Law, 70, Mich. 396). A fortiori, the power to regulate
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL does not include the power to confiscate. The
GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND ordinance in question not only confiscates but also
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides: prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation
Sec. 9. At least six (6) percent of the total area of the of the provision thereof is punishable with a fine and/or
memorial park cemetery shall be set aside for charity imprisonment and that upon conviction thereof the
burial of deceased persons who are paupers and have permit to operate and maintain a private cemetery shall
been residents of Quezon City for at least 5 years prior be revoked or cancelled.' The confiscatory clause and
to their death, to be determined by competent City the penal provision in effect deter one from operating a
Authorities. The area so designated shall immediately memorial park cemetery. Neither can the ordinance in
be developed and should be open for operation not question be justified under sub- section "t", Section 12
later than six months from the date of approval of the of Republic Act 537 which authorizes the City Council
application. to-
For several years, the aforequoted section of the Ordinance was not 'prohibit the burial of the dead
enforced by city authorities but seven years after the enactment of the within the center of population of
ordinance, the Quezon City Council passed the following resolution: the city and provide for their burial
in such proper place and in such
manner as the council may
RESOLVED by the council of Quezon assembled, to determine, subject to the
request, as it does hereby request the City Engineer, provisions of the general law
Quezon City, to stop any further selling and/or regulating burial grounds and
transaction of memorial park lots in Quezon City where cemeteries and governing funerals
the owners thereof have failed to donate the required and disposal of the dead.' (Sub-
6% space intended for paupers burial. sec. (t), Sec. 12, Rep. Act No.
537).
Pursuant to this petition, the Quezon City Engineer notified respondent
Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S- There is nothing in the above provision which
64 would be enforced authorizes confiscation or as euphemistically termed by
the respondents, 'donation'
Respondent Himlayang Pilipino reacted by filing with the Court of First
Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory We now come to the question whether or not Section 9
relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. of the ordinance in question is a valid exercise of police
Q-16002) seeking to annul Section 9 of the Ordinance in question The power. The police power of Quezon City is defined in
respondent alleged that the same is contrary to the Constitution, the sub-section 00, Sec. 12, Rep. Act 537 which reads as
Quezon City Charter, the Local Autonomy Act, and the Revised follows:
Administrative Code.
Police power is defined by Freund as 'the power of We have likewise considered the principles earlier
promoting the public welfare by restraining and stated in Case v. Board of Health supra :
regulating the use of liberty and property' (Quoted in
Political Law by Tanada and Carreon, V-11, p. 50). It is
... Under the provisions of municipal charters which are
usually exerted in order to merely regulate the use and
known as the general welfare clauses, a city, by virtue
enjoyment of property of the owner. If he is deprived of
of its police power, may adopt ordinances to the peace,
his property outright, it is not taken for public use but
safety, health, morals and the best and highest
rather to destroy in order to promote the general
interests of the municipality. It is a well-settled principle,
welfare. In police power, the owner does not recover
growing out of the nature of well-ordered and society,
from the government for injury sustained in
that every holder of property, however absolute and
consequence thereof (12 C.J. 623). It has been said
may be his title, holds it under the implied liability that
that police power is the most essential of government
his use of it shall not be injurious to the equal
powers, at times the most insistent, and always one of
enjoyment of others having an equal right to the
the least limitable of the powers of government (Ruby
enjoyment of their property, nor injurious to the rights of
vs. Provincial Board, 39 PhiL 660; Ichong vs.
the community. An property in the state is held subject
Hernandez, 1,7995, May 31, 1957). This power
to its general regulations, which are necessary to the
embraces the whole system of public regulation (U.S.
common good and general welfare. Rights of property,
vs. Linsuya Fan, 10 PhiL 104). The Supreme Court
like all other social and conventional rights, are subject
has said that police power is so far-reaching in scope
to such reasonable limitations in their enjoyment as
that it has almost become impossible to limit its sweep.
shall prevent them from being injurious, and to such
As it derives its existence from the very existence of
reasonable restraints and regulations, established by
the state itself, it does not need to be expressed or
law, as the legislature, under the governing and
defined in its scope. Being coextensive with self-
controlling power vested in them by the constitution,
preservation and survival itself, it is the most positive
may think necessary and expedient. The state, under
and active of all governmental processes, the most
the police power, is possessed with plenary power to
essential insistent and illimitable Especially it is so
deal with all matters relating to the general health,
under the modern democratic framework where the
morals, and safety of the people, so long as it does not
demands of society and nations have multiplied to
contravene any positive inhibition of the organic law
almost unimaginable proportions. The field and scope
and providing that such power is not exercised in such
of police power have become almost boundless, just as
a manner as to justify the interference of the courts to
the fields of public interest and public welfare have
prevent positive wrong and oppression.
become almost all embracing and have transcended
human foresight. Since the Courts cannot foresee the
needs and demands of public interest and welfare, they but find them not applicable to the facts of this case.
cannot delimit beforehand the extent or scope of the
police power by which and through which the state
There is no reasonable relation between the setting aside of at least six (6)
seeks to attain or achieve public interest and welfare.
percent of the total area of an private cemeteries for charity burial grounds
(Ichong vs. Hernandez, L-7995, May 31, 1957).
of deceased paupers and the promotion of health, morals, good order,
safety, or the general welfare of the people. The ordinance is actually a
The police power being the most active power of taking without compensation of a certain area from a private cemetery to
the government and the due process clause being benefit paupers who are charges of the municipal corporation. Instead of
the broadest station on governmental power, the building or maintaining a public cemetery for this purpose, the city passes
conflict between this power of government and the due the burden to private cemeteries.
process clause of the Constitution is oftentimes
inevitable.
The expropriation without compensation of a portion of private cemeteries is
not covered by Section 12(t) of Republic Act 537, the Revised Charter of
It will be seen from the foregoing authorities that police Quezon City which empowers the city council to prohibit the burial of the
power is usually exercised in the form of mere dead within the center of population of the city and to provide for their burial
regulation or restriction in the use of liberty or property in a proper place subject to the provisions of general law regulating burial
for the promotion of the general welfare. It does not grounds and cemeteries. When the Local Government Code, Batas
involve the taking or confiscation of property with the Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang
exception of a few cases where there is a necessity to panlungsod may "provide for the burial of the dead in such place and in
confiscate private property in order to destroy it for the such manner as prescribed by law or ordinance" it simply authorizes the city
purpose of protecting the peace and order and of to provide its own city owned land or to buy or expropriate private properties
promoting the general welfare as for instance, the to construct public cemeteries. This has been the law and practise in the
confiscation of an illegally possessed article, such as past. It continues to the present. Expropriation, however, requires payment
opium and firearms. of just compensation. The questioned ordinance is different from laws and
regulations requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the land they sell
It seems to the court that Section 9 of Ordinance No.
to buyers of subdivision lots. The necessities of public safety, health, and
6118, Series of 1964 of Quezon City is not a mere
convenience are very clear from said requirements which are intended to
police regulation but an outright confiscation. It
insure the development of communities with salubrious and wholesome
deprives a person of his private property without
environments. The beneficiaries of the regulation, in turn, are made to pay
due process of law, nay, even without
by the subdivision developer when individual lots are sold to home-owners.
compensation.
As a matter of fact, the petitioners rely solely on the general welfare clause
In sustaining the decision of the respondent court, we are not unmindful of
or on implied powers of the municipal corporation, not on any express
the heavy burden shouldered by whoever challenges the validity of duly
provision of law as statutory basis of their exercise of power. The clause
enacted legislation whether national or local As early as 1913, this Court
has always received broad and liberal interpretation but we cannot stretch it
ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
to cover this particular taking. Moreover, the questioned ordinance was
presumption in favor of validity and, more so, where the ma corporation
passed after Himlayang Pilipino, Inc. had incorporated. received necessary
asserts that the ordinance was enacted to promote the common good and
licenses and permits and commenced operating. The sequestration of six
general welfare.
percent of the cemetery cannot even be considered as having been
impliedly acknowledged by the private respondent when it accepted the
In the leading case of Ermita-Malate Hotel and Motel Operators Association permits to commence operations.
Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the
then Associate Justice and now Chief Justice Enrique M. Fernando stated
WHEREFORE, the petition for review is hereby DISMISSED. The decision
of the respondent court is affirmed.
Primarily what calls for a reversal of such a decision is
the a of any evidence to offset the presumption of
SO ORDERED.
validity that attaches to a statute or ordinance. As was
expressed categorically by Justice Malcolm 'The
presumption is all in favor of validity. ... The action of Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova,
the elected representatives of the people cannot be JJ., concur.
lightly set aside. The councilors must, in the very nature
of things, be familiar with the necessities of their
particular ... municipality and with all the facts and
lances which surround the subject and necessitate
action. The local legislative body, by enacting the
ordinance, has in effect given notice that the
regulations are essential to the well-being of the
people. ... The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of
personal or property rights under the guise of police
regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p.
111. There was an affirmation of the presumption of
Republic of the Philippines beliefs of said sect in violation of the "non-
SUPREME COURT establishment guarantee" provision of the Constitution.
Manila Surely, the decision of the Court constitutes a special
favor which immunizes religious believers such as
Jehovah's Witnesses to the law and the DECS rules
EN BANC
and regulations by interposing the claim that the
conduct required by law and the rules and regulation
(sic) are violative of their religious beliefs. The decision
therefore is susceptible to the very criticism that the
grant of exemption is a violation of the "non-
G.R. No. 95770 December 29, 1995 establishment" provision of the Constitution.
ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents, Furthermore, to grant an exemption to a specific
MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG, religious minority poses a risk of collision course with
represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL the "equal protection of the laws" clause in respect of
OYAO, represented by their parents MR. & MRS. ELIEZER OYAO, the non-exempt, and, in public schools, a collision
JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. course with the "non-establishment guarantee."
& MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA,
represented by their parents MR. & MRS. FAUSTO OSTIA, IRVIN
SEQUINO & RENAN SEQUINO, represented by their parents MR. & Additionally the public respondent insists that this Court adopt a "neutral
MRS. LYDIO SEQUINO, NAPTHALE TUNACAO represented by his stance" by reverting to its holding in Gerona declaring the flag as being
parents MR. & MRS. MANUEL TUNACAO PRECILA PINO represented devoid of any religious significance. He stresses that the issue here is not
by her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA curtailment of religious belief but regulation of the exercise of religious
ALFAR, represented by their parents MR. & MRS. HERMINIGILDO belief. Finally, he maintains that the State's interests in the case at bench
ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented are constitutional and legal obligations to implement the law and the
by their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR, constitutional mandate to inculcate in the youth patriotism and nationalism
represented by their parents MR. & MRS. GENEROSO ALFAR, and to encourage their involvement in public and civic affairs, referring to
MARTINO VILLAR, represented by their parents MR. & MRS. GENARO the test devised by the United States Supreme Court in U.S. vs. O'Brien.1
VILLAR, PERGEBRIEL GUINITA & CHAREN GUINITA, represented by
their parents MR. & MRS. CESAR GUINITA, ALVIN DOOP represented
II
by his parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE
represented by her parents MR. & MRS. RENE LAUDE, LEOREMINDA
MONARES represented by her parents MR. & MRS. FLORENCIO All the petitioners in the original case 2 were minor school children, and
MONARES, MERCY MONTECILLO, represented by her parents MR. & members of the sect, Jehovah's Witnesses (assisted by their parents) who
MRS. MANUEL MONTECILLO, ROBERTO TANGAHA, represented by were expelled from their classes by various public school authorities in
his parent ILUMINADA TANGAHA, EVELYN MARIA & FLORA Cebu for refusing to salute the flag, sing the national anthem and recite the
TANGAHA represented by their parents MR. & MRS. ALBERTO patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and
TANGAHA, MAXIMO EBRALINAG represented by his parents MR. & by Department Order No. 8, dated July 21, 1955 issued by the Department
MRS. PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON & of Education. Aimed primarily at private educational institutions which did
JONATHAN CUMON, represented by their father RAFAEL CUMON, not observe the flag ceremony exercises, Republic Act No. 1265 penalizes
EVIE LUMAKANG and JUAN LUMAKANG, represented by their parents all educational institutions for failure or refusal to observe the flag ceremony
MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR SARSOZO, with public censure on first offense and cancellation of the recognition or
& IGNA MARIE SARSOZO represented by their parents MR. & MRS. permit on second offense.
VIRGILIO SARSOZO, MICHAEL JOSEPH & HENRY JOSEPH,
represented by parent ANNIE JOSEPH, EMERSON TABLASON &
The implementing regulations issued by the Department of Education
MASTERLOU TABLASON, represented by their parents EMERLITO
thereafter detailed the manner of observance of the same. Immediately
TABLASON, petitioners,
pursuant to these orders, school officials in Masbate expelled children
vs.
belonging to the sect of the Jehovah's Witnesses from school for failing or
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR.
refusing to comply with the flag ceremony requirement. Sustaining these
MANUEL F. BIONGCOG, Cebu District Supervisor, respondents.
expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of
Education3 held that:
G.R. No. 95887 December 29, 1995
The flag is not an image but a symbol of the Republic
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO, of the Philippines, an emblem of national sovereignty,
REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD ALSADO of national unity and cohesion and of freedom and
represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA liberty which it and the Constitution guarantee and
ALSADO, REU ALSADO and LILIBETH ALSADO, represented by their protect. Considering the complete separation of church
parents MR. & MRS. ROLANDO ALSADO, SUZETTE NAPOLES, and state in our system of government, the flag is
represented by her parents ISMAILITO NAPOLES and OPHELIA utterly devoid of any religious significance. Saluting the
NAPOLES, JESICA CARMELOTES, represented by her parents MR. & flag consequently does not involve any religious
MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by ceremony. . . .
her parents MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO,
represented by her parents MR. & MRS. JOEL ALSADO, RAQUEL
After all, the determination of whether a certain ritual is
DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. &
or is not a religious ceremony must rest with the courts.
MRS. LEONARDO DEMOTOR, JURELL VILLA and MELONY VILLA,
It cannot be left to a religious group or sect, much less
represented by their parents MR. & MRS. JOVENIANO VILLA, JONELL
to a follower of said group or sect; otherwise, there
HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE
would be confusion and misunderstanding for there
MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY,
might be as many interpretations and meanings to be
JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their
given to a certain ritual or ceremony as there are
parents FELIPE ANTIOLA and ANECITA ANTIOLA, MARIA
religious groups or sects or followers.
CONCEPCION CABUYAO, represented by her parents WENIFREDO
CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented
by her parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON Upholding religious freedom as a fundamental right deserving the "highest
PALATULON, SALMERO PALATULON and ROSALINA PALATULON, priority and amplest protection among human rights," this Court,
represented by their parents MARTILLANO PALATULON and in Ebralinag vs. Division Superintendent of Schools of Cebu4 re-examined
CARMILA PALATULON, petitioners, our over two decades-old decision in Gerona and reversed expulsion orders
vs. made by the public respondents therein as violative of both the free
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and exercise of religion clause and the right of citizens to education under the
ANTONIO A. SANGUTAN, respondents. 1987 Constitution.5
R E SO L U T I O N From our decision of March 1, 1993, the public respondents filed a motion
for reconsideration on grounds hereinabove stated. After a careful study of
the grounds adduced in the government's Motion For Reconsideration of
our original decision, however, we find no cogent reason to disturb our
earlier ruling.
KAPUNAN, J.:
The religious convictions and beliefs of the members of the religious sect,
The State moves for a reconsideration of our decision dated March 1, 1993 the Jehovah's Witnesses are widely known and are equally widely
granting private respondents' petition for certiorari and prohibition and disseminated in numerous books, magazines, brochures and leaflets
annulling the expulsion orders issued by the public respondents therein on distributed by their members in their house to house distribution efforts and
the ground that the said decision created an exemption in favor of the in many public places. Their refusal to render obeisance to any form or
members of the religious sect, the Jehovah's Witnesses, in violation of the symbol which smacks of idolatry is based on their sincere belief in the
"Establishment Clause" of the Constitution. The Solicitor General, on behalf biblical injunction found in Exodus 20:4,5, against worshipping forms or
of the public respondent, furthermore contends that: idols other than God himself. The basic assumption in their universal refusal
to salute the flags of the countries in which they are found is that such a
salute constitutes an act of religious devotion forbidden by God's law. This
The accommodation by this Honorable Court to a
assumption, while "bizarre" to others is firmly anchored in several biblical
demand for special treatment in favor of a minority sect
passages.6
even on the basis of a claim of religious freedom may
be criticized as granting preference to the religious
And yet, while members of Jehovah's Witnesses, on the basis of religious adduced by the members of the sect Jehovah's Witnesses. Their treatment
convictions, refuse to perform an act (or acts) which they consider of flag as a religious symbol is well-founded and well-documented and is
proscribed by the Bible, they contend that such refusal should not be taken based on grounds religious principle. The message conveyed by their
to indicate disrespect for the symbols of the country or evidence that they refusal to participate in the flag ceremony is religious, shared by the entire
are wanting in patriotism and nationalism. They point out that as citizens, community of Jehovah's Witnesses and is intimately related to their
they have an excellent record as law abiding members of society even if theocratic beliefs and convictions. The subsequent expulsion of members of
they do not demonstrate their refusal to conform to the assailed orders by the sect on the basis of the regulations assailed in the original petitions was
overt acts of conformity. On the contrary, they aver that they show their therefore clearly directed against religious practice. It is obvious that the
respect through less demonstrative methods manifesting their allegiance, assailed orders and memoranda would gravely endanger the free exercise
by their simple obedience to the country's laws, 7 by not engaging in of the religious beliefs of the members of the sect and their minor children.
antigovernment activities of any kind, 8 and by paying their taxes and dues to
society as self-sufficient members of the community. 9 While they refuse to
Furthermore, the view that the flag is not a religious but a neutral, secular
salute the flag, they are willing to stand quietly and peacefully at attention,
symbol expresses a majoritarian view intended to stifle the expression of
hands on their side, in order not to disrupt the ceremony or disturb those
the belief that an act of saluting the flag might sometimes be — to some
who believe differently. 10
individuals — so offensive as to be worth their giving up another
constitutional right — the right to education. Individuals or groups of
The religious beliefs, practices and convictions of the members of the sect individuals get from a symbol the meaning they put to it. 23 Compelling
as a minority are bound to be seen by others as odd and different and at members of a religious sect to believe otherwise on the pain of denying
divergence with the complex requirements of contemporary societies, minor children the right to an education is a futile and unconscionable
particularly those societies which require certain practices as manifestations detour towards instilling virtues of loyalty and patriotism which are best
of loyalty and patriotic behavior. Against those who believe that coerced instilled and communicated by painstaking and non-coercive methods.
loyalty and unity are mere shadows of patriotism, the tendency to exact "a Coerced loyalties, after all, only serve to inspire the opposite. The methods
hydraulic insistence on conformity to majoritarian standards," 11 is seductive utilized to impose them breed resentment and dissent. Those who attempt
to the bureaucratic mindset as a shortcut to patriotism. to coerce uniformity of sentiment soon find out that the only path towards
achieving unity is by way of suppressing dissent. 24 In the end, such attempts
only find the "unanimity of the graveyard."25
No doubt, the State possesses what the Solicitor General describes as the
responsibility "to inculcate in the minds of the youth the values of patriotism
and nationalism and to encourage their involvement in public and civic To the extent to which members of the Jehovah's Witnesses sect
affairs." The teaching of these values ranks at the very apex of education's assiduously pursue their belief in the flag's religious symbolic meaning, the
"high responsibility" of shaping up the minds of the youth in those principles State cannot, without thereby transgressing constitutionally protected
which would mold them into responsible and productive members of our boundaries, impose the contrary view on the pretext of sustaining a policy
society. However, the government's interest in molding the young into designed to foster the supposedly far-reaching goal of instilling patriotism
patriotic and civic spirited citizens is "not totally free from a balancing among the youth. While conceding to the idea — adverted to by the
process"12 when it intrudes into other fundamental rights such as those Solicitor General — that certain methods of religious expression may be
specifically protected by the Free Exercise Clause, the constitutional right to prohibited26 to serve legitimate societal purposes, refusal to participate in
education and the unassailable interest of parents to guide the religious the flag ceremony hardly constitutes a form of religious expression so
upbringing of their children in accordance with the dictates of their offensive and noxious as to prompt legitimate State intervention. It is worth
conscience and their sincere religious beliefs. 13 Recognizing these values, repeating that the absence of a demonstrable danger of a kind which the
Justice Carolina Grino-Aquino, the writer of the original opinion, State is empowered to protect militates against the extreme disciplinary
underscored that a generation of Filipinos which cuts its teeth on the Bill of methods undertaken by school authorities in trying to enforce regulations
Rights would find abhorrent the idea that one may be compelled, on pain of designed to compel attendance in flag ceremonies. Refusal of the children
expulsion, to salute the flag sing the national anthem and recite the patriotic to participate in the flag salute ceremony would not interfere with or deny
pledge during a flag ceremony. 14 "This coercion of conscience has no place the rights of other school children to do so. It bears repeating that their
in a free society".15 absence from the ceremony hardly constitutes a danger so grave and
imminent as to warrant the state's intervention.
The State's contentions are therefore, unacceptable, for no less
fundamental than the right to take part is the right to stand apart. 16 In the Finally, the respondents' insistence on the validity of the actions taken by
context of the instant case, the freedom of religion enshrined in the the government on the basis of their averment that "a government
Constitution should be seen as the rule, not the exception. To view the regulation of expressive conduct is sufficiently justified if it is within the
constitutional guarantee in the manner suggested by the petitioners would constitutional power of the government (and) furthers an important and
be to denigrate the status of a preferred freedom and to relegate it to the substantial government interest"27 misses the whole point of the test
level of an abstract principle devoid of any substance and meaning in the devised by the United States Supreme Court in O'Brien, cited by
lives of those for whom the protection is addressed. As to the contention respondent, because the Court therein was emphatic in stating that "the
that the exemption accorded by our decision benefits a privileged few, it is government interest (should be) unrelated to the suppression of free
enough to re-emphasize that "the constitutional protection of religious expression." We have already stated that the interest in regulation in the
freedom terminated disabilities, it did not create new privileges. It gave case at bench was clearly related to the suppression of an expression
religious equality, not civil immunity." 17 The essence of the free exercise directly connected with the freedom of religion and that respondents have
clause is freedom from conformity to religious dogma, not freedom from not shown to our satisfaction that the restriction was prompted by a
conformity to law because of religious dogma. 18 Moreover, the suggestion compelling interest in public order which the state has a right to protect.
implicit in the State's pleadings to the effect that the flag ceremony Moreover, if we were to refer (as respondents did by referring to the test
requirement would be equally and evenly applied to all citizens regardless in O'Brien) to the standards devised by the US Supreme Court in
of sect or religion and does not thereby discriminate against any particular determining the validity or extent of restrictive regulations impinging on the
sect or denomination escapes the fact that "[a] regulation, neutral on its freedoms of the mind, then the O'Brien standard is hardly appropriate
face, may in its application, nonetheless offend the constitutional because the standard devised in O'Brien only applies if the State's
requirement for governmental neutrality if it unduly burdens the free regulation is not related to communicative conduct. If a relationship exists, a
exercise of religion."19 more demanding standard is applied. 28
Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs.
In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court
The Division Superintendent of Schools of Cebu), 1 March 1993, 219
held that the "State's asserted interest in preserving the fag as a symbol of
SCRA 276.
nationhood and national unity was an interest related to the suppression of
free expression . . . because the State's concern with protecting the flag's
symbolic meaning is implicated only when a person's treatment of the flag
communicates some message. 22 While the very concept of ordered liberty
precludes this Court from allowing every individual to subjectively define his
own standards on matters of conformity in which society, as a whole has
important interests, the records of the case and the long history of flag Separate Opinions
salute cases abundantly supports the religious quality of the claims
Compulsory flag salute lies in a continuum, at one end of which is the
obligation to pay taxes and, at the other, a compulsion to bow down before
a graven image. Members of a religious sect cannot refuse to pay
MENDOZA, J., concurring:
taxes,1 render military service,2 submit to vaccination3 or give their children
elementary school education4 on the ground of conscience. But public
The value of the national flag as a symbol of national unity is not in question school children may not be compelled to attend religious instruction 5 or
in this case. The issue rather is whether it is permissible to compel children recite prayers or join in bible reading before the opening of classes in such
in the Nation's schools to salute the flag as a means of promoting schools.6
nationhood considering that their refusal to do so is grounded on a religious
belief.
