G.R. No.

L-14355 October 31, 1919

THE CITY OF MANILA, plaintiff-appellant,

vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.

City Fiscal Diaz for appellant.

Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and
Ramon Salinas for appellees.

JOHNSON, J.:

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

That question arose in the following manner:

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

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

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

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

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

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

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

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

The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority
to expropriate land, it may expropriate any land it may desire; that the only function of the court in
such proceedings is to ascertain the value of the land in question; that neither the court nor the
owners of the land can inquire into the advisible purpose of purpose of the expropriation or ask any
questions concerning the necessities therefor; that the courts are mere appraisers of the land
involved in expropriation proceedings, and, when the value of the land is fixed by the method
adopted by the law, to render a judgment in favor of the defendant for its value.

That the city of Manila has authority to expropriate private lands for public purposes, is not denied.
Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may
condemn private property for public use."

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

Section 242 provides that a complaint in expropriation proceeding shall be presented; that the
complaint shall state with certainty the right of condemnation, with a description of the property
sought to be condemned together with the interest of each defendant separately.
Section 243 provides that if the court shall find upon trial that the right to expropriate the land in
question exists, it shall then appoint commissioners.

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

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

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

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

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

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

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

As was said above, there is a wide divergence of opinion upon the authority of the court to question
the necessity or advisability of the exercise of the right of eminent domain. The divergence is usually
found to depend upon particular statutory or constitutional provisions.

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

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

The legislature, in providing for the exercise of the power of eminent domain, may
directly determine the necessity for appropriating private property for a particular
improvement for public use, and it may select the exact location of the improvement.
In such a case, it is well settled that the utility of the proposed improvement, the
extent of the public necessity for its construction, the expediency of constructing it,
the suitableness of the location selected and the consequent necessity of taking the
land selected for its site, are all questions exclusively for the legislature to determine,
and the courts have no power to interfere, or to substitute their own views for those
of the representatives of the people.
Practically every case cited in support of the above doctrine has been examined, and we are justified
in making the statement that in each case the legislature directly determined the necessity for the
exercise of the right of eminent domain in the particular case. It is not denied that if the necessity for
the exercise of the right of eminent domain is presented to the legislative department of the
government and that department decides that there exists a necessity for the exercise of the right in
a particular case, that then and in that case, the courts will not go behind the action of the legislature
and make inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo,
Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the
doctrine laid down in section 158 above quoted, the court said:

But when the statute does not designate the property to be taken nor how may be
taken, then the necessity of taking particular property is a question for the courts.
Where the application to condemn or appropriate is made directly to the court, the
question (of necessity) should be raised and decided in limene.

The legislative department of the government was rarely undertakes to designate the precise
property which should be taken for public use. It has generally, like in the present case, merely
conferred general authority to take land for public use when a necessity exists therefor. We believe
that it can be confidently asserted that, under such statute, the allegation of the necessity for the
appropriation is an issuable allegation which it is competent for the courts to decide. (Lynch vs.
Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)

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

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

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

In the absence of some constitutional or statutory provision to the contrary, the

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

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted.
While time has not permitted an examination of all of said citations, many of them have been
examined, and it can be confidently asserted that said cases which are cited in support of the
assertion that, "the necessity and expediency of exercising the right of eminent domain are
questions essentially political and not judicial," show clearly and invariably that in each case the
legislature itself usually, by a special law, designated the particular case in which the right of eminent
domain might be exercised by the particular municipal corporation or entity within the state. (Eastern
R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park Com'rs vs.
Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598;
Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co.,
229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., 196 U.S.,
239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)

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

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

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

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

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

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

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

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

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

Blackstone, in his Commentaries on the English Law said that the right to own and possess land —
a place to live separate and apart from others — to retain it as a home for the family in a way not to
be molested by others — is one of the most sacred rights that men are heirs to. That right has been
written into the organic law of every civilized nation. The Acts of Congress of July 1, 1902, and of
August 29, 1916, which provide that "no law shall be enacted in the Philippine Islands which shall
deprive any person of his property without due process of law," are but a restatement of the time-
honored protection of the absolute right of the individual to his property. Neither did said Acts of
Congress add anything to the law already existing in the Philippine Islands. The Spaniard fully
recognized the principle and adequately protected the inhabitants of the Philippine Islands against
the encroachment upon the private property of the individual. Article 349 of the Civil Code provides
that: "No one may be deprived of his property unless it be by competent authority, for some purpose
of proven public utility, and after payment of the proper compensation Unless this requisite (proven
public utility and payment) has been complied with, it shall be the duty of the courts to protect the
owner of such property in its possession or to restore its possession to him , as the case may be."
The exercise of the right of eminent domain, whether directly by the State, or by its authorized
agents, is necessarily in derogation of private rights, and the rule in that case is that the authority
must be strictly construed. No species of property is held by individuals with greater tenacity, and
none is guarded by the constitution and laws more sedulously, than the right to the freehold of
inhabitants. When the legislature interferes with that right, and, for greater public purposes,
appropriates the land of an individual without his consent, the plain meaning of the law should not be
enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases
cited [73 Am. Dec., 576].)

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

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

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

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

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

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

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

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

Aside from insisting that there exists no necessity for the alleged improvements, the defendants
further contend that the street in question should not be opened through the cemetery. One of the
defendants alleges that said cemetery is public property. If that allegations is true, then, of course,
the city of Manila cannot appropriate it for public use. The city of Manila can only expropriate private
property.

It is a well known fact that cemeteries may be public or private. The former is a cemetery used by
the general community, or neighborhood, or church, while the latter is used only by a family, or a
small portion of the community or neighborhood. (11 C. J., 50.)

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

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

The cemetery and general hospital for indigent Chinese having been founded and
maintained by the spontaneous and fraternal contribution of their protector,
merchants and industrials, benefactors of mankind, in consideration of their services
to the Government of the Islands its internal administration, government and regime
must necessarily be adjusted to the taste and traditional practices of those born and
educated in China in order that the sentiments which animated the founders may be
perpetually effectuated.
It is alleged, and not denied, that the cemetery in question may be used by the general community of
Chinese, which fact, in the general acceptation of the definition of a public cemetery, would make the
cemetery in question public property. If that is true, then, of course, the petition of the plaintiff must
be denied, for the reason that the city of Manila has no authority or right under the law to expropriate
public property.

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

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

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

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

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

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

Separate Opinions

MALCOLM, J., concurring:

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

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

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

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

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

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

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

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

STREET, J., dissenting:

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

MOIR, J., dissenting:

I dissent from the majority opinion in this case, which has not yet been written, and because of the
importance of the question involved, present my dissent for the record.
This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue
north. The petition for condemnation was opposed by the "Comunidad de Chinos de Manila" and
Ildefonso Tambunting and various other who obtained permission of the trial court to intervene in the
case.

All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts
through a part of the Chinese Cemetery, North of Manila, and necessitates the destruction of many
monuments and the removal of many graves.

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

The plaintiff appealed and sets up the following errors:

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

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

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

4. The court erred in dismissing the complaint.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the absence of some constitutional or statutory provision to the contrary, the

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

While the legislature may itself exercise the right of determining the necessity for the
exercise of the power of eminent domain, it may, unless prohibited by the
constitution, delegate this power to public officers or to private corporations
established to carry on enterprises in which the public are interested, and their
determination that a necessity for the exercise of the power exists is conclusive.
There is no restraint upon the power except that requiring compensation to be made.
And when the power has been so delegated it is a subject of legislative discretion to
determine what prudential regulations shall be established to secure a discreet and
judicious exercise of the authority. It has been held that in the absence of any
statutory provision submitting the matter to a court or jury the decision of the question
of necessity lies with the body of individuals to whom the state has delegated the
authority to take, and the legislature may be express provision confer this power on a
corporation to whom the power of eminent domain is delegated unless prohibited by
the constitution. It is of course competent for the legislature to declare that the
question shall be a judicial one, in which case the court and not the corporation
determines the question of necessity. (15 Cyc., pp. 629-632.)
To the same effect is Lewis on Eminen Domain (3d Edition, section 597).

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

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

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

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

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

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

The United States Supreme Court recently said:

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

And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:
 Plaintiff contends that the ordinance is void because the general statute which
authorized the appropriation violates both Article 1, paragraph 10, of the Federal
Constitution, and the Fourteenth Amendment, in that it authorizes the municipality to
determine the necessity for the taking of private property without the owners having
an opportunity to be hear as to such necessity; that in fact no necessity existed for
any taking which would interfere with the company's project; since the city might
have taken water from the Little Cuyahoga or the Tuscarawas rivers; and
furthermore, that it has taken ten times as much water as it can legitimately use. It is
well settled that while the question whether the purpose of a taking is a public one is
judicial (Hairston vs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct.
Rep., 331; 13 Ann. Cas., 1008]), the necessity and the proper extent of a taking is a
legislative question. (Shoemaker vs. United States, 147 U.S., 282, 298 [57 L. ed.,
170, 184; 13 Supt. Ct. Rep., 361]; United States vs. Gettysburg Electric R. Co., 160
U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs.
Chandler-Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup.
Ct. Rep., 667].)

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

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

But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the
city of Manila, can it not be taken for public use? Must we let the reverence we feel for the dead and
the sanctity of their final resting-place obstruct the progress of the living? It will be instructive to
inquire what other jurisdictions have held on that point.

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

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

It is contended on behalf of Trinity Church that under the general authority given by
statute of 1887, this land which had been devoted to cemetery purposes could not be
taken for a park. The authority conferred upon the board by the act is broad and
general. It is authorized to take for park purposes any land south of One Hundred
and Fifty-fifth street. . . . .
 The fact that lands have previously been devoted to cemetery purposes does not
place them beyond the reach of the power of eminent domain. That is an absolute
transcendent power belonging to the sovereign which can be exercised for the public
welfare whenever the sovereign authority shall determine that a necessity for its
exercise exists. By its existence the homes and the dwellings of the living, and the
resting-places of the dead may be alike condemned.

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

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

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

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

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

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

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

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

The other assignments of error need not be considered as they are involved in the foregoing.
The decision should be reversed and the record returned to the Court of First Instance with
instructions to proceed with the case in accordance with this decision.

G.R. No. L-18841 January 27, 1969

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-appellant.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and
Solicitor Camilo D. Quiason for plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-appellant.

REYES, J.B.L., J.:

Direct appeals, upon a joint record on appeal, by both the plaintiff and the defendant from the
dismissal, after hearing, by the Court of First Instance of Manila, in its Civil Case No. 35805, of their
respective complaint and counterclaims, but making permanent a preliminary mandatory injunction
theretofore issued against the defendant on the interconnection of telephone facilities owned and
operated by said parties.

The plaintiff, Republic of the Philippines, is a political entity exercising governmental powers
through its branches and instrumentalities, one of which is the Bureau of Telecommunications. That
office was created on 1 July 1947, under Executive Order No. 94, with the following powers and
duties, in addition to certain powers and duties formerly vested in the Director of Posts: 1awphil.ñêt

SEC. 79. The Bureau of Telecommunications shall exercise the following powers and duties:

(a) To operate and maintain existing wire-telegraph and radio-telegraph offices,

stations, and facilities, and those to be established to restore the pre-war
telecommunication service under the Bureau of Posts, as well as such additional
offices or stations as may hereafter be established to provide telecommunication
service in places requiring such service;

(b) To investigate, consolidate, negotiate for, operate and maintain wire-telephone or

radio telephone communication service throughout the Philippines by utilizing such
existing facilities in cities, towns, and provinces as may be found feasible and under
such terms and conditions or arrangements with the present owners or operators
thereof as may be agreed upon to the satisfaction of all concerned;

(c) To prescribe, subject to approval by the Department Head, equitable rates of

charges for messages handled by the system and/or for time calls and other services
that may be rendered by said system;

(d) To establish and maintain coastal stations to serve ships at sea or aircrafts and,
when public interest so requires, to engage in the international telecommunication
service in agreement with other countries desiring to establish such service with the
Republic of the Philippines; and

(e) To abide by all existing rules and regulations prescribed by the International
Telecommunication Convention relative to the accounting, disposition and exchange
 of messages handled in the international service, and those that may hereafter be
promulgated by said convention and adhered to by the Government of the Republic
of the Philippines. 1

The defendant, Philippine Long Distance Telephone Company (PLDT for short), is a public service
corporation holding a legislative franchise, Act 3426, as amended by Commonwealth Act 407, to
install, operate and maintain a telephone system throughout the Philippines and to carry on the
business of electrical transmission of messages within the Philippines and between the Philippines
and the telephone systems of other countries. 2 The RCA Communications, Inc., (which is not a party
to the present case but has contractual relations with the parties) is an American corporation
authorized to transact business in the Philippines and is the grantee, by assignment, of a legislative
franchise to operate a domestic station for the reception and transmission of long distance wireless
messages (Act 2178) and to operate broadcasting and radio-telephone and radio-telegraphic
communications services (Act 3180). 3

Sometime in 1933, the defendant, PLDT, and the RCA Communications, Inc., entered into an
agreement whereby telephone messages, coming from the United States and received by RCA's
domestic station, could automatically be transferred to the lines of PLDT; and vice-versa, for calls
collected by the PLDT for transmission from the Philippines to the United States. The contracting
parties agreed to divide the tolls, as follows: 25% to PLDT and 75% to RCA. The sharing was
amended in 1941 to 30% for PLDT and 70% for RCA, and again amended in 1947 to a 50-50 basis.
The arrangement was later extended to radio-telephone messages to and from European and
Asiatic countries. Their contract contained a stipulation that either party could terminate it on a 24-
month notice to the other. 4 On 2 February 1956, PLDT gave notice to RCA to terminate their contract
on 2 February 1958. 5

Soon after its creation in 1947, the Bureau of Telecommunications set up its own Government
Telephone System by utilizing its own appropriation and equipment and by renting trunk lines of the
PLDT to enable government offices to call private parties. 6 Its application for the use of these trunk
lines was in the usual form of applications for telephone service, containing a statement, above the
signature of the applicant, that the latter will abide by the rules and regulations of the PLDT which
are on file with the Public Service Commission. 7 One of the many rules prohibits the public use of the
service furnished the telephone subscriber for his private use. 8 The Bureau has extended its services
to the general public since 1948, 9 using the same trunk lines owned by, and rented from, the PLDT,
and prescribing its (the Bureau's) own schedule of rates. 10 Through these trunk lines, a Government
Telephone System (GTS) subscriber could make a call to a PLDT subscriber in the same way that
the latter could make a call to the former.

On 5 March 1958, the plaintiff, through the Director of Telecommunications, entered into an
agreement with RCA Communications, Inc., for a joint overseas telephone service whereby the
Bureau would convey radio-telephone overseas calls received by RCA's station to and from local
residents. 11 Actually, they inaugurated this joint operation on 2 February 1958, under a "provisional"
agreement. 12

On 7 April 1958, the defendant Philippine Long Distance Telephone Company, complained to the
Bureau of Telecommunications that said bureau was violating the conditions under which their
Private Branch Exchange (PBX) is inter-connected with the PLDT's facilities, referring to the rented
trunk lines, for the Bureau had used the trunk lines not only for the use of government offices but
even to serve private persons or the general public, in competition with the business of the PLDT;
and gave notice that if said violations were not stopped by midnight of 12 April 1958, the PLDT
would sever the telephone connections. 13 When the PLDT received no reply, it disconnected the
trunk lines being rented by the Bureau at midnight on 12 April 1958. 14 The result was the isolation of
the Philippines, on telephone services, from the rest of the world, except the United States. 15

At that time, the Bureau was maintaining 5,000 telephones and had 5,000 pending applications for
telephone connection. 16 The PLDT was also maintaining 60,000 telephones and had also 20,000
pending applications. 17 Through the years, neither of them has been able to fill up the demand for
telephone service.

The Bureau of Telecommunications had proposed to the PLDT on 8 January 1958 that both enter
into an interconnecting agreement, with the government paying (on a call basis) for all calls passing
through the interconnecting facilities from the Government Telephone System to the PLDT. 18 The
PLDT replied that it was willing to enter into an agreement on overseas telephone service to Europe
and Asian countries provided that the Bureau would submit to the jurisdiction and regulations of the
Public Service Commission and in consideration of 37 1/2% of the gross revenues. 19 In its
memorandum in lieu of oral argument in this Court dated 9 February 1964, on page 8, the defendant
reduced its offer to 33 1/3 % (1/3) as its share in the overseas telephone service. The proposals
were not accepted by either party.

On 12 April 1958, plaintiff Republic commenced suit against the defendant, Philippine Long
Distance Telephone Company, in the Court of First Instance of Manila (Civil Case No. 35805),
praying in its complaint for judgment commanding the PLDT to execute a contract with plaintiff,
through the Bureau, for the use of the facilities of defendant's telephone system throughout the
Philippines under such terms and conditions as the court might consider reasonable, and for a writ of
preliminary injunction against the defendant company to restrain the severance of the existing
telephone connections and/or restore those severed.

Acting on the application of the plaintiff, and on the ground that the severance of telephone
connections by the defendant company would isolate the Philippines from other countries, the court
a quo, on 14 April 1958, issued an order for the defendant:

(1) to forthwith reconnect and restore the seventy-eight (78) trunk lines that it has
disconnected between the facilities of the Government Telephone System, including
its overseas telephone services, and the facilities of defendant; (2) to refrain from
carrying into effect its threat to sever the existing telephone communication between
the Bureau of Telecommunications and defendant, and not to make connection over
its telephone system of telephone calls coming to the Philippines from foreign
countries through the said Bureau's telephone facilities and the radio facilities of RCA
Communications, Inc.; and (3) to accept and connect through its telephone system
all such telephone calls coming to the Philippines from foreign countries — until
further order of this Court.

On 28 April 1958, the defendant company filed its answer, with counterclaims.

It denied any obligation on its part to execute a contrary of services with the Bureau of
Telecommunications; contested the jurisdiction of the Court of First Instance to compel it to enter
into interconnecting agreements, and averred that it was justified to disconnect the trunk lines
heretofore leased to the Bureau of Telecommunications under the existing agreement because its
facilities were being used in fraud of its rights. PLDT further claimed that the Bureau was engaging in
commercial telephone operations in excess of authority, in competition with, and to the prejudice of,
the PLDT, using defendants own telephone poles, without proper accounting of revenues.
 After trial, the lower court rendered judgment that it could not compel the PLDT to enter into an
agreement with the Bureau because the parties were not in agreement; that under Executive Order
94, establishing the Bureau of Telecommunications, said Bureau was not limited to servicing
government offices alone, nor was there any in the contract of lease of the trunk lines, since the
PLDT knew, or ought to have known, at the time that their use by the Bureau was to be public
throughout the Islands, hence the Bureau was neither guilty of fraud, abuse, or misuse of the poles
of the PLDT; and, in view of serious public prejudice that would result from the disconnection of the
trunk lines, declared the preliminary injunction permanent, although it dismissed both the complaint
and the counterclaims.

Both parties appealed.

Taking up first the appeal of the Republic, the latter complains of the action of the trial court in
dismissing the part of its complaint seeking to compel the defendant to enter into an interconnecting
contract with it, because the parties could not agree on the terms and conditions of the
interconnection, and of its refusal to fix the terms and conditions therefor.