In determining the validity of compulsory flag salute, we must determine
which of these polar principles exerts a greater pull. The imposition of taxes
Compulsory flag salute lies in a continuum, at one end of which is the is justified because, unless support for the government can be exacted, the
obligation to pay taxes and, at the other, a compulsion to bow down before existence of the State itself may well be endangered. The compulsory
a graven image. Members of a religious sect cannot refuse to pay vaccination of children is justified because unless the State can compel
taxes,1 render military service,2 submit to vaccination3 or give their children compliance with vaccination program there is danger that a disease will
elementary school education4 on the ground of conscience. But public spread. But unlike the refusal to pay taxes or to submit to compulsory
school children may not be compelled to attend religious instruction 5 or vaccination, the refusal to salute the flag threatens no such dire
recite prayers or join in bible reading before the opening of classes in such consequences to the life or health of the State. Consequently, there is no
schools.6 compelling reason for resorting to compulsion or coercion to achieve the
purpose for which flag salute is instituted.
In determining the validity of compulsory flag salute, we must determine
which of these polar principles exerts a greater pull. The imposition of taxes Indeed schools are not like army camps where the value of discipline
is justified because, unless support for the government can be exacted, the justifies requiring a salute to the flag. Schools are places where diversity
existence of the State itself may well be endangered. The compulsory and spontaneity are valued as much as personal discipline is. They are
vaccination of children is justified because unless the State can compel places for the nurturing of ideals and values, not through compulsion or
compliance with vaccination program there is danger that a disease will coercion but through persuasion, because thought control is a negation of
spread. But unlike the refusal to pay taxes or to submit to compulsory the very values which the educational system seeks to promote. Persuasion
vaccination, the refusal to salute the flag threatens no such dire and not persecution is the means for winning the allegiance of free men.
consequences to the life or health of the State. Consequently, there is no That is why the Constitution provides that the development of moral
compelling reason for resorting to compulsion or coercion to achieve the character and the cultivation of civic spirit are to be pursued through
purpose for which flag salute is instituted. education that includes a study of the Constitution, an appreciation of the
role of national heroes in historical development, teaching the rights and
duties of citizenship and, at the option of parents and guardians, religious
Indeed schools are not like army camps where the value of discipline instruction to be taught by instructors designated by religious authorities of
justifies requiring a salute to the flag. Schools are places where diversity the religion to which they belong. It is noteworthy that while the Constitution
and spontaneity are valued as much as personal discipline is. They are provides for the national flag, 7 it does not give the State the power to
places for the nurturing of ideals and values, not through compulsion or compel a salute to the flag.
coercion but through persuasion, because thought control is a negation of
the very values which the educational system seeks to promote. Persuasion
and not persecution is the means for winning the allegiance of free men. On the other hand, compelling flag salute cannot be likened to compelling
That is why the Constitution provides that the development of moral members of a religious sect to bow down before a graven image. The flag is
character and the cultivation of civic spirit are to be pursued through not an image but a secular symbol. To regard it otherwise because a
education that includes a study of the Constitution, an appreciation of the religious minority regards it so would be to put in question many regulations
role of national heroes in historical development, teaching the rights and that the State may constitutionally enact or measures which it may adopt to
duties of citizenship and, at the option of parents and guardians, religious promote civic virtues which the Constitution itself enjoins the State to
instruction to be taught by instructors designated by religious authorities of promote.8
the religion to which they belong. It is noteworthy that while the Constitution
provides for the national flag, 7 it does not give the State the power to
It trivializes great principles to assimilate compulsory flag salute to a form of
compel a salute to the flag.
command to worship strange idols not only because the flag is not a
religious symbol but also because the salute required involves nothing more
On the other hand, compelling flag salute cannot be likened to compelling than standing at attention or placing one's right hand over the right breast
members of a religious sect to bow down before a graven image. The flag is as the National Anthem is played and of raising the right hand as the
not an image but a secular symbol. To regard it otherwise because a following pledge is recited:
religious minority regards it so would be to put in question many regulations
that the State may constitutionally enact or measures which it may adopt to
Ako'y nanunumpang magtatapat sa watawat ng
promote civic virtues which the Constitution itself enjoins the State to
Pilipinas at sa Republikang kanyang kinakatawan —
promote.8
isang bansang nasa kalinga ng Dios buo at hindi
mahahati, na may kalayaan at katarungan para sa
It trivializes great principles to assimilate compulsory flag salute to a form of lahat.
command to worship strange idols not only because the flag is not a
religious symbol but also because the salute required involves nothing more
(I pledge allegiance to the flag and to the nation for
than standing at attention or placing one's right hand over the right breast
which it
as the National Anthem is played and of raising the right hand as the
stands — one nation under God indivisible, with liberty
following pledge is recited:
and justice for all.)
21 West Virginia v. Barnette 319 US 624, at 6 Engel v. Vitale, 307 U.S. 421 (1962);
339 (1942). Abington School Dist. v. Schempp, 374 U.S.
203 (1963); cf. Wallace v. Jaffree, 472 U.S.
38 (1985).
22 U.S. v. Eichman 496 US 310, 313; 110 L
ed 2d 287 (1990).
7 CONST., Art. XVI, §1.
23 Supra, note 4.
8 See Art. II, §13; Art. XIV, §3(2).
24 Id., at 640.
On June 10, 1993, Fr. Nebres submitted his report. He reported that a
comparison of the scores in Bio-Chem and Ob-Gyne, of the Fatima College
examinees with those of examinees from De La Salle University and
Perpetual Help College of Medicine showed that the scores of Fatima
College examinees were not only incredibly high but unusually clustered
close to each other. He concluded that there must be some unusual reason
creating the clustering of scores in the two subjects. It must be a cause
"strong enough to eliminate the normal variations that one should expect
SECOND DIVISION from the examinees [of Fatima College] in terms of talent, effort, energy,
etc."5
G.R. No. 144681 June 21, 2004
For its part, the NBI found that "the questionable passing rate of Fatima
examinees in the [1993] Physician Examination leads to the conclusion that
PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN
the Fatima examinees gained early access to the test questions."6
HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO
PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE
GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses,
POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and
II, petitioners, Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity)
vs. filed a special civil action for mandamus, with prayer for preliminary
ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. mandatory injunction docketed as Civil Case No. 93-66530 with the
NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted
and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, by the other respondents as intervenors.
MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D.
SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR,
ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993,
MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN charging respondents with "immorality, dishonest conduct, fraud, and
C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, deceit" in connection with the Bio-Chem and Ob-Gyne examinations. It
ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, recommended that the test results of the Fatima examinees be nullified.
EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, The case was docketed as Adm. Case No. 1687 by the PRC.
VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J.
PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530
MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, granting the preliminary mandatory injunction sought by the respondents. It
FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, ordered the petitioners to administer the physician’s oath to Arlene V. De
GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, Guzman et al., and enter their names in the rolls of the PRC.
FEDERICO L. CASTILLO, MELITA J. CAÑEDO, SAMUEL B. BANGOY,
BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D.
FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, The petitioners then filed a special civil action for certiorari with the Court of
CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP
CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. No. 31701.
CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA,
DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701,
HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, with the dispositive portion of the Decision ordaining as follows:
NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI,
CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A.
SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and WHEREFORE, this petition is GRANTED. Accordingly, the writ of
YOLANDA P. UNICA, respondents. preliminary mandatory injunction issued by the lower court
against petitioners is hereby nullified and set aside.
DECISION
SO ORDERED.7
TINGA, J.:
Arlene V. de Guzman, et al., then elevated the foregoing Decision to this
Court in G.R. No. 112315. In our Resolution dated May 23, 1994, we
This petition for review under Rule 45 of the 1997 Rules of Civil Procedure denied the petition for failure to show reversible error on the part of the
seeks to nullify the Decision,1 dated May 16, 2000, of the Court of Appeals appellate court.
in CA-G.R. SP No. 37283. The appellate court affirmed the judgment 2 dated
December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch
52, in Civil Case No. 93-66530. The trial court allowed the respondents to Meanwhile, on November 22, 1993, during the pendency of the instant
take their physician’s oath and to register as duly licensed physicians. petition, the pre-trial conference in Civil Case No. 93-66530 was held. Then,
Equally challenged is the Resolution3 promulgated on August 25, 2000 of the parties, agreed to reduce the testimonies of their respective witnesses
the Court of Appeals, denying petitioners’ Motion for Reconsideration. to sworn questions-and-answers. This was without prejudice to cross-
examination by the opposing counsel.
On June 7, 1993, the Board issued Resolution No. 19, withholding the
registration as physicians of all the examinees from the Fatima College of WHEREFORE, the present petition for certiorari with prayer for
Medicine.4 The PRC asked the National Bureau of Investigation (NBI) to temporary restraining order/preliminary injunction is GRANTED
investigate whether any anomaly or irregularity marred the February 1993 and the Orders of December 13, 1993, February 7, 1994,
Physician Licensure Examination. February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch
52, and all further proceedings taken by it in Special Civil Action
No. 93-66530 are hereby DECLARED NULL and VOID. The said
Prior to the NBI investigation, the Board requested Fr. Bienvenido F. RTC-Manila is ordered to allow petitioners’ counsel to cross-
Nebres, S.J., an expert mathematician and authority in statistics, and later examine the respondents’ witnesses, to allow petitioners to
present their evidence in due course of trial, and thereafter to Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro,
decide the case on the merits on the basis of the evidence of the manifested that they were no longer interested in proceeding with the case
parties. Costs against respondents. and moved for its dismissal. A similar manifestation and motion was later
filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma
G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica,
IT IS SO ORDERED.8
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil
R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D.
The trial was then set and notices were sent to the parties. Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas,
Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E.
Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its
A day before the first hearing, on September 22, 1994, the petitioners filed decision in CA-G.R. SP No. 37283 would not apply to them.
an Urgent Ex-Parte Manifestation and Motion praying for the partial
reconsideration of the appellate court’s decision in CA-G.R. SP No. 34506,
and for the outright dismissal of Civil Case No. 93-66530. The petitioners On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283,
asked for the suspension of the proceedings. with the following fallo, to wit:
In its Order dated September 23, 1994, the trial court granted the aforesaid WHEREFORE, finding no reversible error in the decision
motion, cancelled the scheduled hearing dates, and reset the proceedings appealed from, We hereby AFFIRM the same and DISMISS the
to October 21 and 28, 1994. instant appeal.
Meanwhile, on October 25, 1994, the Court of Appeals denied the partial No pronouncement as to costs.
motion for reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed
with the Supreme Court a petition for review docketed as G.R. No. 117817,
SO ORDERED.13
entitled Professional Regulation Commission, et al. v. Court of Appeals, et
al.
In sustaining the trial court’s decision, the appellate court ratiocinated that
the respondents complied with all the statutory requirements for admission
On November 11, 1994, counsel for the petitioners failed to appear at the
into the licensure examination for physicians in February 1993. They all
trial of Civil Case No. 93-66530. Upon motion of the respondents herein, the
passed the said examination. Having fulfilled the requirements of Republic
trial court ruled that herein petitioners waived their right to cross-examine
Act No. 2382,14 they should be allowed to take their oaths as physicians and
the herein respondents. Trial was reset to November 28, 1994.
be registered in the rolls of the PRC.
On November 25, 1994, petitioners’ counsel moved for the inhibition of the
Hence, this petition raising the following issues:
trial court judge for alleged partiality. On November 28, 1994, the day
the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the
trial court denied the Motion to Inhibit and declared Civil Case No. 93- I
66530 deemed submitted for decision.
WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE
On December 19, 1994, the trial court handed down its judgment in Civil OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE
Case No. 93-66530, the fallo of which reads: LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT
IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS’
DECISION DECLARING THAT IF EVER THERE IS SOME
WHEREFORE, judgment is rendered ordering the respondents to
DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE
allow the petitioners and intervenors (except those with asterisks
ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT
and footnotes in pages 1 & 2 of this decision) [sic], 9 to take the
AUTOMATICALLY GRANTED TO THE SUCCESSFUL
physician’s oath and to register them as physicians.
EXAMINEES.
SO ORDERED.10
To our mind, the only issue is: Did the Court of Appeals commit a reversible
error of law in sustaining the judgment of the trial court that respondents are
As a result of these developments, petitioners filed with this Court a petition entitled to a writ of mandamus?
for review on certiorari docketed as G.R. No. 118437, entitled Professional
Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1)
The petitioners submit that a writ of mandamus will not lie in this case. They
G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of
point out that for a writ of mandamus to issue, the applicant must have a
the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be
well-defined, clear and certain legal right to the thing demanded and it is the
nullified for its failure to decree the dismissal of Civil Case No. 93-66530,
duty of the respondent to perform the act required. Thus, mandamus may
and in the alternative, to set aside the decision of the trial court in Civil Case
be availed of only when the duty sought to be performed is a ministerial and
No. 93-66530, order the trial court judge to inhibit himself, and Civil Case
not a discretionary one. The petitioners argue that the appellate court’s
No. 93-66530 be re-raffled to another branch.
decision in CA-G.R. SP No. 37283 upholding the decision of the trial court
in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R.
On December 26, 1994, the petitioners herein filed their Notice of SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the
Appeal11 in Civil Case No. 93-66530, thereby elevating the case to the Court issuance of a license to engage in the practice of medicine becomes
of Appeals, where it was docketed as CA-G.R. SP No. 37283. discretionary on the PRC if there exists some doubt that the successful
examinee has not fully met the requirements of the law. The petitioners
stress that this Court’s Resolution dated May 24, 1994 in G.R. No. 112315
In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with held that there was no showing "that the Court of Appeals had committed
G.R. No. 117817. any reversible error in rendering the questioned judgment" in CA-G.R. SP
No. 31701. The petitioners point out that our Resolution in G.R. No. 112315
On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise: has long become final and executory.
WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for Respondents counter that having passed the 1993 licensure examinations
being moot. The petition in G.R. No. 118437 is likewise for physicians, the petitioners have the obligation to administer to them the
DISMISSED on the ground that there is a pending appeal before oath as physicians and to issue their certificates of registration as
the Court of Appeals. Assistant Solicitor General Amparo M. physicians pursuant to Section 2016 of Rep. Act No. 2382. The Court of
Cabotaje-Tang is advised to be more circumspect in her dealings Appeals in CA-G.R. SP No. 37283, found that respondents complied with all
with the courts as a repetition of the same or similar acts will be the requirements of Rep. Act No. 2382. Furthermore, respondents were
dealt with accordingly. admitted by the Medical Board to the licensure examinations and had
passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the
petitioners had the obligation to administer their oaths as physicians and
SO ORDERED.12 register them.
While CA-G.R. SP No. 37283 was awaiting disposition by the appellate Mandamus is a command issuing from a court of competent jurisdiction, in
court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93- the name of the state or the sovereign, directed to some inferior court,
66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, tribunal, or board, or to some corporation or person requiring the
Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando performance of a particular duty therein specified, which duty results from
T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. the official station of the party to whom the writ is directed, or from operation
Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta- of law.17 Section 3 of Rule 6518 of the 1997 Rules of Civil Procedure outlines
Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, two situations when a writ of mandamus may issue, when any tribunal,
Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, corporation, board, officer or person unlawfully (1) neglects the performance
Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria of an act which the law specifically enjoins as a duty resulting from an
Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, office, trust, or station; or (2) excludes another from the use and enjoyment
Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. of a right or office to which the other is entitled.
We shall discuss the issues successively. Petitioners reject respondents’ argument. We are informed that in Board
Resolution No. 26, 29 dated July 21, 1993, the Board resolved to file charges
against the examinees from Fatima College of Medicine for "immorality,
1. On The Existence of a Duty of the Board of Medicine To Issue
dishonesty, fraud, and deceit in the Obstetrics-Gynecology and
Certificates of Registration as Physicians under Rep. Act No. 2382.
Biochemistry examinations." It likewise sought to cancel the examination
results obtained by the examinees from the Fatima College.
For mandamus to prosper, there must be a showing that the officer, board,
or official concerned, has a clear legal duty, not involving
Section 830 of Rep. Act No. 2382 prescribes, among others, that a person
discretion.19 Moreover, there must be statutory authority for the performance
who aspires to practice medicine in the Philippines, must have "satisfactorily
of the act,20 and the performance of the duty has been refused. 21 Thus, it
passed the corresponding Board Examination." Section 22, in turn, provides
must be pertinently asked now: Did petitioners have the duty to administer
that the oath may only be administered "to physicians who qualified in the
the Hippocratic Oath and register respondents as physicians under the
examinations." The operative word here is "satisfactorily," defined as
Medical Act of 1959?
"sufficient to meet a condition or obligation" or "capable of dispelling doubt
or ignorance."31 Gleaned from Board Resolution No. 26, the licensing
As found by the Court of Appeals, on which we agree on the basis of the authority apparently did not find that the respondents "satisfactorily passed"
records: the licensure examinations. The Board instead sought to nullify the
examination results obtained by the respondents.
It bears emphasizing herein that petitioner-appellees and
intervenor-appellees have fully complied with all the statutory 2. On the Right Of The Respondents To Be Registered As Physicians
requirements for admission into the licensure examinations for
physicians conducted and administered by the respondent-
The function of mandamus is not to establish a right but to enforce one that
appellants on February 12, 14, 20 and 21, 1993. Stress, too, must
has been established by law. If no legal right has been violated, there can
be made of the fact that all of them successfully passed the same
be no application of a legal remedy, and the writ of mandamus is a legal
examinations.22
remedy for a legal right.32 There must be a well-defined, clear and certain
legal right to the thing demanded. 33 It is long established rule that a license
The crucial query now is whether the Court of Appeals erred in concluding to practice medicine is a privilege or franchise granted by the government. 34
that petitioners should allow the respondents to take their oaths as
physicians and register them, steps which would enable respondents to
It is true that this Court has upheld the constitutional right 35 of every citizen
practice the medical profession23 pursuant to Section 20 of the Medical Act
to select a profession or course of study subject to a fair, reasonable, and
of 1959?
equitable admission and academic requirements. 36 But like all rights and
freedoms guaranteed by the Charter, their exercise may be so regulated
The appellate court relied on a single provision, Section 20 of Rep. Act No. pursuant to the police power of the State to safeguard health, morals,
2382, in concluding that the petitioners had the ministerial obligation to peace, education, order, safety, and general welfare of the people. 37 Thus,
administer the Hippocratic Oath to respondents and register them as persons who desire to engage in the learned professions requiring scientific
physicians. But it is a basic rule in statutory construction that each part of a or technical knowledge may be required to take an examination as a
statute should be construed in connection with every other part to produce a prerequisite to engaging in their chosen careers. This regulation takes
harmonious whole, not confining construction to only one section. 24 The particular pertinence in the field of medicine, to protect the public from the
intent or meaning of the statute should be ascertained from the statute potentially deadly effects of incompetence and ignorance among those who
taken as a whole, not from an isolated part of the provision. Accordingly, would practice medicine. In a previous case, it may be recalled, this Court
Section 20, of Rep. Act No. 2382, as amended should be read in has ordered the Board of Medical Examiners to annul both its resolution
conjunction with the other provisions of the Act. Thus, to determine whether and certificate authorizing a Spanish subject, with the degree of Licentiate
the petitioners had the ministerial obligation to administer the Hippocratic in Medicine and Surgery from the University of Barcelona, Spain, to practice
Oath to respondents and register them as physicians, recourse must be had medicine in the Philippines, without first passing the examination required
to the entirety of the Medical Act of 1959. by the Philippine Medical Act.38 In another case worth noting, we upheld the
power of the State to upgrade the selection of applicants into medical
schools through admission tests.39
A careful reading of Section 20 of the Medical Act of 1959 discloses that the
law uses the word "shall" with respect to the issuance of certificates of
registration. Thus, the petitioners "shall sign and issue certificates of It must be stressed, nevertheless, that the power to regulate the exercise of
registration to those who have satisfactorily complied with the requirements a profession or pursuit of an occupation cannot be exercised by the State or
of the Board." In statutory construction the term "shall" is a word of its agents in an arbitrary, despotic, or oppressive manner. A political body
command. It is given imperative meaning. Thus, when an examinee that regulates the exercise of a particular privilege has the authority to both
satisfies the requirements for the grant of his physician’s license, the Board forbid and grant such privilege in accordance with certain conditions. Such
is obliged to administer to him his oath and register him as a physician, conditions may not, however, require giving up ones constitutional rights as
pursuant to Section 20 and par. (1) of Section 2225 of the Medical Act of a condition to acquiring the license.40 Under the view that the legislature
1959. cannot validly bestow an arbitrary power to grant or refuse a license on a
public agency or officer, courts will generally strike down license legislation
that vests in public officials discretion to grant or refuse a license to carry on
However, the surrounding circumstances in this case call for serious inquiry some ordinarily lawful business, profession, or activity without prescribing
concerning the satisfactory compliance with the Board requirements by the definite rules and conditions for the guidance of said officials in the exercise
respondents. The unusually high scores in the two most difficult subjects of their power.41
was phenomenal, according to Fr. Nebres, the consultant of PRC on the
matter, and raised grave doubts about the integrity, if not validity, of the
tests. These doubts have to be appropriately resolved. In the present case, the aforementioned guidelines are provided for in Rep.
Act No. 2382, as amended, which prescribes the requirements for
admission to the practice of medicine, the qualifications of candidates for
Under the second paragraph of Section 22, the Board is vested with the the board examinations, the scope and conduct of the examinations, the
power to conduct administrative investigations and "disapprove applications grounds for denying the issuance of a physician’s license, or revoking a
for examination or registration," pursuant to the objectives of Rep. Act No. license that has been issued. Verily, to be granted the privilege to practice
2382 as outlined in Section 126 thereof. In this case, after the investigation, medicine, the applicant must show that he possesses all the qualifications
the Board filed before the PRC, Adm. Case No. 1687 against the and none of the disqualifications. Furthermore, it must appear that he has
respondents to ascertain their moral and mental fitness to practice fully complied with all the conditions and requirements imposed by the law
medicine, as required by Section 9 27 of Rep. Act No. 2382. In and the licensing authority. Should doubt taint or mar the compliance as
its Decision dated July 1, 1997, the Board ruled: being less than satisfactory, then the privilege will not issue. For said
privilege is distinguishable from a matter of right, which may be demanded if
WHEREFORE, the BOARD hereby CANCELS the respondents[’] denied. Thus, without a definite showing that the aforesaid requirements
examination papers in the Physician Licensure Examinations and conditions have been satisfactorily met, the courts may not grant the
given in February 1993 and further DEBARS them from taking writ of mandamus to secure said privilege without thwarting the legislative
any licensure examination for a period of ONE (1) YEAR from the will.
date of the promulgation of this DECISION. They may, if they so
desire, apply for the scheduled examinations for physicians after 3. On the Ripeness of the Petition for Mandamus
the lapse of the period imposed by the BOARD.
Lastly, the petitioners herein contend that the Court of Appeals should have
SO ORDERED.28 dismissed the petition for mandamus below for being premature. They
argue that the administrative remedies had not been exhausted. The
Until the moral and mental fitness of the respondents could be ascertained, records show that this is not the first time that petitioners have sought the
according to petitioners, the Board has discretion to hold in abeyance the dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No.
administration of the Hippocratic Oath and the issuance of the certificates to 115704, which petition we referred to the Court of Appeals, where it was
them. The writ of mandamus does not lie to compel performance of an act docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-
which is not duly authorized. G.R. SP No. 34506, the appellate court denied the motion to dismiss on the
ground that the prayers for the nullification of the order of the trial court and
the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R.
The respondents nevertheless argue that under Section 20, the Board shall No. 118437, the petitioners sought to nullify the decision of the Court of
not issue a certificate of registration only in the following instances: (1) to Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal
any candidate who has been convicted by a court of competent jurisdiction of Civil Case No. 93-66530. In our consolidated decision, dated July 9,
of any criminal offense involving moral turpitude; (2) or has been found 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice
guilty of immoral or dishonorable conduct after the investigation by the Bellosillo opined that:
Board; or (3) has been declared to be of unsound mind. They aver that
none of these circumstances are present in their case.
Indeed, the issue as to whether the Court of Appeals erred in not
ordering the dismissal of Civil Case No. 93-66530 sought to be
resolved in the instant petition has been rendered meaningless by Supra, note 1 at 408. Penned by Associate Justice Cancio C.