We agree with the court below that parties can not be coerced to enter into a contract where no
agreement is had between them as to the principal terms and conditions of the contract. Freedom to
stipulate such terms and conditions is of the essence of our contractual system, and by express
provision of the statute, a contract may be annulled if tainted by violence, intimidation, or undue
influence (Articles 1306, 1336, 1337, Civil Code of the Philippines). But the court a quo has
apparently overlooked that while the Republic may not compel the PLDT to celebrate a contract with
it, the Republic may, in the exercise of the sovereign power of eminent domain, require the
telephone company to permit interconnection of the government telephone system and that of the
PLDT, as the needs of the government service may require, subject to the payment of just
compensation to be determined by the court. Nominally, of course, the power of eminent domain
results in the taking or appropriation of title to, and possession of, the expropriated property; but no
cogent reason appears why the said power may not be availed of to impose only a burden upon the
owner of condemned property, without loss of title and possession. It is unquestionable that real
property may, through expropriation, be subjected to an easement of right of way. The use of the
PLDT's lines and services to allow inter-service connection between both telephone systems is not
much different. In either case private property is subjected to a burden for public use and benefit. If,
under section 6, Article XIII, of the Constitution, the State may, in the interest of national welfare,
transfer utilities to public ownership upon payment of just compensation, there is no reason why the
State may not require a public utility to render services in the general interest, provided just
compensation is paid therefor. Ultimately, the beneficiary of the interconnecting service would be the
users of both telephone systems, so that the condemnation would be for public use.

The Bureau of Telecommunications, under section 78 (b) of Executive Order No. 94, may operate
and maintain wire telephone or radio telephone communications throughout the Philippines by
utilizing existing facilities in cities, towns, and provinces under such terms and conditions or
arrangement with present owners or operators as may be agreed upon to the satisfaction of all
concerned; but there is nothing in this section that would exclude resort to condemnation
proceedings where unreasonable or unjust terms and conditions are exacted, to the extent of
crippling or seriously hampering the operations of said Bureau.

A perusal of the complaint shows that the Republic's cause of action is predicated upon the radio
telephonic isolation of the Bureau's facilities from the outside world if the severance of
interconnection were to be carried out by the PLDT, thereby preventing the Bureau of
Telecommunications from properly discharging its functions, to the prejudice of the general public.
Save for the prayer to compel the PLDT to enter into a contract (and the prayer is no essential part
of the pleading), the averments make out a case for compulsory rendering of inter-connecting
services by the telephone company upon such terms and conditions as the court may determine to
be just. And since the lower court found that both parties "are practically at one that defendant
(PLDT) is entitled to reasonable compensation from plaintiff for the reasonable use of the former's
telephone facilities" (Decision, Record on Appeal, page 224), the lower court should have proceeded
to treat the case as one of condemnation of such services independently of contract and proceeded
to determine the just and reasonable compensation for the same, instead of dismissing the petition.

This view we have taken of the true nature of the Republic's petition necessarily results in
overruling the plea of defendant-appellant PLDT that the court of first instance had no jurisdiction to
entertain the petition and that the proper forum for the action was the Public Service Commission.
That body, under the law, has no authority to pass upon actions for the taking of private property
under the sovereign right of eminent domain. Furthermore, while the defendant telephone company
is a public utility corporation whose franchise, equipment and other properties are under the
jurisdiction, supervision and control of the Public Service Commission (Sec. 13, Public Service Act),
yet the plaintiff's telecommunications network is a public service owned by the Republic and
operated by an instrumentality of the National Government, hence exempt, under Section 14 of the
Public Service Act, from such jurisdiction, supervision and control. The Bureau of
Telecommunications was created in pursuance of a state policy reorganizing the government offices
—

to meet the exigencies attendant upon the establishment of the free and
independent Government of the Republic of the Philippines, and for the purpose of
promoting simplicity, economy and efficiency in its operation (Section 1, Republic Act
No. 51) —

and the determination of state policy is not vested in the Commission (Utilities Com. vs. Bartonville
Bus Line, 290 Ill. 574; 124 N.E. 373).

Defendant PLDT, as appellant, contends that the court below was in error in not holding that the
Bureau of Telecommunications was not empowered to engage in commercial telephone business,
and in ruling that said defendant was not justified in disconnecting the telephone trunk lines it had
previously leased to the Bureau. We find that the court a quo ruled correctly in rejecting both
assertions.

Executive Order No. 94, Series of 1947, reorganizing the Bureau of Telecommunications, expressly
empowered the latter in its Section 79, subsection (b), to "negotiate for, operate and maintain wire
telephone or radio telephone communication service throughout the Philippines", and, in subsection
(c), "to prescribe, subject to approval by the Department Head, equitable rates of charges for
messages handled by the system and/or for time calls and other services that may be rendered by
the system". Nothing in these provisions limits the Bureau to non-commercial activities or prevents it
from serving the general public. It may be that in its original prospectuses the Bureau officials had
stated that the service would be limited to government offices: but such limitations could not block
future expansion of the system, as authorized by the terms of the Executive Order, nor could the
officials of the Bureau bind the Government not to engage in services that are authorized by law. It is
a well-known rule that erroneous application and enforcement of the law by public officers do not
block subsequent correct application of the statute (PLDT vs. Collector of Internal Revenue, 90 Phil.
676), and that the Government is never estopped by mistake or error on the part of its agents
(Pineda vs. Court of First Instance of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co.
vs. Pineda, 98 Phil. 711, 724).
 The theses that the Bureau's commercial services constituted unfair competition, and that the
Bureau was guilty of fraud and abuse under its contract, are, likewise, untenable.

First, the competition is merely hypothetical, the demand for telephone service being very much
more than the supposed competitors can supply. As previously noted, the PLDT had 20,000 pending
applications at the time, and the Bureau had another 5,000. The telephone company's inability to
meet the demands for service are notorious even now. Second, the charter of the defendant
expressly provides:

SEC. 14. The rights herein granted shall not be exclusive, and the rights and power
to grant to any corporation, association or person other than the grantee franchise for
the telephone or electrical transmission of message or signals shall not be impaired
or affected by the granting of this franchise: — (Act 3436)

And third, as the trial court correctly stated, "when the Bureau of Telecommunications subscribed to
the trunk lines, defendant knew or should have known that their use by the subscriber was more or
less public and all embracing in nature, that is, throughout the Philippines, if not abroad" (Decision,
Record on Appeal, page 216).

The acceptance by the defendant of the payment of rentals, despite its knowledge that the plaintiff
had extended the use of the trunk lines to commercial purposes, continuously since 1948, implies
assent by the defendant to such extended use. Since this relationship has been maintained for a
long time and the public has patronized both telephone systems, and their interconnection is to the
public convenience, it is too late for the defendant to claim misuse of its facilities, and it is not now at
liberty to unilaterally sever the physical connection of the trunk lines.

..., but there is high authority for the position that, when such physical connection
has been voluntarily made, under a fair and workable arrangement and guaranteed
by contract and the continuous line has come to be patronized and established as a
great public convenience, such connection shall not in breach of the agreement be
severed by one of the parties. In that case, the public is held to have such an interest
in the arrangement that its rights must receive due consideration. This position finds
approval in State ex rel. vs. Cadwaller, 172 Ind. 619, 636, 87 N.E. 650, and is stated
in the elaborate and learned opinion of Chief Justice Myers as follows: "Such
physical connection cannot be required as of right, but if such connection is
voluntarily made by contract, as is here alleged to be the case, so that the public
acquires an interest in its continuance, the act of the parties in making such
connection is equivalent to a declaration of a purpose to waive the primary right of
independence, and it imposes upon the property such a public status that it may not
be disregarded" — citing Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629, and
the reasons upon which it is in part made to rest are referred to in the same opinion,
as follows: "Where private property is by the consent of the owner invested with a
public interest or privilege for the benefit of the public, the owner can no longer deal
with it as private property only, but must hold it subject to the right of the public in the
exercise of that public interest or privilege conferred for their benefit." Allnut v. Inglis
(1810) 12 East, 527. The doctrine of this early case is the acknowledged law.
(Clinton-Dunn Tel. Co. v. Carolina Tel. & Tel. Co., 74 S.E. 636, 638).

It is clear that the main reason for the objection of the PLDT lies in the fact that said appellant did
not expect that the Bureau's telephone system would expand with such rapidity as it has done; but
this expansion is no ground for the discontinuance of the service agreed upon.
 The last issue urged by the PLDT as appellant is its right to compensation for the use of its poles
for bearing telephone wires of the Bureau of Telecommunications. Admitting that section 19 of the
PLDT charter reserves to the Government —

the privilege without compensation of using the poles of the grantee to attach one
ten-pin cross-arm, and to install, maintain and operate wires of its telegraph system
thereon; Provided, however, That the Bureau of Posts shall have the right to place
additional cross-arms and wires on the poles of the grantee by paying a
compensation, the rate of which is to be agreed upon by the Director of Posts and
the grantee; —

the defendant counterclaimed for P8,772.00 for the use of its poles by the plaintiff, contending that
what was allowed free use, under the aforequoted provision, was one ten-pin cross-arm attachment
and only for plaintiff's telegraph system, not for its telephone system; that said section could not refer
to the plaintiff's telephone system, because it did not have such telephone system when defendant
acquired its franchise. The implication of the argument is that plaintiff has to pay for the use of
defendant's poles if such use is for plaintiff's telephone system and has to pay also if it attaches
more than one (1) ten-pin cross-arm for telegraphic purposes.

As there is no proof that the telephone wires strain the poles of the PLDT more than the telegraph
wires, nor that they cause more damage than the wires of the telegraph system, or that the
Government has attached to the poles more than one ten-pin cross-arm as permitted by the PLDT
charter, we see no point in this assignment of error. So long as the burden to be borne by the PLDT
poles is not increased, we see no reason why the reservation in favor of the telegraph wires of the
government should not be extended to its telephone lines, any time that the government decided to
engage also in this kind of communication.

In the ultimate analysis, the true objection of the PLDT to continue the link between its network and
that of the Government is that the latter competes "parasitically" (sic) with its own telephone
services. Considering, however, that the PLDT franchise is non-exclusive; that it is well-known that
defendant PLDT is unable to adequately cope with the current demands for telephone service, as
shown by the number of pending applications therefor; and that the PLDT's right to just
compensation for the services rendered to the Government telephone system and its users is herein
recognized and preserved, the objections of defendant-appellant are without merit. To uphold the
PLDT's contention is to subordinate the needs of the general public to the right of the PLDT to derive
profit from the future expansion of its services under its non-exclusive franchise.

WHEREFORE, the decision of the Court of First Instance, now under appeal, is affirmed, except in
so far as it dismisses the petition of the Republic of the Philippines to compel the Philippine Long
Distance Telephone Company to continue servicing the Government telephone system upon such
terms, and for a compensation, that the trial court may determine to be just, including the period
elapsed from the filing of the original complaint or petition. And for this purpose, the records are
ordered returned to the court of origin for further hearings and other proceedings not inconsistent
with this opinion. No costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee
and Barredo, JJ., concur.

Footnotes
1
Stipulated by parties (Record on Appeal, pages 70-72).

2
Ibid.

3
Ibid.

4
Exhibit "Q", folder of exhibits, pages 1-2, 11, 66-67, 69, 72-73, 82-83, 88.

5
T.s.n., 26 January 1959, page 11.

6
Exhibit "12-A".

7
Partial Stipulation of Facts and its Annex "D", record on appeal, pages 72, 134-135.

8
Exhibit "16", page 49.

9
T.s.n., 9 March 1960, page 9.

10
T.s.n., 9 March 1960, page 57.

11
Annex "M" to Partial Stipulation of Facts, record on appeal, page 164-177.

12
T.s.n., 9 March 1960, pages 30-31.

13
Annex "P", record on appeal, pages 184-186.

14
Partial Stipulation of Facts, record on appeal page 78.

15
Decision, record on appeal, pages 221-222.

Decision, record on appeal, page 211; Exhibit "3", record of exhibits, page 103;
16

T.s.n., 9 March 1960, pages 56 and 59.

17
Ibid.

18
Partial Stipulation of Facts, record on appeal, page 72.

19
Partial Stipulation of Facts, record on appeal, page 77.
G.R. No. L-12172 August 29, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.

Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.

REYES, J. B. L., J.:

Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-
appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of
the Municipality of Baao, Camarines Sur, for having constructed without a permit from the municipal
mayor a building that destroys the view of the public plaza.

It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo
as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in
question providing as follows:

SECTION 1. Any person or persons who will construct or repair a building should, before
constructing or repairing, obtain a written permit from the Municipal Mayor.

SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00
for each repair permit issued.

SEC. 3. PENALTY — Any violation of the provisions of the above, this ordinance, shall make
the violation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of
not less than 12 days nor more than 24 days or both, at the discretion of the court. If said
building destroys the view of the Public Plaza or occupies any public property, it shall be
removed at the expense of the owner of the building or house.

SEC. 4. EFFECTIVITY — This ordinance shall take effect on its approval. (Orig. Recs., P. 3)

Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,
appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's
name, located along the national highway and separated from the public plaza by a creek (Exh. D).
On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954,
defendants reiterated their request for a building permit (Exh. 3), but again the request was turned
down by the mayor. Whereupon, appellants proceeded with the construction of the building without a
permit, because they needed a place of residence very badly, their former house having been
destroyed by a typhoon and hitherto they had been living on leased property.

On February 26, 1954, appellants were charged before and convicted by the justice of the peace
court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the
Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35
each and the costs, as well as to demolish the building in question because it destroys the view of
the public plaza of Baao, in that "it hinders the view of travelers from the National Highway to the
said public plaza." From this decision, the accused appealed to the Court of Appeals, but the latter
forwarded the records to us because the appeal attacks the constitutionality of the ordinance in
question.

We find that the appealed conviction can not stand.

A first objection to the validity of the ordinance in question is that under it the mayor has absolute
discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard
to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed;
no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards;
standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted
power to grant or deny the issuance of building permits, and it is a settled rule that such an
undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid
(People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock
Hill, 2 SE (2d) 392)

The ordinance in question in no way controls or guides the discretion vested thereby in the
respondents. It prescribes no uniform rule upon which the special permission of the city is to
be granted. Thus the city is clothed with the uncontrolled power to capriciously grant the
privilege to some and deny it others; to refuse the application of one landowner or lessee
and to grant that of another, when for all material purposes, the two applying for precisely the
same privileges under the same circumstances. The danger of such an ordinance is that it
makes possible arbitrary discriminations and abuses in its execution, depending upon no
conditions or qualifications whatever, other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested. Fundamental rights under
our government do not depend for their existence upon such a slender and uncertain thread.
Ordinances which thus invest a city council with a discretion which is purely arbitrary, and
which may be exercised in the interest of a favored few, are unreasonable and invalid. The
ordinance should have established a rule by which its impartial enforcement could be
secured. All of the authorities cited above sustain this conclusion.

As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587,
28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that
municipal ordinances placing restrictions upon lawful conduct or the lawful use of property
must, in order to be valid, specify the rules and conditions to be observed in such conduct or
business; and must admit of the exercise of the privilege of all citizens alike who will comply
with such rules and conditions; and must not admit of the exercise, or of an opportunity for
the exercise, of any arbitrary discrimination by the municipal authorities between citizens
who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp.
394-395).

It is contended, on the other hand, that the mayor can refuse a permit solely in case that the
proposed building "destroys the view of the public plaza or occupies any public property" (as stated
in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the
appellant was predicated on the ground that the proposed building would "destroy the view of the
public plaza" by preventing its being seen from the public highway. Even thus interpreted, the
ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of
the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a
taking of appellants property without just compensation. We do not overlook that the modern
tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness
of residents. But while property may be regulated in the interest of the general welfare, and in its
pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32
Phil. 580), the State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or assure the
aesthetic appearance of the community. As the case now stands, every structure that may be
erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in
question, because it would interfere with the view of the public plaza from the highway. The
appellants would, in effect, be constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character. To legally achieve that result, the
municipality must give appellants just compensation and an opportunity to be heard.

An ordinance which permanently so restricts the use of property that it can not be used for
any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a
taking of the property. The only substantial difference, in such case, between restriction and
actual taking, is that the restriction leaves the owner subject to the burden of payment of
taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr.
Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).

A regulation which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs.
Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133
So. 114).

Zoning which admittedly limits property to a use which can not reasonably be made of it
cannot be said to set aside such property to a use but constitutes the taking of such property
without just compensation. Use of property is an element of ownership therein. Regardless of
the opinion of zealots that property may properly, by zoning, be utterly destroyed without
compensation, such principle finds no support in the genius of our government nor in the
principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be of
public benefit that property remain open and unused, then certainly the public, and not the
private individuals, should bear the cost of reasonable compensation for such property under
the rules of law governing the condemnation of private property for public use. (Tews vs.
Woolhiser (1933) 352 I11. 212, 185 N.E. 827) (Emphasis supplied.)

The validity of the ordinance in question was justified by the court below under section 2243, par. (c),
of the Revised Administrative Code, as amended. This section provides:

SEC. 2243. Certain legislative powers of discretionary character. — The municipal council
shall have authority to exercise the following discretionary powers:

xxx xxx xxx

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be
constructed or repaired within them, and issue permits for the creation or repair thereof,
charging a fee which shall be determined by the municipal council and which shall not be
less than two pesos for each building permit and one peso for each repair permit issued. The
 fees collected under the provisions of this subsection shall accrue to the municipal school
fund.

Under the provisions of the section above quoted, however, the power of the municipal council to
require the issuance of building permits rests upon its first establishing fire limits in populous parts of
the town and prescribing the kinds of buildings that may be constructed or repaired within them. As
there is absolutely no showing in this case that the municipal council had either established fire limits
within the municipality or set standards for the kind or kinds of buildings to be constructed or
repaired within them before it passed the ordinance in question, it is clear that said ordinance was
not conceived and promulgated under the express authority of sec. 2243 (c) aforequoted.

We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the
Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is
therefore null and void. Hence, the conviction of herein appellants is reversed, and said accused are
acquitted, with costs de oficio. So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and
Felix, JJ., concur.

G.R. No. L-20620 August 15, 1974

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.

Office of the Solicitor General for plaintiff-appellant.

C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates for defendant-appellees.

ZALDIVAR, J.:p

Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case No. 1623, an expropriation proceeding.

Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred to as the Republic) filed, on
June 26, 1959, a complaint for eminent domain against defendant-appellee, Carmen M. Vda. de
Castellvi, judicial administratrix of the estate of the late Alfonso de Castellvi (hereinafter referred to
as Castellvi), over a parcel of land situated in the barrio of San Jose, Floridablanca, Pampanga,
described as follows:

A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo 23666. Bounded
on the NE by Maria Nieves Toledo-Gozun; on the SE by national road; on the
SW by AFP reservation, and on the NW by AFP reservation. Containing an
area of 759,299 square meters, more or less, and registered in the name of
Alfonso Castellvi under TCT No. 13631 of the Register of Pampanga ...;

and against defendant-appellee Maria Nieves Toledo Gozun (hereinafter referred to as Toledo-
Gozun over two parcels of land described as follows:
 A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan Psd, 26254.
Bounded on the NE by Lot 3, on the SE by Lot 3; on the SW by Lot 1-B, Blk.
2 (equivalent to Lot 199-B Swo 23666; on the NW by AFP military
reservation. Containing an area of 450,273 square meters, more or less and
registered in the name of Maria Nieves Toledo-Gozun under TCT No. 8708
of the Register of Deeds of Pampanga. ..., and

A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan Psd 26254.
Bounded on the NE by Lot No. 3, on the SE by school lot and national road,
on the SW by Lot 1-B Blk 2 (equivalent to Lot 199-B Swo 23666), on the NW
by Lot 1-B, Blk-1. Containing an area of 88,772 square meters, more or less,
and registered in the name of Maria Nieves Toledo Gozun under TCT No.
8708 of the Register of Deeds of Pampanga, ....