3
an event taking place prior to the filing of this petition and denial Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and
thereof should follow as a logical consequence. 42 There is no Renato C. Dacudao, concurring.
longer any justiciable controversy so that any declaration thereon
would be of no practical use or value. 43 It should be recalled that 4
Id. at 69.
in its decision of 19 December 1994 the trial court granted the writ
of mandamus prayed for by private respondents, which decision
was received by petitioners on 20 December 1994. Three (3) 5
Id. at 96.
days after, or on 23 December 1994, petitioners filed the instant
petition. By then, the remedy available to them was to appeal the 6
Id. at 92.
decision to the Court of Appeals, which they in fact did, by filing a
notice of appeal on 26 December 1994.44
7
Id. at 175. Penned by Associate Justice Alfredo L. Benipayo and
concurred in by Presiding Justice Santiago M. Kapunan (later a
The petitioners have shown no cogent reason for us to reverse the
member of the Supreme Court and now retired) and Associate
aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion
Justice Ma. Alicia Austria-Martinez (now a member of the Second
of administrative remedies in the instant case advance their cause any.
Division of the Supreme Court).
Section 2645 of the Medical Act of 1959 provides for the administrative and 8
Rollo, pp. 199-200. Penned by Associate Justice Jaime M.
judicial remedies that respondents herein can avail to question Resolution
Lantin, with Associate Justices Angelina S. Gutierrez (now a
No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable
member of the Supreme Court), and Conchita Carpio Morales
judgment to the PRC; (b) should the PRC ruling still be unfavorable, to
(likewise a present member of the Supreme Court) concurring.
elevate the matter on appeal to the Office of the President; and (c) should
they still be unsatisfied, to ask for a review of the case or to bring the case
to court via a special civil action of certiorari. Thus, as a rule, mandamus will 9
Of the intervenors in Civil Case No. 93-66530, Achilles Peralta
not lie when administrative remedies are still available. 46 However, the and Evelyn Ramos were dropped as parties per Order of the trial
doctrine of exhaustion of administrative remedies does not apply where, as court dated August 24, 1993. The case was dismissed as to Sally
in this case, a pure question of law is raised. 47 On this issue, no reversible Bunagan, Reogelio Ancheta, Oscar Padua, Evelyn Grajo,
error may, thus, be laid at the door of the appellate court in CA-G.R. SP No. Valentino Arboleda, Carlos Bernardo, Jr., Mario Cuaresma,
37283, when it refused to dismiss Civil Case No. 93-66530. Violeta Felipe, and Percival Pangilinan as per Order dated
November 25, 1994. Corazon Cruz and Samuel Bangoy were
deemed by the trial court no longer entitled to the avails of the
As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F.
suit for seeking extrajudicial relief from the Board of Medicine, as
Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-
per its Order dated November 25, 1994. See CA Rollo, pp. 140-
Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-
141.
Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn
S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno- 10
CA Rollo, pp. 174-175.
Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B.
Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M.
Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E.
11
Id. at 205.
Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose
Ramoncito P. Navarro manifested to the Court of Appeals during the G.R. Nos. 117817 and 118437, 9 July 1998, 292 SCRA 155,
12
pendency of CA-G.R. SP No. 37283, that they were no longer interested in 167. Penned by Associate Justice Josue N. Bellosillo, with
proceeding with the case and moved for its dismissal insofar as they were Associate Justices Hilario G. Davide, Jr., Jose C. Vitug, Artemio
concerned. A similar manifestation and motion were later filed by V. Panganiban, and Leonardo A. Quisumbing concurring.
intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G.
Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica,
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil
13
Rollo, p. 67.
R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D.
Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, 14
The Medical Act of 1959.
Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E.
Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and
motions, the appellate court in CA-G.R. SP No. 37283 decreed that its
15
Rollo, pp. 28-29.
ruling would not apply to them. Thus, inasmuch as the instant case is a
petition for review of the appellate court’s ruling in CA-G.R. SP No. 37283, a 16
SEC. 20. Issuance of Certificates of Registration, grounds for
decision which is inapplicable to the aforementioned respondents will refusal of [the] same. – The Commissioner of Civil Service (now
similarly not apply to them. Professional Regulation Commission) the chairman, the members
and the Secretary of the Board of Medical Examiners (now
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Medical Board) shall sign and issue certificates of registration to
Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, those who have satisfactorily complied with the requirements of
Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. the Board. They shall not issue a certificate of registration to any
Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall candidate who has been convicted by a court of competent
not apply pursuant to the Orders of the trial court in Civil Case No. 93- jurisdiction of any criminal offense involving moral turpitude, or
66530, dropping their names from the suit. has been found guilty of immoral or dishonorable conduct after
the investigation by the Board of Medical Examiners (now
Medical Board), or has been declared to be of unsound mind. (As
Consequently, this Decision is binding only on the remaining respondents, amended by Rep. Act No. 4224, which took effect June 19,
namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, 1965).
Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez,
Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana
and Merly D. Sta. Ana, as well as the petitioners. See United States v. Boutwell, 17 Wall (US) 604, 21 L. Ed 721;
17
2
CA Rollo, pp. 140-175. See State ex rel Jester v. Paige, supra; Pedroso v. De Walt, et
20
723; State ex rel Sharp v. Cross, supra; State ex rel Hacharedi v. 203, 210; Ocampo v. Subido, No. L-28344, 27 August 1976, 72
Baxter, 74 N.E. 2d 242, 332 US 827, 92 L. Ed 402, 68 S. Ct 209. SCRA 443, 452-453.
22
Rollo, p. 58. See Morse v. State Board of Medical Examiners, 122 S.W.
34
694. See also Araneta v. Concepcion and Araneta, No. L-9667, Reyes v. Court of Appeals, G.R. Nos. 94961 and 96491, 25
36
31 July 1956, 99 Phil. 709, 712. February 1991, 194 SCRA 402, 409-410.
25
SEC. 22. Administrative investigations. – In addition to the Primicias v. Fugoso, No. L-1800, 27 January 1948, 80 Phil. 71,
37
medical profession; (4) to subpoena or subpoena duces tecum 1987, 152 SCRA 730, 743.
witnesses for all purposes required in the discharge of its duties;
and (5) to promulgate, with the approval of the Commissioner of
See Manchester Press Club v. State Liquor Commission, 200
40
Civil Service (now Professional Regulation Commission), such
A. 407, 116 ALR 1093.
rules and regulations as it may deem necessary for the
performance of its duties in harmony with the provisions of this
Act and necessary for the proper practice of medicine in the See Yick Wo v. Hopkins, 118 US 356, 30 L.Ed. 220, 6 S. Ct.
41
proceedings shall be considered void. The existing 1989, 169 SCRA 167.
rules of evidence shall be observed during all
administrative investigations. The Board may
disapprove applications for examination or registration, Citing Gancho-on v. Secretary of Labor and Employment, G.R.
43
reprimand erring physicians, or suspend or revoke No. 108033, 14 April 1997, 271 SCRA 204, 208.
registration certificates, if the respondents are found
guilty after due investigation. (As amended by Rep. Act Rollo, pp. 340-341.
44
(1) He shall be a citizen of the Philippines or a citizen of Ang Tuan Kai & Co. v. Import Control Commission, No. L-4427,
46
any foreign country who has submitted competent and 21 April 1952, 91 Phil. 143, 145; Peralta v. Salcedo, etc., No. L-
conclusive documentary evidence, confirmed by the 10771, 30 April 1957, 101 Phil. 452, 454.
Department of Foreign Affairs, showing that his
country’s existing laws permit citizens of the Philippines See Madrigal v. Lecaroz, G.R. No. 46218, 23 October 1990,
47
to practice medicine under the same rules and 191 SCRA 20, 26.
regulations governing citizens thereof;
28
Rollo, p. 419.
29
Id. at 99.
30
SEC. 8. Prerequisite to the practice of medicine. – No person
shall engage in the practice of medicine in the Philippines unless
he is at least twenty-one years of age, has satisfactorily passed
the corresponding Board Examination, and is a holder of a valid
Certificate of Registration duly issued to him by the Board of
Medical Examiners (now Medical Board).
31
Webster’s New International Dictionary 2017 (1993 ed.).
xxx xxx xxx Respondent’s defense is that Ordinance No. 8027 has been superseded by
the MOU and the resolutions. 14 However, he also confusingly argues that
the ordinance and MOU are not inconsistent with each other and that the
SEC. 3. Owners or operators of industries and other businesses, the
latter has not amended the former. He insists that the ordinance remains
operation of which are no longer permitted under Section 1 hereof, are
valid and in full force and effect and that the MOU did not in any way
hereby given a period of six (6) months from the date of effectivity of this
prevent him from enforcing and implementing it. He maintains that the MOU
Ordinance within which to cease and desist from the operation of
should be considered as a mere guideline for its full implementation. 15
businesses which are hereby in consequence, disallowed.
Section 3. - The development and maintenance of the safety and green
On the other hand, the Local Government Code imposes upon respondent
buffer zones mentioned therein, which shall be taken from the properties of
the duty, as city mayor, to "enforce all laws and ordinances relative to the
the OIL COMPANIES and not from the surrounding communities, shall be
governance of the city.">20 One of these is Ordinance No. 8027. As the chief
the sole responsibility of the OIL COMPANIES.
executive of the city, he has the duty to enforce Ordinance No. 8027 as long
as it has not been repealed by the Sanggunian or annulled by the
courts.21 He has no other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:
These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason
for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to
question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared
unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.23
The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by
the Sanggunian have made the respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also
connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of
We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions
which ratified it and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, at
present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24
Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September
11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the
residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan
WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed
to immediately enforce Ordinance No. 8027.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
CANCIO C. GARCIA
Associate Justice
CERTIFICATIO
Republic of the Philippines c) Permanent
SUPREME COURT revocation of
Manila the business
permit and
imprisonment
EN BANC
of One (1)
year, for the
third and
subsequent
offenses.
G.R. No. 111097 July 20, 1994
Aquilino G. Pimentel, Jr. and Associates for petitioners. ORDINANCE NO. 3375-93
R.R. Torralba & Associates for private respondent. AN ORDINANCE PROHIBITING THE OPERATION OF
CASINO AND PROVIDING PENALTY FOR
VIOLATION THEREFOR.
(v) Enact It is also maintained that assuming there is doubt regarding the effect of the
ordinances Local Government Code on P.D. 1869, the doubt must be resolved in favor
intended to of the petitioners, in accordance with the direction in the Code calling for its
prevent, liberal interpretation in favor of the local government units. Section 5 of the
suppress and Code specifically provides:
impose
appropriate
penalties for Sec. 5. Rules of Interpretation. — In the interpretation
habitual of the provisions of this Code, the following rules shall
drunkenness apply:
in public
places, (a) Any provision on a power of a local government unit
vagrancy, shall be liberally interpreted in its favor, and in case of
mendicancy, doubt, any question thereon shall be resolved in favor
prostitution, of devolution of powers and of the lower local
establishment government unit. Any fair and reasonable doubt as to
and the existence of the power shall be interpreted in favor
maintenance of the local government unit concerned;
of houses of ill
repute, gambli
ng and other xxx xxx xxx
prohibited
games of
(c) The general welfare provisions in this Code shall be
chance,
liberally interpreted to give more powers to local
fraudulent
government units in accelerating economic
devices and
development and upgrading the quality of life for the
ways to obtain
people in the community; . . . (Emphasis supplied.)
money or
Finally, the petitioners also attack gambling as intrinsically harmful and cite discretionary but mandated by Section 458 of the Code if the word "shall"
various provisions of the Constitution and several decisions of this Court as used therein is to be given its accepted meaning. Local government units
expressive of the general and official disapprobation of the vice. They have now no choice but to prevent and suppress gambling, which in the
invoke the State policies on the family and the proper upbringing of the petitioners' view includes both legal and illegal gambling. Under this
youth and, as might be expected, call attention to the old case of U.S. v. construction, PAGCOR will have no more games of chance to regulate or
Salaveria,7 which sustained a municipal ordinance prohibiting the playing centralize as they must all be prohibited by the local government units
of panguingue. The petitioners decry the immorality of gambling. They also pursuant to the mandatory duty imposed upon them by the Code. In this
impugn the wisdom of P.D. 1869 (which they describe as "a martial law situation, PAGCOR cannot continue to exist except only as a toothless tiger
instrument") in creating PAGCOR and authorizing it to operate casinos "on or a white elephant and will no longer be able to exercise its powers as a
land and sea within the territorial jurisdiction of the Philippines." prime source of government revenue through the operation of casinos.
This is the opportune time to stress an important point. It is noteworthy that the petitioners have cited only Par. (f) of the repealing
clause, conveniently discarding the rest of the provision which painstakingly
mentions the specific laws or the parts thereof which are repealed (or
The morality of gambling is not a justiciable issue. Gambling is not
modified) by the Code. Significantly, P.D. 1869 is not one of them. A
illegal per se. While it is generally considered inimical to the interests of the
reading of the entire repealing clause, which is reproduced below, will
people, there is nothing in the Constitution categorically proscribing or
disclose the omission:
penalizing gambling or, for that matter, even mentioning it at all. It is left to
Congress to deal with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or allow it Sec. 534. Repealing Clause. — (a) Batas Pambansa
without limitation or it may prohibit some forms of gambling and allow others Blg. 337, otherwise known as the "Local Government
for whatever reasons it may consider sufficient. Thus, it has Code," Executive Order No. 112 (1987), and Executive
prohibited jueteng and monte but permits lotteries, cockfighting and horse- Order No. 319 (1988) are hereby repealed.
racing. In making such choices, Congress has consulted its own wisdom,
which this Court has no authority to review, much less reverse. Well has it
(b) Presidential Decree Nos. 684, 1191, 1508 and such
been said that courts do not sit to resolve the merits of conflicting
other decrees, orders, instructions, memoranda and
theories. 8 That is the prerogative of the political departments. It is settled
issuances related to or concerning the barangay are
that questions regarding the wisdom, morality, or practicibility of statutes are
hereby repealed.
not addressed to the judiciary but may be resolved only by the legislative
and executive departments, to which the function belongs in our scheme of
government. That function is exclusive. Whichever way these branches (c) The provisions of Sections 2, 3, and 4 of Republic
decide, they are answerable only to their own conscience and the Act No. 1939 regarding hospital fund; Section 3, a (3)
constituents who will ultimately judge their acts, and not to the courts of and b (2) of Republic Act. No. 5447 regarding the
justice. Special Education Fund; Presidential Decree No. 144
as amended by Presidential Decree Nos. 559 and
1741; Presidential Decree No. 231 as amended;
The only question we can and shall resolve in this petition is the validity of
Presidential Decree No. 436 as amended by
Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the
Presidential Decree No. 558; and Presidential Decree
Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only
Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are
by the criteria laid down by law and not by our own convictions on the
hereby repealed and rendered of no force and effect.
propriety of gambling.
The rationale of the requirement that the ordinances should not contravene
a statute is obvious. Municipal governments are only agents of the national . . . I agree with the decision insofar as it holds that the
government. Local councils exercise only delegated legislative powers prohibition, control, and regulation of the entire activity
conferred on them by Congress as the national lawmaking body. The known as gambling properly pertain to "state policy". It
delegate cannot be superior to the principal or exercise powers higher than is, therefore, the political departments of government,
those of the latter. It is a heresy to suggest that the local government units namely, the legislative and the executive that should
can undo the acts of Congress, from which they have derived their power in decide on what government should do in the entire
the first place, and negate by mere ordinance the mandate of the statute. area of gambling, and assume full responsibility to
the people for such policy." (Emphasis supplied)
We hold that the power of PAGCOR to centralize and regulate all games of It must at once be noted that private respondent Pryce Properties
chance, including casinos on land and sea within the territorial jurisdiction of Corporation (PRYCE) directly filed with the Court of Appeals its so-called
the Philippines, remains unimpaired. P.D. 1869 has not been modified by petition for prohibition, thereby invoking the said court's original jurisdiction
the Local Government Code, which empowers the local government units to to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,
prevent or suppress only those forms of gambling prohibited by law. however, the principal cause of action therein is one for declaratory relief: to
declare null and unconstitutional — for, inter alia, having been enacted
Casino gambling is authorized by P.D. 1869. This decree has the status of without or in excess of jurisdiction, for impairing the obligation of contracts,
a statute that cannot be amended or nullified by a mere ordinance. Hence, it and for being inconsistent with public policy — the challenged ordinances
was not competent for the Sangguniang Panlungsod of Cagayan de Oro enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro.
City to enact Ordinance No. 3353 prohibiting the use of buildings for the The intervention therein of public respondent Philippine Amusement and
operation of a casino and Ordinance No. 3375-93 prohibiting the operation Gaming Corporation (PAGCOR) further underscores the "declaratory relief"
of casinos. For all their praiseworthy motives, these ordinances are contrary nature of the action. PAGCOR assails the ordinances for being contrary to
to P.D. 1869 and the public policy announced therein and are the non-impairment and equal protection clauses of the Constitution,
therefore ultra vires and void. violative of the Local Government Code, and against the State's national
policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does
not have jurisdiction over the nature of the action. Even
WHEREFORE, the petition is DENIED and the challenged decision of the assuming arguendo that the case is one for prohibition, then, under this
respondent Court of Appeals is AFFIRMED, with costs against the Court's established policy relative to the hierarchy of courts, the petition
petitioners. It is so ordered. should have been filed with the Regional Trial Court of Cagayan de Oro
City. I find no special or compelling reason why it was not filed with the said
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, court. I do not wish to entertain the thought that PRYCE doubted a
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. favorable verdict therefrom, in which case the filing of the petition with the
Court of Appeals may have been impelled by tactical considerations. A
dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) necessarily implied therefrom, as well as powers
and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, necessary, appropriate, or incidental for its efficient and
this Court stated: effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
A last word. This court's original jurisdiction to issue
units shall ensure and support, among other things, the
writs of certiorari (as well as
preservation and enrichment of culture, promote health
prohibition, mandamus, quo warranto, habeas
and safety, enhance the right of the people to a
corpus and injunction) is not exclusive. It is shared by
balanced ecology, encourage and support the
this Court with Regional Trial Courts (formerly Courts of
development of appropriate and self-reliant scientific
First Instance), which may issue the writ, enforceable in
and technological capabilities, improve public morals,
any part of their respective regions. It is also shared by
enhance economic prosperity and social justice,
this court, and by the Regional Trial Court, with the
promote full employment among their residents,
Court of Appeals (formerly, Intermediate Appellate
maintain peace and order, and preserve the comfort
Court), although prior to the effectivity of Batas
and convenience of their inhabitants.
Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was
restricted by those "in aid of its appellate jurisdiction." The issue that necessarily arises is whether in granting local governments
This concurrence of jurisdiction is not, however, to be (such as the City of Cagayan de Oro) the above powers and functions, the
taken as according to parties seeking any of the writs Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as
an absolute, unrestrained freedom of choice of the PAGCOR's general authority to establish and maintain gambling casinos
court to which application therefor will be directed. anywhere in the Philippines is concerned.
There is after all a hierarchy of courts. That hierarchy is
determinative of the revenue of appeals, and should
I join the majority in holding that the ordinances cannot repeal P.D. No.
also serve as a general determinant of the appropriate
1869.
forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of III.
extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those
The nullification by the Court of Appeals of the challenged ordinances
against the latter, with the Court of Appeals. A direct
as unconstitutional primarily because it is in contravention to P.D. No. 1869
invocation of the Supreme Court's original jurisdiction to
is unwarranted. A contravention of a law is not necessarily a contravention
issue these writs should be allowed only when there
of the constitution. In any case, the ordinances can still stand even if they
are special and important reasons therefor, clearly and
be conceded as offending P.D. No. 1869. They can be reconciled, which is
specifically set out in the petition. This is established
not impossible to do. So reconciled, the ordinances should be construed as
policy. It is a policy that is necessary to prevent
not applying to PAGCOR.
inordinate demands upon the Court's time and attention
which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over- IV.
crowding of the Court's docket. Indeed, the removal of
the restriction of the jurisdiction of the Court of Appeals
in this regard, supra — resulting from the deletion of From the pleadings, it is obvious that the government and the people of
the qualifying phrase, "in aid of its appellate jurisdiction" Cagayan de Oro City are, for obvious reasons, strongly against the opening
— was evidently intended precisely to relieve this of the gambling casino in their city. Gambling, even if legalized, would be
Court pro tanto of the burden of dealing with inimical to the general welfare of the inhabitants of the City, or of any place
applications for extraordinary writs which, but for the for that matter. The PAGCOR, as a government-owned corporation, must
expansion of the Appellate Court's corresponding consider the valid concerns of the people of the City of Cagayan de Oro and
jurisdiction, would have had to be filed with it. (citations should not impose its will upon them in an arbitrary, if not despotic, manner.
omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in
this case a propensity on the part of petitioner, and, for # Separate Opinions
The challenged ordinances were enacted pursuant to the Sangguniang It is worth remembering in this regard that, 1) what is legal is not always
Panglungsod's express powers conferred by Section 458, paragraph (a), moral and 2) the ends do not always justify the means.
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government
Code, and pursuant to its implied power under Section 16 thereof (the As in Basco, I can easily visualize prostitution at par with gambling. And
general welfare clause) which reads: yet, legalization of the former will not render it any less reprehensible even if
substantial revenue for the government can be realized from it. The same is
Sec. 16. General Welfare. — Every local government true of gambling.
unit shall exercise the powers expressly granted, those
In the present case, it is my considered view that the national government must be stopped, not only because of the imposition
(through PAGCOR) should re-examine and re-evaluate its decision upon the previous time of this Court but also because
of imposing the gambling casino on the residents of Cagayan de Oro City; of the inevitable and resultant delay, intended or
for it is abundantly clear that public opinion in the city is very much against otherwise, in the adjudication of the case which often
it, and again the question must be seriously deliberated: will the prospects has to be remanded or referred to the lower court as
of revenue to be realized from the casino outweigh the further destruction of the proper forum under the rules of procedure, or as
the Filipino sense of values? better equipped to resolve the issues since this Court is
not a trier of facts. We, therefore, reiterate the judicial
policy that this Court will not entertain direct resort to it
DAVIDE, JR., J., concurring:
unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
While I concur in part with the majority, I wish, however, to express my circumstances justify availment of a remedy within and
views on certain aspects of this case. calling for the exercise of our primary jurisdiction.
I. II.
It must at once be noted that private respondent Pryce Properties The challenged ordinances are (a) Ordinance No. 3353 entitled, "An
Corporation (PRYCE) directly filed with the Court of Appeals its so-called Ordinance Prohibiting the Issuance of Business Permit and Canceling
petition for prohibition, thereby invoking the said court's original jurisdiction Existing Business Permit To Any Establishment for the Using and Allowing
to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, to be Used Its Premises or Portion Thereof for the Operation of Casino,"
however, the principal cause of action therein is one for declaratory relief: to and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the
declare null and unconstitutional — for, inter alia, having been enacted Operation of Casino and Providing Penalty for Violation Therefor." They
without or in excess of jurisdiction, for impairing the obligation of contracts, were enacted to implement Resolution No. 2295 entitled, "Resolution
and for being inconsistent with public policy — the challenged ordinances Declaring As a Matter of Policy to Prohibit and/or Not to Allow the
enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. Establishment of the Gambling Casino in the City of Cagayan de Oro,"
The intervention therein of public respondent Philippine Amusement and which was promulgated on 19 November 1990 — nearly two years before
Gaming Corporation (PAGCOR) further underscores the "declaratory relief" PRYCE and PAGCOR entered into a contract of lease under which the
nature of the action. PAGCOR assails the ordinances for being contrary to latter leased a portion of the former's Pryce Plaza Hotel for the operation of
the non-impairment and equal protection clauses of the Constitution, a gambling casino — which resolution was vigorously reiterated in
violative of the Local Government Code, and against the State's national Resolution No. 2673 of 19 October 1992.
policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does
not have jurisdiction over the nature of the action. Even
The challenged ordinances were enacted pursuant to the Sangguniang
assuming arguendo that the case is one for prohibition, then, under this
Panglungsod's express powers conferred by Section 458, paragraph (a),
Court's established policy relative to the hierarchy of courts, the petition
subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government
should have been filed with the Regional Trial Court of Cagayan de Oro
Code, and pursuant to its implied power under Section 16 thereof (the
City. I find no special or compelling reason why it was not filed with the said
general welfare clause) which reads:
court. I do not wish to entertain the thought that PRYCE doubted a
favorable verdict therefrom, in which case the filing of the petition with the
Court of Appeals may have been impelled by tactical considerations. A Sec. 16. General Welfare. — Every local government
dismissal of the petition by the Court of Appeals would have been in order unit shall exercise the powers expressly granted, those
pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) necessarily implied therefrom, as well as powers
and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, necessary, appropriate, or incidental for its efficient and
this Court stated: effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
A last word. This court's original jurisdiction to issue
units shall ensure and support, among other things, the
writs of certiorari (as well as
preservation and enrichment of culture, promote health
prohibition, mandamus, quo warranto, habeas
and safety, enhance the right of the people to a
corpus and injunction) is not exclusive. It is shared by
balanced ecology, encourage and support the
this Court with Regional Trial Courts (formerly Courts of
development of appropriate and self-reliant scientific
First Instance), which may issue the writ, enforceable in
and technological capabilities, improve public morals,
any part of their respective regions. It is also shared by
enhance economic prosperity and social justice,
this court, and by the Regional Trial Court, with the
promote full employment among their residents,
Court of Appeals (formerly, Intermediate Appellate
maintain peace and order, and preserve the comfort
Court), although prior to the effectivity of Batas
and convenience of their inhabitants.
Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was
restricted by those "in aid of its appellate jurisdiction." The issue that necessarily arises is whether in granting local governments
This concurrence of jurisdiction is not, however, to be (such as the City of Cagayan de Oro) the above powers and functions, the
taken as according to parties seeking any of the writs Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as
an absolute, unrestrained freedom of choice of the PAGCOR's general authority to establish and maintain gambling casinos
court to which application therefor will be directed. anywhere in the Philippines is concerned.
There is after all a hierarchy of courts. That hierarchy is
determinative of the revenue of appeals, and should
I join the majority in holding that the ordinances cannot repeal P.D. No.
also serve as a general determinant of the appropriate
1869.
forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of III.
extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those
The nullification by the Court of Appeals of the challenged ordinances
against the latter, with the Court of Appeals. A direct
as unconstitutional primarily because it is in contravention to P.D. No. 1869
invocation of the Supreme Court's original jurisdiction to
is unwarranted. A contravention of a law is not necessarily a contravention
issue these writs should be allowed only when there
of the constitution. In any case, the ordinances can still stand even if they
are special and important reasons therefor, clearly and
be conceded as offending P.D. No. 1869. They can be reconciled, which is
specifically set out in the petition. This is established
not impossible to do. So reconciled, the ordinances should be construed as
policy. It is a policy that is necessary to prevent
not applying to PAGCOR.
inordinate demands upon the Court's time and attention
which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over- IV.
crowding of the Court's docket. Indeed, the removal of
the restriction of the jurisdiction of the Court of Appeals
in this regard, supra — resulting from the deletion of From the pleadings, it is obvious that the government and the people of
the qualifying phrase, "in aid of its appellate jurisdiction" Cagayan de Oro City are, for obvious reasons, strongly against the opening
— was evidently intended precisely to relieve this of the gambling casino in their city. Gambling, even if legalized, would be
Court pro tanto of the burden of dealing with inimical to the general welfare of the inhabitants of the City, or of any place
applications for extraordinary writs which, but for the for that matter. The PAGCOR, as a government-owned corporation, must
expansion of the Appellate Court's corresponding consider the valid concerns of the people of the City of Cagayan de Oro and
jurisdiction, would have had to be filed with it. (citations should not impose its will upon them in an arbitrary, if not despotic, manner.
omitted)
#Footnotes
7 39 Phil. 102.
10 44 Phil. 138.
14 Ibid.
15 77 Phil. 88.
Republic of the Philippines regular farmworkers, who are landless, to own directly
SUPREME COURT or collectively the lands they till or, in the case of other
Manila farmworkers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and
undertake the just distribution of all agricultural lands,
EN BANC
subject to such priorities and reasonable retention limits
as the Congress may prescribe, taking into account
G.R. No. 78742 July 14, 1989 ecological, developmental, or equity considerations and
subject to the payment of just compensation. In
determining retention limits, the State shall respect the
ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INC., right of small landowners. The State shall further
JUANITO D. GOMEZ, GERARDO B. ALARCIO, FELIPE A. GUICO, JR., provide incentives for voluntary land-sharing.
BERNARDO M. ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T.
GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA, REYNALDO G.
ESTRADA, FELISA C. BAUTISTA, ESMENIA J. CABE, TEODORO B. Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land
MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA, Reform Code, had already been enacted by the Congress of the Philippines
FELICISIMA C. ARRESTO, CONSUELO M. MORALES, BENJAMIN R. on August 8, 1963, in line with the above-stated principles. This was
SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S. FERRER, petitioners, substantially superseded almost a decade later by P.D. No. 27, which was
vs. promulgated on October 21, 1972, along with martial law, to provide for the
HONORABLE SECRETARY OF AGRARIAN REFORM, respondent. compulsory acquisition of private lands for distribution among tenant-
farmers and to specify maximum retention limits for landowners.
G.R. No. 79310 July 14, 1989
The people power revolution of 1986 did not change and indeed even
energized the thrust for agrarian reform. Thus, on July 17, 1987, President
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS, Corazon C. Aquino issued E.O. No. 228, declaring full land ownership in
DENNIS JEREZA, HERMINIGILDO GUSTILO, PAULINO D. TOLENTINO favor of the beneficiaries of P.D. No. 27 and providing for the valuation of
and PLANTERS' COMMITTEE, INC., Victorias Mill District, Victorias, still unvalued lands covered by the decree as well as the manner of their
Negros Occidental, petitioners, payment. This was followed on July 22, 1987 by Presidential Proclamation
vs. No. 131, instituting a comprehensive agrarian reform program (CARP), and
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN E.O. No. 229, providing the mechanics for its implementation.
REFORM COUNCIL, respondents.
Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O.
Nos. 228 and 229, and R.A. No. 6657.
CRUZ, J.:
The subjects of this petition are a 9-hectare riceland worked by four tenants
In ancient mythology, Antaeus was a terrible giant who blocked and and owned by petitioner Nicolas Manaay and his wife and a 5-hectare
challenged Hercules for his life on his way to Mycenae after performing his riceland worked by four tenants and owned by petitioner Augustin Hermano,
eleventh labor. The two wrestled mightily and Hercules flung his adversary Jr. The tenants were declared full owners of these lands by E.O. No. 228 as
to the ground thinking him dead, but Antaeus rose even stronger to resume qualified farmers under P.D. No. 27.
their struggle. This happened several times to Hercules' increasing
amazement. Finally, as they continued grappling, it dawned on Hercules
that Antaeus was the son of Gaea and could never die as long as any part The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on
of his body was touching his Mother Earth. Thus forewarned, Hercules then grounds inter alia of separation of powers, due process, equal protection
held Antaeus up in the air, beyond the reach of the sustaining soil, and and the constitutional limitation that no private property shall be taken for
crushed him to death. public use without just compensation.
Mother Earth. The sustaining soil. The giver of life, without whose They contend that President Aquino usurped legislative power when she
invigorating touch even the powerful Antaeus weakened and died. promulgated E.O. No. 228. The said measure is invalid also for violation of
Article XIII, Section 4, of the Constitution, for failure to provide for retention
limits for small landowners. Moreover, it does not conform to Article VI,
The cases before us are not as fanciful as the foregoing tale. But they also Section 25(4) and the other requisites of a valid appropriation.
tell of the elemental forces of life and death, of men and women who, like
Antaeus need the sustaining strength of the precious earth to stay alive.
In connection with the determination of just compensation, the petitioners
argue that the same may be made only by a court of justice and not by the
"Land for the Landless" is a slogan that underscores the acute imbalance in President of the Philippines. They invoke the recent cases of EPZA v.
the distribution of this precious resource among our people. But it is more Dulay 5 and Manotok v. National Food Authority. 6 Moreover, the just
than a slogan. Through the brooding centuries, it has become a battle-cry compensation contemplated by the Bill of Rights is payable in money or in
dramatizing the increasingly urgent demand of the dispossessed among us cash and not in the form of bonds or other things of value.
for a plot of earth as their place in the sun.
In the amended petition dated November 22, 1588, it is contended that P.D.
In his consolidated Comment, the Solicitor General first invokes the
No. 27, E.O. Nos. 228 and 229 (except Sections 20 and 21) have been
presumption of constitutionality in favor of Proc. No. 131 and E.O. No. 229.
impliedly repealed by R.A. No. 6657. Nevertheless, this statute should itself
He also justifies the necessity for the expropriation as explained in the
also be declared unconstitutional because it suffers from substantially the
"whereas" clauses of the Proclamation and submits that, contrary to the
same infirmities as the earlier measures.
petitioner's contention, a pilot project to determine the feasibility of CARP
and a general survey on the people's opinion thereon are not indispensable
A petition for intervention was filed with leave of court on June 1, 1988 by prerequisites to its promulgation.
Vicente Cruz, owner of a 1. 83- hectare land, who complained that the DAR
was insisting on the implementation of P.D. No. 27 and E.O. No. 228
On the alleged violation of the equal protection clause, the sugar planters
despite a compromise agreement he had reached with his tenant on the
have failed to show that they belong to a different class and should be
payment of rentals. In a subsequent motion dated April 10, 1989, he
differently treated. The Comment also suggests the possibility of Congress
adopted the allegations in the basic amended petition that the above-
first distributing public agricultural lands and scheduling the expropriation of
mentioned enactments have been impliedly repealed by R.A. No. 6657.
private agricultural lands later. From this viewpoint, the petition for
prohibition would be premature.
G.R. No. 79310
The public respondent also points out that the constitutional prohibition is
The petitioners herein are landowners and sugar planters in the Victorias against the payment of public money without the corresponding
Mill District, Victorias, Negros Occidental. Co-petitioner Planters' appropriation. There is no rule that only money already in existence can be
Committee, Inc. is an organization composed of 1,400 planter-members. the subject of an appropriation law. Finally, the earmarking of fifty billion
This petition seeks to prohibit the implementation of Proc. No. 131 and E.O. pesos as Agrarian Reform Fund, although denominated as an initial
No. 229. amount, is actually the maximum sum appropriated. The word "initial"
simply means that additional amounts may be appropriated later when
necessary.
The petitioners claim that the power to provide for a Comprehensive
Agrarian Reform Program as decreed by the Constitution belongs to
Congress and not the President. Although they agree that the President On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on
could exercise legislative power until the Congress was convened, she his own behalf, assailing the constitutionality of E.O. No. 229. In addition to
could do so only to enact emergency measures during the transition period. the arguments already raised, Serrano contends that the measure is
At that, even assuming that the interim legislative power of the President unconstitutional because:
was properly exercised, Proc. No. 131 and E.O. No. 229 would still have to
be annulled for violating the constitutional provisions on just compensation,
(1) Only public lands should be included in the CARP;
due process, and equal protection.
The petitioners also argue that in the issuance of the two measures, no The petitioner now argues that:
effort was made to make a careful study of the sugar planters' situation.
There is no tenancy problem in the sugar areas that can justify the
application of the CARP to them. To the extent that the sugar planters have (1) E.O. Nos. 228 and 229 were invalidly issued by the
been lumped in the same legislation with other farmers, although they are a President of the Philippines.
separate group with problems exclusively their own, their right to equal
protection has been violated. (2) The said executive orders are violative of the
constitutional provision that no private property shall be
A motion for intervention was filed on August 27,1987 by the National taken without due process or just compensation.
Federation of Sugarcane Planters (NASP) which claims a membership of at
least 20,000 individual sugar planters all over the country. On September (3) The petitioner is denied the right of maximum
10, 1987, another motion for intervention was filed, this time by Manuel retention provided for under the 1987 Constitution.
Barcelona, et al., representing coconut and riceland owners. Both motions
were granted by the Court.
The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly
before Congress convened is anomalous and arbitrary, besides violating
NASP alleges that President Aquino had no authority to fund the Agrarian the doctrine of separation of powers. The legislative power granted to the
Reform Program and that, in any event, the appropriation is invalid because President under the Transitory Provisions refers only to emergency
of uncertainty in the amount appropriated. Section 2 of Proc. No. 131 and measures that may be promulgated in the proper exercise of the police
Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of power.
fifty billion pesos and thus specifies the minimum rather than the maximum
The petitioner also invokes his rights not to be deprived of his property I
without due process of law and to the retention of his small parcels of
riceholding as guaranteed under Article XIII, Section 4 of the Constitution.
Although holding neither purse nor sword and so regarded as the weakest
He likewise argues that, besides denying him just compensation for his
of the three departments of the government, the judiciary is nonetheless
land, the provisions of E.O. No. 228 declaring that:
vested with the power to annul the acts of either the legislative or the
executive or of both when not conformable to the fundamental law. This is
Lease rentals paid to the landowner by the farmer- the reason for what some quarters call the doctrine of judicial supremacy.
beneficiary after October 21, 1972 shall be considered Even so, this power is not lightly assumed or readily exercised. The doctrine
as advance payment for the land. of separation of powers imposes upon the courts a proper restraint, born of
the nature of their functions and of their respect for the other departments,
in striking down the acts of the legislative and the executive as
is an unconstitutional taking of a vested property right. It is also his
unconstitutional. The policy, indeed, is a blend of courtesy and caution. To
contention that the inclusion of even small landowners in the program along
doubt is to sustain. The theory is that before the act was done or the law
with other landowners with lands consisting of seven hectares or more is
was enacted, earnest studies were made by Congress or the President, or
undemocratic.
both, to insure that the Constitution would not be breached.
In his Comment, the Solicitor General submits that the petition is premature
In addition, the Constitution itself lays down stringent conditions for a
because the motion for reconsideration filed with the Minister of Agrarian
declaration of unconstitutionality, requiring therefor the concurrence of a
Reform is still unresolved. As for the validity of the issuance of E.O. Nos.
majority of the members of the Supreme Court who took part in the
228 and 229, he argues that they were enacted pursuant to Section 6,
deliberations and voted on the issue during their session en banc. 11 And as
Article XVIII of the Transitory Provisions of the 1987 Constitution which
established by judge made doctrine, the Court will assume jurisdiction over
reads:
a constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be
The incumbent president shall continue to exercise legislative powers until an actual case or controversy involving a conflict of legal rights susceptible
the first Congress is convened. of judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself. 12
On the issue of just compensation, his position is that when P.D. No. 27
was promulgated on October 21. 1972, the tenant-farmer of agricultural
land was deemed the owner of the land he was tilling. The leasehold rentals With particular regard to the requirement of proper party as applied in the
paid after that date should therefore be considered amortization payments. cases before us, we hold that the same is satisfied by the petitioners and
intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures
In his Reply to the public respondents, the petitioner maintains that the complained of. 13 And even if, strictly speaking, they are not covered by the
motion he filed was resolved on December 14, 1987. An appeal to the definition, it is still within the wide discretion of the Court to waive the
Office of the President would be useless with the promulgation of E.O. Nos. requirement and so remove the impediment to its addressing and resolving
228 and 229, which in effect sanctioned the validity of the public the serious constitutional questions raised.
respondent's acts.
For the power of eminent domain is merely the means One of the basic principles of the democratic system is that where the rights
to the end. 28 of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
In Penn Central Transportation Co. v. New York City, 29 decided by a 6-3 will not excuse constitutional shortcuts. There is no question that not even
vote in 1978, the U.S Supreme Court sustained the respondent's the strongest moral conviction or the most urgent public need, subject only
Landmarks Preservation Law under which the owners of the Grand Central to a few notable exceptions, will excuse the bypassing of an individual's
Terminal had not been allowed to construct a multi-story office building over rights. It is no exaggeration to say that a, person invoking a right
the Terminal, which had been designated a historic landmark. Preservation guaranteed under Article III of the Constitution is a majority of one even as
of the landmark was held to be a valid objective of the police power. The against the rest of the nation who would deny him that right.
problem, however, was that the owners of the Terminal would be deprived
of the right to use the airspace above it although other landowners in the
area could do so over their respective properties. While insisting that there That right covers the person's life, his liberty and his property under Section
was here no taking, the Court nonetheless recognized certain 1 of Article III of the Constitution. With regard to his property, the owner
compensatory rights accruing to Grand Central Terminal which it said would enjoys the added protection of Section 9, which reaffirms the familiar rule
"undoubtedly mitigate" the loss caused by the regulation. This "fair that private property shall not be taken for public use without just
compensation," as he called it, was explained by Prof. Costonis in this wise: compensation.
In return for retaining the Terminal site in its pristine landmark status, Penn This brings us now to the power of eminent domain.
Central was authorized to transfer to neighboring properties the authorized
but unused rights accruing to the site prior to the Terminal's designation as
IV
a landmark — the rights which would have been exhausted by the 59-story
building that the city refused to countenance atop the Terminal. Prevailing
bulk restrictions on neighboring sites were proportionately relaxed, Eminent domain is an inherent power of the State that
theoretically enabling Penn Central to recoup its losses at the Terminal site enables it to forcibly acquire private lands intended for
by constructing or selling to others the right to construct larger, hence more public use upon payment of just compensation to the
profitable buildings on the transferee sites. 30 owner. Obviously, there is no need to expropriate
where the owner is willing to sell under terms also
acceptable to the purchaser, in which case an ordinary
The cases before us present no knotty complication insofar as the question
deed of sale may be agreed upon by the parties. 35 It is
of compensable taking is concerned. To the extent that the measures under
only where the owner is unwilling to sell, or cannot
challenge merely prescribe retention limits for landowners, there is an
accept the price or other conditions offered by the
exercise of the police power for the regulation of private property in
vendee, that the power of eminent domain will come
accordance with the Constitution. But where, to carry out such regulation, it
into play to assert the paramount authority of the State
becomes necessary to deprive such owners of whatever lands they may
over the interests of the property owner. Private rights
own in excess of the maximum area allowed, there is definitely a taking
must then yield to the irresistible demands of the public
under the power of eminent domain for which payment of just compensation
interest on the time-honored justification, as in the case
is imperative. The taking contemplated is not a mere limitation of the use of
of the police power, that the welfare of the people is the
the land. What is required is the surrender of the title to and the physical
supreme law.
possession of the said excess and all beneficial rights accruing to the owner
in favor of the farmer-beneficiary. This is definitely an exercise not of the
police power but of the power of eminent domain. But for all its primacy and urgency, the power of expropriation is by no
means absolute (as indeed no power is absolute). The limitation is found in
the constitutional injunction that "private property shall not be taken for
Whether as an exercise of the police power or of the power of eminent
public use without just compensation" and in the abundant jurisprudence
domain, the several measures before us are challenged as violative of the
that has evolved from the interpretation of this principle. Basically, the
due process and equal protection clauses.
requirements for a proper exercise of the power are: (1) public use and (2)
just compensation.
The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground
that no retention limits are prescribed has already been discussed and
Let us dispose first of the argument raised by the petitioners in G.R. No.
dismissed. It is noted that although they excited many bitter exchanges
79310 that the State should first distribute public agricultural lands in the
during the deliberation of the CARP Law in Congress, the retention limits
pursuit of agrarian reform instead of immediately disturbing property rights
finally agreed upon are, curiously enough, not being questioned in these
by forcibly acquiring private agricultural lands. Parenthetically, it is not
petitions. We therefore do not discuss them here. The Court will come to
correct to say that only public agricultural lands may be covered by the
the other claimed violations of due process in connection with our
CARP as the Constitution calls for "the just distribution of all agricultural
examination of the adequacy of just compensation as required under the
lands." In any event, the decision to redistribute private agricultural lands in
power of expropriation.
the manner prescribed by the CARP was made by the legislative and
executive departments in the exercise of their discretion. We are not
The argument of the small farmers that they have been denied equal justified in reviewing that discretion in the absence of a clear showing that it
protection because of the absence of retention limits has also become has been abused.
academic under Section 6 of R.A. No. 6657. Significantly, they too have not
questioned the area of such limits. There is also the complaint that they
A becoming courtesy admonishes us to respect the decisions of the political
should not be made to share the burden of agrarian reform, an objection
departments when they decide what is known as the political question. As
also made by the sugar planters on the ground that they belong to a
explained by Chief Justice Concepcion in the case of Tañada v. Cuenco: 36
particular class with particular interests of their own. However, no evidence
has been submitted to the Court that the requisites of a valid classification
have been violated. The term "political question" connotes what it means in
ordinary parlance, namely, a question of policy. It refers
to "those questions which, under the Constitution, are
Classification has been defined as the grouping of persons or things similar
to be decided by the people in their sovereign capacity;
to each other in certain particulars and different from each other in these
or in regard to which full discretionary authority has
same particulars. 31 To be valid, it must conform to the following
been delegated to the legislative or executive branch of
requirements: (1) it must be based on substantial distinctions; (2) it must be
the government." It is concerned with issues dependent
germane to the purposes of the law; (3) it must not be limited to existing
upon the wisdom, not legality, of a particular measure.
conditions only; and (4) it must apply equally to all the members of the
class. 32 The Court finds that all these requisites have been met by the
measures here challenged as arbitrary and discriminatory. It is true that the concept of the political question has been constricted with
the enlargement of judicial power, which now includes the authority of the
courts "to determine whether or not there has been a grave abuse of
Equal protection simply means that all persons or things similarly situated
discretion amounting to lack or excess of jurisdiction on the part of any
must be treated alike both as to the rights conferred and the liabilities
branch or instrumentality of the Government." 37 Even so, this should not be To be sure, the determination of just compensation is a function addressed
construed as a license for us to reverse the other departments simply to the courts of justice and may not be usurped by any other branch or
because their views may not coincide with ours. official of the government. EPZA v. Dulay 44 resolved a challenge to several
decrees promulgated by President Marcos providing that the just
compensation for property under expropriation should be either the
The legislature and the executive have been seen fit, in their wisdom, to
assessment of the property by the government or the sworn valuation
include in the CARP the redistribution of private landholdings (even as the
thereof by the owner, whichever was lower. In declaring these decrees
distribution of public agricultural lands is first provided for, while also
unconstitutional, the Court held through Mr. Justice Hugo E. Gutierrez, Jr.:
continuing apace under the Public Land Act and other cognate laws). The
Court sees no justification to interpose its authority, which we may assert
only if we believe that the political decision is not unwise, but illegal. We do The method of ascertaining just compensation under
not find it to be so. the aforecited decrees constitutes impermissible
encroachment on judicial prerogatives. It tends to
render this Court inutile in a matter which under this
In U.S. v. Chandler-Dunbar Water Power Company,38 it was held:
Constitution is reserved to it for final determination.
Just compensation is defined as the full and fair equivalent of the property In the present petition, we are once again confronted
taken from its owner by the expropriator. 39 It has been repeatedly stressed with the same question of whether the courts under
by this Court that the measure is not the taker's gain but the owner's P.D. No. 1533, which contains the same provision on
loss. 40 The word "just" is used to intensify the meaning of the word just compensation as its predecessor decrees, still
"compensation" to convey the idea that the equivalent to be rendered for have the power and authority to determine just
the property to be taken shall be real, substantial, full, ample. 41 compensation, independent of what is stated by the
decree and to this effect, to appoint commissioners for
such purpose.
It bears repeating that the measures challenged in these petitions
contemplate more than a mere regulation of the use of private lands under
the police power. We deal here with an actual taking of private agricultural This time, we answer in the affirmative.
lands that has dispossessed the owners of their property and deprived them
of all its beneficial use and enjoyment, to entitle them to the just
xxx
compensation mandated by the Constitution.
Such a program will involve not mere millions of pesos. The cost will be
(viii) Such
tremendous. Considering the vast areas of land subject to expropriation
other uses as
under the laws before us, we estimate that hundreds of billions of pesos will
the PARC may
be needed, far more indeed than the amount of P50 billion initially
from time to
appropriated, which is already staggering as it is by our present standards.
time allow.
Such amount is in fact not even fully available at this time.