In its complaint, the Republic alleged, among other things, that the fair market value of the above-
mentioned lands, according to the Committee on Appraisal for the Province of Pampanga, was not
more than P2,000 per hectare, or a total market value of P259,669.10; and prayed, that the
provisional value of the lands be fixed at P259.669.10, that the court authorizes plaintiff to take
immediate possession of the lands upon deposit of that amount with the Provincial Treasurer of
Pampanga; that the court appoints three commissioners to ascertain and report to the court the just
compensation for the property sought to be expropriated, and that the court issues thereafter a final
order of condemnation.

On June 29, 1959 the trial court issued an order fixing the provisional value of the lands at
P259,669.10.

In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged, among other things, that the land
under her administration, being a residential land, had a fair market value of P15.00 per square
meter, so it had a total market value of P11,389,485.00; that the Republic, through the Armed
Forces of the Philippines, particularly the Philippine Air Force, had been, despite repeated demands,
illegally occupying her property since July 1, 1956, thereby preventing her from using and disposing
of it, thus causing her damages by way of unrealized profits. This defendant prayed that the
complaint be dismissed, or that the Republic be ordered to pay her P15.00 per square meter, or a
total of P11,389,485.00, plus interest thereon at 6% per annum from July 1, 1956; that the Republic
be ordered to pay her P5,000,000.00 as unrealized profits, and the costs of the suit.

By order of the trial court, dated August, 1959, Amparo C. Diaz, Dolores G. viuda de Gil, Paloma
Castellvi, Carmen Castellvi, Rafael Castellvi, Luis Castellvi, Natividad Castellvi de Raquiza, Jose
Castellvi and Consuelo Castellvi were allowed to intervene as parties defendants. Subsequently,
Joaquin V. Gozun, Jr., husband of defendant Nieves Toledo Gozun, was also allowed by the court to
intervene as a party defendant.

After the Republic had deposited with the Provincial Treasurer of Pampanga the amount of
P259,669.10, the trial court ordered that the Republic be placed in possession of the lands. The
Republic was actually placed in possession of the lands on August 10,
1959.1

In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun alleged, among other things, that
her two parcels of land were residential lands, in fact a portion with an area of 343,303 square
meters had already been subdivided into different lots for sale to the general public, and the
remaining portion had already been set aside for expansion sites of the already completed
subdivisions; that the fair market value of said lands was P15.00 per square meter, so they had a
total market value of P8,085,675.00; and she prayed that the complaint be dismissed, or that she be
paid the amount of P8,085,675.00, plus interest thereon at the rate of 6% per annum from October
13, 1959, and attorney's fees in the amount of P50,000.00.

Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed on February 11, 1960, and
also intervenor Joaquin Gozun, Jr., husband of defendant Maria Nieves Toledo-Gozun, in his motion
to dismiss, dated May 27, 1960, all alleged that the value of the lands sought to be expropriated was
at the rate of P15.00 per square meter.

On November 4, 1959, the trial court authorized the Provincial Treasurer of Pampanga to pay
defendant Toledo-Gozun the sum of P107,609.00 as provisional value of her lands. On May 16,
2

1960 the trial Court authorized the Provincial Treasurer of Pampanga to pay defendant Castellvi the
amount of P151,859.80 as provisional value of the land under her administration, and ordered said
defendant to deposit the amount with the Philippine National Bank under the supervision of the
Deputy Clerk of Court. In another order of May 16, 1960 the trial Court entered an order of
condemnation. 3

The trial Court appointed three commissioners: Atty. Amadeo Yuzon, Clerk of Court, as
commissioner for the court; Atty. Felicisimo G. Pamandanan, counsel of the Philippine National Bank
Branch at Floridablanca, for the plaintiff; and Atty. Leonardo F. Lansangan, Filipino legal counsel at
Clark Air Base, for the defendants. The Commissioners, after having qualified themselves,
proceeded to the performance of their duties.

On March 15,1961 the Commissioners submitted their report and recommendation, wherein, after
having determined that the lands sought to be expropriated were residential lands, they
recommended unanimously that the lowest price that should be paid was P10.00 per square meter,
for both the lands of Castellvi and Toledo-Gozun; that an additional P5,000.00 be paid to Toledo-
Gozun for improvements found on her land; that legal interest on the compensation, computed from
August 10, 1959, be paid after deducting the amounts already paid to the owners, and that no
consequential damages be awarded. The Commissioners' report was objected to by all the parties
4

in the case — by defendants Castellvi and Toledo-Gozun, who insisted that the fair market value of
their lands should be fixed at P15.00 per square meter; and by the Republic, which insisted that the
price to be paid for the lands should be fixed at P0.20 per square meter. 5

After the parties-defendants and intervenors had filed their respective memoranda, and the
Republic, after several extensions of time, had adopted as its memorandum its objections to the
report of the Commissioners, the trial court, on May 26, 1961, rendered its decision the dispositive
6

portion of which reads as follows:

WHEREFORE, taking into account all the foregoing circumstances, and that
the lands are titled, ... the rising trend of land values ..., and the lowered
purchasing power of the Philippine peso, the court finds that the unanimous
recommendation of the commissioners of ten (P10.00) pesos per square
meter for the three lots of the defendants subject of this action is fair and just.

xxx xxx xxx

The plaintiff will pay 6% interest per annum on the total value of the lands of
defendant Toledo-Gozun since (sic) the amount deposited as provisional
value from August 10, 1959 until full payment is made to said defendant or
deposit therefor is made in court.
 In respect to the defendant Castellvi, interest at 6% per annum will also be
paid by the plaintiff to defendant Castellvi from July 1, 1956 when plaintiff
commenced its illegal possession of the Castellvi land when the instant
action had not yet been commenced to July 10, 1959 when the provisional
value thereof was actually deposited in court, on the total value of the said
(Castellvi) land as herein adjudged. The same rate of interest shall be paid
from July 11, 1959 on the total value of the land herein adjudged minus the
amount deposited as provisional value, or P151,859.80, such interest to run
until full payment is made to said defendant or deposit therefor is made in
court. All the intervenors having failed to produce evidence in support of their
respective interventions, said interventions are ordered dismissed.

The costs shall be charged to the plaintiff.

On June 21, 1961 the Republic filed a motion for a new trial and/or reconsideration, upon the
grounds of newly-discovered evidence, that the decision was not supported by the evidence, and
that the decision was against the law, against which motion defendants Castellvi and Toledo-Gozun
filed their respective oppositions. On July 8, 1961 when the motion of the Republic for new trial
and/or reconsideration was called for hearing, the Republic filed a supplemental motion for new trial
upon the ground of additional newly-discovered evidence. This motion for new trial and/or
reconsideration was denied by the court on July 12, 1961.

On July 17, 1961 the Republic gave notice of its intention to appeal from the decision of May 26,
1961 and the order of July 12, 1961. Defendant Castellvi also filed, on July 17, 1961, her notice of
appeal from the decision of the trial court.

The Republic filed various ex-parte motions for extension of time within which to file its record on
appeal. The Republic's record on appeal was finally submitted on December 6, 1961.

Defendants Castellvi and Toledo-Gozun filed not only a joint opposition to the approval of the
Republic's record on appeal, but also a joint memorandum in support of their opposition. The
Republic also filed a memorandum in support of its prayer for the approval of its record on appeal.
On December 27, 1961 the trial court issued an order declaring both the record on appeal filed by
the Republic, and the record on appeal filed by defendant Castellvi as having been filed out of time,
thereby dismissing both appeals.

On January 11, 1962 the Republic filed a "motion to strike out the order of December 27, 1961 and
for reconsideration", and subsequently an amended record on appeal, against which motion the
defendants Castellvi and Toledo-Gozun filed their opposition. On July 26, 1962 the trial court issued
an order, stating that "in the interest of expediency, the questions raised may be properly and finally
determined by the Supreme Court," and at the same time it ordered the Solicitor General to submit a
record on appeal containing copies of orders and pleadings specified therein. In an order dated
November 19, 1962, the trial court approved the Republic's record on appeal as amended.

Defendant Castellvi did not insist on her appeal. Defendant Toledo-Gozun did not appeal.

The motion to dismiss the Republic's appeal was reiterated by appellees Castellvi and Toledo-
Gozun before this Court, but this Court denied the motion.

In her motion of August 11, 1964, appellee Castellvi sought to increase the provisional value of her
land. The Republic, in its comment on Castellvi's motion, opposed the same. This Court denied
Castellvi's motion in a resolution dated October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated October 6, 1969, praying that they be
authorized to mortgage the lands subject of expropriation, was denied by this Court or October 14,
1969.

On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel for the estate of the late Don
Alfonso de Castellvi in the expropriation proceedings, filed a notice of attorney's lien, stating that as
per agreement with the administrator of the estate of Don Alfonso de Castellvi they shall receive by
way of attorney's fees, "the sum equivalent to ten per centum of whatever the court may finally
decide as the expropriated price of the property subject matter of the case."

---------

Before this Court, the Republic contends that the lower court erred:

1. In finding the price of P10 per square meter of the lands subject of the
instant proceedings as just compensation;

2. In holding that the "taking" of the properties under expropriation

commenced with the filing of this action;

3. In ordering plaintiff-appellant to pay 6% interest on the adjudged value of

the Castellvi property to start from July of 1956;

4. In denying plaintiff-appellant's motion for new trial based on newly

discovered evidence.

In its brief, the Republic discusses the second error assigned as the first issue to be considered. We
shall follow the sequence of the Republic's discussion.

1. In support of the assigned error that the lower court erred in holding that the "taking" of the
properties under expropriation commenced with the filing of the complaint in this case, the Republic
argues that the "taking" should be reckoned from the year 1947 when by virtue of a special lease
agreement between the Republic and appellee Castellvi, the former was granted the "right and
privilege" to buy the property should the lessor wish to terminate the lease, and that in the event of
such sale, it was stipulated that the fair market value should be as of the time of occupancy; and that
the permanent improvements amounting to more that half a million pesos constructed during a
period of twelve years on the land, subject of expropriation, were indicative of an agreed pattern of
permanency and stability of occupancy by the Philippine Air Force in the interest of national
Security. 7

Appellee Castellvi, on the other hand, maintains that the "taking" of property under the power of
eminent domain requires two essential elements, to wit: (1) entrance and occupation by condemn or
upon the private property for more than a momentary or limited period, and (2) devoting it to a public
use in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property.
This appellee argues that in the instant case the first element is wanting, for the contract of lease
relied upon provides for a lease from year to year; that the second element is also wanting, because
the Republic was paying the lessor Castellvi a monthly rental of P445.58; and that the contract of
lease does not grant the Republic the "right and privilege" to buy the premises "at the value at the
time of occupancy." 8
Appellee Toledo-Gozun did not comment on the Republic's argument in support of the second error
assigned, because as far as she was concerned the Republic had not taken possession of her lands
prior to August 10, 1959.9

In order to better comprehend the issues raised in the appeal, in so far as the Castellvi property is
concerned, it should be noted that the Castellvi property had been occupied by the Philippine Air
Force since 1947 under a contract of lease, typified by the contract marked Exh. 4-Castellvi, the
pertinent portions of which read:

CONTRACT OF LEASE

This AGREEMENT OF LEASE MADE AND ENTERED into by and between

INTESTATE ESTATE OF ALFONSO DE CASTELLVI, represented by
CARMEN M. DE CASTELLVI, Judicial Administratrix ... hereinafter called the
LESSOR and THE REPUBLIC OF THE PHILIPPINES represented by MAJ.
GEN. CALIXTO DUQUE, Chief of Staff of the ARMED FORCES OF THE
PHILIPPINES, hereinafter called the LESSEE,

WITNESSETH:

1. For and in consideration of the rentals hereinafter reserved and the mutual
terms, covenants and conditions of the parties, the LESSOR has, and by
these presents does, lease and let unto the LESSEE the following described
land together with the improvements thereon and appurtenances thereof, viz:

Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752, parte de la

hacienda de Campauit, situado en el Barrio de San Jose, Municipio de
Floridablanca Pampanga. ... midiendo una extension superficial de cuatro
milliones once mil cuatro cientos trienta y cinco (4,001,435) [sic] metros
cuadrados, mas o menos.

Out of the above described property, 75.93 hectares thereof are actually
occupied and covered by this contract. .

Above lot is more particularly described in TCT No. 1016, province of

Pampanga ...

of which premises, the LESSOR warrants that he/she/they/is/are the registered owner(s) and with
full authority to execute a contract of this nature.

2. The term of this lease shall be for the period beginning July 1, 1952 the
date the premises were occupied by the PHILIPPINE AIR FORCE, AFP until
June 30, 1953, subject to renewal for another year at the option of the
LESSEE or unless sooner terminated by the LESSEE as hereinafter
provided.

3. The LESSOR hereby warrants that the LESSEE shall have quiet, peaceful
and undisturbed possession of the demised premises throughout the full term
or period of this lease and the LESSOR undertakes without cost to the
LESSEE to eject all trespassers, but should the LESSOR fail to do so, the
LESSEE at its option may proceed to do so at the expense of the LESSOR.
 The LESSOR further agrees that should he/she/they sell or encumber all or
any part of the herein described premises during the period of this lease, any
conveyance will be conditioned on the right of the LESSEE hereunder.

4. The LESSEE shall pay to the LESSOR as monthly rentals under this lease
the sum of FOUR HUNDRED FIFTY-FIVE PESOS & 58/100 (P455.58) ...

5. The LESSEE may, at any time prior to the termination of this lease, use
the property for any purpose or purposes and, at its own costs and expense
make alteration, install facilities and fixtures and errect additions ... which
facilities or fixtures ... so placed in, upon or attached to the said premises
shall be and remain property of the LESSEE and may be removed therefrom
by the LESSEE prior to the termination of this lease. The LESSEE shall
surrender possession of the premises upon the expiration or termination of
this lease and if so required by the LESSOR, shall return the premises in
substantially the same condition as that existing at the time same were first
occupied by the AFP, reasonable and ordinary wear and tear and damages
by the elements or by circumstances over which the LESSEE has no control
excepted: PROVIDED, that if the LESSOR so requires the return of the
premises in such condition, the LESSOR shall give written notice thereof to
the LESSEE at least twenty (20) days before the termination of the lease and
provided, further, that should the LESSOR give notice within the time
specified above, the LESSEE shall have the right and privilege to
compensate the LESSOR at the fair value or the equivalent, in lieu of
performance of its obligation, if any, to restore the premises. Fair value is to
be determined as the value at the time of occupancy less fair wear and tear
and depreciation during the period of this lease.

6. The LESSEE may terminate this lease at any time during the term hereof
by giving written notice to the LESSOR at least thirty (30) days in advance ...

7. The LESSEE should not be responsible, except under special legislation

for any damages to the premises by reason of combat operations, acts of
GOD, the elements or other acts and deeds not due to the negligence on the
part of the LESSEE.

8. This LEASE AGREEMENT supersedes and voids any and all agreements
and undertakings, oral or written, previously entered into between the parties
covering the property herein leased, the same having been merged herein.
This AGREEMENT may not be modified or altered except by instrument in
writing only duly signed by the parties. 10

It was stipulated by the parties, that "the foregoing contract of lease (Exh. 4, Castellvi) is 'similar in
terms and conditions, including the date', with the annual contracts entered into from year to year
between defendant Castellvi and the Republic of the Philippines (p. 17, t.s.n., Vol. III)". It is
11

undisputed, therefore, that the Republic occupied Castellvi's land from July 1, 1947, by virtue of the
above-mentioned contract, on a year to year basis (from July 1 of each year to June 30 of the
succeeding year) under the terms and conditions therein stated.

Before the expiration of the contract of lease on June 30, 1956 the Republic sought to renew the
same but Castellvi refused. When the AFP refused to vacate the leased premises after the
termination of the contract, on July 11, 1956, Castellvi wrote to the Chief of Staff, AFP, informing the
latter that the heirs of the property had decided not to continue leasing the property in question
because they had decided to subdivide the land for sale to the general public, demanding that the
property be vacated within 30 days from receipt of the letter, and that the premises be returned in
substantially the same condition as before occupancy (Exh. 5 — Castellvi). A follow-up letter was
sent on January 12, 1957, demanding the delivery and return of the property within one month from
said date (Exh. 6 Castellvi). On January 30, 1957, Lieutenant General Alfonso Arellano, Chief of
Staff, answered the letter of Castellvi, saying that it was difficult for the army to vacate the premises
in view of the permanent installations and other facilities worth almost P500,000.00 that were
erected and already established on the property, and that, there being no other recourse, the
acquisition of the property by means of expropriation proceedings would be recommended to the
President (Exhibit "7" — Castellvi).

Defendant Castellvi then brought suit in the Court of First Instance of Pampanga, in Civil Case No.
1458, to eject the Philippine Air Force from the land. While this ejectment case was pending, the
Republic instituted these expropriation proceedings, and, as stated earlier in this opinion, the
Republic was placed in possession of the lands on August 10, 1959, On November 21, 1959, the
Court of First Instance of Pampanga, dismissed Civil Case No. 1458, upon petition of the parties, in
an order which, in part, reads as follows:

1. Plaintiff has agreed, as a matter of fact has already signed an agreement

with defendants, whereby she has agreed to receive the rent of the lands,
subject matter of the instant case from June 30, 1966 up to 1959 when the
Philippine Air Force was placed in possession by virtue of an order of the
Court upon depositing the provisional amount as fixed by the Provincial
Appraisal Committee with the Provincial Treasurer of Pampanga;

2. That because of the above-cited agreement wherein the administratrix

decided to get the rent corresponding to the rent from 1956 up to 1959 and
considering that this action is one of illegal detainer and/or to recover the
possession of said land by virtue of non-payment of rents, the instant case
now has become moot and academic and/or by virtue of the agreement
signed by plaintiff, she has waived her cause of action in the above-entitled
case. 12

The Republic urges that the "taking " of Castellvi's property should be deemed as of the year 1947
by virtue of afore-quoted lease agreement. In American Jurisprudence, Vol. 26, 2nd edition, Section
157, on the subject of "Eminent Domain, we read the definition of "taking" (in eminent domain) as
follows:

Taking' under the power of eminent domain may be defined generally as

entering upon private property for more than a momentary period, and, under
the warrant or color of legal authority, devoting it to a public use, or otherwise
informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment
thereof. 13

Pursuant to the aforecited authority, a number of circumstances must be present in the "taking" of
property for purposes of eminent domain.

First, the expropriator must enter a private property. This circumstance is present in the instant case,
when by virtue of the lease agreement the Republic, through the AFP, took possession of the
property of Castellvi.
Second, the entrance into private property must be for more than a momentary period. "Momentary"
means, "lasting but a moment; of but a moment's duration" (The Oxford English Dictionary, Volume
VI, page 596); "lasting a very short time; transitory; having a very brief life; operative or recurring at
every moment" (Webster's Third International Dictionary, 1963 edition.) The word "momentary" when
applied to possession or occupancy of (real) property should be construed to mean "a limited period"
— not indefinite or permanent. The aforecited lease contract was for a period of one year, renewable
from year to year. The entry on the property, under the lease, is temporary, and considered
transitory. The fact that the Republic, through the AFP, constructed some installations of a
permanent nature does not alter the fact that the entry into the land was transitory, or intended to
last a year, although renewable from year to year by consent of 'The owner of the land. By express
provision of the lease agreement the Republic, as lessee, undertook to return the premises in
substantially the same condition as at the time the property was first occupied by the AFP. It is
claimed that the intention of the lessee was to occupy the land permanently, as may be inferred from
the construction of permanent improvements. But this "intention" cannot prevail over the clear and
express terms of the lease contract. Intent is to be deduced from the language employed by the
parties, and the terms 'of the contract, when unambiguous, as in the instant case, are conclusive in
the absence of averment and proof of mistake or fraud — the question being not what the intention
was, but what is expressed in the language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. 515,
525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover, in order to judge the intention
of the contracting parties, their contemporaneous and subsequent acts shall be principally
considered (Art. 1371, Civil Code). If the intention of the lessee (Republic) in 1947 was really to
occupy permanently Castellvi's property, why was the contract of lease entered into on year to year
basis? Why was the lease agreement renewed from year to year? Why did not the Republic
expropriate this land of Castellvi in 1949 when, according to the Republic itself, it expropriated the
other parcels of land that it occupied at the same time as the Castellvi land, for the purpose of
converting them into a jet air base? It might really have been the intention of the Republic to
14

expropriate the lands in question at some future time, but certainly mere notice - much less an
implied notice — of such intention on the part of the Republic to expropriate the lands in the future
did not, and could not, bind the landowner, nor bind the land itself. The expropriation must be
actually commenced in court (Republic vs. Baylosis, et al., 96 Phil. 461, 484).

Third, the entry into the property should be under warrant or color of legal authority. This
circumstance in the "taking" may be considered as present in the instant case, because the Republic
entered the Castellvi property as lessee.

Fourth, the property must be devoted to a public use or otherwise informally appropriated or
injuriously affected. It may be conceded that the circumstance of the property being devoted to
public use is present because the property was used by the air force of the AFP.

Fifth, the utilization of the property for public use must be in such a way as to oust the owner and
deprive him of all beneficial enjoyment of the property. In the instant case, the entry of the Republic
into the property and its utilization of the same for public use did not oust Castellvi and deprive her of
all beneficial enjoyment of the property. Castellvi remained as owner, and was continuously
recognized as owner by the Republic, as shown by the renewal of the lease contract from year to
year, and by the provision in the lease contract whereby the Republic undertook to return the
property to Castellvi when the lease was terminated. Neither was Castellvi deprived of all the
beneficial enjoyment of the property, because the Republic was bound to pay, and had been paying,
Castellvi the agreed monthly rentals until the time when it filed the complaint for eminent domain on
June 26, 1959.

It is clear, therefore, that the "taking" of Catellvi's property for purposes of eminent domain cannot be
considered to have taken place in 1947 when the Republic commenced to occupy the property as
lessee thereof. We find merit in the contention of Castellvi that two essential elements in the "taking"
of property under the power of eminent domain, namely: (1) that the entrance and occupation by the
condemnor must be for a permanent, or indefinite period, and (2) that in devoting the property to
public use the owner was ousted from the property and deprived of its beneficial use, were not
present when the Republic entered and occupied the Castellvi property in 1947.

Untenable also is the Republic's contention that although the contract between the parties was one
of lease on a year to year basis, it was "in reality a more or less permanent right to occupy the
premises under the guise of lease with the 'right and privilege' to buy the property should the lessor
wish to terminate the lease," and "the right to buy the property is merged as an integral part of the
lease relationship ... so much so that the fair market value has been agreed upon, not, as of the time
of purchase, but as of the time of occupancy" We cannot accept the Republic's contention that a
15

lease on a year to year basis can give rise to a permanent right to occupy, since by express legal
provision a lease made for a determinate time, as was the lease of Castellvi's land in the instant
case, ceases upon the day fixed, without need of a demand (Article 1669, Civil Code). Neither can it
be said that the right of eminent domain may be exercised by simply leasing the premises to be
expropriated (Rule 67, Section 1, Rules of Court). Nor can it be accepted that the Republic would
enter into a contract of lease where its real intention was to buy, or why the Republic should enter
into a simulated contract of lease ("under the guise of lease", as expressed by counsel for the
Republic) when all the time the Republic had the right of eminent domain, and could expropriate
Castellvi's land if it wanted to without resorting to any guise whatsoever. Neither can we see how a
right to buy could be merged in a contract of lease in the absence of any agreement between the
parties to that effect. To sustain the contention of the Republic is to sanction a practice whereby in
order to secure a low price for a land which the government intends to expropriate (or would
eventually expropriate) it would first negotiate with the owner of the land to lease the land (for say
ten or twenty years) then expropriate the same when the lease is about to terminate, then claim that
the "taking" of the property for the purposes of the expropriation be reckoned as of the date when
the Government started to occupy the property under the lease, and then assert that the value of the
property being expropriated be reckoned as of the start of the lease, in spite of the fact that the value
of the property, for many good reasons, had in the meantime increased during the period of the
lease. This would be sanctioning what obviously is a deceptive scheme, which would have the effect
of depriving the owner of the property of its true and fair market value at the time when the
expropriation proceedings were actually instituted in court. The Republic's claim that it had the "right
and privilege" to buy the property at the value that it had at the time when it first occupied the
property as lessee nowhere appears in the lease contract. What was agreed expressly in paragraph
No. 5 of the lease agreement was that, should the lessor require the lessee to return the premises in
the same condition as at the time the same was first occupied by the AFP, the lessee would have
the "right and privilege" (or option) of paying the lessor what it would fairly cost to put the premises in
the same condition as it was at the commencement of the lease, in lieu of the lessee's performance
of the undertaking to put the land in said condition. The "fair value" at the time of occupancy,
mentioned in the lease agreement, does not refer to the value of the property if bought by the
lessee, but refers to the cost of restoring the property in the same condition as of the time when the
lessee took possession of the property. Such fair value cannot refer to the purchase price, for
purchase was never intended by the parties to the lease contract. It is a rule in the interpretation of
contracts that "However general the terms of a contract may be, they shall not be understood to
comprehend things that are distinct and cases that are different from those upon which the parties
intended to agree" (Art. 1372, Civil Code).

We hold, therefore, that the "taking" of the Castellvi property should not be reckoned as of the year
1947 when the Republic first occupied the same pursuant to the contract of lease, and that the just
compensation to be paid for the Castellvi property should not be determined on the basis of the
value of the property as of that year. The lower court did not commit an error when it held that the
"taking" of the property under expropriation commenced with the filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, the "just compensation" is to be determined as of
16

the date of the filing of the complaint. This Court has ruled that when the taking of the property
sought to be expropriated coincides with the commencement of the expropriation proceedings, or
takes place subsequent to the filing of the complaint for eminent domain, the just compensation
should be determined as of the date of the filing of the complaint. (Republic vs. Philippine National
Bank, L-14158, April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it is undisputed that the
Republic was placed in possession of the Castellvi property, by authority of the court, on August 10,
1959. The "taking" of the Castellvi property for the purposes of determining the just compensation to
be paid must, therefore, be reckoned as of June 26, 1959 when the complaint for eminent domain
was filed.

Regarding the two parcels of land of Toledo-Gozun, also sought to be expropriated, which had never
been under lease to the Republic, the Republic was placed in possession of said lands, also by
authority of the court, on August 10, 1959, The taking of those lands, therefore, must also be
reckoned as of June 26, 1959, the date of the filing of the complaint for eminent domain.

2. Regarding the first assigned error — discussed as the second issue — the Republic maintains
that, even assuming that the value of the expropriated lands is to be determined as of June 26,
1959, the price of P10.00 per square meter fixed by the lower court "is not only exhorbitant but also
unconscionable, and almost fantastic". On the other hand, both Castellvi and Toledo-Gozun maintain
that their lands are residential lands with a fair market value of not less than P15.00 per square
meter.

The lower court found, and declared, that the lands of Castellvi and Toledo-Gozun are residential
lands. The finding of the lower court is in consonance with the unanimous opinion of the three
commissioners who, in their report to the court, declared that the lands are residential lands.

The Republic assails the finding that the lands are residential, contending that the plans of the
appellees to convert the lands into subdivision for residential purposes were only on paper, there
being no overt acts on the part of the appellees which indicated that the subdivision project had been
commenced, so that any compensation to be awarded on the basis of the plans would be
speculative. The Republic's contention is not well taken. We find evidence showing that the lands in
question had ceased to be devoted to the production of agricultural crops, that they had become
adaptable for residential purposes, and that the appellees had actually taken steps to convert their
lands into residential subdivisions even before the Republic filed the complaint for eminent domain.
In the case of City of Manila vs. Corrales (32 Phil. 82, 98) this Court laid down basic guidelines in
determining the value of the property expropriated for public purposes. This Court said:

In determining the value of land appropriated for public purposes, the same
consideration are to be regarded as in a sale of property between private
parties. The inquiry, in such cases, must be what is the property worth in the
market, viewed not merely with reference to the uses to which it is at the time
applied, but with reference to the uses to which it is plainly adapted, that is to
say, What is it worth from its availability for valuable uses?

So many and varied are the circumstances to be taken into account in

determining the value of property condemned for public purposes, that it is
practically impossible to formulate a rule to govern its appraisement in all
cases. Exceptional circumstances will modify the most carefully guarded rule,
but, as a general thing, we should say that the compensation of the owner is
to be estimated by reference to the use for which the property is suitable,
having regard to the existing business or wants of the community, or such as
 may be reasonably expected in the immediate future. (Miss. and Rum River
Boom Co. vs. Patterson, 98 U.S., 403).

In expropriation proceedings, therefore, the owner of the land has the right to its value for the use for
which it would bring the most in the market. The owner may thus show every advantage that his
17

property possesses, present and prospective, in order that the price it could be sold for in the market
may be satisfactorily determined. The owner may also show that the property is suitable for division
18

into village or town lots.19

The trial court, therefore, correctly considered, among other circumstances, the proposed
subdivision plans of the lands sought to be expropriated in finding that those lands are residential
lots. This finding of the lower court is supported not only by the unanimous opinion of the
commissioners, as embodied in their report, but also by the Provincial Appraisal Committee of the
province of Pampanga composed of the Provincial Treasurer, the Provincial Auditor and the District
Engineer. In the minutes of the meeting of the Provincial Appraisal Committee, held on May 14,
1959 (Exh. 13-Castellvi) We read in its Resolution No. 10 the following:

3. Since 1957 the land has been classified as residential in view of its
proximity to the air base and due to the fact that it was not being devoted to
agriculture. In fact, there is a plan to convert it into a subdivision for
residential purposes. The taxes due on the property have been paid based
on its classification as residential land;

The evidence shows that Castellvi broached the idea of subdividing her land into residential lots as
early as July 11, 1956 in her letter to the Chief of Staff of the Armed Forces of the Philippines. (Exh.
5-Castellvi) As a matter of fact, the layout of the subdivision plan was tentatively approved by the
National Planning Commission on September 7, 1956. (Exh. 8-Castellvi). The land of Castellvi had
not been devoted to agriculture since 1947 when it was leased to the Philippine Army. In 1957 said
land was classified as residential, and taxes based on its classification as residential had been paid
since then (Exh. 13-Castellvi). The location of the Castellvi land justifies its suitability for a residential
subdivision. As found by the trial court, "It is at the left side of the entrance of the Basa Air Base and
bounded on two sides by roads (Exh. 13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the
poblacion, (of Floridablanca) the municipal building, and the Pampanga Sugar Mills are closed by.
The barrio schoolhouse and chapel are also near (T.S.N. November 23,1960, p. 68)." 20

The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same condition as the land of
Castellvi. The lands of Toledo-Gozun adjoin the land of Castellvi. They are also contiguous to the
Basa Air Base, and are along the road. These lands are near the barrio schoolhouse, the barrio
chapel, the Pampanga Sugar Mills, and the poblacion of Floridablanca (Exhs. 1, 3 and 4-Toledo-
Gozun). As a matter of fact, regarding lot 1-B it had already been surveyed and subdivided, and its
conversion into a residential subdivision was tentatively approved by the National Planning
Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As early as June, 1958, no less than 32
man connected with the Philippine Air Force among them commissioned officers, non-commission
officers, and enlisted men had requested Mr. and Mrs. Joaquin D. Gozun to open a subdivision on
their lands in question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21

We agree with the findings, and the conclusions, of the lower court that the lands that are the subject
of expropriation in the present case, as of August 10, 1959 when the same were taken possession of
by the Republic, were residential lands and were adaptable for use as residential subdivisions.
Indeed, the owners of these lands have the right to their value for the use for which they would bring
the most in the market at the time the same were taken from them. The most important issue to be
resolved in the present case relates to the question of what is the just compensation that should be
paid to the appellees.

The Republic asserts that the fair market value of the lands of the appellees is P.20 per square
meter. The Republic cites the case of Republic vs. Narciso, et al., L-6594, which this Court decided
on May 18, 1956. The Narciso case involved lands that belonged to Castellvi and Toledo-Gozun,
and to one Donata Montemayor, which were expropriated by the Republic in 1949 and which are
now the site of the Basa Air Base. In the Narciso case this Court fixed the fair market value at P.20
per square meter. The lands that are sought to be expropriated in the present case being contiguous
to the lands involved in the Narciso case, it is the stand of the Republic that the price that should be
fixed for the lands now in question should also be at P.20 per square meter.

We can not sustain the stand of the Republic. We find that the price of P.20 per square meter, as
fixed by this Court in the Narciso case, was based on the allegation of the defendants (owners) in
their answer to the complaint for eminent domain in that case that the price of their lands was
P2,000.00 per hectare and that was the price that they asked the court to pay them. This Court said,
then, that the owners of the land could not be given more than what they had asked, notwithstanding
the recommendation of the majority of the Commission on Appraisal — which was adopted by the
trial court — that the fair market value of the lands was P3,000.00 per hectare. We also find that the
price of P.20 per square meter in the Narciso case was considered the fair market value of the lands
as of the year 1949 when the expropriation proceedings were instituted, and at that time the lands
were classified as sugar lands, and assessed for taxation purposes at around P400.00 per hectare,
or P.04 per square meter. 22 While the lands involved in the present case, like the lands involved in
the Narciso case, might have a fair market value of P.20 per square meter in 1949, it can not be
denied that ten years later, in 1959, when the present proceedings were instituted, the value of those
lands had increased considerably. The evidence shows that since 1949 those lands were no longer
cultivated as sugar lands, and in 1959 those lands were already classified, and assessed for taxation
purposes, as residential lands. In 1959 the land of Castellvi was assessed at P1.00 per square
meter. 23

The Republic also points out that the Provincial Appraisal Committee of Pampanga, in its resolution
No. 5 of February 15, 1957 (Exhibit D), recommended the sum of P.20 per square meter as the fair
valuation of the Castellvi property. We find that this resolution was made by the Republic the basis in
asking the court to fix the provisional value of the lands sought to be expropriated at P259,669.10,
which was approved by the court. It must be considered, however, that the amount fixed as the
24

provisional value of the lands that are being expropriated does not necessarily represent the true
and correct value of the land. The value is only "provisional" or "tentative", to serve as the basis for
the immediate occupancy of the property being expropriated by the condemnor. The records show
that this resolution No. 5 was repealed by the same Provincial Committee on Appraisal in its
resolution No. 10 of May 14, 1959 (Exhibit 13-Castellvi). In that resolution No. 10, the appraisal
committee stated that "The Committee has observed that the value of the land in this locality has
increased since 1957 ...", and recommended the price of P1.50 per square meter. It follows,
therefore, that, contrary to the stand of the Republic, that resolution No. 5 of the Provincial Appraisal
Committee can not be made the basis for fixing the fair market value of the lands of Castellvi and
Toledo-Gozun.

The Republic further relied on the certification of the Acting Assistant Provincial Assessor of
Pampanga, dated February 8, 1961 (Exhibit K), to the effect that in 1950 the lands of Toledo-Gozun
were classified partly as sugar land and partly as urban land, and that the sugar land was assessed
at P.40 per square meter, while part of the urban land was assessed at P.40 per square meter and
part at P.20 per square meter; and that in 1956 the Castellvi land was classified as sugar land and
was assessed at P450.00 per hectare, or P.045 per square meter. We can not also consider this
certification of the Acting Assistant Provincial Assessor as a basis for fixing the fair market value of
the lands of Castellvi and Toledo-Gozun because, as the evidence shows, the lands in question, in
1957, were already classified and assessed for taxation purposes as residential lands. The
certification of the assessor refers to the year 1950 as far as the lands of Toledo-Gozun are
concerned, and to the year 1956 as far as the land of Castellvi is concerned. Moreover, this Court
has held that the valuation fixed for the purposes of the assessment of the land for taxation purposes
can not bind the landowner where the latter did not intervene in fixing it.25

On the other hand, the Commissioners, appointed by the court to appraise the lands that were being
expropriated, recommended to the court that the price of P10.00 per square meter would be the fair
market value of the lands. The commissioners made their recommendation on the basis of their
observation after several ocular inspections of the lands, of their own personal knowledge of land
values in the province of Pampanga, of the testimonies of the owners of the land, and other
witnesses, and of documentary evidence presented by the appellees. Both Castellvi and Toledo-
Gozun testified that the fair market value of their respective land was at P15.00 per square meter.
The documentary evidence considered by the commissioners consisted of deeds of sale of
residential lands in the town of San Fernando and in Angeles City, in the province of Pampanga,
which were sold at prices ranging from P8.00 to P20.00 per square meter (Exhibits 15, 16, 17, 18,
19, 20, 21, 22, 23-Castellvi). The commissioners also considered the decision in Civil Case No. 1531
of the Court of First Instance of Pampanga, entitled Republic vs. Sabina Tablante, which was
expropriation case filed on January 13, 1959, involving a parcel of land adjacent to the Clark Air
Base in Angeles City, where the court fixed the price at P18.00 per square meter (Exhibit 14-
Castellvi). In their report, the commissioners, among other things, said:

... This expropriation case is specially pointed out, because the

circumstances and factors involved therein are similar in many respects to
the defendants' lands in this case. The land in Civil Case No. 1531 of this
Court and the lands in the present case (Civil Case No. 1623) are both near
the air bases, the Clark Air Base and the Basa Air Base respectively. There
is a national road fronting them and are situated in a first-class municipality.
As added advantage it may be said that the Basa Air Base land is very near
the sugar mill at Del Carmen, Floridablanca, Pampanga, owned by the
Pampanga Sugar Mills. Also just stone's throw away from the same lands is
a beautiful vacation spot at Palacol, a sitio of the town of Floridablanca,
which counts with a natural swimming pool for vacationists on weekends.
These advantages are not found in the case of the Clark Air Base. The
defendants' lands are nearer to the poblacion of Floridablanca then Clark Air
Base is nearer (sic) to the poblacion of Angeles, Pampanga.

The deeds of absolute sale, according to the undersigned commissioners, as

well as the land in Civil Case No. 1531 are competent evidence, because
they were executed during the year 1959 and before August 10 of the same
year. More specifically so the land at Clark Air Base which coincidentally is
the subject matter in the complaint in said Civil Case No. 1531, it having
been filed on January 13, 1959 and the taking of the land involved therein
was ordered by the Court of First Instance of Pampanga on January 15,
1959, several months before the lands in this case were taken by the
plaintiffs ....