The contention of the petitioners in G.R. No. 79777 is that the above
We assume that the framers of the Constitution were aware of this difficulty
provision is unconstitutional insofar as it requires the owners of the
when they called for agrarian reform as a top priority project of the
expropriated properties to accept just compensation therefor in less than
government. It is a part of this assumption that when they envisioned the
money, which is the only medium of payment allowed. In support of this
expropriation that would be needed, they also intended that the just
contention, they cite jurisprudence holding that:
compensation would have to be paid not in the orthodox way but a less
conventional if more practical method. There can be no doubt that they
The fundamental rule in expropriation matters is that were aware of the financial limitations of the government and had no
the owner of the property expropriated is entitled to a illusions that there would be enough money to pay in cash and in full for the
just compensation, which should be neither more nor lands they wanted to be distributed among the farmers. We may therefore
less, whenever it is possible to make the assessment, assume that their intention was to allow such manner of payment as is now
than the money equivalent of said property. Just provided for by the CARP Law, particularly the payment of the balance (if
compensation has always been understood to be the the owner cannot be paid fully with money), or indeed of the entire amount
just and complete equivalent of the loss which the of the just compensation, with other things of value. We may also suppose
owner of the thing expropriated has to suffer by reason that what they had in mind was a similar scheme of payment as that
of the expropriation . 45 (Emphasis supplied.) prescribed in P.D. No. 27, which was the law in force at the time they
deliberated on the new Charter and with which they presumably agreed in
principle.
In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court held:
The Court has not found in the records of the Constitutional Commission
It is well-settled that just compensation means the
any categorical agreement among the members regarding the meaning to
equivalent for the value of the property at the time of its
be given the concept of just compensation as applied to the comprehensive
taking. Anything beyond that is more, and anything
agrarian reform program being contemplated. There was the suggestion to
short of that is less, than just compensation. It means a
"fine tune" the requirement to suit the demands of the project even as it was
fair and full equivalent for the loss sustained, which is
also felt that they should "leave it to Congress" to determine how payment
the measure of the indemnity, not whatever gain would
should be made to the landowner and reimbursement required from the
accrue to the expropriating entity. The market value of
farmer-beneficiaries. Such innovations as "progressive compensation" and
the land taken is the just compensation to which the
"State-subsidized compensation" were also proposed. In the end, however,
owner of condemned property is entitled, the market
no special definition of the just compensation for the lands to be
value being that sum of money which a person
expropriated was reached by the Commission. 50
desirous, but not compelled to buy, and an owner,
willing, but not compelled to sell, would agree on as a
price to be given and received for such property. On the other hand, there is nothing in the records either that militates
(Emphasis supplied.) against the assumptions we are making of the general sentiments and
intention of the members on the content and manner of the payment to be
made to the landowner in the light of the magnitude of the expenditure and
In the United States, where much of our jurisprudence on the subject has
the limitations of the expropriator.
been derived, the weight of authority is also to the effect that just
compensation for property expropriated is payable only in money and not
otherwise. Thus — With these assumptions, the Court hereby declares that the content and
manner of the just compensation provided for in the afore- quoted Section
18 of the CARP Law is not violative of the Constitution. We do not mind
The medium of payment of compensation is ready
admitting that a certain degree of pragmatism has influenced our decision
money or cash. The condemnor cannot compel the
on this issue, but after all this Court is not a cloistered institution removed
owner to accept anything but money, nor can the owner
from the realities and demands of society or oblivious to the need for its
compel or require the condemnor to pay him on any
enhancement. The Court is as acutely anxious as the rest of our people to
other basis than the value of the property in money at
see the goal of agrarian reform achieved at last after the frustrations and
the time and in the manner prescribed by the
deprivations of our peasant masses during all these disappointing decades.
Constitution and the statutes. When the power of
We are aware that invalidation of the said section will result in the
eminent domain is resorted to, there must be a
nullification of the entire program, killing the farmer's hopes even as they
standard medium of payment, binding upon both
approach realization and resurrecting the spectre of discontent and dissent
parties, and the law has fixed that standard as money
in the restless countryside. That is not in our view the intention of the
in cash. 47 (Emphasis supplied.)
Constitution, and that is not what we shall decree today.
7 55 SCRA 26.
42 58 SCRA 336.
8 91 SCRA 294.
43 Lewis, Law of Eminent Domain, 3rd Edition, pp.
1166- 1167.
9 113 SCRA 798.
44 149 SCRA 305.
10 136 SCRA 271; 146 SCRA 446.
45 Manila Railroad Co. v. Velasquez, 32 Phil. 286;
11 Art. VIII, Sec. 4(2). Province of Tayabas v. Perez, supra, at note 40.
14 Araneta v. Dinglasan, 84 Phil. 368. 48 Sacramento Southern R. Co. v. Heilbron 156 Cal.
408,104 pp. 979, 980.
15 Pascual v. Secretary of Public Works, 110 Phil. 331;
PHILCONSA v. Gimenez, 15 SCRA 479; Sanidad v. 49 City of Waterbury v. Platt Bros. & Co., 56 A 856, 76
COMELEC, 73 SCRA 333. Conn, 435 citing Butler v. Ravine Road Sewer Com'rs,
39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co.,
N.Y. 18 Wend. 9 35, 31 Am. Dec. 313; Sanborn v.
16 Angara v. Electoral Commission, 63 Phil. 139. Helden, 51 Cal 266; Burlington & C.R. Co. v.
Schweikart, 14 p. 329, 10 Colo, 178; 23 Words and
17 R.A. No. 6657, Sec. 75. Phrases, pl. 460.
57 Sec. 16(d).
24 106 Phil. 144.
25 260 US 393.
28 348 US 1954.
29 438 US 104.
[G.R. NO. 118127 : April 12, 2005] SECTION 1. Any provision of existing laws and ordinances to the
contrary notwithstanding, no person, partnership, corporation
or entity shall, in the Ermita-Malate area bounded by Teodoro
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito
City of Manila, HON. JOSELITO L. ATIENZA, in his capacity Cruz Street in the South and Roxas Boulevard in the West,
as Vice-Mayor of the City of Manila and Presiding Officer of pursuant to P.D. 499 be allowed or authorized to contract
the City Council of Manila, HON. ERNESTO A. NIEVA, HON. and engage in, any business providing certain forms of
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON. amusement, entertainment, services and facilities where
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. women are used as tools in entertainment and which tend
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., to disturb the community, annoy the inhabitants, and
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, adversely affect the social and moral welfare of the
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F. community, such as but not limited to:
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL
M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO
C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, 1. Sauna Parlors
HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON.
ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, 2. Massage Parlors
HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO,
JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON.
3. Karaoke Bars
FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON.
ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON.
MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, 4. Beerhouses
HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M.
ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. 5. Night Clubs
RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of
Manila, Petitioner, v. HON. PERFECTO A.S. LAGUIO, JR., as 6. Day Clubs
Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, Respondents. 7. Super Clubs
DECISION 8. Discotheques
TINGA, J.: 9. Cabarets
I know only that what is moral is what you feel good after and 10. Dance Halls
what is immoral is what you feel bad after.
11. Motels
Ernest Hermingway
Death in the Afternoon, Ch. 1
12. Inns
SEC. 5. This ordinance shall take effect upon approval. ARTICLE III
Enacted by the City Council of Manila at its regular session today, THE MUNICIPAL BOARD
March 9, 1993.
. . .
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis
supplied)ςrαlαωlιbrαrÿ
Section 18. Legislative powers. 'The Municipal Board shall have
the following legislative powers:
In the RTC Petition, MTDC argued that the Ordinance erroneously
and improperly included in its enumeration of prohibited
. . .
establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement"
or "entertainment" and they were not "services or facilities for (kk) To enact all ordinances it may deem necessary and proper
entertainment," nor did they use women as "tools for for the sanitation and safety, the furtherance of the prosperity,
entertainment," and neither did they "disturb the community," and the promotion of the morality, peace, good order, comfort,
"annoy the inhabitants" or "adversely affect the social and moral convenience, and general welfare of the city and its inhabitants,
welfare of the community."11 and such others as may be necessary to carry into effect and
discharge the powers and duties conferred by this chapter; and to
fix penalties for the violation of ordinances which shall not exceed
MTDC further advanced that the Ordinance was invalid and
two hundred pesos fine or six months' imprisonment, or both such
unconstitutional for the following reasons: (1) The City Council
fine and imprisonment, for a single offense.
has no power to prohibit the operation of motels as Section 458
(a) 4 (iv)12 of the Local Government Code of 1991 (the Code)
grants to the City Council only the power to regulate the Further, the petitioners noted, the Ordinance had the presumption
establishment, operation and maintenance of hotels, motels, inns, of validity; hence, private respondent had the burden to prove its
pension houses, lodging houses and other similar establishments; illegality or unconstitutionality.21
(2) The Ordinance is void as it is violative of Presidential Decree
(P.D.) No. 49913 which specifically declared portions of the Ermita- Petitioners also maintained that there was no inconsistency
Malate area as a commercial zone with certain restrictions; (3) between P.D. 499 and the Ordinance as the latter simply
The Ordinance does not constitute a proper exercise of police disauthorized certain forms of businesses and allowed the Ermita-
power as the compulsory closure of the motel business has no Malate area to remain a commercial zone. 22 The Ordinance, the
reasonable relation to the legitimate municipal interests sought to petitioners likewise claimed, cannot be assailed as ex post
be protected; (4) The Ordinance constitutes an ex post facto law facto as it was prospective in operation. 23 The Ordinance also did
by punishing the operation of Victoria Court which was a not infringe the equal protection clause and cannot be denounced
legitimate business prior to its enactment; (5) as class legislation as there existed substantial and real
The Ordinance violates MTDC's constitutional rights in that: (a) it differences between the Ermita-Malate area and other places in
is confiscatory and constitutes an invasion of plaintiff's property the City of Manila.24
rights; (b) the City Council has no power to find as a fact that a
particular thing is a nuisance per se nor does it have the power to
extrajudicially destroy it; and (6) The Ordinance constitutes a On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr.
denial of equal protection under the law as no reasonable basis (Judge Laguio) issued an ex-parte temporary restraining order
exists for prohibiting the operation of motels and inns, but not against the enforcement of the Ordinance.25 And on 16 July 1993,
pension houses, hotels, lodging houses or other similar again in an intrepid gesture, he granted the writ of preliminary
establishments, and for prohibiting said business in the Ermita- injunction prayed for by MTDC.26
Malate area but not outside of this area.14
After trial, on 25 November 1994, Judge Laguio rendered the
15
In their Answer dated 23 July 1993, petitioners City of Manila assailed Decision, enjoining the petitioners from implementing
and Lim maintained that the City Council had the power to the Ordinance. The dispositive portion of said Decision reads:27
"prohibit certain forms of entertainment in order to protect the
social and moral welfare of the community" as provided for in WHEREFORE, judgment is hereby rendered declaring Ordinance
Section 458 (a) 4 (vii) of the Local Government Code, 16 which No. 778[3], Series of 1993, of the City of Manila null and void,
reads, thus: and making permanent the writ of preliminary injunction that had
been issued by this Court against the defendant. No costs.
Section 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panlungsod, as the legislative body of the city, SO ORDERED.28
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the Petitioners filed with the lower court a Notice of Appeal29 on 12
corporate powers of the city as provided for under Section 22 of December 1994, manifesting that they are elevating the case to
this Code, and shall: this Court under then Rule 42 on pure questions of law. 30
The Ordinance is so replete with constitutional infirmities that SEC. 1. No person shall be deprived of life, liberty or property
almost every sentence thereof violates a constitutional provision. without due process of law, nor shall any person be denied the
The prohibitions and sanctions therein transgress the cardinal equal protection of laws.46
rights of persons enshrined by the Constitution. The Court is
called upon to shelter these rights from attempts at rendering
them worthless. Sec. 9. Private property shall not be taken for public use without
just compensation.47
While the Court has not attempted to define with exactness the
That these are used as arenas to consummate illicit sexual affairs
liberty. . . guaranteed [by the Fifth and Fourteenth Amendments],
and as venues to further the illegal prostitution is of no moment.
the term denotes not merely freedom from bodily restraint but
We lay stress on the acrid truth that sexual immorality, being a
also the right of the individual to contract, to engage in any of the
human frailty, may take place in the most innocent of places that
common occupations of life, to acquire useful knowledge, to
it may even take place in the substitute establishments
marry, establish a home and bring up children, to worship God
enumerated under Section 3 of the Ordinance. If the flawed logic
according to the dictates of his own conscience, and generally to
of the Ordinance were to be followed, in the remote instance that
enjoy those privileges long recognized as essential to the orderly
an immoral sexual act transpires in a church cloister or a court
pursuit of happiness by free men. In a Constitution for a free
chamber, we would behold the spectacle of the City of Manila
people, there can be no doubt that the meaning of "liberty" must
ordering the closure of the church or court concerned. Every
be broad indeed.
house, building, park, curb, street or even vehicles for that matter
will not be exempt from the prohibition. Simply because there are
In another case, it also confirmed that liberty protected by the The Constitution expressly provides in Article III, Section 9, that
due process clause includes personal decisions relating to "private property shall not be taken for public use without just
marriage, procreation, contraception, family relationships, child compensation." The provision is the most important protection of
rearing, and education. In explaining the respect the Constitution property rights in the Constitution. This is a restriction on the
demands for the autonomy of the person in making these choices, general power of the government to take property. The
the U.S. Supreme Court explained: constitutional provision is about ensuring that the government
does not confiscate the property of some to give it to others. In
part too, it is about loss spreading. If the government takes away
These matters, involving the most intimate and personal choices a
a person's property to benefit society, then society should pay.
person may make in a lifetime, choices central to personal dignity
The principal purpose of the guarantee is "to bar the Government
and autonomy, are central to the liberty protected by the
from forcing some people alone to bear public burdens which, in
Fourteenth Amendment. At the heart of liberty is the right to
all fairness and justice, should be borne by the public as a
define one's own concept of existence, of meaning, of universe,
whole.79
and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood where they formed
under compulsion of the State.71 There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs when
Persons desirous to own, operate and patronize the enumerated
the government's regulation leaves no reasonable economically
establishments under Section 1 of the Ordinance may seek
viable use of the property.80
autonomy for these purposes.
Thus, in Coates v. City of Cincinnati,93 as cited in People v. The Court has explained the scope of the equal protection clause
Nazario,94 the U.S. Supreme Court struck down an ordinance in this wise:
that had made it illegal for "three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying
'What does it signify? To quote from J.M. Tuason & Co. v. Land
to persons passing by." The ordinance was nullified as it imposed
Tenure Administration: "The ideal situation is for the law's
no standard at all "because one may never know in advance what
benefits to be available to all, that none be placed outside the
'annoys some people but does not annoy others. '"
sphere of its coverage. Only thus could chance and favor be
excluded and the affairs of men governed by that serene and
Similarly, the Ordinance does not specify the standards to impartial uniformity, which is of the very essence of the idea of
ascertain which establishments "tend to disturb the community," law." There is recognition, however, in the opinion that what in
"annoy the inhabitants," and "adversely affect the social and fact exists "cannot approximate the ideal. Nor is the law
moral welfare of the community." The cited case supports the susceptible to the reproach that it does not take into account the
nullification of the Ordinance for lack of comprehensible standards realities of the situation. The constitutional guarantee then is not
to guide the law enforcers in carrying out its provisions. to be given a meaning that disregards what is, what does in fact
exist. To assure that the general welfare be promoted, which is
the end of law, a regulatory measure may cut into the rights to
Petitioners cannot therefore order the closure of the enumerated
liberty and property. Those adversely affected may under such
establishments without infringing the due process clause. These
circumstances invoke the equal protection clause only if they can
lawful establishments may be regulated, but not prevented from
show that the governmental act assailed, far from being inspired
carrying on their business. This is a sweeping exercise of police
by the attainment of the common weal was prompted by the spirit
power that is a result of a lack of imagination on the part of the
of hostility, or at the very least, discrimination that finds no
City Council and which amounts to an interference into personal
support in reason." Classification is thus not ruled out, it being
and private rights which the Court will not countenance. In this
sufficient to quote from the Tuason decision anew "that the laws
regard, we take a resolute stand to uphold the constitutional
operate equally and uniformly on all persons under similar
guarantee of the right to liberty and property.
circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges
Worthy of note is an example derived from the U.S. of a conferred and the liabilities imposed. Favoritism and undue
reasonable regulation which is a far cry from the ill- preference cannot be allowed. For the principle is that equal
considered Ordinance enacted by the City Council. protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be
looked upon in terms of burden or charges, those that fall within a
class should be treated in the same fashion, whatever restrictions Section 458. Powers, Duties, Functions and Compensation. (a)
cast on some in the group equally binding on the rest.102 The sangguniang panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Legislative bodies are allowed to classify the subjects of
Section 16 of this Code and in the proper exercise of the
legislation. If the classification is reasonable, the law may operate
corporate powers of the city as provided for under Section 22 of
only on some and not all of the people without violating the equal
this Code, and shall:
protection clause.103 The classification must, as an indispensable
requisite, not be arbitrary. To be valid, it must conform to the
following requirements: . . .
1) It must be based on substantial distinctions. (4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare
and for said purpose shall:
2) It must be germane to the purposes of the law.
. . .
3) It must not be limited to existing conditions only.
The standard "where women are used as tools for entertainment" The word "regulate," as used in subsection (l), section 2444 of the
is also discriminatory as prostitutionone of the hinted ills Administrative Code, means and includes the power to control, to
the Ordinance aims to banishis not a profession exclusive to govern, and to restrain; but "regulate" should not be construed as
women. Both men and women have an equal propensity to synonymous with "suppress" or "prohibit." Consequently, under
engage in prostitution. It is not any less grave a sin when men the power to regulate laundries, the municipal authorities could
engage in it. And why would the assumption that there is an make proper police regulations as to the mode in which the
ongoing immoral activity apply only when women are employed employment or business shall be exercised.107
and be inapposite when men are in harness? This discrimination
based on gender violates equal protection as it is not substantially
And in People v. Esguerra,108 wherein the Court nullified an
related to important government objectives.105 Thus, the
ordinance of the Municipality of Tacloban which prohibited the
discrimination is invalid.
selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not
Failing the test of constitutionality, the Ordinance likewise failed prohibit. The Court therein declared that:
to pass the test of consistency with prevailing laws.
(A)s a general rule when a municipal corporation is specifically
C. The Ordinance is repugnant given authority or power to regulate or to license and regulate the
to general laws; it is ultra vires liquor traffic, power to prohibit is impliedly withheld. 109
The Ordinance is in contravention of the Code as the latter merely These doctrines still hold contrary to petitioners' assertion 110 that
empowers local government units to regulate, and not prohibit, they were modified by the Code vesting upon City Councils
the establishments enumerated in Section 1 thereof. prohibitory powers.
The power of the City Council to regulate by ordinances the Similarly, the City Council exercises regulatory powers over public
establishment, operation, and maintenance of motels, hotels and dancing schools, public dance halls, sauna baths, massage
other similar establishments is found in Section 458 (a) 4 (iv), parlors, and other places for entertainment or amusement as
which provides that: found in the first clause of Section 458 (a) 4 (vii). Its powers to
regulate, suppress and suspend "such other events or activities
Section 458. Powers, Duties, Functions and Compensation. (a) for amusement or entertainment, particularly those which tend to
The sangguniang panlungsod, as the legislative body of the city, disturb the community or annoy the inhabitants" and to "prohibit
shall enact ordinances, approve resolutions and appropriate funds certain forms of amusement or entertainment in order to protect
for the general welfare of the city and its inhabitants pursuant to the social and moral welfare of the community" are stated in the
Section 16 of this Code and in the proper exercise of the second and third clauses, respectively of the same Section. The
corporate powers of the city as provided for under Section 22 of several powers of the City Council as provided in Section 458 (a)
this Code, and shall: 4 (vii) of the Code, it is pertinent to emphasize, are separated by
semi-colons (;), the use of which indicates that the clauses in
which these powers are set forth are independent of each other
. . . albeit closely related to justify being put together in a single
enumeration or paragraph.111 These powers, therefore, should not
(4) Regulate activities relative to the use of land, buildings and be confused, commingled or consolidated as to create a
structures within the city in order to promote the general welfare conglomerated and unified power of regulation, suppression and
and for said purpose shall: prohibition.112
All considered, the Ordinance invades fundamental personal and (4) Regulate activities relative to the use of land, buildings
property rights and impairs personal privileges. It is and structures within the city in order to promote the general
constitutionally infirm. The Ordinance contravenes statutes; it is welfare and for said purpose shall:
discriminatory and unreasonable in its operation; it is not
sufficiently detailed and explicit that abuses may attend the
. . ..
enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and
is therefore ultra vires, null and void. (iv) Regulate the establishment, operation and maintenance
of cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments,
Concededly, the challenged Ordinance was enacted with the best
including tourist guides and transports; . . .
of motives and shares the concern of the public for the cleansing
of the Ermita-Malate area of its social sins. Police power legislation
13
of such character deserves the full endorsement of the judiciary Presidential Decree No. 499; Dated 28 June 1974; Declaring
we reiterate our support for it. But inspite of its virtuous aims, Portions of the Ermita-Malate Area as Commercial Zones with
the enactment of the Ordinance has no statutory or constitutional Certain Restrictions. It reads in full:
authority to stand on. Local legislative bodies, in this case, the
City Council, cannot prohibit the operation of the enumerated WHEREAS, the government is committed to the promotion
establishments under Section 1 thereof or order their transfer or and development of tourism in the country, particularly in the City
conversion without infringing the constitutional guarantees of due of Manila which is the hub of commercial and cultural activities in
process and equal protection of laws not even under the guise Manila Metropolitan Area;
of police power.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, WHEREAS, the presence of such establishments in the area
Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, would not only serve as an attraction for tourists but are dollar
Sr., Azcuna, Chico-Nazario and Garcia, JJ.,concur earning enterprises as well, which tourist areas all over the world
Panganiban, J., in the result. cannot do without;
Ynares - Santiago, J., concur in the result only.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
Endnotes: the Philippines, by virtue of the powers vested in me under the
Constitution as Commander-in-Chief of all the Armed Forces of
the Philippines and pursuant to Proclamation No. 1081, dated
September 21, 1972, and General Order No. 1, dated September
22, 1972, as amended, do hereby order and decree the
1
Dated 11 January 1995; Rollo, pp. 6-73 with annexes. classification as a Commercial Zone of that portion of the Ermita-
Malate area bounded by Teodoro M. Kalaw, Sr. Street in the
north; Taft Avenue in the east; Vito Cruz Street in the south and
2
Id. at 64-72. Roxas Boulevard in the west. PROVIDED, HOWEVER, That no
permit shall be granted for the establishment of any new
3
The lower court declared the Ordinance to be null and void. warehouse or open storage depot, dump or yard, motor repair
shop, gasoline service station, light industry with any machinery
4
or funeral establishment in these areas, and PROVIDED,
In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. FURTHER, That for purposes of realty tax assessment on
Lim, etc, et al. before RTC, Branch 55 of Manila, docketed as Civil properties situated therein, lands and buildings used exclusively
Case No. 93-66551, Judge Hermogenes R. Liwag declared the for residential purposes by the owners themselves shall remain
Ordinance void and unconstitutional. The defendants elevated the assessed as residential properties.
case to the Court of Appeals which denied their petition on
procedural grounds in its Decision dated 21 May 2003. It appears
that defendants Hon. Alfredo S. Lim and the City Council of Manila All laws, ordinances, orders, rules and regulations which are
did not elevate the case before the Court. Entry of Judgment of inconsistent with this Decree are hereby repealed or modified
the CA Decision was made on 22 April 2003. accordingly.
5
Rollo, p. 37. This Decree shall take effect immediately.
6
Id. at. 75; It now calls itself Hotel Victoria. Done in the City of Manila this 28 th day of June in the year of
Our Lord, nineteen hundred and seventy-four.
7
Id. at 35-47. 14
RTC Records, pp. 11-13.
8
Id. at 46. 15
Id. at 158-171.
9
The principal authors of the Ordinance are: Hons. Bienvenido M. 16
Abante, Jr.; Humberto B. Basco; Nestor C. Ponce, Jr.; Ernesto A. Id. at 160.
Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez; Ma. Paz E.
Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F. 17
41 Phil. 103 (1920); see also Samson v. Mayor of Bacolod City,
Concepcion, Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A. Melendez; G.R. No. L-28745, 23 October 1974, 60 SCRA 267.
Ma. Corazon R. Caballes; Bernardito C. Ang; Roberto C. Ocampo;
Rogelio B. dela Paz; Romeo G. Rivera; Alexander S. Ricafort; 18
Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon; Leonardo RTC Records, p. 161.
L. Angat; and Jocelyn B. Dawis.
19
Approved on 18 June 1949.
10
Rollo, p. 8.
20
RTC Records, p. 160.
11
RTC Records, pp. 10-11.
21
Supra note 18.
12
Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads,
thus: 22
Id. at 164.
59
29 Cruz, Isagani A., Constitutional Law 104 (1998).
Dated 12 December 1994; Id. at 73.
60
30 See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila,
Id. at 2.
21 Phil. 486 (1912); Case v. Board of Health, 24 Phil. 256 (1913).
31
Supra note 13. 61
Balacuit v. CFI of Agusan del Norte, No. L-38429, 30 June 1988,
163 SCRA 182, 191-193.
32
Rollo, p. 13.
62
Cruz, supra note 59 at 56.
33
Id. at 190-201.
63
Ermita-Malate Hotel and Motel Operators Assoc. Inc. v. City
34
Id. at 16, 194, 198. Mayor of Manila, supra note 49.
35
Id. at 19, 22, 25-26, 199. 64
Id. at 858-859.
36
Id. at 150-180. 65
Section 458 (a) 1 (v), the Code.
37
Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 66
Catechism of the Catholic Church, Definitive Edition, p. 101;
207 SCRA 157, 161; Solicitor General v. Metropolitan Manila ECCE and Word & Life Publications, Don Bosco Compound, Makati.
Authority, G.R. No. 102782, 11 December 1991, 204 SCRA 837,
845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 67
Lim v. Court of Appeals, supra note 57 at 867.
20 July 1994, 234 SCRA 255, 268-267.
68
38 Rubi v. Provincial Board 39 Phil. 660 (1919), as cited in
See ART. 7, par. (3) of the Civil Code which reads, thus:
Morfe v. Mutuc, 130 Phil. 415 (1968).
. . . 69
Morfe v. Mutuc, 130 Phil. 415, 440 (1968).
42 75
Metropolitan Manila Devt. Authority v. Bel-Air Village Asso., 385 Id. at 442-443, citing Laski, Liberty in the Modern State, 44
Phil. 586, 603 (2000), citing Sections 468 (a), 458 (a), and 447 (1944).
(a), Book III, Local Government Code of 1991.
76
Id. at 444-445, citing Emerson, Nine Justices in Search of a
43
16 C.J.S., pp. 562-565. Doctrine, 64 Mich. Law. Rev. 219, 229 (1965).
44 77
Art. II, Declaration of principles and state policies, 1987 const. People v. Fajardo, et al., 104 Phil. 443, 447 (1958).
45 78
Ibid. Ibid. citing Arverne Bay Const. Co. v. Thatcher (N.Y.) 117 ALR.
1110, 1116.
46
Art. III, Bill of Rights, 1987 Const.
79
Chemerinsky, supra note 53 at 616.
47
Ibid.
80
Id. at 617.
48
Id. at Sec. 9; See also Cruz, Isagani A., Constitutional Law 97
81
(1998). 260 U.S. 393, 415 (1922).
49 82
Ermita-Malate Hotel and Motel Operators Association, Id. at 413-415.
Inc. v. City Mayor of Manila, 20 Phil. 849, 860 (1967).
83
See Penn Central Transportation Co. v. New York City, 438 U.S.
50
See In re Lutker, Okl. Cr., 274 P. 2d 786, 789, 790. 104 (1978).
51 84
Supra note 43 at 1150-1151. Chemerinsky, supra note 53 at 623-626.
52 85
See Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919). See Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992).
53
Chemerinsky, Erwin, Constitutional Law Principles And Policies,
2nd Ed. 523 (2002). 86
Ibid.
54 87
Id. at 523-524. Chemerinsky, supra note 53 at 166.
55 88
See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Supra note 82.
56 89
Chemerinsky, supra note 53 at 524. Cruz, supra note 59 at 38.
57 90
Lim v. Court of Appeals, 435 Phil. 857, 868 (2002); This is a People v. Fajardo, supra note 76 at 443,
related case involving the same Ordinance challenged in this case. 448 citing Tews v. Woolhiser (1933) 352 I11. 212, 185 N.E. 827.
The Court denied the petition questioning the writ of prohibitory
91 120
Id. at 446-447. Francisco, supra note 113 at 178-179; See King, et
al. v. Hernaez, etc., et al., 114 Phil. 730, 739 (1962).
92
Id. at 447, citing Schloss Poster Adv. Co., Inc. v. City of Rock
121
Hill, et al., 2 SE (2d), pp. 394-395; People v. Nazario, No. L- Chua Lao, etc., et al. v. Raymundo, etc., et al., 104 Phil. 302,
44143, 31 August 1988, 165 SCRA 186, 195. 307 (1958).
93 122
402 U.S. 611 (1971). G.R. No. 102782, 11 December 1991, 204 SCRA 837.
94 123
No. L-44143, 31 August 1988, 165 SCRA 186, 195. Id. at 847.
95 124
493 U.S. 215 (1990). Balacuit v. CFI of Agusan del Norte, supra note 61 at 198-199.
96
Supra note 49.
97
De la Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490, 503
(1983).
98
See Ichong v. Hernandez, 101 Phil. 1155 (1957).
99
16B Am Jur 2d 779 299 citing State of Missouri ex rel.
Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208
(1938), reh'g denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437
(1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d
217 (1939).
100
16B Am Jur 2d 779 299 citing Romer v. Evans, 517 U.S.
620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 109 Ed. Law Rep. 539,
70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH)
44013 (1996); Walker v. Board of Supervisors of Monroe County,
224 Miss. 801, 81 So. 2d 225 (1955), cert. denied, 350 U.S. 887,
76 S. Ct. 142, 100 L. Ed. 782 (1955); Preisler v. Calcaterra, 362
Mo. 662, 243 S.W. 2d 62 (1951).
101
Supra note 52 at 145.
102
Nuñez v. Sandiganbayan, 197 Phil. 407 (1982).
103
Cruz, supra note 59 at 125.
104
See People v. Cayat, 68 Phil. 12 (1939).
105
See Craig v. Boren, 429 U.S. 190 (1976).
106
Supra note 17.
107
Id. at 108 (1920).
108
81 Phil. 33 (1948).
109
Id. at 38.
110
Rollo, p. 19.
111
RTC Records, p. 409; The Decision of the Regional Trial Court
of Manila, Branch 55 in the case of Cotton Club Corporation,
Inc. v. Hon. Alfredo S. Lim, etc., et al., Civil Case No. 93-66551;
Dated 28 July 1993; Penned by Judge Hermogenes R. Liwag;
Citing Shaw, Harry, Punctuate it Right! Everday Handbooks 125-
126.
112
Id. at 408.
113
City of Ozamis v. Lumapas, No. L-30727, 15 July 1975, 65
SCRA 33, 42.
114
Francisco, Vicente J., Statutory Construction, Second Edition
172 (1959); See Pepsi-Cola Bottling Company of the Philippines,
Inc. v. Municipality of Tanauan, Leyte, et al., 161 Phil. 591, 605
(1976).
115
Supra note 107 at 33.
116
Agpalo, Ruben F., Statutory Construction 296 (1986).
117
Francisco, supra note 113 at 271.
118
Crawford, Earl T., The Construction of Statutes 196-197
(1940); See Mecano v. Commission on Audit, G.R. No. 103982,
11 December 1992, 216 SCRA 500, 505.
119
See Estate of Gregoria Francisco v. Court of Appeals, G.R. No.
95279, 25 July 1991, 199 SCRA 595, 601.
Republic of the Philippines In the a answer filed on August 3, 1963, there was an admission of the
SUPREME COURT personal circumstances regarding the respondent Mayor and of the fact that
Manila petitioners are licensed to engage in the hotel or motel business in the City
of Manila, of the provisions of the cited Ordinance but a denial of its alleged
nullity, whether on statutory or constitutional grounds. After setting forth that
EN BANC
the petition did fail to state a cause of action and that the challenged
ordinance bears a reasonable relation, to a proper purpose, which is to curb
G.R. No. L-24693 July 31, 1967 immorality, a valid and proper exercise of the police power and that only the
guests or customers not before the court could complain of the alleged
invasion of the right to privacy and the guaranty against self incrimination,
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, with the assertion that the issuance of the preliminary injunction ex
INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-appellees, parte was contrary to law, respondent Mayor prayed for, its dissolution and
vs. the dismissal of the petition.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Instead of evidence being offered by both parties, there was submitted a
stipulation of facts dated September 28, 1964, which reads:
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
1. That the petitioners Ermita-Malate Hotel and Motel Operators
Association, Inc. and Hotel del Mar Inc. are duly organized and
FERNANDO, J.: existing under the laws of the Philippines, both with offices in the
City of Manila, while the petitioner Go Chin is the president and
The principal question in this appeal from a judgment of the lower court in general manager of Hotel del Mar Inc., and the intervenor Victor
an action for prohibition is whether Ordinance No. 4760 of the City of Manila Alabanza is a resident of Baguio City, all having the capacity to
is violative of the due process clause. The lower court held that it is and sue and be sued;
adjudged it "unconstitutional, and, therefore, null and void." For reasons to
be more specifically set forth, such judgment must be reversed, there being 2. That the respondent Mayor is the duly elected and incumbent
a failure of the requisite showing to sustain an attack against its validity. City Mayor and chief executive of the City of Manila charged with
the general power and duty to enforce ordinances of the City of
The petition for prohibition against Ordinance No. 4760 was filed on July 5, Manila and to give the necessary orders for the faithful execution
1963 by the petitioners, Ermita-Malate Hotel and Motel Operators and enforcement of such ordinances;
Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu,
who is "the president and general manager of the second petitioner" against 3. That the petitioners are duly licensed to engage in the business
the respondent Mayor of the City of Manila who was sued in his capacity as of operating hotels and motels in Malate and Ermita districts in
such "charged with the general power and duty to enforce ordinances of the Manila;
City of Manila and to give the necessary orders for the faithful execution
and enforcement of such ordinances." (par. 1). It was alleged that the
petitioner non-stock corporation is dedicated to the promotion and 4. That on June 13, 1963, the Municipal Board of the City of
protection of the interest of its eighteen (18) members "operating hotels and Manila enacted Ordinance No. 4760, which was approved on
motels, characterized as legitimate businesses duly licensed by both June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting
national and city authorities, regularly paying taxes, employing and giving City Mayor of Manila, in the absence of the respondent regular
livelihood to not less than 2,500 person and representing an investment of City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of
more than P3 million." 1 (par. 2). It was then alleged that on June 13, 1963, the compilation of the ordinances of the City of Manila besides
the Municipal Board of the City of Manila enacted Ordinance No. 4760, inserting therein three new sections. This ordinance is similar to
approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who the one vetoed by the respondent Mayor (Annex A) for the
was at the time acting as Mayor of the City of Manila. (par. 3). reasons stated in its 4th Indorsement dated February 15, 1963
(Annex B);
After which the alleged grievances against the ordinance were set forth in
detail. There was the assertion of its being beyond the powers of the 5. That the explanatory note signed by then Councilor Herminio
Municipal Board of the City of Manila to enact insofar as it would regulate Astorga was submitted with the proposed ordinance (now
motels, on the ground that in the revised charter of the City of Manila or in Ordinance 4760) to the Municipal Board, copy of which is
any other law, no reference is made to motels; that Section 1 of the attached hereto as Annex C;
challenged ordinance is unconstitutional and void for being unreasonable
and violative of due process insofar as it would impose P6,000.00 fee per
6. That the City of Manila derived in 1963 an annual income of
annum for first class motels and P4,500.00 for second class motels; that the
P101,904.05 from license fees paid by the 105 hotels and motels
provision in the same section which would require the owner, manager,
(including herein petitioners) operating in the City of
keeper or duly authorized representative of a hotel, motel, or lodging house
Manila.1äwphï1.ñët
to refrain from entertaining or accepting any guest or customer or letting any
room or other quarter to any person or persons without his filling up the
prescribed form in a lobby open to public view at all times and in his Thereafter came a memorandum for respondent on January 22, 1965,
presence, wherein the surname, given name and middle name, the date of wherein stress was laid on the presumption of the validity of the challenged
birth, the address, the occupation, the sex, the nationality, the length of stay ordinance, the burden of showing its lack of conformity to the Constitution
and the number of companions in the room, if any, with the name, resting on the party who assails it, citing not only U.S. v. Salaveria, but
relationship, age and sex would be specified, with data furnished as to his likewise applicable American authorities. Such a memorandum likewise
residence certificate as well as his passport number, if any, coupled with a refuted point by point the arguments advanced by petitioners against its
certification that a person signing such form has personally filled it up and validity. Then barely two weeks later, on February 4, 1965, the
affixed his signature in the presence of such owner, manager, keeper or memorandum for petitioners was filed reiterating in detail what was set forth
duly authorized representative, with such registration forms and records in the petition, with citations of what they considered to be applicable
kept and bound together, it also being provided that the premises and American authorities and praying for a judgment declaring the challenged
facilities of such hotels, motels and lodging houses would be open for ordinance "null and void and unenforceable" and making permanent the writ
inspection either by the City Mayor, or the Chief of Police, or their duly of preliminary injunction issued.
authorized representatives is unconstitutional and void again on due
process grounds, not only for being arbitrary, unreasonable or oppressive
After referring to the motels and hotels, which are members of the
but also for being vague, indefinite and uncertain, and likewise for the
petitioners association, and referring to the alleged constitutional questions
alleged invasion of the right to privacy and the guaranty against self-
raised by the party, the lower court observed: "The only remaining issue
incrimination; that Section 2 of the challenged ordinance classifying motels
here being purely a question of law, the parties, with the nod of the Court,
into two classes and requiring the maintenance of certain minimum facilities
agreed to file memoranda and thereafter, to submit the case for decision of
in first class motels such as a telephone in each room, a dining room or,
the Court." It does appear obvious then that without any evidence submitted
restaurant and laundry similarly offends against the due process clause for
by the parties, the decision passed upon the alleged infirmity on
being arbitrary, unreasonable and oppressive, a conclusion which applies to
constitutional grounds of the challenged ordinance, dismissing as is
the portion of the ordinance requiring second class motels to have a dining
undoubtedly right and proper the untenable objection on the alleged lack of
room; that the provision of Section 2 of the challenged ordinance prohibiting
authority of the City of Manila to regulate motels, and came to the
a person less than 18 years old from being accepted in such hotels, motels,
conclusion that "the challenged Ordinance No. 4760 of the City of Manila,
lodging houses, tavern or common inn unless accompanied by parents or a
would be unconstitutional and, therefore, null and void." It made permanent
lawful guardian and making it unlawful for the owner, manager, keeper or
the preliminary injunction issued against respondent Mayor and his agents
duly authorized representative of such establishments to lease any room or
"to restrain him from enforcing the ordinance in question." Hence this
portion thereof more than twice every 24 hours, runs counter to the due
appeal.
process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section
4 of the challenged ordinance for a subsequent conviction would, cause the As noted at the outset, the judgment must be reversed. A decent regard for
automatic cancellation of the license of the offended party, in effect causing constitutional doctrines of a fundamental character ought to have
the destruction of the business and loss of its investments, there is once admonished the lower court against such a sweeping condemnation of the
again a transgression of the due process clause. challenged ordinance. Its decision cannot be allowed to stand, consistently
with what has hitherto been the accepted standards of constitutional
adjudication, in both procedural and substantive aspects.
There was a plea for the issuance of preliminary injunction and for a final
judgment declaring the above ordinance null and void and unenforceable.
The lower court on July 6, 1963 issued a writ of preliminary injunction Primarily what calls for a reversal of such a decision is the absence of any
ordering respondent Mayor to refrain from enforcing said Ordinance No. evidence to offset the presumption of validity that attaches to a challenged
4760 from and after July 8, 1963. statute or ordinance. As was expressed categorically by Justice Malcolm:
"The presumption is all in favor of validity x x x . The action of the elected
representatives of the people cannot be lightly set aside. The councilors fealty "to those strivings for justice" and judges the act of officialdom of
must, in the very nature of things, be familiar with the necessities of their whatever branch "in the light of reason drawn from considerations of
particular municipality and with all the facts and circumstances which fairness that reflect [democratic] traditions of legal and political thought." 18 It
surround the subject and necessitate action. The local legislative body, by is not a narrow or "technical conception with fixed content unrelated to time,
enacting the ordinance, has in effect given notice that the regulations are place and circumstances,"19 decisions based on such a clause requiring a
essential to the well being of the people x x x . The Judiciary should not "close and perceptive inquiry into fundamental principles of our
lightly set aside legislative action when there is not a clear invasion of society."20 Questions of due process are not to be treated narrowly or
personal or property rights under the guise of police regulation. 2 pedantically in slavery to form or phrases. 21
It admits of no doubt therefore that there being a presumption of validity, the It would thus be an affront to reason to stigmatize an ordinance enacted
necessity for evidence to rebut it is unavoidable, unless the statute or precisely to meet what a municipal lawmaking body considers an evil of
ordinance is void on its face which is not the case here. The principle has rather serious proportion an arbitrary and capricious exercise of authority. It
been nowhere better expressed than in the leading case of O'Gorman & would seem that what should be deemed unreasonable and what would
Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court amount to an abdication of the power to govern is inaction in the face of an
through Justice Brandeis tersely and succinctly summed up the matter thus: admitted deterioration of the state of public morals. To be more specific, the
The statute here questioned deals with a subject clearly within the scope of Municipal Board of the City of Manila felt the need for a remedial measure.
the police power. We are asked to declare it void on the ground that the It provided it with the enactment of the challenged ordinance. A strong case
specific method of regulation prescribed is unreasonable and hence must be found in the records, and, as has been set forth, none is even
deprives the plaintiff of due process of law. As underlying questions of fact attempted here to attach to an ordinance of such character the taint of
may condition the constitutionality of legislation of this character, the nullity for an alleged failure to meet the due process requirement. Nor does
resumption of constitutionality must prevail in the absence of some factual it lend any semblance even of deceptive plausibility to petitioners'
foundation of record for overthrowing the statute." No such factual indictment of Ordinance No. 4760 on due process grounds to single out
foundation being laid in the present case, the lower court deciding the such features as the increased fees for motels and hotels, the curtailment of
matter on the pleadings and the stipulation of facts, the presumption of the area of freedom to contract, and, in certain particulars, its alleged
validity must prevail and the judgment against the ordinance set aside. vagueness.
Nor may petitioners assert with plausibility that on its face the ordinance is Admittedly there was a decided increase of the annual license fees
fatally defective as being repugnant to the due process clause of the provided for by the challenged ordinance for hotels and motels, 150% for
Constitution. The mantle of protection associated with the due process the former and over 200% for the latter, first-class motels being required to
guaranty does not cover petitioners. This particular manifestation of a police pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has
power measure being specifically aimed to safeguard public morals is been the settled law however, as far back as 1922 that municipal license
immune from such imputation of nullity resting purely on conjecture and fees could be classified into those imposed for regulating occupations or
unsupported by anything of substance. To hold otherwise would be to regular enterprises, for the regulation or restriction of non-useful
unduly restrict and narrow the scope of police power which has been occupations or enterprises and for revenue purposes only. 22 As was
properly characterized as the most essential, insistent and the least explained more in detail in the above Cu Unjieng case: (2) Licenses for non-
limitable of powers, 4 extending as it does "to all the great public needs." 5 It useful occupations are also incidental to the police power and the right to
would be, to paraphrase another leading decision, to destroy the very exact a fee may be implied from the power to license and regulate, but in
purpose of the state if it could be deprived or allowed itself to be deprived of fixing amount of the license fees the municipal corporations are allowed a
its competence to promote public health, public morals, public safety and much wider discretion in this class of cases than in the former, and aside
the genera welfare.6 Negatively put, police power is "that inherent and from applying the well-known legal principle that municipal ordinances must
plenary power in the State which enables it to prohibit all that is hurt full to not be unreasonable, oppressive, or tyrannical, courts have, as a general
the comfort, safety, and welfare of society.7 rule, declined to interfere with such discretion. The desirability of imposing
restraint upon the number of persons who might otherwise engage in non-
useful enterprises is, of course, generally an important factor in the
There is no question but that the challenged ordinance was precisely
determination of the amount of this kind of license fee. Hence license fees
enacted to minimize certain practices hurtful to public morals. The
clearly in the nature of privilege taxes for revenue have frequently been
explanatory note of the Councilor Herminio Astorga included as annex to
upheld, especially in of licenses for the sale of liquors. In fact, in the latter
the stipulation of facts, speaks of the alarming increase in the rate of
cases the fees have rarely been declared unreasonable.23
prostitution, adultery and fornication in Manila traceable in great part to the
existence of motels, which "provide a necessary atmosphere for clandestine
entry, presence and exit" and thus become the "ideal haven for prostitutes Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed
and thrill-seekers." The challenged ordinance then proposes to check the the doctrine earlier announced by the American Supreme Court that
clandestine harboring of transients and guests of these establishments by taxation may be made to implement the state's police power. Only the other
requiring these transients and guests to fill up a registration form, prepared day, this Court had occasion to affirm that the broad taxing authority
for the purpose, in a lobby open to public view at all times, and by conferred by the Local Autonomy Act of 1959 to cities and municipalities is
introducing several other amendatory provisions calculated to shatter the sufficiently plenary to cover a wide range of subjects with the only limitation
privacy that characterizes the registration of transients and guests." that the tax so levied is for public purposes, just and uniform.25
Moreover, the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than legal" and
As a matter of fact, even without reference to the wide latitude enjoyed by
at the same time, to increase "the income of the city government." It would
the City of Manila in imposing licenses for revenue, it has been explicitly
appear therefore that the stipulation of facts, far from sustaining any attack
held in one case that "much discretion is given to municipal corporations in
against the validity of the ordinance, argues eloquently for it.
determining the amount," here the license fee of the operator of a massage
clinic, even if it were viewed purely as a police power measure. 26 The
It is a fact worth noting that this Court has invariably stamped with the seal discussion of this particular matter may fitly close with this pertinent citation
of its approval, ordinances punishing vagrancy and classifying a pimp or from another decision of significance: "It is urged on behalf of the plaintiffs-
procurer as a vagrant;8 provide a license tax for and regulating the appellees that the enforcement of the ordinance could deprive them of their
maintenance or operation of public dance halls;9 prohibiting lawful occupation and means of livelihood because they can not rent stalls
gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of in the public markets. But it appears that plaintiffs are also dealers in
panguingui on days other than Sundays or legal holidays; 13 prohibiting the refrigerated or cold storage meat, the sale of which outside the city markets
operation of pinball machines; 14 and prohibiting any person from keeping, under certain conditions is permitted x x x . And surely, the mere fact, that
conducting or maintaining an opium joint or visiting a place where opium is some individuals in the community may be deprived of their present
smoked or otherwise used, 15 all of which are intended to protect public business or a particular mode of earning a living cannot prevent the
morals. exercise of the police power. As was said in a case, persons licensed to
pursue occupations which may in the public need and interest be affected
by the exercise of the police power embark in these occupations subject to
On the legislative organs of the government, whether national or local,
the disadvantages which may result from the legal exercise of that power." 27
primarily rest the exercise of the police power, which, it cannot be too often
emphasized, is the power to prescribe regulations to promote the health,
morals, peace, good order, safety and general welfare of the people. In Nor does the restriction on the freedom to contract, insofar as the
view of the requirements of due process, equal protection and other challenged ordinance makes it unlawful for the owner, manager, keeper or
applicable constitutional guaranties however, the exercise of such police duly authorized representative of any hotel, motel, lodging house, tavern,
power insofar as it may affect the life, liberty or property of any person is common inn or the like, to lease or rent room or portion thereof more than
subject to judicial inquiry. Where such exercise of police power may be twice every 24 hours, with a proviso that in all cases full payment shall be
considered as either capricious, whimsical, unjust or unreasonable, a denial charged, call for a different conclusion. Again, such a limitation cannot be
of due process or a violation of any other applicable constitutional guaranty viewed as a transgression against the command of due process. It is
may call for correction by the courts. neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises could
be, and, according to the explanatory note, are being devoted. How could it
We are thus led to considering the insistent, almost shrill tone, in which the
then be arbitrary or oppressive when there appears a correspondence
objection is raised to the question of due process. 16 There is no controlling
between the undeniable existence of an undesirable situation and the
and precise definition of due process. It furnishes though a standard to
legislative attempt at correction. Moreover, petitioners cannot be unaware
which the governmental action should conform in order that deprivation of
that every regulation of conduct amounts to curtailment of liberty which as
life, liberty or property, in each appropriate case, be valid. What then is the
pointed out by Justice Malcolm cannot be absolute. Thus: "One thought
standard of due process which must exist both as a procedural and a
which runs through all these different conceptions of liberty is plainly
substantive requisite to free the challenged ordinance, or any governmental
apparent. It is this: 'Liberty' as understood in democracies, is not license; it
action for that matter, from the imputation of legal infirmity sufficient to spell
is 'liberty regulated by law.' Implied in the term is restraint by law for the
its doom? It is responsiveness to the supremacy of reason, obedience to
good of the individual and for the greater good of the peace and order of
the dictates of justice. Negatively put, arbitrariness is ruled out and
society and the general well-being. No man can do exactly as he pleases.
unfairness avoided. To satisfy the due process requirement, official action,
Every man must renounce unbridled license. The right of the individual is
to paraphrase Cardozo, must not outrun the bounds of reason and result in
necessarily subject to reasonable restraint by general law for the common
sheer oppression. Due process is thus hostile to any official action marred
good x x x The liberty of the citizen may be restrained in the interest of the
by lack of reasonableness. Correctly it has been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts
public health, or of the public order and safety, or otherwise within the change. For him as for Holmes, 'society is more than bargain and
proper scope of the police power."28 business' and the jurist's art rises to no higher peak than in
vindicating interests not represented by the items in a balance-
sheet. In a progressive society, new interests emerge, new
A similar observation was made by Justice Laurel: "Public welfare, then, lies
attitudes appeal, social consciousness quickens. In the face of
at the bottom of the enactment of said law, and the state in order to promote
the unknown one cannot choose with certainty. Nor as yet, has
the general welfare may interfere with personal liberty, with property, and
the whole of truth been brought up from its bottomless well and
with business and occupations. Persons and property may be subjected to
how fragile in scientific proof is the ultimate validity of any
all kinds of restraints and burdens, in order to secure the general comfort,
particular economic adjustment. Social development is a process
health, and prosperity of the state x x x To this fundamental aim of our
of trial and error; in the making of policy the fullest possible
Government the rights of the individual are subordinated. Liberty is a
opportunity must be given for the play of the human mind. If
blessing without which life is a misery, but liberty should not be made to
Congress or legislature does not regulate, laissez faire — not the
prevail over authority because then society will fall into anarchy. Neither
individual — must be the regulator. (Hamilton, Preview of a
should authority be made to prevail over liberty because then the individual
Justice (1939) 48 Yale Law Journal, 819).
will fall into slavery. The citizen should achieve the required balance of
liberty and authority in his mind through education and personal discipline,
so that there may be established the resultant equilibrium, which means 5
Noble state Bank v. Haskell, 219 U.S. 412.
peace and order and happiness for all.29
6
U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.