From the above and considering further that the lowest as well as the highest
price per square meter obtainable in the market of Pampanga relative to
subdivision lots within its jurisdiction in the year 1959 is very well known by
 the Commissioners, the Commission finds that the lowest price that can be
awarded to the lands in question is P10.00 per square meter. 26

The lower court did not altogether accept the findings of the Commissioners based on the
documentary evidence, but it considered the documentary evidence as basis for comparison in
determining land values. The lower court arrived at the conclusion that "the unanimous
recommendation of the commissioners of ten (P10.00) pesos per square meter for the three lots of
the defendants subject of this action is fair and just". In arriving at its conclusion, the lower court
27

took into consideration, among other circumstances, that the lands are titled, that there is a rising
trend of land values, and the lowered purchasing power of the Philippine peso.

In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328, this Court said:

A court of first instance or, on appeal, the Supreme Court, may change or
modify the report of the commissioners by increasing or reducing the amount
of the award if the facts of the case so justify. While great weight is attached
to the report of the commissioners, yet a court may substitute therefor its
estimate of the value of the property as gathered from the record in certain
cases, as, where the commissioners have applied illegal principles to the
evidence submitted to them, or where they have disregarded a clear
preponderance of evidence, or where the amount allowed is either palpably
inadequate or excessive. 28

The report of the commissioners of appraisal in condemnation proceedings are not binding, but
merely advisory in character, as far as the court is concerned. In our analysis of the report of the
29

commissioners, We find points that merit serious consideration in the determination of the just
compensation that should be paid to Castellvi and Toledo-Gozun for their lands. It should be noted
that the commissioners had made ocular inspections of the lands and had considered the nature and
similarities of said lands in relation to the lands in other places in the province of Pampanga, like San
Fernando and Angeles City. We cannot disregard the observations of the commissioners regarding
the circumstances that make the lands in question suited for residential purposes — their location
near the Basa Air Base, just like the lands in Angeles City that are near the Clark Air Base, and the
facilities that obtain because of their nearness to the big sugar central of the Pampanga Sugar mills,
and to the flourishing first class town of Floridablanca. It is true that the lands in question are not in
the territory of San Fernando and Angeles City, but, considering the facilities of modern
communications, the town of Floridablanca may be considered practically adjacent to San Fernando
and Angeles City. It is not out of place, therefore, to compare the land values in Floridablanca to the
land values in San Fernando and Angeles City, and form an idea of the value of the lands in
Floridablanca with reference to the land values in those two other communities.

The important factor in expropriation proceeding is that the owner is awarded the just compensation
for his property. We have carefully studied the record, and the evidence, in this case, and after
considering the circumstances attending the lands in question We have arrived at the conclusion
that the price of P10.00 per square meter, as recommended by the commissioners and adopted by
the lower court, is quite high. It is Our considered view that the price of P5.00 per square meter
would be a fair valuation of the lands in question and would constitute a just compensation to the
owners thereof. In arriving at this conclusion We have particularly taken into consideration the
resolution of the Provincial Committee on Appraisal of the province of Pampanga informing, among
others, that in the year 1959 the land of Castellvi could be sold for from P3.00 to P4.00 per square
meter, while the land of Toledo-Gozun could be sold for from P2.50 to P3.00 per square meter. The
Court has weighed all the circumstances relating to this expropriations proceedings, and in fixing the
price of the lands that are being expropriated the Court arrived at a happy medium between the price
as recommended by the commissioners and approved by the court, and the price advocated by the
Republic. This Court has also taken judicial notice of the fact that the value of the Philippine peso
has considerably gone down since the year 1959. Considering that the lands of Castellvi and
30

Toledo-Gozun are adjoining each other, and are of the same nature, the Court has deemed it proper
to fix the same price for all these lands.

3. The third issue raised by the Republic relates to the payment of interest.
The Republic maintains that the lower court erred when it ordered the
Republic to pay Castellvi interest at the rate of 6% per annum on the total
amount adjudged as the value of the land of Castellvi, from July 1, 1956 to
July 10, 1959. We find merit in this assignment of error.

In ordering the Republic to pay 6% interest on the total value of the land of Castellvi from July 1,
1956 to July 10, 1959, the lower court held that the Republic had illegally possessed the land of
Castellvi from July 1, 1956, after its lease of the land had expired on June 30, 1956, until August 10,
1959 when the Republic was placed in possession of the land pursuant to the writ of possession
issued by the court. What really happened was that the Republic continued to occupy the land of
Castellvi after the expiration of its lease on June 30, 1956, so much so that Castellvi filed an
ejectment case against the Republic in the Court of First Instance of Pampanga. However, while
31

that ejectment case was pending, the Republic filed the complaint for eminent domain in the present
case and was placed in possession of the land on August 10, 1959, and because of the institution of
the expropriation proceedings the ejectment case was later dismissed. In the order dismissing the
ejectment case, the Court of First Instance of Pampanga said:

Plaintiff has agreed, as a matter of fact has already signed an agreement

with defendants, whereby she had agreed to receive the rent of the lands,
subject matter of the instant case from June 30, 1956 up to 1959 when the
Philippine Air Force was placed in possession by virtue of an order of the
Court upon depositing the provisional amount as fixed by the Provincial
Appraisal Committee with the Provincial Treasurer of
Pampanga; ...

If Castellvi had agreed to receive the rentals from June 30, 1956 to August 10, 1959, she should be
considered as having allowed her land to be leased to the Republic until August 10, 1959, and she
could not at the same time be entitled to the payment of interest during the same period on the
amount awarded her as the just compensation of her land. The Republic, therefore, should pay
Castellvi interest at the rate of 6% per annum on the value of her land, minus the provisional value
that was deposited, only from July 10, 1959 when it deposited in court the provisional value of the
land.

4. The fourth error assigned by the Republic relates to the denial by the lower court of its motion for
a new trial based on nearly discovered evidence. We do not find merit in this assignment of error.

After the lower court had decided this case on May 26, 1961, the Republic filed a motion for a new
trial, supplemented by another motion, both based upon the ground of newly discovered evidence.
The alleged newly discovered evidence in the motion filed on June 21, 1961 was a deed of absolute
sale-executed on January 25, 1961, showing that a certain Serafin Francisco had sold to Pablo L.
Narciso a parcel of sugar land having an area of 100,000 square meters with a sugar quota of 100
piculs, covered by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for P14,000, or P.14 per
square meter.
In the supplemental motion, the alleged newly discovered evidence were: (1) a deed of sale of some
35,000 square meters of land situated at Floridablanca for P7,500.00 (or about P.21 per square
meter) executed in July, 1959, by the spouses Evelyn D. Laird and Cornelio G. Laird in favor of
spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a deed of absolute sale of a parcel of
land having an area of 4,120,101 square meters, including the sugar quota covered by Plantation
Audit No. 161 1345, situated at Floridablanca, Pampanga, for P860.00 per hectare (a little less than
P.09 per square meter) executed on October 22, 1957 by Jesus Toledo y Mendoza in favor of the
Land Tenure Administration.

We find that the lower court acted correctly when it denied the motions for a new trial.

To warrant the granting of a new trial based on the ground of newly discovered evidence, it must
appear that the evidence was discovered after the trial; that even with the exercise of due diligence,
the evidence could not have been discovered and produced at the trial; and that the evidence is of
such a nature as to alter the result of the case if admitted. The lower court correctly ruled that
32

these requisites were not complied with.

The lower court, in a well-reasoned order, found that the sales made by Serafin Francisco to Pablo
Narciso and that made by Jesus Toledo to the Land Tenure Administration were immaterial and
irrelevant, because those sales covered sugarlands with sugar quotas, while the lands sought to be
expropriated in the instant case are residential lands. The lower court also concluded that the land
sold by the spouses Laird to the spouses Aguas was a sugar land.

We agree with the trial court. In eminent domain proceedings, in order that evidence as to the sale
price of other lands may be admitted in evidence to prove the fair market value of the land sought to
be expropriated, the lands must, among other things, be shown to be similar.

But even assuming, gratia argumenti, that the lands mentioned in those deeds of sale were
residential, the evidence would still not warrant the grant of a new trial, for said evidence could have
been discovered and produced at the trial, and they cannot be considered newly discovered
evidence as contemplated in Section 1(b) of Rule 37 of the Rules of Court. Regarding this point, the
trial court said:

The Court will now show that there was no reasonable diligence employed.

The land described in the deed of sale executed by Serafin Francisco, copy
of which is attached to the original motion, is covered by a Certificate of Title
issued by the Office of the Register of Deeds of Pampanga. There is no
question in the mind of the court but this document passed through the Office
of the Register of Deeds for the purpose of transferring the title or annotating
the sale on the certificate of title. It is true that Fiscal Lagman went to the
Office of the Register of Deeds to check conveyances which may be
presented in the evidence in this case as it is now sought to be done by
virtue of the motions at bar, Fiscal Lagman, one of the lawyers of the plaintiff,
did not exercise reasonable diligence as required by the rules. The assertion
that he only went to the office of the Register of Deeds 'now and then' to
check the records in that office only shows the half-hazard [sic] manner by
which the plaintiff looked for evidence to be presented during the hearing
before the Commissioners, if it is at all true that Fiscal Lagman did what he is
supposed to have done according to Solicitor Padua. It would have been the
easiest matter for plaintiff to move for the issuance of a subpoena duces
tecum directing the Register of Deeds of Pampanga to come to testify and to
 bring with him all documents found in his office pertaining to sales of land in
Floridablanca adjacent to or near the lands in question executed or recorded
from 1958 to the present. Even this elementary precaution was not done by
plaintiff's numerous attorneys.

The same can be said of the deeds of sale attached to the supplementary
motion. They refer to lands covered by certificate of title issued by the
Register of Deeds of Pampanga. For the same reason they could have been
easily discovered if reasonable diligence has been exerted by the numerous
lawyers of the plaintiff in this case. It is noteworthy that all these deeds of
sale could be found in several government offices, namely, in the Office of
the Register of Deeds of Pampanga, the Office of the Provincial Assessor of
Pampanga, the Office of the Clerk of Court as a part of notarial reports of
notaries public that acknowledged these documents, or in the archives of the
National Library. In respect to Annex 'B' of the supplementary motion copy of
the document could also be found in the Office of the Land Tenure
Administration, another government entity. Any lawyer with a modicum of
ability handling this expropriation case would have right away though [sic] of
digging up documents diligently showing conveyances of lands near or
around the parcels of land sought to be expropriated in this case in the
offices that would have naturally come to his mind such as the offices
mentioned above, and had counsel for the movant really exercised the
reasonable diligence required by the Rule' undoubtedly they would have
been able to find these documents and/or caused the issuance of subpoena
duces tecum. ...

It is also recalled that during the hearing before the Court of the Report and
Recommendation of the Commissioners and objection thereto, Solicitor
Padua made the observation:

I understand, Your Honor, that there was a sale that took place in this place
of land recently where the land was sold for P0.20 which is contiguous to this
land.

The Court gave him permission to submit said document subject to the
approval of the Court. ... This was before the decision was rendered, and
later promulgated on May 26, 1961 or more than one month after Solicitor
Padua made the above observation. He could have, therefore, checked up
the alleged sale and moved for a reopening to adduce further evidence. He
did not do so. He forgot to present the evidence at a more propitious time.
Now, he seeks to introduce said evidence under the guise of newly-
discovered evidence. Unfortunately the Court cannot classify it as newly-
discovered evidence, because tinder the circumstances, the correct
qualification that can be given is 'forgotten evidence'. Forgotten however, is
not newly-discovered
evidence. 33

The granting or denial of a motion for new trial is, as a general rule, discretionary with the trial court,
whose judgment should not be disturbed unless there is a clear showing of abuse of discretion. We 34

do not see any abuse of discretion on the part of the lower court when it denied the motions for a
new trial.
WHEREFORE, the decision appealed from is modified, as follows:

(a) the lands of appellees Carmen Vda. de Castellvi and Maria Nieves
Toledo-Gozun, as described in the complaint, are declared expropriated for
public use;

(b) the fair market value of the lands of the appellees is fixed at P5.00 per
square meter;

(c) the Republic must pay appellee Castellvi the sum of P3,796,495.00 as
just compensation for her one parcel of land that has an area of 759,299
square meters, minus the sum of P151,859.80 that she withdrew out of the
amount that was deposited in court as the provisional value of the land, with
interest at the rate of 6% per annum from July 10, 1959 until the day full
payment is made or deposited in court;

(d) the Republic must pay appellee Toledo-Gozun the sum of P2,695,225.00
as the just compensation for her two parcels of land that have a total area of
539,045 square meters, minus the sum of P107,809.00 that she withdrew out
of the amount that was deposited in court as the provisional value of her
lands, with interest at the rate of 6%, per annum from July 10, 1959 until the
day full payment is made or deposited in court; (e) the attorney's lien of Atty.
Alberto Cacnio is enforced; and

(f) the costs should be paid by appellant Republic of the Philippines, as

provided in Section 12, Rule 67, and in Section 13, Rule 141, of the Rules of
Court.

IT IS SO ORDERED.

Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muñoz Palma and Aquino, JJ., concur.

Castro, Fernando, Teehankee and Makasiar, JJ., took no part.

Footnotes

1 Record on Appeal, Vol. I, pp. 53-56.

2 Record on Appeal, Vol. I, pp. 53-56.

3 Record on Appeal, Vol. I, pp. 121-124.

4 Record on Appeal, Vol. I, pp. 235-261.

5 Record on Appeal, Vol. I, pp. 264-270, 284-297 and 297-299.

6 Record on Appeal, Vol. I, pp. 387-456.

7 Appellant's brief, pp. 18-30; citing the case of Penn. vs. Carolina Virginia
Estate Corp., 57 SE 2d 817.

8 Appellee Castellvi's brief, pp. 21-26.

9 Appellee Toledo-Gozun's brief, pp. 7-9. The issue raised in the second
error assigned should really refer only to the land of Castellvi. We find that
the lands of Toledo-Gozun, unlike the land of Castellvi, were never leased to
the Republic.

10 Appellant's brief, pp. 6-12.

11 Appellant's brief, p. 12.

12 Record on Appeal, Vol. II, pp. 462-463.

13 Among the cases cited under this Section is that of Penn. vs. Carolina
Virginia Coastal Corporation, 57 SE 2d 817, which is cited by the Republic on
p. 18 of its brief.

14 See Appellant's brief, p. 6.

15 See Appellant's brief, p. 22.

16 Similar to Section 5, Rule 69 of the old Rules of Court, the rule in force
when the complaint in this case was filed.

17 King vs. Mineapolis Union Railway Co., 32 Minn. 224.

18 Little Rock Junction Ry. vs. Woodruff, 49 Ark. 381; 5 SW 792.

19 27 Am. Jur. 2d pp. 344-345; Rothnam vs. Commonwealth, 406 Pa. 376;
Wichita Falls and N.W. Ry. Co. vs. Holloman, 28 Okla. 419, 114 P 700, 701.
See also Republic vs. Venturanza, et al.,
L-20417, May 30,1966, 17 SCRA 322, 331.

20 Decision of the lower court pp. 444-445, Record on Appeal, Vol. I.

21 Decision of the lower court, pp. 446-449, Record on Appeal, Vol. I.

22 Decision in the Narciso case, Exhibit H for the Republic.

23 See page 471, Record on Appeal, Vol. II, and page 41, Appellant's Brief.

24 Page 10-16, Record on Appeal, Vol. I.

25 Republic of the Philippines vs. Urtula, 110 Phil. 262-264.

26 Record on Appeal, Vol. I, pages 257-260.

 27 Lower court's decision, p. 454, Record on Appeal, Vol. I.

28 See also Manila Railroad Company vs. Velasquez, 32 Phil. 286: and City
of Manila vs. Estrada, 25 Phil. 208.

29 City of Cebu vs. Ledesma, 14 SCRA 666, 669.

30 In 1959 the money value of two pesos (P2.00), Philippine currency, was
equal to one U.S. dollar ($1.00). As published in the "Daily Express" of
August 6, 1974, the Philippine National Bank announced that the inter-bank
guiding rate was P6.735 to one U.S. dollar ($1,00).

31 Civil Case No. 1548.

32 Sec. 1 (b) of Rule 37 of the Rules of Court.

33 Record on Appeal, Vol. 11, pp. 607-613.

34 Miranda vs. Legaspi, et al., 92 Phil. 290, 293-294.

G.R. No. L-26400 February 29, 1972

VICTORIA AMIGABLE, plaintiff-appellant,

vs.
NICOLAS CUENCA, as Commissioner of Public Highways and REPUBLIC OF THE
PHILIPPINES, defendants-appellees.

MAKALINTAL, J.:p

This is an appeal from the decision of the Court of First Instance of Cebu in its Civil Case No. R-5977, dismissing the plaintiff's complaint.

Victoria Amigable, the appellant herein, is the registered owner of Lot No. 639 of the Banilad Estate
in Cebu City as shown by Transfer Certificate of Title No. T-18060, which superseded Transfer
Certificate of Title No. RT-3272 (T-3435) issued to her by the Register of Deeds of Cebu on
February 1, 1924. No annotation in favor of the government of any right or interest in the property
appears at the back of the certificate. Without prior expropriation or negotiated sale, the government
used a portion of said lot, with an area of 6,167 square meters, for the construction of the Mango
and Gorordo Avenues.

It appears that said avenues were already existing in 1921 although "they were in bad condition and
very narrow, unlike the wide and beautiful avenues that they are now," and "that the tracing of said
roads was begun in 1924, and the formal construction in
1925." *
On March 27, 1958 Amigable's counsel wrote the President of the Philippines, requesting payment of the portion of her lot which had been
appropriated by the government. The claim was indorsed to the Auditor General, who disallowed it in his 9th Indorsement dated December 9,
1958. A copy of said indorsement was transmitted to Amigable's counsel by the Office of the President on January 7, 1959.

On February 6, 1959 Amigable filed in the court a quo a complaint, which was later amended on
April 17, 1959 upon motion of the defendants, against the Republic of the Philippines and Nicolas
Cuenca, in his capacity as Commissioner of Public Highways for the recovery of ownership and
possession of the 6,167 square meters of land traversed by the Mango and Gorordo Avenues. She
also sought the payment of compensatory damages in the sum of P50,000.00 for the illegal
occupation of her land, moral damages in the sum of P25,000.00, attorney's fees in the sum of
P5,000.00 and the costs of the suit.

Within the reglementary period the defendants filed a joint answer denying the material allegations of
the complaint and interposing the following affirmative defenses, to wit: (1) that the action was
premature, the claim not having been filed first with the Office of the Auditor General; (2) that the
right of action for the recovery of any amount which might be due the plaintiff, if any, had already
prescribed; (3) that the action being a suit against the Government, the claim for moral damages,
attorney's fees and costs had no valid basis since as to these items the Government had not given
its consent to be sued; and (4) that inasmuch as it was the province of Cebu that appropriated and
used the area involved in the construction of Mango Avenue, plaintiff had no cause of action against
the defendants.

During the scheduled hearings nobody appeared for the defendants notwithstanding due notice, so
the trial court proceeded to receive the plaintiff's evidence ex parte. On July 29, 1959 said court
rendered its decision holding that it had no jurisdiction over the plaintiff's cause of action for the
recovery of possession and ownership of the portion of her lot in question on the ground that the
government cannot be sued without its consent; that it had neither original nor appellate jurisdiction
to hear, try and decide plaintiff's claim for compensatory damages in the sum of P50,000.00, the
same being a money claim against the government; and that the claim for moral damages had long
prescribed, nor did it have jurisdiction over said claim because the government had not given its
consent to be sued. Accordingly, the complaint was dismissed. Unable to secure a reconsideration,
the plaintiff appealed to the Court of Appeals, which subsequently certified the case to Us, there
being no question of fact involved.