It is noteworthy that the only decision of this Court nullifying legislation
because of undue deprivation of freedom to contract, People v. Pomar,30 no 7
Rubi v. Provincial Board, (1918) 39 Phil. 660.
longer "retains its virtuality as a living principle. The policy of laissez
faire has to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with public 8
U.S. vs. Giner Cruz, (1918) 38 Phil. 677.
interest.31 What may be stressed sufficiently is that if the liberty involved
were freedom of the mind or the person, the standard for the validity of 9
U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v.
governmental acts is much more rigorous and exacting, but where the
Belderol, L-15719, May 31, 1961; Lapera v. Vicente, L-18102,
liberty curtailed affects at the most rights of property, the permissible scope
June 30, 1962.
of regulatory measure is wider.32 How justify then the allegation of a denial
of due process?
10
U.S. v. Pacis, (1915) 31 Phil. 524.
Lastly, there is the attempt to impugn the ordinance on another due process
ground by invoking the principles of vagueness or uncertainty. It would 11
U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson,
appear from a recital in the petition itself that what seems to be the (1913) 26 Phil. 1; People vs. Chan Hong, (1938) 65 Phil. 625.
gravamen of the alleged grievance is that the provisions are too detailed
and specific rather than vague or uncertain. Petitioners, however, point to
the requirement that a guest should give the name, relationship, age and
12
U.S. v. Tamparong, (1915) 31 Phil. 321.
sex of the companion or companions as indefinite and uncertain in view of
the necessity for determining whether the companion or companions 13
U.S. v. Salaveria, (1918) 39 Phil. 102.
referred to are those arriving with the customer or guest at the time of the
registry or entering the room With him at about the same time or coming at
any indefinite time later to join him; a proviso in one of its sections which Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v.
14
cast doubt as to whether the maintenance of a restaurant in a motel is City of Manila, L-17252, May 31, 1961.
dependent upon the discretion of its owners or operators; another proviso
which from their standpoint would require a guess as to whether the "full 15
U.S. v. Ten Yu, (1912) 24 Phil. 1.
rate of payment" to be charged for every such lease thereof means a full
day's or merely a half-day's rate. It may be asked, do these allegations
suffice to render the ordinance void on its face for alleged vagueness or
16
There is no occasion to consider even cursorily the alleged
uncertainty? To ask the question is to answer it. From Connally v. General invasion of the right of privacy or the prohibition against self-
Construction Co.33 to Adderley v. Florida,34 the principle has been incrimination. Petitioners obviously are not the proper parties to
consistently upheld that what makes a statute susceptible to such a charge do so. Nor may such an incurable defect be remedied by an
is an enactment either forbidding or requiring the doing of an act that men of accommodating intervenor "who has always taken advantage of
common intelligence must necessarily guess at its meaning and differ as to as he exclusively relies on, the facilities, services and
its application. Is this the situation before us? A citation from Justice Holmes accommodations offered by petitioner-motels. A general
would prove illuminating: "We agree to all the generalities about not merchant, doing business not only in Baguio City but in the City of
supplying criminal laws with what they omit but there is no canon against Manila, has no legitimate cause for complaint. At least, not
using common sense in construing laws as saying what they obviously according to the case as it has been developed.
mean."35
Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938)
17
That is all then that this case presents. As it stands, with all due allowance pp. 32- 33.
for the arguments pressed with such vigor and determination, the attack
against the validity of the challenged ordinance cannot be considered a 18
Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.
success. Far from it. Respect for constitutional law principles so uniformly
held and so uninterruptedly adhered to by this Court compels a reversal of
the appealed decision.
19
Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.
Wherefore, the judgment of the lower court is reversed and the injunction
20
Bartkus v. Illinois, (1959) 359 U.S. 121.
issued lifted forthwith. With costs.
21
Pearson v. McGraw, (1939) 308 U.S. 313.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and
Angeles, JJ., concur. 22
Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.
Concepcion, C.J. and Dizon, J., are on leave.
23
Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of
Footnotes Chicago, 120 Ill. 627; 12 N.E., 227; United States Distilling Co. v.
City of Chicago, 112 Ill. 19: Drew County v. Bennet, 43 Ark. 364;
The eighteen members are Waldorf Hotel, Hotel Monte Carlo,
1 Merced County v. Fleming, Ill Cal. 46; 43 Pac. 392; Williams v.
Golden Gate Motel, Miami Hotel, Palm Spring Hotel, Flamingo City Council of West Point, 68 Ga. 816; Cheny v. Shellbyville, 19
Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel, Paradise Ind. 84; Wiley y. Owens, 39 Ind. 429; Sweet v. City of Wabash,
Hotel, Mayfair Hotel, Siesta Court, Sun Valley Hotel, Springfield 41 Ind. 7; Jones v. Grady, 25 La. Ann. 586; Goldsmith v. City of
Hotel, New Palace Hotel, Hotel del Mar Longbeach Hotel and Ritz New Orleans, 31 La. Ann. 646; People ex rel., Cramer v.
Motel. Medberry, 39 N.Y.S. 207; 17 Misc. Rep., 8 ; McGuigan v. Town of
Belmont, 89 Wis. 637; 62 N.W., 421; Ex parte Burnett 30 Ala.
461; Craig v. Burnett 32 Ala., 728, and Muhlenbrinck v. Long
2
U.S. V. Salaveria (1918), 39 Phil. 102, at p. 111. There was an Branch Commissioner, 42 N.J.L. 364; 36 Am. Rep., 518. At pp.
affirmation of the presumption of validity of municipal ordinance 829-830.
as announced in the leading Salaveria decision in Eboña v. Daet,
(1950) 85 Phil. 369.
98 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean,
24
and the police power. Instead, in a world of trusts and unions and Phil. 1142.
large-scale industry, it must meet the challenge of drastic social
27
Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654,
citing City of New Orleans v. Stafford, 27 L. Ann. 417.
29
Calalang v. Williams (1940), 70 Phil. 726, at 733-734.
30
46 Phil. 440 (1924). The Philippines was then under American
sovereignty, American Supreme Court decisions having thus an
obligatory effect. No alternative was left to this Court except to
follow the then controlling decision in Adkins v. Children's
Hospital (1924), 261 U.S. 525, which subsequently was overruled
in West Coast Hotel v. Parrish (1937), 300 U.S. 379.
32
Cf. "In weighing arguments of the parties it is important to
distinguish between the due process clause of the Fourteenth
Amendment as an instrument for transmitting the principles of the
First Amendment and those cases in which it is applied for its
own sake. The test of legislation which collides with the
Fourteenth Amendment because it also collides with the
principles of the First, is much more definite than the test when
only the Fourteen is involved. Much of the vagueness of the due
process clause disappears when the specific prohibition of the
First become its standard. The right of a State to regulate, for
example, a public utility may well include, so far as the due
process test is concerned, power to impose all of the restrictions
which a legislature may have a 'rational basis' for adopting. But
freedoms of speech and of press, of assembly, and of worship
may well be infringed on such slender grounds. They are
susceptible of restriction only to prevent an immediate danger to
interests which the state may lawfully protect." (West Virginia
State Bd. of Edu v. Barnette, (1942), 319 U.S. 624, at 639).
33
269 U.S. 385 (1926).
34
17 L. ed. 2d 149, Nov. 14, 1966.
35
Roschen v. Ward (1929), 279 U. S. 337,339.
Republic of the Philippines and monuments, and that the same should not be converted into a street for
SUPREME COURT public purposes.
Manila
Upon the issue thus presented by the petition and the various answers, the
EN BANC 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
G.R. No. L-14355 October 31, 1919
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.
THE CITY OF MANILA, plaintiff-appellant,
vs.
From that judgment the plaintiff appealed and presented the above question
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.
as its principal ground of appeal.
The Charter of the city of Manila contains no procedure by which the said
On the 11th day of December, 1916, the city of Manila presented a petition
authority may be carried into effect. We are driven, therefore, to the
in the Court of First Instance of said city, praying that certain lands, therein
procedure marked out by Act No. 190 to ascertain how the said authority
particularly described, be expropriated for the purpose of constructing a
may be exercised. From an examination of Act No. 190, in its section 241,
public improvement. The petitioner, in the second paragraph of the petition,
we find how the right of eminent domain may be exercised. Said section
alleged:
241 provides that, "The Government of the Philippine Islands, or of any
province or department thereof, or of any municipality, and any person, or
That for the purpose of constructing a public improvement, public or private corporation having, by law, the right to condemn private
namely, the extension of Rizal Avenue, Manila, it is necessary for property for public use, shall exercise that right in the manner hereinafter
the plaintiff to acquire ownership in fee simple of certain parcels prescribed."
of land situated in the district of Binondo of said city within Block
83 of said district, and within the jurisdiction of this court.
Section 242 provides that a complaint in expropriation proceeding shall be
presented; that the complaint shall state with certainty the right of
The defendant, the Comunidad de Chinos de Manila [Chinese Community condemnation, with a description of the property sought to be condemned
of Manila], answering the petition of the plaintiff, alleged that it was a together with the interest of each defendant separately.
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
Section 243 provides that if the court shall find upon trial that the right to
the Chinese Community of the City of Manila; that it was the owner of
expropriate the land in question exists, it shall then appoint commissioners.
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 Sections 244, 245 and 246 provide the method of procedure and duty of the
ample means of communication for the public in the district covered by such commissioners. Section 248 provides for an appeal from the judgment of
proposed expropriation; that if the construction of the street or road should the Court of First Instance to the Supreme Court. Said section 248 gives the
be considered a public necessity, other routes were available, which would Supreme Court authority to inquire into the right of expropriation on the part
fully satisfy the plaintiff's purposes, at much less expense and without of the plaintiff. If the Supreme Court on appeal shall determine that
disturbing the resting places of the dead; that it had a Torrens title for the no right of expropriation existed, it shall remand the cause to the Court of
lands in question; that the lands in question had been used by the First Instance with a mandate that the defendant be replaced in the
defendant for cemetery purposes; that a great number of Chinese were possession of the property and that he recover whatever damages he may
buried in said cemetery; that if said expropriation be carried into effect, it have sustained by reason of the possession of the plaintiff.
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
It is contended on the part of the plaintiff that the phrase in said section,
other place or site and in the purchase of such new sites, would involve the
"and if the court shall find the right to expropriate exists," means simply
destruction of existing monuments and the erection of new monuments in
that, if the court finds that there is some law authorizing the plaintiff to
their stead, and would create irreparable loss and injury to the defendant
expropriate, then the courts have no other function than to authorize the
and to all those persons owning and interested in the graves and
expropriation and to proceed to ascertain the value of the land involved; that
monuments which would have to be destroyed; that the plaintiff was without
the necessity for the expropriation is a legislative and not a judicial question.
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. 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
The defendant Ildefonso Tambunting, answering the petition, denied each
legislature. Much has been written upon both sides of that question. A
and every allegation of the complaint, and alleged that said expropriation
careful examination of the discussions pro and con will disclose the fact
was not a public improvement; that it was not necessary for the plaintiff to
that the decisions depend largely upon particular constitutional or statutory
acquire the parcels of land in question; that a portion of the lands in
provisions. It cannot be denied, if the legislature under proper authority
question was used as a cemetery in which were the graves of his
should grant the expropriation of a certain or particular parcel of land for
ancestors; that monuments and tombstones of great value were found
some specified public purpose, that the courts would be without jurisdiction
thereon; that the land had become quasi-public property of a benevolent
to inquire into the purpose of that legislation.
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 If, upon the other hand, however, the Legislature should grant general
said extension over other land, without cost to the plaintiff, in order that the authority to a municipal corporation to expropriate private
sepulchers, chapels and graves of his ancestors may not be disturbed; that land for public purposes, we think the courts have ample authority in this
the land so offered, free of charge, would answer every public necessity on jurisdiction, under the provisions above quoted, to make inquiry and to hear
the part of the plaintiff. 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
The defendant Feliza Concepcion de Delgado, with her husband, Jose
questions relating to expropriation must be referred to them (sec. 241, Act
Maria Delgado, and each of the other defendants, answering separately,
No. 190) for final decision, to ask whether or not the law has been complied
presented substantially the same defense as that presented by
with? Suppose in a particular case, it should be denied that the property is
the Comunidad de Chinos de Manila and Ildefonso Tambunting above
not private property but public, may not the courts hear proof upon that
referred to.
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
The foregoing parts of the defense presented by the defendants have been not the courts make inquiry and hear proof upon that question?
inserted in order to show the general character of the defenses presented
by each of the defendants. The plaintiff alleged that the expropriation was
The city of Manila is given authority to expropriate private lands
necessary. The defendants each alleged (a) that no necessity existed for
for public purposes. Can it be possible that said authority confers the right
said expropriation and (b) that the land in question was a cemetery, which
to determine for itself that the land is private and that the purpose is public,
had been used as such for many years, and was covered with sepulchres
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 The legislative department of the government was rarely undertakes to
other, or both, of these questions? Can it be successfully contended that designate the precise property which should be taken for public use. It has
the phrase used in Act No. 190, "and if the court upon trial shall find that generally, like in the present case, merely conferred general authority to
such right exists," means simply that the court shall examine the statutes take land for public use when a necessity exists therefor. We believe that it
simply for the purpose of ascertaining whether a law exists authorizing the can be confidently asserted that, under such statute, the allegation of the
petitioner to exercise the right of eminent domain? Or, when the case necessity for the appropriation is an issuable allegation which it is
arrives in the Supreme Court, can it be possible that the phrase, "if the competent for the courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42
Supreme Court shall determine that no right of expropriation exists," that Am. St. Rep., 402, 407].)
that simply means that the Supreme Court shall also examine the
enactments of the legislature for the purpose of determining whether or not
There is a wide distinction between a legislative declaration that a
a law exists permitting the plaintiff to expropriate?
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
We are of the opinion that the power of the court is not limited to that that right in a particular case. The first is a declaration simply that there
question. The right of expropriation is not an inherent power in a municipal exist reasons why the right should be conferred upon municipal corporation,
corporation, and before it can exercise the right some law must exist while the second is the application of the right to a particular case.
conferring the power upon it. When the courts come to determine the Certainly, the legislative declaration relating to the advisability of granting
question, they must only find (a) that a law or authority exists for the the power cannot be converted into a declaration that a necessity exists for
exercise of the right of eminent domain, but (b) also that the right or its exercise in a particular case, and especially so when, perhaps, the land
authority is being exercised in accordance with the law. In the present case in question was not within the territorial authority was granted.
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
Whether it was wise, advisable, or necessary to confer upon a municipality
public. If the court, upon trial, finds that neither of these conditions exists or
the power to exercise the right of eminent domain, is a question with which
that either one of them fails, certainly it cannot be contended that the right is
the courts are not concerned. But when that right or authority is exercised
being exercised in accordance with law.
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
Whether the purpose for the exercise of the right of eminent domain is necessity in the particular case, and not the general authority.
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
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is
Philippine Islands the right to ascertain upon trial whether the right exists
cited as a further conclusive authority upon the question that the necessity
for the exercise of eminent domain, it intended that the courts should inquire
for the exercise of the right of eminent domain is a legislative and not a
into, and hear proof upon, those questions. Is it possible that the owner of
judicial question. Cyclopedia, at the page stated, says:
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 In the absence of some constitutional or statutory provision to the
permit municipalities to expropriate lands, without question, simply for the contrary, the necessity and expediency of exercising the right of
purpose of satisfying the aesthetic sense of those who happen for the time eminent domain are questions essentially political and not judicial
being to be in authority? Expropriation of lands usually calls for public in their character. The determination of those questions (the
expense. The taxpayers are called upon to pay the costs. Cannot the necessity and the expediency) belongs to the sovereign power;
owners of land question the public use or the public necessity? 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
As was said above, there is a wide divergence of opinion upon the authority
condemned, and its determination in this respect cannot be
of the court to question the necessity or advisability of the exercise of the
reviewed by the courts.
right of eminent domain. The divergence is usually found to depend upon
particular statutory or constitutional provisions.
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
It has been contended — and many cases are cited in support of that
said citations, many of them have been examined, and it can be confidently
contention, and section 158 of volume 10 of Ruling Case Law is cited as
asserted that said cases which are cited in support of the assertion that,
conclusive — that the necessity for taking property under the right of
"the necessity and expediency of exercising the right of eminent domain are
eminent domain is not a judicial question. But those who cited said section
questions essentially political and not judicial," show clearly and invariably
evidently overlooked the section immediately following (sec. 159), which
that in each case the legislature itself usually, by a special law, designated
adds: "But it is obvious that if the property is taken in the ostensible behalf
the particular case in which the right of eminent domain might be exercised
of a public improvement which it can never by any possibility serve, it is
by the particular municipal corporation or entity within the state. (Eastern R.
being taken for a use not public, and the owner's constitutional rights call for
Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn
protection by the courts. While many courts have used sweeping
Park Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70];
expression in the decisions in which they have disclaimed the power of
Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville,
supervising the power of supervising the selection of the sites of public
etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co.,
improvements, it may be safely said that the courts of the various states
229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction
would feel bound to interfere to prevent an abuse of the discretion
Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351
delegated by the legislature, by an attempted appropriation of land in utter
[erroneously cited as 242 U.S.].)
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. In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme
R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., Court of the United States said: "It is erroneous to suppose that the
620.) 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
Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in
for the taking exists, the legislature cannot authorize the taking of private
support of the contention of the appellant, says:
property against the will of the owner, notwithstanding compensation may
be required."
The legislature, in providing for the exercise of the power of
eminent domain, may directly determine the necessity for
In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339,
appropriating private property for a particular improvement for
356), we find the Supreme Court of Porto Rico, speaking through Justice
public use, and it may select the exact location of the
MacLeary, quoting approvingly the following, upon the question which we
improvement. In such a case, it is well settled that the utility of the
are discussing: "It is well settled that although the legislature must
proposed improvement, the extent of the public necessity for its
necessarily determine in the first instance whether the use for which they
construction, the expediency of constructing it, the suitableness of
(municipalities, etc.) attempt to exercise the power is a public one or not,
the location selected and the consequent necessity of taking the
their (municipalities, etc.) determination is not final, but is subject to
land selected for its site, are all questions exclusively for the
correction by the courts, who may undoubtedly declare the statute
legislature to determine, and the courts have no power to
unconstitutional, if it shall clearly appear that the use for which it is
interfere, or to substitute their own views for those of the
proposed to authorize the taking of private property is in reality not public
representatives of the people.
but private." Many cases are cited in support of that doctrine.
Practically every case cited in support of the above doctrine has been
Later, in the same decision, we find the Supreme Court of Porto Rico says:
examined, and we are justified in making the statement that in each case
"At any rate, the rule is quite well settled that in the cases under
the legislature directly determined the necessity for the exercise of the right
consideration the determination of the necessity of taking a particular
of eminent domain in the particular case. It is not denied that if the necessity
piece or a certain amount of land rests ultimately with the courts." (Spring
for the exercise of the right of eminent domain is presented to the legislative
Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .
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 In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41
and make inquiry concerning the necessity. But, in the case of Wheeling, L. R. A., N. S., 1024]), the Supreme Court of Connecticut approvingly
etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., quoted the following doctrine from Lewis on Eminent Domain (3d ed.),
622, 628]), which was cited in support of the doctrine laid down in section section 599: "In all such cases the necessity of public utility of the proposed
158 above quoted, the court said: 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
But when the statute does not designate the property to be taken
which the owner is entitled to be heard." (Riley vs. Charleston, etc. Co., 71
nor how may be taken, then the necessity of taking particular
S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky.,
property is a question for the courts. Where the application to
390, 403.)
condemn or appropriate is made directly to the court, the question
(of necessity) should be raised and decided in limene.
The taking of private property for any use which is not required by the exercise of the power, and to protect it from abuse. Not only must the
necessities or convenience of the inhabitants of the state, is an authority of municipal corporations to take property be expressly conferred
unreasonable exercise of the right of eminent domain, and beyond the and the use for which it is taken specified, but the power, with all
power of the legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, constitutional limitation and directions for its exercise, must be strictly
633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases
Co. vs. Ely, etc. Co., 132 Ky., 692, 697.) cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)
In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, It can scarcely be contended that a municipality would be permitted to take
564), the Supreme Court of the State of Maryland, discussing the question property for some public use unless some public necessity existed therefor.
before us, said: "To justify the exercise of this extreme power (eminent The right to take private property for public use originates in the necessity,
domain) where the legislature has left it to depend upon the necessity that and the taking must be limited by such necessity. The appellant contends
may be found to exist, in order to accomplish the purpose of the that inasmuch as the legislature has given it general authority to take
incorporation, as in this case, the party claiming the right to the exercise of private property for public use, that the legislature has, therefore, settled the
the power should be required to show at least a reasonable degree of question of the necessity in every case and that the courts are closed to the
necessity for its exercise. Any rule less strict than this, with the large and owners of the property upon that question. Can it be imagined, when the
almost indiscriminate delegation of the right to corporations, would likely legislature adopted section 2429 of Act No. 2711, that it thereby declared
lead to oppression and the sacrifice of private right to corporate power." 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
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court
contemplated that it intended that a municipality should be the sole judge of
said: "Its right to condemn property is not a general power of condemnation,
the necessity in every case, and that the courts, in the face of the provision
but is limited to cases where a necessity for resort to private property is
that "if upon trial they shall find that a right exists," cannot in that trial inquire
shown to exist. Such necessity must appear upon the face of the petition to
into and hear proof upon the necessity for the appropriation in a particular
condemn. If the necessary is denied the burden is upon the company
case?