The issue here is whether or not the appellant may properly sue the government under the facts of
the case.

In the case of Ministerio vs. Court of First Instance of Cebu, involving a claim for payment of the
1

value of a portion of land used for the widening of the Gorordo Avenue in Cebu City, this Court,
through Mr. Justice Enrique M. Fernando, held that where the government takes away property from
a private landowner for public use without going through the legal process of expropriation or
negotiated sale, the aggrieved party may properly maintain a suit against the government without
thereby violating the doctrine of governmental immunity from suit without its consent. We there
said: .

... . If the constitutional mandate that the owner be compensated for property
taken for public use were to be respected, as it should, then a suit of this
character should not be summarily dismissed. The doctrine of governmental
immunity from suit cannot serve as an instrument for perpetrating an injustice
on a citizen. Had the government followed the procedure indicated by the
governing law at the time, a complaint would have been filed by it, and only
upon payment of the compensation fixed by the judgment, or after tender to
the party entitled to such payment of the amount fixed, may it "have the right
 to enter in and upon the land so condemned, to appropriate the same to the
public use defined in the judgment." If there were an observance of
procedural regularity, petitioners would not be in the sad plaint they are now.
It is unthinkable then that precisely because there was a failure to abide by
what the law requires, the government would stand to benefit. It is just as
important, if not more so, that there be fidelity to legal norms on the part of
officialdom if the rule of law were to be maintained. It is not too much to say
that when the government takes any property for public use, which is
conditioned upon the payment of just compensation, to be judicially
ascertained, it makes manifest that it submits to the jurisdiction of a court.
There is no thought then that the doctrine of immunity from suit could still be
appropriately invoked.

Considering that no annotation in favor of the government appears at the back of her certificate of
title and that she has not executed any deed of conveyance of any portion of her lot to the
government, the appellant remains the owner of the whole lot. As registered owner, she could bring
an action to recover possession of the portion of land in question at anytime because possession is
one of the attributes of ownership. However, since restoration of possession of said portion by the
government is neither convenient nor feasible at this time because it is now and has been used for
road purposes, the only relief available is for the government to make due compensation which it
could and should have done years ago. To determine the due compensation for the land, the basis
should be the price or value thereof at the time of the taking.2

As regards the claim for damages, the plaintiff is entitled thereto in the form of legal interest on the
price of the land from the time it was taken up to the time that payment is made by the government. 3

In addition, the government should pay for attorney's fees, the amount of which should be fixed by
the trial court after hearing.

WHEREFORE, the decision appealed from is hereby set aside and the case remanded to the court
a quo for the determination of compensation, including attorney's fees, to which the appellant is
entitled as above indicated. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and
Makasiar JJ., concur.

Footnotes

* Decision, Record on Appeal, p. 12.

1 G.R. No. L-31635, August 31, 1971 (40 SCRA 464).

2 Alfonso vs. City of Pasay (106 Phil. 1017).

3 Alfonso vs. City of Pasay, supra.

G.R. No. L-119694 May 22, 1995

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented by its
President, Amado P. Macasaet and its Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

FELICIANO, J.:

The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional validity of
Resolution No. 2772 issued by respondent Commission on Elections ("Comelec") and its
corresponding Comelec directive dated 22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit organization of newspaper and magazine
publishers.

On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:

xxx xxx xxx

Sec. 2. Comelec Space. — The Commission shall procure free print space of
not less than one half (1/2) page in at least one newspaper of general
circulation in every province or city for use as "Comelec Space" from March
6, 1995 in the case of candidates for senator and from March 21, 1995 until
May 12, 1995. In the absence of said newspaper, "Comelec Space" shall be
obtained from any magazine or periodical of said province or city.

Sec. 3. Uses of Comelec Space. — "Comelec Space" shall be allocated by

the Commission, free of charge, among all candidates within the area in
which the newspaper, magazine or periodical is circulated to enable the
candidates to make known their qualifications, their stand on public issues
and their platforms and programs of government.

"Comelec Space" shall also be used by the Commission for dissemination of

vital election information.

Sec. 4. Allocation of Comelec Space. — (a) "Comelec Space" shall also be

available to all candidates during the periods stated in Section 2 hereof. Its
allocation shall be equal and impartial among all candidates for the same
office. All candidates concerned shall be furnished a copy of the allocation of
"Comelec Space" for their information, guidance and compliance.
 (b) Any candidate desiring to avail himself of "Comelec Space" from
newspapers or publications based in the Metropolitan Manila Area shall
submit an application therefor, in writing, to the Committee on Mass Media of
the Commission. Any candidate desiring to avail himself of "Comelec Space"
in newspapers or publications based in the provinces shall submit his
application therefor, in writing, to the Provincial Election Supervisor
concerned. Applications for availment of "Comelec Space" maybe filed at any
time from the date of effectivity of this Resolution.

(c) The Committee on Mass Media and the Provincial Election Supervisors
shall allocate available "Comelec Space" among the candidates concerned
by lottery of which said candidates shall be notified in advance, in writing, to
be present personally or by representative to witness the lottery at the date,
time and place specified in the notice. Any party objecting to the result of the
lottery may appeal to the Commission.

(d) The candidates concerned shall be notified by the Committee on Mass

Media or the Provincial Election Supervisor, as the case maybe, sufficiently
in advance and in writing of the date of issue and the newspaper or
publication allocated to him, and the time within which he must submit the
written material for publication in the "Comelec Space".

xxx xxx xxx

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. —

No newspaper or publication shall allow to be printed or published in the
news, opinion, features, or other sections of the newspaper or publication
accounts or comments which manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or including therein said
candidate or political party. However, unless the facts and circumstances
clearly indicate otherwise, the Commission will respect the determination by
the publisher and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and of public
interest. (Emphasis supplied)

Apparently in implementation of this Resolution, Comelec through Commissioner Regalado E.

Maambong sent identical letters, dated 22 March 1995, to various publishers of newspapers like the
Business World, the Philippine Star, the Malaya and the Philippine Times Journal, all members of
PPI. These letters read as follows:

This is to advise you that pursuant to Resolution No. 2772 of the Commission
on Elections, you are directed to provide free print space of not less than one
half (1/2) page for use as "Comelec Space" or similar to the print support
which you have extended during the May 11, 1992 synchronized elections
which was 2 full pages for each political party fielding senatorial candidates,
from March 6, 1995 to May 6, 1995, to make known their qualifications, their
stand on public issues and their platforms and programs of government.

We shall be informing the political parties and candidates to submit directly to

you their pictures, biographical data, stand on key public issues and
platforms of government either as raw data or in the form of positives or
camera-ready materials.
 Please be reminded that the political parties/candidates may be
accommodated in your publication any day upon receipt of their materials
until May 6, 1995 which is the last day for campaigning.

We trust you to extend your full support and cooperation in this regard.
(Emphasis supplied)

In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary Restraining
Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional and void on the ground
that it violates the prohibition imposed by the Constitution upon the government, and any of its
agencies, against the taking of private property for public use without just compensation. Petitioner
also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free
"Comelec Space" and at the same time process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the
1987 Constitution. Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of
the constitutionally guaranteed freedom of speech, of the press and of expression. 1

On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from
enforcing and implementing Section 2 of Resolution No. 2772, as well as the Comelec directives
addressed to various print media enterprises all dated 22 March 1995. The Court also required the
respondent to file a Comment on the Petition.

The Office of the Solicitor General filed its Comment on behalf of respondent Comelec alleging that
Comelec Resolution No. 2772 does not impose upon the publishers any obligation to provide free
print space in the newspapers as it does not provide any criminal or administrative sanction for non-
compliance with that Resolution. According to the Solicitor General, the questioned Resolution
merely established guidelines to be followed in connection with the procurement of "Comelec
space," the procedure for and mode of allocation of such space to candidates and the conditions or
requirements for the candidate's utilization of the "Comelec space" procured. At the same time,
however, the Solicitor General argues that even if the questioned Resolution and its implementing
letter directives are viewed as mandatory, the same would nevertheless be valid as an exercise of
the police power of the State. The Solicitor General also maintains that Section 8 of Resolution No.
2772 is a permissible exercise of the power of supervision or regulation of the Comelec over the
communication and information operations of print media enterprises during the election period to
safeguard and ensure a fair, impartial and credible election.2

At the oral hearing of this case held on 28 April 1995, respondent Comelec through its Chairman,
Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other Members of the
Court, stated that Resolution No. 2772, particularly Section 2 thereof and the 22 March 1995 letters
dispatched to various members of petitioner PPI, were not intended to compel those members to
supply Comelec with free print space. Chairman Pardo represented to the Court that Resolution and
the related letter-directives were merely designed to solicit from the publishers the same free print
space which many publishers had voluntarily given to Comelec during the election period relating to
the 11 May 1992 elections. Indeed, the Chairman stated that the Comelec would, that very
afternoon, meet and adopt an appropriate amending or clarifying resolution, a certified true copy of
which would forthwith be filed with the Court.

On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation which
attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The operative portion of this
Resolution follows:
 NOW THEREFORE, pursuant to the powers vested in it by the Constitution,
the Omnibus Election Code, Republic Acts No. 6646 and 7166 and other
election laws, the Commission on Elections RESOLVED to clarify Sections 2
and 8 of Res. No. 2772 as follows:

1. Section 2 of Res. No. 2772 shall not be

construed to mean as requiring publishers of
the different mass media print publications to
provide print space under pain of prosecution,
whether administrative, civil or criminal, there
being no sanction or penalty for violation of
said Section provided for either in said
Resolution or in Section 90 of Batas
Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, on the grant of
"Comelec space."

2. Section 8 of Res. No. 2772 shall not be

construed to mean as constituting prior
restraint on the part of publishers with respect
to the printing or publication of materials in the
news, opinion, features or other sections of
their respective publications or other accounts
or comments, it being clear from the last
sentence of said Section 8 that the
Commission shall, "unless the facts and
circumstances clearly indicate otherwise . . .
respect the determination by the publisher
and/or editors of the newspapers or
publications that the accounts or views
published are significant, newsworthy and of
public interest."

This Resolution shall take effect upon approval. (Emphasis in the original)

While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and Prohibition
as having become moot and academic, we consider it not inappropriate to pass upon the first
constitutional issue raised in this case. Our hope is to put this issue to rest and prevent its
resurrection.

Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of Resolution No.
2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution No. 2772 persists in its
original form. Thus, we must point out that, as presently worded, and in particular as interpreted and
applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers, Section
2 of Resolution No. 2772 is clearly susceptible of the reading that petitioner PPI has given it. That
Resolution No. 2772 does not, in express terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction, does not by itself demonstrate that the
Comelec's original intention was simply to solicit or request voluntary donations of print space from
publishers. A written communication officially directing a print media company to supply free print
space, dispatched by a government (here a constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is bound to produce a coercive effect upon the
company so addressed. That the agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such directions, only aggravates the
constitutional difficulties inhearing in the present situation. The enactment or addition of such
sanctions by the legislative authority itself would be open to serious constitutional objection.

To compel print media companies to donate "Comelec-space" of the dimensions specified in Section
2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private personal
property for public use or purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only once during the period from 6 March 1995 (or 21 March 1995) until 12
May 1995? or everyday or once a week? or as often as Comelec may direct during the same
period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis
temporary limitation or restraint upon the use of private property. The monetary value of the
compulsory "donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed.

The taking of print space here sought to be effected may first be appraised under the rubric of
expropriation of private personal property for public use. The threshold requisites for a lawful taking
of private property for public use need to be examined here: one is the necessity for the taking;
another is the legal authority to effect the taking. The element of necessity for the taking has not
been shown by respondent Comelec. It has not been suggested that the members of PPI are
unwilling to sell print space at their normal rates to Comelec for election purposes. Indeed, the
unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem. Similarly,
3

it has not been suggested, let alone demonstrated, that Comelec has been granted the power of
eminent domain either by the Constitution or by the legislative authority. A reasonable relationship
between that power and the enforcement and administration of election laws by Comelec must be
shown; it is not casually to be assumed.

That the taking is designed to subserve "public use" is not contested by petitioner PPI. We note only
that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought by the respondent
Commission would be used not only for informing the public about the identities, qualifications and
programs of government of candidates for elective office but also for "dissemination of vital election
information" (including, presumably, circulars, regulations, notices, directives, etc. issued by
Comelec). It seems to the Court a matter of judicial notice that government offices and agencies
(including the Supreme Court) simply purchase print space, in the ordinary course of events, when
their rules and regulations, circulars, notices and so forth need officially to be brought to the attention
of the general public.

The taking of private property for public use is, of course, authorized by the Constitution, but not
without payment of "just compensation" (Article III, Section 9). And apparently the necessity of
paying compensation for "Comelec space" is precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to "donate" free print space for Comelec
purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as
Section 1 of Resolution No. 2772-A attempts to suggest. There is nothing at all to prevent
newspaper and magazine publishers from voluntarily giving free print space to Comelec for the
purposes contemplated in Resolution No. 2772. Section 2 of Resolution No. 2772 does not,
however, provide a constitutional basis for compelling publishers, against their will, in the kind of
factual context here present, to provide free print space for Comelec purposes. Section 2 does not
constitute a valid exercise of the power of eminent domain.

We would note that the ruling here laid down by the Court is entirely in line with the theory of
democratic representative government. The economic costs of informing the general public about
the qualifications and programs of those seeking elective office are most appropriately distributed as
widely as possible throughout our society by the utilization of public funds, especially funds raised by
taxation, rather than cast solely on one small sector of society, i.e., print media enterprises. The
benefits which flow from a heightened level of information on and the awareness of the electoral
process are commonly thought to be community-wide; the burdens should be allocated on the same
basis.

As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if
read as compelling publishers to "donate" "Comelec space, " may be sustained as a valid exercise of
the police power of the state. This argument was, however, made too casually to require prolonged
consideration on our part. Firstly, there was no effort (and apparently no inclination on the part of
Comelec) to show that the police power — essentially a power of legislation — has been
constitutionally delegated to respondent Commission. Secondly, while private property may indeed
4

be validly taken in the legitimate exercise of the police power of the state, there was no attempt to
show compliance in the instant case with the requisites of a lawful taking under the police power. 5

Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of
existence of a national emergency or other imperious public necessity, indiscriminately and without
regard to the individual business condition of particular newspapers or magazines located in differing
parts of the country, to take private property of newspaper or magazine publishers. No attempt was
made to demonstrate that a real and palpable or urgent necessity for the taking of print space
confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable
and calibrated response to such necessity available to the Comelec. Section 2 does not constitute a
valid exercise of the police power of the State.

We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. —

No newspaper or publication shall allow to be printed or published in the
news, opinion, features, or other sections of the newspaper or publication
accounts or comments which manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or including therein said
candidate or political party. However, unless the facts and circumstances
clearly indicate otherwise, the Commission will respect the determination by
the publisher and/or editors of the newspapers or publications that the
accounts or views published are significant, newsworthy and of public
interest.

It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any case,
Section 8 should be viewed in the context of our decision in National Press Club v. Commission on
Elections. There the Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646, known
6

as the Electoral Reforms Law of 1987, which prohibits the sale or donation of print space and airtime
for campaign or other political purposes, except to the Comelec. In doing so, the Court carefully
distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b),
from (b) the reporting of news, commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists which fall outside the scope of Section 11 (b) and
which are protected by the constitutional guarantees of freedom of speech and of the press:

Secondly, and more importantly, Section 11 (b) is limited in its scope of

application. Analysis of Section 11 (b) shows that it purports to apply only to
the purchase and sale, including purchase and sale disguised as a donation,
of print space and air time for campaign or other political purposes. Section
11 (b) does not purport in any way to restrict the reporting by newspapers or
 radio or television stations of news or news-worthy events relating to
candidates, their qualifications, political parties and programs of government.
Moreover, Section 11 (b) does not reach commentaries and expressions of
belief or opinion by reporters or broadcaster or editors or commentators or
columnists in respect of candidates, their qualifications, and programs and so
forth, so long at least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum, Section 11
(b) is not to be read as reaching any report or commentary or other coverage
that, in responsible media, is not paid for by candidates for political office. We
read Section 11 (b) as designed to cover only paid political advertisements of
particular candidates.

The above limitation in scope of application of Section 11 (b) — that it does

not restrict either the reporting of or the expression of belief or opinion or
comment upon the qualifications and programs and activities of any and all
candidates for office — constitutes the critical distinction which must be made
between the instant case and that of Sanidad v. Commission on
Elections. . . . (Citations omitted; emphasis supplied)
7

Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish a
guideline for implementation of the above-quoted distinction and doctrine in National Press Club an
effort not blessed with evident success. Section 2 of Resolution No. 2772-A while possibly helpful,
does not add substantially to the utility of Section 8 of Resolution No. 2772. The distinction between
paid political advertisements on the one hand and news reports, commentaries and expressions of
belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can realistically be given
operative meaning only in actual cases or controversies, on a case-to-case basis, in terms of very
specific sets of facts.

At all events, the Court is bound to note that PPI has failed to allege any specific affirmative action
on the part of Comelec designed to enforce or implement Section 8. PPI has not claimed that it or
any of its members has sustained actual or imminent injury by reason of Comelec action under
Section 8. Put a little differently, the Court considers that the precise constitutional issue here sought
to be raised — whether or not Section 8 of Resolution No. 2772 constitutes a permissible exercise of
the Comelec's power under Article IX, Section 4 of the Constitution to

supervise or regulate the enjoyment or utilization of all franchise or permits

for the operation of — media of communication or information — [for the
purpose of ensuring] equal opportunity, time and space, and the right of
reply, including reasonable, equal rates therefore, for public information
campaigns and forums among candidates in connection with the objective of
holding free, orderly honest, peaceful and credible elections —

is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis mota
thereof, the constitutionality of Section 8.

Summarizing our conclusions:

1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its 22
March 1995 letter directives, purports to require print media enterprises to "donate" free print space
to Comelec. As such, Section 2 suffers from a fatal constitutional vice and must be set aside and
nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and
Prohibition must be dismissed for lack of an actual, justiciable case or controversy.

WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in part
and Section 2 of Resolution No. 2772 in its present form and the related letter-directives dated 22
March 1995 are hereby SET ASIDE as null and void, and the Temporary Restraining Order is
hereby MADE PERMANENT. The Petition is DISMISSED in part, to the extent it relates to Section 8
of Resolution No. 2772. No pronouncement as to costs.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.

Quiason, J., is on leave.

Footnotes

1 Petition, pp. 6-11; Rollo, pp. 7-12.

2 Comment, pp. 5-15; Rollo, pp. 70-80.

3 As I.A. Cruz, Constitutional Law, p. 59 (1991 ed.), citing Noble v. City of

Manila, 67 Phil. 1 (1938), stressed:

[w]here private properties needed for conversion to some public use, the first
thing obviously that the government should do is to offer to buy it. If the
owner is willing to sell and the parties can agree on the price and the other
conditions of the sale, a voluntary transaction can then be concluded and the
transfer effected without the necessity of judicial action.