(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].) 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
It is true that naby decisions may be found asserting that what is a public
not be justified in inquiring into that question and in finally denying the
use is a legislative question, and many other decisions declaring with equal
petition if no public purpose was proved? Can it be denied that the courts
emphasis that it is a judicial question. But, as long as there is a
have a right to inquire into that question? If the courts can ask questions
constitutional or statutory provision denying the right to take land for any
and decide, upon an issue properly presented, whether the use is public or
use other than a public use, it occurs to us that the question whether
not, is not that tantamount to permitting the courts to inquire into the
any particular use is a public one or not is ultimately, at least, a judicial
necessity of the appropriation? If there is no public use, then there is no
question. The legislative may, it is true, in effect declare certain uses to be
necessity, and if there is no necessity, it is difficult to understand how a
public, and, under the operation of the well-known rule that a statute will not
public use can necessarily exist. If the courts can inquire into the question
be declared to be unconstitutional except in a case free, or comparatively
whether a public use exists or not, then it seems that it must follow that they
free, from doubt, the courts will certainly sustain the action of the legislature
can examine into the question of the necessity.
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 The very foundation of the right to exercise eminent domain is a genuine
legislative might happen to designate as a public use shall be conclusively necessity, and that necessity must be of a public character. The
held to be so, irrespective of the purpose in question and of its manifestly ascertainment of the necessity must precede or accompany, and not follow,
private character Blackstone in his Commentaries on the English Law the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind.,
remarks that, so great is the regard of the law for private property that it will 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry.
not authorize the least violation of it, even for the public good, unless there etc. Co., 72 Ohio St., 368.)
exists a very great necessity therefor.
The general power to exercise the right of eminent domain must not be
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court confused with the right to exercise it in a particular case. The power of the
of the United States said: "That government can scarcely be deemed free legislature to confer, upon municipal corporations and other entities within
where the rights of property are left solely defendant on the legislative body, the State, general authority to exercise the right of eminent domain cannot
without restraint. The fundamental maxims of free government seem to be questioned by the courts, but that general authority of municipalities or
require that the rights of personal liberty and private property should be held entities must not be confused with the right to exercise it in particular
sacred. At least no court of justice in this country would be warranted in instances. The moment the municipal corporation or entity attempts to
assuming that the power to violate and disregard them — a power so exercise the authority conferred, it must comply with the conditions
repugnant to the common principles of justice and civil liberty — lurked in accompanying the authority. The necessity for conferring the authority upon
any general grant of legislature authority, or ought to be implied from any a municipal corporation to exercise the right of eminent domain is
general expression of the people. The people ought no to be presumed to admittedly within the power of the legislature. But whether or not the
part with rights so vital to their security and well-being without very strong municipal corporation or entity is exercising the right in a particular case
and direct expression of such intention." (Lewis on Eminent Domain, sec. under the conditions imposed by the general authority, is a question which
603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. the courts have the right to inquire into.
Ann., 182.)
The conflict in the authorities upon the question whether the necessity for
Blackstone, in his Commentaries on the English Law said that the right to the exercise of the right of eminent domain is purely legislative and not
own and possess land — a place to live separate and apart from others — judicial, arises generally in the wisdom and propriety of the legislature in
to retain it as a home for the family in a way not to be molested by others — authorizing the exercise of the right of eminent domain instead of in the
is one of the most sacred rights that men are heirs to. That right has been question of the right to exercise it in a particular case. (Creston Waterworks
written into the organic law of every civilized nation. The Acts of Congress Co. vs. McGrath, 89 Iowa, 502.)
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
By the weight of authorities, the courts have the power of restricting the
property without due process of law," are but a restatement of the time-
exercise of eminent domain to the actual reasonable necessities of the case
honored protection of the absolute right of the individual to his property.
and for the purposes designated by the law. (Fairchild vs. City of St. Paul.
Neither did said Acts of Congress add anything to the law already existing
48 Minn., 540.)
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 And, moreover, the record does not show conclusively that the plaintiff has
Civil Code provides that: "No one may be deprived of his property unless it definitely decided that their exists a necessity for the appropriation of the
be by competent authority, for some purpose of proven public utility, and particular land described in the complaint. Exhibits 4, 5, 7, and E clearly
after payment of the proper compensation Unless this requisite (proven indicate that the municipal board believed at one time that other land might
public utility and payment) has been complied with, it shall be the duty of be used for the proposed improvement, thereby avoiding the necessity of
the courts to protect the owner of such property in its possession or to distributing the quiet resting place of the dead.
restore its possession to him , as the case may be."
Aside from insisting that there exists no necessity for the alleged
The exercise of the right of eminent domain, whether directly by the State, improvements, the defendants further contend that the street in question
or by its authorized agents, is necessarily in derogation of private rights, should not be opened through the cemetery. One of the defendants alleges
and the rule in that case is that the authority must be strictly construed. No that said cemetery is public property. If that allegations is true, then, of
species of property is held by individuals with greater tenacity, and none is course, the city of Manila cannot appropriate it for public use. The city of
guarded by the constitution and laws more sedulously, than the right to the Manila can only expropriate private property.
freehold of inhabitants. When the legislature interferes with that right, and,
for greater public purposes, appropriates the land of an individual without
It is a well known fact that cemeteries may be public or private. The former
his consent, the plain meaning of the law should not be enlarged by doubtly
is a cemetery used by the general community, or neighborhood, or church,
interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases
while the latter is used only by a family, or a small portion of the community
cited [73 Am. Dec., 576].)
or neighborhood. (11 C. J., 50.)
The statutory power of taking property from the owner without his consent is
Where a cemetery is open to public, it is a public use and no part of the
one of the most delicate exercise of government authority. It is to be
ground can be taken for other public uses under a general authority. And
watched with jealous scrutiny. Important as the power may be to the
this immunity extends to the unimproved and unoccupied parts which are
government, the inviolable sanctity which all free constitutions attach to the
held in good faith for future use. (Lewis on Eminent Domain, sec. 434, and
right of property of the citizens, constrains the strict observance of the
cases cited.)
substantial provisions of the law which are prescribed as modes of the
The cemetery in question seems to have been established under one used only by a family, or small portion of a community. (Lay vs. State,
governmental authority. The Spanish Governor-General, in an order 12 Ind. App., 362; Cemetery Association vs. Meninger [1875], 14 Kan.,
creating the same, used the following language: 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
The cemetery and general hospital for indigent Chinese having
to be the latter, it is subject to condemnation.
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 The Chinese Cemetery of Manila was established during the Spanish
Government of the Islands its internal administration, government administration in the Philippines by public spirited Chinese. The order of the
and regime must necessarily be adjusted to the taste and Governor-General giving governmental recognition to the cemetery reads
traditional practices of those born and educated in China in order as follows: "The cemetery and general hospital for indigent Chinese having
that the sentiments which animated the founders may be been founded and maintained by the spontaneous and fraternal contribution
perpetually effectuated. 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
It is alleged, and not denied, that the cemetery in question may be used by
taste and traditional practices of those born and educated in China in order
the general community of Chinese, which fact, in the general acceptation of
that the sentiments which animated the founders may be perpetually
the definition of a public cemetery, would make the cemetery in question
effectuated." Sometimes after the inauguration of the new regime in the
public property. If that is true, then, of course, the petition of the plaintiff
Philippines, a corporation was organized to control the cemetery, and a
must be denied, for the reason that the city of Manila has no authority or
Torrens title for the lands in question was obtained.
right under the law to expropriate public property.
From the time of its creation until the present the cemetery has been used
But, whether or not the cemetery is public or private property, its
by the Chinese community for the burial of their dead. It is said that not less
appropriation for the uses of a public street, especially during the lifetime of
than four hundred graves, many of them with handsome monuments, would
those specially interested in its maintenance as a cemetery, should be a
be destroyed by the proposed street. This desecration is attempted as to
question of great concern, and its appropriation should not be made for
the las t resting places of the dead of a people who, because of their
such purposes until it is fully established that the greatest necessity exists
peculiar and ingrained ancestral workship, retain more than the usual
therefor.
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
While we do not contend that the dead must not give place to the living, and community but by a particular race long existing in the country and of
while it is a matter of public knowledge that in the process of time considerable numbers. The case, then, is one of where the city of Manila,
sepulchres may become the seat of cities and cemeteries traversed by under a general authority permitting it to condemn private property for public
streets and daily trod by the feet of millions of men, yet, nevertheless such use, is attempting to convert a property already dedicated to a public use to
sacrifices and such uses of the places of the dead should not be made an entirely different public use; and this, not directly pursuant to legislative
unless and until it is fully established that there exists an eminent necessity authority, but primarily through the sole advice of the consulting architect.
therefor. While cemeteries and sepulchres and the places of the burial of
the dead are still within
Two well considered decisions coming from the American state courts on
the memory and command of the active care of the living; while they are still
almost identical facts are worthy of our consideration. The first is the case of
devoted to pious uses and sacred regard, it is difficult to believe that even
The Evergreen Cemetery Association vs. The City of New Haven ([1875],
the legislature would adopt a law expressly providing that such places,
43 Conn., 234), of cited by other courts. Here the City of New Haven,
under such circumstances, should be violated.
Connecticut, under the general power conferred upon it to lay out,
construct, and maintain all necessary highways within its limits, proceeded
In such an appropriation, what, we may ask, would be the measure of to widen and straighten one of its streets and in so doing took a small piece
damages at law, for the wounded sensibilities of the living, in having the of land belonging to the Evergreen Cemetery Association. This association
graves of kindred and loved ones blotted out and desecrated by a common was incorporated under the general statute. The city had no special power
highway or street for public travel? The impossibility of measuring the to take any part of the cemetery for such purposes. It was found that the
damage and inadequacy of a remedy at law is too apparent to admit of land taken was needed for the purposes of the cemetery and was not
argument. To disturb the mortal remains of those endeared to us in life needed for the purpose of widening and straightening the avenue. The court
sometimes becomes the sad duty of the living; but, except in cases said that it is unquestionable that the Legislature has the power to authorize
of necessity, or for laudable purposes, the sanctity of the grave, the last the taking of land already applied to one public use and devote it to another.
resting place of our friends, should be maintained, and the preventative aid When the power is granted to municipal or private corporations in express
of the courts should be invoked for that object. (Railroad words, no question can arise. But, it was added, "The same land cannot
Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery properly be used for burial lots and for a public highway at the same time. . .
Association vs. The City of New Haven, 43 Conn., 234; . Land therefore applied to one use should not be taken for the other except
Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.) 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
In the present case, even granting that a necessity exists for the opening of of the living, through one of our public cemeteries, would be shocking to the
the street in question, the record contains no proof of the necessity of moral sense of the community, and would not be tolerated except upon the
opening the same through the cemetery. The record shows that adjoining direst necessity." It was then held that land already devoted to a public use
and adjacent lands have been offered to the city free of charge, which will cannot be taken by the public for another use which is inconsistent with the
answer every purpose of the plaintiff. first, without special authority from the Legislature, or authority granted by
necessary and reasonable implication.
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 The second decision is that of Memphis State Line Railroad
appellant. So ordered. 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
Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur. 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
Separate Opinions 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
MALCOLM, J., concurring: 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
The Government of the Philippine Islands is authorized by the Philippine Bill public purpose. The court said that in process of time the sepulchres of the
to acquire real estate for public use by the exercise of the right of eminent dead "are made the seats of cities, and are traversed by streets, and daily
domain. (Act of Congress of July 1, 1902, sec. 63.) A portion of this power trodden by the feet of man. This is inevitable in the course of ages. But
has been delegated by the Philippine Legislature to the city of Manila, which while these places are yet within the memory and under the active care of
is permitted to "condemn private property for public use." (Administrative the living, while they are still devoted to pious uses, they are sacred, and we
Code of 1917, sec. 2429.) The Code of Civil Procedure, in prescribing how cannot suppose that the legislature intended that they should be violated, in
the right of eminent domain may be exercised, also limits the condemnation the absence of special provisions upon the subject authorizing such
to "private property for public use." (Sec. 241.) As under the facts actually invasion, and indicating a method for the disinterment, removal, and
presented, there can be no question that a public street constitutes a public reinterment of the bodies buried, and directing how the expense thereof
use, the only remaining question is whether or not the Chinese Cemetery shall be borne." Two members of the court, delivering a separate concurring
and the other property here sought to be taken by the exercise of the right opinion, concluded with this significant and eloquent sentence: "The wheels
of eminent domain is "private property." of commerce must stop at the grave."
As narrowing our inquiry still further, let it be noted that cemeteries are of For the foregoing reasons, and for others which are stated in the principal
two classes, public and private. A public cemetery is one used by the decision, I am of the opinion that the judgment of the lower court should be
general community, or neighborhood, or church; while a private cemetery is affirmed.
STREET, J., dissenting: 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.
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 From the testimony of two reputable engineers produced by some
authorities of the city of Manila are the proper judges of the propriety of the of the defendants, it appears that the land chosen by the plaintiff
condemnation and that this Court should have nothing to do with the for the extension of Rizal Avenue to the municipality of Caloocan
question of the necessity of the taking. 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
MOIR, J., dissenting:
would have to remove and transfer to other places about four
hundred graves and monuments, make some grubbings, undergo
I dissent from the majority opinion in this case, which has not yet been some leveling and build some bridges — the works thereon,
written, and because of the importance of the question involved, present my together with the construction of the road and the value of the
dissent for the record. lands expropriated, would mean an expenditure which will not be
less than P180,000.
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 Beside that considerable amount, the road would have a declivity
opposed by the "Comunidad de Chinos de Manila" and Ildefonso of 3 per cent which, in order to cover a distance of one kilometer,
Tambunting and various other who obtained permission of the trial court to would require an energy equivalent to that which would be
intervene in the case. expanded in covering a distance of two and one-half kilometers
upon a level road.
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 On the other hand, if the road would be constructed with the
Manila, and necessitates the destruction of many monuments and the deviation proposed by Ildefonso Tambunting, one of the
removal of many graves. 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
The Court of First Instance of Manila, Honorable S. del Rosario, judge after hundreds of thousand of pesos, which can be invested in other
hearing the parties, decided that there was no need for constructing the improvements of greater pressure and necessity for the benefit of
street as and where proposed by the city, and dismissed the petition. the taxpayers; and it will not have to employ more time and incur
greater expenditures in the removal and transfer of the remains
The plaintiff appealed and sets up the following errors: 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
1. The court erred in deciding that the determination of the 426 meters and 55 centimeters less than one-half kilometer,
necessity and convenience of the expropriation of the lands of the according to the plan included in the records; but it would offer a
defendants lies with the court and not with the Municipal Board of better panorama to those who would use it, and who would not
the city of Manila. have to traverse in their necessary or pleasure-making trips or
walks any cemetery which, on account of its nature, always
2. The court erred in permitting the presentation of proofs over deserves the respect of the travellers. It should be observed that
the objection and exception of the plaintiff tending to demonstrate the proposed straight road over the cemetery, which the city of
the lack of necessity of the projected street and the need of the Manila is proposing to expropriate, does not lead to any
lands in question. 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
3. The court erred in declaring that the plaintiff had no right to the road by the defendants. The road traced by the plaintiffs has
expropriate the lands in question. the disadvantage that the lands on both sides thereof would not
serve for residential purposes, for the reason that no one has the
4. The court erred in dismissing the complaint. 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.
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 And it is against the ruling, that it lies with the court to determine the
eminent domain antedates constitutions . . . . The right can only be denied necessity of the proposed street and not with the municipal board, that the
or restricted by fundamental law and is right inherent in society." (15 Cyc., appellant directs its first assignment of error.
pp. 557-8.) .
It is a right of the city government to determine whether or not it will
This general right was recognized in the Philippine Code of Civil Procedure construct streets and where, and the court's sole duty was to see that the
effective October 1st, 1901, which prescribed the manner of exercising the value of the property was paid the owners after proper legal proceedings
right. (Sections 241 et seq.) ascertaining the value.
It was further recognized in the Organic Act of July 1st, 1902, which The law gives the city the right to take private property for public use. It is
provides in section 74 "that the Government of the Philippine Islands may assumed it is unnecessary to argue that a public road is a public use.
grant franchises . . . including the authority to exercise the right of eminent
domain for the construction and operation of works of public utility and But it is argued that plaintiff must show that it is necessary to take this land
service, and may authorize said works to be constructed and maintained for a public improvement. The law does not so read, and it is believed that
over and across the public property of the United States including . . . the great weight of authority, including the United States Supreme Court, is
reservations." This provisions is repeated in the Jones Law of August, 1916. against the contention.
The legislature of the Islands conferred the right on the city of Manila. The question of necessity is distinct from the question of public
(Section 2429, Administrative Code of 1917; section 2402, Administrative use, and former question is exclusively for the
Code of 1916.) legislature, except that if the constitution or statute authorizes the
taking of property only in cases of necessity, then the
Clearly having the right of expropriation, the city of Manila selected the line necessity becomes a judicial question. (McQuillen Municipal
of its street and asked the court by proper order to place the plaintiff in Corporations, Vol. IV, pp. 3090-3091.)
possession of the land described in the complaint, and to appoint
Commissioners to inspect the property, appraise the value, and assess the In the absence of some constitutional or statutory provision to the
damages. Instead of doing so, the court entered upon the question of the contrary, the necessity and expediency of exercising the right of
right of the city to take the property and the necessity for the taking. eminent domain are questions essentially political and not judicial
in their character. The determination of those questions belongs
The court says: 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
The controversy relates to whether or not the Chinese Cemetery, domain may be exercised, but also the character, quality,
where a great majority of this race is buried and other persons method, and extent of such exercise. And this power is
belonging to other nationalities have been formerly inhumed, unqualified, other than by the necessity of providing that
is private or public; whether or not said cemetery, in case it compensation shall be made. Nevertheless, under the express
is public, would be susceptible to expropriation for the purpose of provisions of the constitution of some states the question of
public improvements proposed by the city of Manila; whether or necessity is made a judicial one, to be determined by the courts
not the latter is justified of the necessity and expediency of similar and not by the legislature.
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 While the legislature may itself exercise the right of determining
department before which the expropriation proceedings have the necessity for the exercise of the power of eminent domain, it
been brought. 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 ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-
requiring compensation to be made. And when the power has Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063,
been so delegated it is a subject of legislative discretion to 1076; 33 Sup. Ct. Rep., 667].)
determine what prudential regulations shall be established to
secure a discreet and judicious exercise of the authority. It has
I think the case should be decided in accordance with foregoing citations,
been held that in the absence of any statutory provision
but one other point has been argued so extensively that it ought to be
submitting the matter to a court or jury the decision of the
considered.
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 It is contended for the defense that this Chinese Cemetery is a public
the power of eminent domain is delegated unless prohibited by cemetery and that it cannot therefore be taken for public use. In its answer
the constitution. It is of course competent for the legislature to the "Comunidad de Chinos de Manila" says it is "a corporation organized
declare that the question shall be a judicial one, in which case the and existing under and by virtue of the laws of the Philippine Islands," and
court and not the corporation determines the question of that it owns the land which plaintiff seeks to acquire. The facts that it is
necessity. (15 Cyc., pp. 629-632.) 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.
To the same effect is Lewis on Eminen Domain (3d Edition, section 597).
But admitting that it is a public cemetery, although limited in its use to the
I quote from the notes to Vol. 5, Encyclopedia of United States Supreme
Chinese Community of the city of Manila, can it not be taken for public use?
Court Reports, p. 762, as follows:
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
Neither can it be said that there is any fundamental right secured inquire what other jurisdictions have held on that point.
by the constitution of the United States to have the questions of
compensation and necessity both passed upon by one and the
On the Application of Board of Street Openings of New York City to acquire
same jury. In many states the question of necessity is never
St. Johns Cemetery (133 N.Y., 329) the court of appeal said:
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 . . . The board instituted this proceeding under the act to acquire
take property by condemnation. The question of necessity is not for park purposes the title to land below One Hundred and Fifty-
one of a judicial character, but rather one for determination by the fifth street known as St. John's cemetery which belonged to a
lawmaking branch of the government. (Boom Co. vs. Patterson, religious corporation in the city of New York, commonly called
98 U.S., 403, 406 [25 L. ed., 206]; United States vs. Jones, 109 Trinity Church. It was established as a cemetery as early as
U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street Union Depot 1801, and used for that purpose until 1839, during which time
Co., 169 U.S., 557, 568 [42 L. ed., 853].) 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
Speaking generally, it is for the state primarily and exclusively, to
interments have been made in the cemetery, but Trinity Church
declare for what local public purposes private property, within its
has preserved and kept it in order and prevented any disturbance
limits may be taken upon compensation to the owner, as well as
thereof.
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].) 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
Courts have no power to control the legislative authority in the
authority conferred upon the board by the act is broad and
exercise of their right to determine when it is necessary or
general. It is authorized to take for park purposes any land south
expedient to condemn a specific piece of property for public
of One Hundred and Fifty-fifth street. . . . .
purposes. (Adirondack R. Co. vs. New York States, 176 U.S., 335
[44 L. ed., 492].)
The fact that lands have previously been devoted to cemetery
purposes does not place them beyond the reach of the power of
10 R. C. L. (p. 183), states the law as follows:
eminent domain. That is an absolute transcendent power
belonging to the sovereign which can be exercised for the public
158. Necessity for taking ordinarily not judicial question. — The welfare whenever the sovereign authority shall determine that a
legislature, in providing for the exercise the power of eminent necessity for its exercise exists. By its existence the homes and
domain, may directly determine the necessity for appropriating the dwellings of the living, and the resting-places of the dead may
private property for a particular improvement or public use, and it be alike condemned.
may select the exact location of the improvement. In such a case,
it is well settled that the utility of the proposed improvement, the
It seems always to have been recognized in the laws of this state,
extent of the public necessity for its construction, the expediency
that under the general laws streets and highways could be laid
of constructing it, the suitableness of the location selected and
out through cemeteries, in the absence of special limitation or
the consequent necessity of taking the land selected for its
prohibition. . . .
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. In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the
Similarly, when the legislature has delegated the power of Supreme Court of the State said:
eminent domain to municipal or public service corporation or
other tribunals or bodies, and has given them discretion as to
This was an action for the opening of a street through a cemetery
when the power is to be called into exercise and to what extent,
in the City of Philadelphia. It was contended for the United
the court will not inquire into the necessity or propriety of the
American Mechanics and United Daughters of America Cemetery
taking.
Association that by an act of the legislature of the State approved
March 20th, 1849, they were forever exempt from the taking of
The United States Supreme Court recently said: 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
The uses to which this land are to be put are undeniably public
Company and the State of Pennsylvania, which would be violated
uses. When that is the case the propriety or expediency of the
by the taking of any part of their property for street purposes. It
appropriation cannot be called in question by any other authority.
was further contended that there were 11,000 persons buried in
(Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting
the cemetery.
U.S. vs. Jones, 109, U.S., 519.)
The court held that property and contracts of all kinds must yield
And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it
to the demand of the sovereign and that under the power of
said:
eminent domain all properties could be taken, and that if there
was a contract between the State of Pennsylvania and the
Plaintiff contends that the ordinance is void because the general Cemetery Association, the contract itself could be taken for public
statute which authorized the appropriation violates both Article 1, use, and ordered the opening of the street through the cemetery.
paragraph 10, of the Federal Constitution, and the Fourteenth
Amendment, in that it authorizes the municipality to determine the
In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it
necessity for the taking of private property without the owners
is said:
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 Although it has been held, that where a state has delegated the
Little Cuyahoga or the Tuscarawas rivers; and furthermore, that it power of eminent domain to a person or corporation and where
has taken ten times as much water as it can legitimately use. It is by its exercise lands have been subject to a public use, they
well settled that while the question whether the purpose of a cannot be applied to another public use without specific authority
taking is a public one is judicial (Hairston vs. Danville & W. R. expressed or implied to that effect, yet, the general rule seems to
Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. be that the fact that property is already devoted to a public use,
Cas., 1008]), the necessity and the proper extent of a taking is a does not exempt it from being appropriated under the right of
legislative question. (Shoemaker vs. United States, 147 U.S., eminent domain but it may be so taken for a use which is clearly
282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United superior or paramount to the one to which it is already devoted.
States vs. Gettysburg Electric R. Co., 160 U.S. 668, 685 [40 L. (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.