But if the owner of the private property is unwilling to part with it, or, being
willing, cannot agree to the conditions of the transfer, then it will be
necessary for the government to use its coercive authority. By its power of
eminent domain, it can then, upon payment of just compensation, forcibly
acquire the needed property in order to devote it to the intended public use.
(Emphases supplied)

4 See, in this connection, Cruz, surpra note 3 at pp. 44-45. The police power
may be delegated by the legislative authority to local governments under the
general welfare clause (Section 16, R.A. No. 7160, "Local Government Code
of 1991"), to the President and administrative agencies. See also Binay v.
Domingo, 201 SCRA 508 (1991); Philippine Association of Service Exporters,
Inc. v. Drilon, 163 SCRA 386 (1988); Villacosta v. Bernardo, 143 SCRA 480
(1986).

5 See National Development Company v. Philippine Veterans Bank, 192

SCRA 257 (1990); Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform, 175 SCRA 343 (1989).

6 207 SCRA 1 (1992).

 7 207 SCRA at 10-11.

G.R. No. L-48685 September 30, 1987

LORENZO SUMULONG and EMILIA VIDANES-BALAOING, petitioners,

vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING AUTHORITY, respondents.

CORTES, J.:

On December 5, 1977 the National Housing Authority (NIIA) filed a complaint for expropriation of
parcels of land covering approximately twenty five (25) hectares, (in Antipolo, Rizal) including the
lots of petitioners Lorenzo Sumulong and Emilia Vidanes-Balaoing with an area of 6,667 square
meters and 3,333 square meters respectively. The land sought to be expropriated were valued by
the NHA at one peso (P1.00) per square meter adopting the market value fixed by the provincial
assessor in accordance with presidential decrees prescribing the valuation of property in
expropriation proceedings.

Together with the complaint was a motion for immediate possession of the properties. The NHA
deposited the amount of P158,980.00 with the Philippine National Bank, representing the "total
market value" of the subject twenty five hectares of land, pursuant to Presidential Decree No. 1224
which defines "the policy on the expropriation of private property for socialized housing upon
payment of just compensation."

On January 17, 1978, respondent Judge issued the following Order:

Plaintiff having deposited with the Philippine National Bank, Heart Center
Extension Office, Diliman, Quezon City, Metro Manila, the amount of
P158,980.00 representing the total market value of the subject parcels of
land, let a writ of possession be issued.

SO ORDERED.

Pasig, Metro Manila, January 17, 1978.

(SGD)
BUENAVENTU
RA S.
GUERRERO

Judge

Petitioners filed a motion for reconsideration on the ground that they had been deprived of the
possession of their property without due process of law. This was however, denied.
Hence, this petition challenging the orders of respondent Judge and assailing the constitutionality of
Pres. Decree No. 1224, as amended. Petitioners argue that:

1) Respondent Judge acted without or in excess of his jurisdiction or with

grave abuse of discretion by issuing the Order of January 17, 1978 without
notice and without hearing and in issuing the Order dated June 28, 1978
denying the motion for reconsideration.

2) Pres. Decree l224, as amended, is unconstitutional for being violative of

the due process clause, specifically:

a) The Decree would allow the taking of property regardless

of size and no matter how small the area to be expropriated;

b) "Socialized housing" for the purpose of condemnation

proceeding, as defined in said Decree, is not really for a
public purpose;

c) The Decree violates procedural due process as it allows

immediate taking of possession, control and disposition of
property without giving the owner his day in court;

d) The Decree would allow the taking of private property upon

payment of unjust and unfair valuations arbitrarily fixed by
government assessors;

e) The Decree would deprive the courts of their judicial

discretion to determine what would be the "just
compensation" in each and every raise of expropriation.

Indeed, the exercise of the power of eminent domain is subject to certain limitations imposed by the
constitution, to wit:

Private property shall not be taken for public use without just compensation
(Art. IV, Sec. 9);

No person shall be deprived of life, liberty, or property without due process of

law, nor shall any person be denied the equal protection of the laws (Art. IV,
sec. 1).

Nevertheless, a clear case of constitutional infirmity has to be established for this Court to nullify
legislative or executive measures adopted to implement specific constitutional provisions aimed at
promoting the general welfare.

Petitioners' objections to the taking of their property subsumed under the headings of public use, just
compensation, and due process have to be balanced against competing interests of the public
recognized and sought to be served under declared policies of the constitution as implemented by
legislation.

1. Public use
 a) Socialized Housing

Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as amended, for
the purpose of condemnation proceedings is not "public use" since it will benefit only "a handful of
people, bereft of public character."

"Socialized housing" is defined as, "the construction of dwelling units for the middle and lower class
members of our society, including the construction of the supporting infrastructure and other
facilities" (Pres. Decree No. 1224, par. 1). This definition was later expanded to include among
others:

a) The construction and/or improvement of dwelling units for the middle and
lower income groups of the society, including the construction of the
supporting infrastructure and other facilities;

b) Slum clearance, relocation and resettlement of squatters and slum

dwellers as well as the provision of related facilities and services;

c) Slum improvement which consists basically of allocating homelots to the

dwellers in the area or property involved, rearrangemeant and re-alignment
of existing houses and other dwelling structures and the construction and
provision of basic community facilities and services, where there are none,
such as roads, footpaths, drainage, sewerage, water and power system
schools, barangay centers, community centers, clinics, open spaces, parks,
playgrounds and other recreational facilities;

d) The provision of economic opportunities, including the development of

commercial and industrial estates and such other facilities to enhance the
total community growth; and

e) Such other activities undertaken in pursuance of the objective to provide

and maintain housing for the greatest number of people under Presidential
Decree No, 757, (Pres. Decree No. 1259, sec. 1)

The "public use" requirement for a and exercise of the power of eminent domain is a flexible and
evolving concept influenced by changing conditions. In this jurisdiction, the statutory and judicial
trend has been summarized as follows:

The taking to be valid must be for public use. There was a time when it was
felt that a literal meaning should be attached to such a requirement.
Whatever project is undertaken must be for the public to enjoy, as in the case
of streets or parks. Otherwise, expropriation is not allowable. It is not
anymore. As long as the purpose of the taking is public, then the power of
eminent domain comes into play. As just noted, the constitution in at least
two cases, to remove any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots for resale at cost to
individuals. The other is in the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate to state
then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use [Heirs of Juancho Ardona v.
Reyes, G.R. Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA 220
 (1983) at 234-5 quoting E. FERNANDO, THE CONSTITUTION OF THE
PHILIPPINES 523-4, (2nd ed., 1977) Emphasis supplied].

The term "public use" has acquired a more comprehensive coverage. To the literal import of the term
signifying strict use or employment by the public has been added the broader notion of indirect
public benefit or advantage. As discussed in the above cited case of Heirs of Juancho Ardona:

The restrictive view of public use may be appropriate for a nation which
circumscribes the scope of government activities and public concerns and
which possesses big and correctly located public lands that obviate the need
to take private property for public purposes. Neither circumstance applies to
the Philippines. We have never been a laissez faire State. And the
necessities which impel the exertion of sovereign power are all too often
found in areas of scarce public land or limited government resources. (p.
231)

Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized
as a public purpose, not only because of the expanded concept of public use but also because of
specific provisions in the Constitution. The 1973 Constitution made it incumbent upon the State to
establish, maintain and ensure adequate social services including housing [Art. 11, sec. 7]. The
1987 Constitution goes even further by providing that:

The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full
employment, a rising standard of living and an improved quality of life for all.
[Art. II, sec. 9]

The state shall by law, and for the common good, undertake, in cooperation
with the private sector, a continuing program of urban land reform and
housing which will make available at affordable cost decent housing and
basic services to underprivileged and homeless citizens in urban centers and
resettlement areas. It shall also promote adequate employment opportunities
to such citizens. In the implementation of such program the State shall
respect the rights of small property owners. (Art. XIII, sec. 9, Emphaisis
supplied)

Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and
significantly affects public health, safety, the environment and in sum, the general welfare. The
public character of housing measures does not change because units in housing projects cannot be
occupied by all but only by those who satisfy prescribed qualifications. A beginning has to be made,
for it is not possible to provide housing for are who need it, all at once.

Population growth, the migration to urban areas and the mushrooming of crowded makeshift
dwellings is a worldwide development particularly in developing countries. So basic and urgent are
housing problems that the United Nations General Assembly proclaimed 1987 as the "International
Year of Shelter for the Homeless" "to focus the attention of the international community on those
problems". The General Assembly is Seriously concerned that, despite the efforts of Governments at
the national and local levels and of international organizations, the driving conditions of the majority
of the people in slums and squatter areas and rural settlements, especially in developing countries,
continue to deteriorate in both relative and absolute terms." [G.A. Res. 37/221, Yearbook of the
United Nations 1982, Vol. 36, p. 1043-4]
In the light of the foregoing, this Court is satisfied that "socialized housing" fans within the confines of
"public use". It is, particularly important to draw attention to paragraph (d) of Pres. Dec. No. 1224
which opportunities inextricably linked with low-cost housing, or slum clearance, relocation and
resettlement, or slum improvement emphasize the public purpose of the project.

In the case at bar, the use to which it is proposed to put the subject parcels of land meets the
requisites of "public use". The lands in question are being expropriated by the NHA for the
expansion of Bagong Nayon Housing Project to provide housing facilities to low-salaried government
employees. Quoting respondents:

1. The Bagong Nayong Project is a housing and community development

undertaking of the National Housing Authority. Phase I covers about 60
hectares of GSIS property in Antipolo, Rizal; Phase II includes about 30
hectares for industrial development and the rest are for residential housing
development.

It is intended for low-salaried government employees and aims to provide

housing and community services for about 2,000 families in Phase I and
about 4,000 families in Phase II.

It is situated on rugged terrain 7.5 kms. from Marikina Town proper; 22 Kms.
east of Manila; and is within the Lungs Silangan Townsite Reservation
(created by Presidential Proclamation No. 1637 on April 18, 1977).

The lands involved in the present petitions are parts of the

expanded/additional areas for the Bagong Nayon Project totalling 25.9725
hectares. They likewise include raw, rolling hills. (Rollo, pp. 266-7)

The acute shortage of housing units in the country is of public knowledge. Official data indicate that
more than one third of the households nationwide do not own their dwelling places. A significant
number live in dwellings of unacceptable standards, such as shanties, natural shelters, and
structures intended for commercial, industrial, or agricultural purposes. Of these unacceptable
dwelling units, more than one third is located within the National Capital Region (NCR) alone which
lies proximate to and is expected to be the most benefited by the housing project involved in the
case at bar [See, National Census and Statistics Office, 1980 Census of Population and Housing].

According to the National Economic and Development Authority at the time of the expropriation in
question, about "50 per cent of urban families, cannot afford adequate shelter even at reduced rates
and will need government support to provide them with social housing, subsidized either partially or
totally" [NEDA, FOUR YEAR DEVELOPMENT PLAN For 1974-1977, p. 357]. Up to the present,
housing some remains to be out of the reach of a sizable proportion of the population" [NEDA,
MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, p. 240].

The mushrooming of squatter colonies in the Metropolitan Manila area as well as in other cities and
centers of population throughout the country, and, the efforts of the government to initiate housing
and other projects are matters of public knowledge [See NEDA, FOUR YEAR DEVELOPMENT
PLAN For 1974-1977, pp. 357-361; NEDA, FIVE-YEAR PHILIPPINE DEVELOPMENT PLAN 1978-
1982, pp. 215-228 NEDA, FIVE YEAR PHILIPPINE DEVELOPMENT PLAN 1983-1987, pp. 109-
117; NEDA, MEDIUM TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, pp. 240-254].

b) Size of Property
Petitioners further contend that Pres. Decree 1224, as amended, would allow the taking of "any
private land" regardless of the size and no matter how small the area of the land to be expropriated.
Petitioners claim that "there are vast areas of lands in Mayamot, Cupang, and San Isidro, Antipolo,
Rizal hundred of hectares of which are owned by a few landowners only. It is surprising [therefore]
why respondent National Housing Authority [would] include [their] two man lots ..."

In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R. No. L-21064, February 18, 1970, 31
SCRA 413 (1970) at 428] this Court earlier ruled that expropriation is not confined to landed estates.
This Court, quoting the dissenting opinion of Justice J.B.L. Reyes in Republic vs. Baylosis, [96 Phil.
461 (1955)], held that:

The propriety of exercising the power of eminent domain under Article XIII,
section 4 of our Constitution cannot be determined on a purely quantitative or
area basis. Not only does the constitutional provision speak of lands instead
of landed estates, but I see no cogent reason why the government, in its
quest for social justice and peace, should exclusively devote attention to
conflicts of large proportions, involving a considerable number of individuals,
and eschew small controversies and wait until they grow into a major
problem before taking remedial action.

The said case of J.M. Tuason Co., Inc. departed from the ruling in Guido vs. Rural Progress
Administration [84 Phil. 847 (1949)] which held that the test to be applied for a valid expropriation of
private lands was the area of the land and not the number of people who stood to be benefited.
Since then "there has evolved a clear pattern of adherence to the "number of people to be benefited
test" " [Mataas na Lupa Tenants Association, Inc. v. Dimayuga, G.R. No. 32049, June 25,1984, 130
SCRA 30 (1984) at 39]. Thus, in Pulido vs. Court of Appeals [G.R. No. 57625, May 3, 1983, 122
SCRA 63 (1983) at 73], this Court stated that, "[i]t is unfortunate that the petitioner would be
deprived of his landholdings, but his interest and that of his family should not stand in the way of
progress and the benefit of the greater may only of the inhabitants of the country."

The State acting through the NHA is vested with broad discretion to designate the particular
property/properties to be taken for socialized housing purposes and how much thereof may be
expropriated. Absent a clear showing of fraud, bad faith, or gross abuse of discretion, which
petitioners herein failed to demonstrate, the Court will give due weight to and leave undisturbed the
NHA's choice and the size of the site for the project. The property owner may not interpose
objections merely because in their judgment some other property would have been more suitable, or
just as suitable, for the purpose. The right to the use, enjoyment and disposal of private property is
tempered by and has to yield to the demands of the common good. The Constitutional provisions on
the subject are clear:

The State shall promote social justice in all phases of national development.
(Art. II, sec. 10)

The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good. To this
end, the State shall regulate the acquisition, ownership, use and disposition
of property and its increments. (Art, XIII, sec. 1)

Indeed, the foregoing provisions, which are restatements of the provisions in the 1935 and 1973
Constitutions, emphasize:
 ...the stewardship concept, under which private property is supposed to be
held by the individual only as a trustee for the people in general, who are its
real owners. As a mere steward, the individual must exercise his rights to the
property not for his own exclusive and selfish benefit but for the good of the
entire community or nation [Mataas na Lupa Tenants Association, Inc. supra
at 42-3 citing I. CRUZ, PHILIPPINE POLITICAL LAW, 70 (1983 ed.)].

2. Just Compensation

Petitioners maintain that Pres. Decree No. 1224, as amended, would allow the taking of private
property upon payment of unjust and unfair valuations arbitrarily fixed by government assessors. In
addition, they assert that the Decree would deprive the courts of their judicial discretion to determine
what would be "just compensation".

The foregoing contentions have already been ruled upon by this Court in the case of Ignacio vs.
Guerrero (G.R. No. L-49088, May 29, 1987) which, incidentally, arose from the same expropriation
complaint that led to this instant petition. The provisions on just compensation found in Presidential
Decree Nos. 1224, 1259 and 1313 are the same provisions found in Presidential Decree Nos. 76,
464, 794 and 1533 which were declared unconstitutional in Export Processing Zone All thirty vs.
Dulay (G.R. No. 5960 April 29, 1987) for being encroachments on prerogatives.

This Court abandoned the ruling in National Housing Authority vs. Reyes [G.R. No. 49439, June
29,1983, 123 SCRA 245 (1983)] which upheld Pres. Decree No. 464, as amended by - Presidential
Decree Nos. 794, 1224 and 1259.

In said case of Export Processing Zone Authority, this Court pointed out that:

The basic unfairness of the decrees is readily apparent.

Just compensation means the value of the property at the time of the taking.
It means a fair and full equivalent for the loss sustained. ALL the facts as to
the condition of the property and its surroundings, its improvements and
capabilities, should be considered.

xxx xxx xxx

Various factors can come into play in the valuation of specific properties
singled out for expropriation. The values given by provincial assessors are
usually uniform for very wide areas covering several barrios or even an entire
total with the exception of the poblacion. Individual differences are never
taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land
described as directional has been cultivated for generations. Buildings are
described in terms of only two or three classes of building materials and
estimates of areas are more often inaccurate than correct. Tax values can
serve as guides but cannot be absolute substitutes for just compensation.

To say that the owners are estopped to question the valuations made by
assessors since they had the opportunity to protest is illusory. The
overwhelming mass of landowners accept unquestioningly what is found in
the tax declarations prepared by local assessors or municipal clerks for them.
 They do not even look at, much less analyze, the statements. The Idea of
expropriation simply never occurs until a demand is made or a case filed by
an agency authorized to do so. (pp. 12-3)

3. Due Process

Petitioners assert that Pres. Decree 1224, as amended, violates procedural due process as it allows
immediate taking of possession, control and disposition of property without giving the owner his day
in court. Respondent Judge ordered the issuance of a writ of possession without notice and without
hearing.

The constitutionality of this procedure has also been ruled upon in the Export Processing Zone
Authority case, viz:

It is violative of due process to deny to the owner the opportunity to prove

that the valuation in the tax documents is unfair or wrong. And it is repulsive
to basic concepts of justice and fairness to allow the haphazard work of
minor bureaucrat or clerk to absolutely prevail over the judgment of a court
promulgated only after expert commissioners have actually viewed the
property, after evidence and arguments pro and con have been presented,
and after all factors and considerations essential to a fair and just
determination have been judiciously evaluated. (p. 13)

On the matter of the issuance of a writ of possession, the ruling in the Ignacio case is reiterated,
thus:

[I]t is imperative that before a writ of possession is issued by the Court in

expropriation proceedings, the following requisites must be met: (1) There
must be a Complaint for expropriation sufficient in form and in substance; (2)
A provisional determination of just compensation for the properties sought to
be expropriated must be made by the trial court on the basis of judicial (not
legislative or executive) discretion; and (3) The deposit requirement under
Section 2, Rule 67 must be complied with. (p. 14)

This Court holds that "socialized housing" defined in Pres. Decree No. 1224, as amended by Pres.
Decree Nos. 1259 and 1313, constitutes "public use" for purposes of expropriation. However, as
previously held by this Court, the provisions of such decrees on just compensation are
unconstitutional; and in the instant case the Court finds that the Orders issued pursuant to the
corollary provisions of those decrees authorizing immediate taking without notice and hearing are
violative of due process.

WHEREFORE, the Orders of the lower court dated January 17, 1978 and June 28, 1978 issuing the
writ of possession on the basis of the market value appearing therein are annulled for having been
issued in excess of jurisdiction. Let this case be remanded to the court of origin for further
proceedings to determine the compensation the petitioners are entitled to be paid. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.
G.R. No. 106440 January 29, 1996

ALEJANDRO MANOSCA, ASUNCION MANOSCA and LEONICA MANOSCA, petitioners,

vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Presiding Judge, RTC-Pasig, Metro
Manila, Branch 168, HON. GRADUACION A. REYES CLARAVAL, Presiding Judge, RTC-Pasig,
Metro Manila, Branch 71, and REPUBLIC OF THE PHILIPPINES, respondents.

DECISION

VITUG, J.:

In this appeal, via a petition for review on certiorari, from the decision of the Court of Appeals, dated
1

15 January 1992, in CA-G.R. SP No. 24969 (entitled "Alejandro Manosca, et al. v. Hon. Benjamin V.
Pelayo, et al."), this Court is asked to resolve whether or not the "public use" requirement of Eminent
Domain is extant in the attempted expropriation by the Republic of a 492-square-meter parcel of
land so declared by the National Historical Institute ("NHI") as a national historical landmark.

The facts of the case are not in dispute.

Petitioners inherited a piece of land located at P. Burgos Street, Calzada, Taguig. Metro Manila, with
an area of about four hundred ninety-two (492) square meters. When the parcel was ascertained by
the NHI to have been the birthsite of Felix Y. Manalo, the founder of Iglesia Ni Cristo, it passed
Resolution No. 1, Series of 1986, pursuant to Section 4 of Presidential Decree No. 260, declaring
2

the land to be a national historical landmark. The resolution was, on 06 January 1986, approved by
the Minister of Education, Culture and Sports. Later, the opinion of the Secretary of Justice was
asked on the legality of the measure. In his Opinion No. 133, Series of 1987, the Secretary of Justice
replied in the affirmative; he explained:

According to your guidelines, national landmarks are places or objects that are
associated with an event, achievement, characteristic, or modification that makes a
turning point or stage in Philippine history. Thus, the birthsite of the founder of the
Iglesia ni Cristo, the late Felix Y. Manalo, who, admittedly, had made contributions to
Philippine history and culture has been declared as a national landmark. It has been
held that places invested with unusual historical interest is a public use for which the
power of eminent domain may be authorized . . . .

In view thereof, it is believed that the National Historical Institute as an agency of the
Government charged with the maintenance and care of national shrines, monuments
and landmarks and the development of historical sites that may be declared as
national shrines, monuments and/or landmarks, may initiate the institution of
condemnation proceedings for the purpose of acquiring the lot in question in
accordance with the procedure provided for in Rule 67 of the Revised Rules of Court.
The proceedings should be instituted by the Office of the Solicitor General in behalf
of the Republic.

Accordingly, on 29 May 1989, the Republic, through the Office of the Solicitor-General, instituted a
complaint for expropriation before the Regional Trial Court of Pasig for and in behalf of the NHI
3

alleging, inter alia, that:

 Pursuant to Section 4 of Presidential Decree No. 260, the National Historical Institute
issued Resolution No. 1, Series of 1986, which was approved on January, 1986 by
the then Minister of Education, Culture and Sports, declaring the above described
parcel of land which is the birthsite of Felix Y. Manalo, founder of the "Iglesia ni
Cristo," as a National Historical Landrnark. The plaintiff perforce needs the land as
such national historical landmark which is a public purpose.

At the same time, respondent Republic filed an urgent motion for the issuance of an order to permit it
to take immediate possession of the property. The motion was opposed by petitioners. After a
hearing, the trial court issued, on 03 August 1989, an order fixing the provisional market
4

(P54,120.00) and assessed (P16,236.00) values of the property and authorizing the Republic to take
over the property once the required sum would have been deposited with the Municipal Treasurer of
Taguig, Metro Manila.

Petitioners moved to dismiss the complaint on the main thesis that the intended expropriation was
not for a public purpose and, incidentally, that the act would constitute an application of public funds,
directly or indirectly, for the use, benefit, or support of Iglesia ni Cristo, a religious entity, contrary to
the provision of Section 29(2), Article VI, of the 1987 Constitution. Petitioners sought, in the
5

meanwhile, a suspension in the implementation of the 03rd August 1989 order of the trial court.

On 15 February 1990, following the filing by respondent Republic of its reply to petitioners' motion
seeking the dismissal of the case, the trial court issued its denial of said motion to dismiss. Five (5)
6

days later, or on 20 February 1990, another order was issued by the trial court, declaring moot and
7

academic the motion for reconsideration and/or suspension of the order of 03 August 1989 with the
rejection of petitioners' motion to dismiss. Petitioners' motion for the reconsideration of the 20th
February 1990 order was likewise denied by the trial court in its 16th April 1991 order. 8

Petitioners then lodged a petition for certiorari and prohibition with the Court of Appeals. In its now
disputed 15th January 1992 decision, the appellate court dismissed the petition on the ground that
the remedy of appeal in the ordinary course of law was an adequate remedy and that the petition
itself, in any case, had failed to show any grave abuse of discretion or lack of jurisdictional
competence on the part of the trial court. A motion for the reconsideration of the decision was denied
in the 23rd July 1992 resolution of the appellate court.

We begin, in this present recourse of petitioners, with a few known postulates.

Eminent domain, also often referred to as expropriation and, with less frequency, as condemnation,
is, like police power and taxation, an inherent power of sovereignty. It need not be clothed with any
constitutional gear to exist; instead, provisions in our Constitution on the subject are meant more to
regulate, rather than to grant, the exercise of the power. Eminent domain is generally so described
as "the highest and most exact idea of property remaining in the government" that may be acquired
for some public purpose through a method in the nature of a forced purchase by the State. It is a 9

right to take or reassert dominion over property within the state for public use or to meet a public
exigency. It is said to be an essential part of governance even in its most primitive form and thus
inseparable from sovereignty. The only direct constitutional qualification is that "private property
10

shall not be taken for public use without just compensation." This proscription is intended to provide
11

a safeguard against possible abuse and so to protect as well the individual against whose property
the power is sought to be enforced.

Petitioners assert that the expropriation has failed to meet the guidelines set by this Court in the
case of Guido v. Rural Progress Administration, to wit: (a) the size of the land expropriated; (b) the
12
large number of people benefited; and, (c) the extent of social and economic reform. Petitioners
13

suggest that we confine the concept of expropriation only to the following public uses, i.e., the —
14

. . . taking of property for military posts, roads, streets, sidewalks, bridges, ferries,
levees, wharves, piers, public buildings including schoolhouses, parks, playgrounds,
plazas, market places, artesian wells, water supply and sewerage systems,
cemeteries, crematories, and railroads.

This view of petitioners is much too limitative and restrictive.

The court, in Guido, merely passed upon the issue of the extent of the President's power under
Commonwealth Act No. 539 to, specifically, acquire private lands for subdivision into smaller home
lots or farms for resale to bona fide tenants or occupants. It was in this particular context of the
statute that the Court had made the pronouncement. The guidelines in Guido were not meant to be
preclusive in nature and, most certainly, the power of eminent domain should not now be understood
as being confined only to the expropriation of vast tracts of land and landed estates. 15

The term "public use," not having been otherwise defined by the constitution, must be considered in
its general concept of meeting a public need or a public exigency. Black summarizes the
16

characterization given by various courts to the term; thus:

Public Use. Eminent domain. The constitutional and statutory basis for taking
property by eminent domain. For condemnation purposes, "public use" is one which
confers same benefit or advantage to the public; it is not confined to actual use by
public. It is measured in terms of right of public to use proposed facilities for which
condemnation is sought and, as long as public has right of use, whether exercised by
one or many members of public, a "public advantage" or "public benefit" accrues
sufficient to constitute a public use. Montana Power Co. vs. Bokma, Mont. 457 P. 2d
769, 772, 773.

Public use, in constitutional provisions restricting the exercise of the right to take
private property in virtue of eminent domain, means a use concerning the whole
community as distinguished from particular individuals. But each and every member
of society need not be equally interested in such use, or be personally and directly
affected by it; if the object is to satisfy a great public want or exigency, that is
sufficient. Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67
L.Ed. 1186. The term may be said to mean public usefulness, utility, or advantage, or
what is productive of general benefit. It may be limited to the inhabitants of a small or
restricted locality, but must be in common, and not for a particular individual. The use
must be a needful one for the public, which cannot be surrendered without obvious
general loss and inconvenience. A "public use" for which land may be taken defies
absolute definition for it changes with varying conditions of society, new appliances in
the sciences, changing conceptions of scope and functions of government, and other
differing circumstances brought about by an increase in population and new modes
of communication and transportation. Katz v. Brandon, 156 Conn., 521, 245 A.2d
579,586. 17

The validity of the exercise of the power of eminent domain for traditional purposes is beyond
question; it is not at all to be said, however, that public use should thereby be restricted to such
traditional uses. The idea that "public use" is strictly limited to clear cases of "use by the public" has
long been discarded. This Court in Heirs of Juancho Ardona v. Reyes, quoting from Berman v.
18

Parker (348 U.S. 25; 99 L. ed. 27), held:

 We do not sit to determine whether a particular housing project is or is not desirable.
The concept of the public welfare is broad and inclusive. See DayBrite Lighting, Inc.
v. Missouri, 342 US 421, 424, 96 L. Ed. 469, 472, 72 S Ct 405. The values it
represents are spiritual as well as physical, aesthetic as well as monetary. It is within
the power of the legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as carefully
patrolled. In the present case, the Congress and its authorized agencies have made
determinations that take into account a wide variety of values. It is no for us to
reappraise them. If those who govern the District of Columbia decide that the
Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth
Amendment that stands in the way.

Once the object is within the authority of Congress, the right to realize it through the
exercise of eminent domain is clear. For the power of eminent domain is merely the
means to the end. See Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L.
ed. 808, 810, 14 S Ct 891; United States v. Gettysburg Electric R. Co. 160 US 668,
679, 40 L. ed. 576, 580, 16 S Ct 427.

It has been explained as early as Seña v. Manila Railroad Co., that:

19

. . . A historical research discloses the meaning of the term "public use" to be one of
constant growth. As society advances, its demands upon the individual increase and
each demand is a new use to which the resources of the individual may be devoted. .
. . for "whatever is beneficially employed for the community is a public use.

Chief Justice Enrique M. Fernando states:

The taking to be valid must be for public use. There was a time when it was felt that a
literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case of streets or parks.
Otherwise, expropriation is not allowable. It is not so any more. As long as the
purpose of the taking is public, then the power of eminent domain comes into play.
As just noted, the constitution in at least two cases, to remove any doubt, determines
what is public use. One is the expropriation of lands to be subdivided into small lots
for resale at cost to individuals. The other is the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the general
welfare satisfies the requirement of public use. 20

Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure Administration, 21

has viewed the Constitution a dynamic instrument and one that "is not to be construed narrowly or
pedantically" so as to enable it "to meet adequately whatever problems the future has in store." Fr.
Joaquin Bernas, a noted constitutionalist himself, has aptly observed that what, in fact, has
ultimately emerged is a concept of public use which is just as broad as "public welfare." 22

Petitioners ask: But "(w)hat is the so-called unusual interest that the expropriation of (Felix Manalo's)
birthplace become so vital as to be a public use appropriate for the exercise of the power of eminent
domain" when only members of the Iglesia ni Cristo would benefit? This attempt to give some
religious perspective to the case deserves little consideration, for what should be significant is the
principal objective of, not the casual consequences that might follow from, the exercise of the power.
The purpose in setting up the marker is essentially to recognize the distinctive contribution of the late
Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and
leadership of the Iglesia ni Cristo.

The practical reality that greater benefit may be derived by members of the Iglesia ni
Cristo than by most others could well be true but such a peculiar advantage still
remains to be merely incidental and secondary in nature. Indeed, that only a few
would actually benefit from the expropriation of property does not necessarily
diminish the essence and character of public use. 23

Petitioners contend that they have been denied due process in the fixing of the provisional value of
their property. Petitioners need merely to be reminded that what the law prohibits is the lack of
opportunity to be heard; contrary to petitioners' argument, the records of this case are replete with
24

pleadings that could have dealt, directly or indirectly, with the provisional value of the property.
25

Petitioners, finally, would fault respondent appellate court in sustaining the trial court's order which
considered inapplicable the case of Noble v. City of Manila. Both courts held correctly. The
26

Republic was not a party to the alleged contract of exchange between the Iglesia ni Cristo and
petitioners which (the contracting parties) alone, not the Republic, could properly be bound.

All considered, the Court finds the assailed decision to be in accord with law and jurisprudence.

WHEREFORE, the petition is DENIED. No costs.

SO ORDERED.

Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

Footnotes

Penned by Justice Nathanael De Pano, Jr., with the concurrence of Justices Luis
1

Victor and Fortunato Vailoces.

2
"The National Museum and the National Historical Commission are hereby vested
with the right to declare other such historical and cultural sites as National Shrines,
Monuments, and/or Landmarks, in accordance with the guidelines set forth in R.A.
4846 and the spirit of this Decree."

3
Rollo, pp. 77-82.

4
Rollo, pp. 66-67.

5
Sec. 29. . . .

(2) No public money or property shall be appropriated, applied, paid, or employed,

directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, or other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
6
Rollo, pp. 68-69.

7
Rollo, p. 70.

8
Rollo, pp. 71-76.

9
Black's Law Dictionary, 6th ed., p. 523.

10
Visayan Refining Company vs. Camus, 40 Phil. 550.

11
Sec. 9, Art. III, 1987 Constitution.

12
84 Phil. 847.

13
Rollo, pp. 38-39.

14
Rollo, p. 42.

15
See Province of Camarines Sur v. Court of Appeals, 222 SCRA 173.

16
See U.S. vs. Toribio, 15 Phil. 85.

17
Black's Law Dictionary, p. 1232.

18
125 SCRA 221.

19
42 Phil. 102.

20
Enrique Fernando, The Constitution of the Philippines, 2nd ed., pp. 523-524.

21
31 SCRA 413.

Joaquin Bernas, The Constitution of the Republic of the Philippines, Vol. 1, 1987
22

ed., p.282.

23
Philippine Columbian Association v. Panis, 228 SCRA 668.

24
Capuno v. Jaramillo, 234 SCRA 212.

25
Those pleadings include:

(a) An urgent motion that the hearing on the fixing of the property's
provisional value and the taking of possession by the Republic over the same
be held in abeyance until after petitioners shall have received a copy of the
complaint and summons (Rollo, pp. 86-88);

(b) A motion to dismiss, dated 08 August 1989, seeking to dismiss the

complaint instituted by the Republic on the ground that the expropriation in
question is not for a public purpose and contrary to Section 29(a), Article VI,
of the 1987 Constitution (Rollo, pp. 90-91);
 (c) A motion for reconsideration and/or suspension of the implementation of
the 03 August 1989 Order (Rollo, pp. 93-95); and

(d) A motion for reconsideration of the orders dated 15 and 20 February,

1990 (Rollo, pp. 103-111).

The Noble case holds that where there is a valid and subsisting contract between
26

the owners of the property and the expropriating authority, there is no need or reason
for expropriation (67 Phil. 1).

G.R. No. L-59603 April 29, 1987

EXPORT PROCESSING ZONE AUTHORITY, petitioner,

vs.
HON. CEFERINO E. DULAY, in his capacity as the Presiding Judge, Court of First Instance of
Cebu, Branch XVI, Lapu-Lapu City, and SAN ANTONIO DEVELOPMENT CORPORATION,
respondents.
Elena M. Cuevas for respondents.

GUTIERREZ, JR., J.:

The question raised in this petition is whether or not Presidential Decrees Numbered 76, 464, 794
and 1533 have repealed and superseded Sections 5 to 8 of Rule 67 of the Revised Rules of Court,
such that in determining the just compensation of property in an expropriation case, the only basis
should be its market value as declared by the owner or as determined by the assessor, whichever is
lower.

On January 15, 1979, the President of the Philippines, issued Proclamation No. 1811, reserving a
certain parcel of land of the public domain situated in the City of Lapu-Lapu, Island of Mactan, Cebu
and covering a total area of 1,193,669 square meters, more or less, for the establishment of an
export processing zone by petitioner Export Processing Zone Authority (EPZA).

Not all the reserved area, however, was public land. The proclamation included, among others, four
(4) parcels of land with an aggregate area of 22,328 square meters owned and registered in the
name of the private respondent. The petitioner, therefore, offered to purchase the parcels of land
from the respondent in acccordance with the valuation set forth in Section 92, Presidential Decree
(P.D.) No. 464, as amended. The parties failed to reach an agreement regarding the sale of the
property.

The petitioner filed with the then Court of First Instance of Cebu, Branch XVI, Lapu-Lapu City, a
complaint for expropriation with a prayer for the issuance of a writ of possession against the private
respondent, to expropriate the aforesaid parcels of land pursuant to P.D. No. 66, as amended, which
empowers the petitioner to acquire by condemnation proceedings any property for the establishment
of export processing zones, in relation to Proclamation No. 1811, for the purpose of establishing the
Mactan Export Processing Zone.
On October 21, 1980, the respondent judge issued a writ of possession authorizing the petitioner to
take immediate possession of the premises. On December 23, 1980, the private respondent flied its
answer.

At the pre-trial conference on February 13, 1981, the respondent judge issued an order stating that
the parties have agreed that the only issue to be resolved is the just compensation for the properties
and that the pre-trial is thereby terminated and the hearing on the merits is set on April 2, 1981.

On February 17, 1981, the respondent judge issued the order of condemnation declaring the
petitioner as having the lawful right to take the properties sought to be condemned, upon the
payment of just compensation to be determined as of the filing of the complaint. The respondent
judge also issued a second order, subject of this petition, appointing certain persons as
commissioners to ascertain and report to the court the just compensation for the properties sought to
be expropriated.

On June 19, 1981, the three commissioners submitted their consolidated report recommending the
amount of P15.00 per square meter as the fair and reasonable value of just compensation for the
properties.

On July 29, 1981, the petitioner Med a Motion for Reconsideration of the order of February 19, 1981
and Objection to Commissioner's Report on the grounds that P.D. No. 1533 has superseded
Sections 5 to 8 of Rule 67 of the Rules of Court on the ascertainment of just compensation through
commissioners; and that the compensation must not exceed the maximum amount set by P.D. No.
1533.

On November 14, 1981, the trial court denied the petitioner's motion for reconsideration and gave
the latter ten (10) days within which to file its objection to the Commissioner's Report.

On February 9, 1982, the petitioner flied this present petition for certiorari and mandamus with
preliminary restraining order, enjoining the trial court from enforcing the order dated February 17,
1981 and from further proceeding with the hearing of the expropriation case.

The only issue raised in this petition is whether or not Sections 5 to 8, Rule 67 of the Revised Rules
of Court had been repealed or deemed amended by P.D. No. 1533 insofar as the appointment of
commissioners to determine the just compensation is concerned. Stated in another way, is the
exclusive and mandatory mode of determining just compensation in P.D. No. 1533 valid and
constitutional?

The petitioner maintains that the respondent judge acted in excess of his jurisdiction and with grave
abuse of discretion in denying the petitioner's motion for reconsideration and in setting the
commissioner's report for hearing because under P.D. No. 1533, which is the applicable law herein,
the basis of just compensation shall be the fair and current market value declared by the owner of
the property sought to be expropriated or such market value as determined by the assessor,
whichever is lower. Therefore, there is no more need to appoint commissioners as prescribed by
Rule 67 of the Revised Rules of Court and for said commissioners to consider other highly variable
factors in order to determine just compensation. The petitioner further maintains that P.D. No. 1533
has vested on the assessors and the property owners themselves the power or duty to fix the market
value of the properties and that said property owners are given the full opportunity to be heard
before the Local Board of Assessment Appeals and the Central Board of Assessment Appeals.
Thus, the vesting on the assessor or the property owner of the right to determine the just
compensation in expropriation proceedings, with appropriate procedure for appeal to higher
administrative boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464, 794 and 1533, this Court has interpreted the eminent
domain provisions of the Constitution and established the meaning, under the fundametal law, of just
compensation and who has the power to determine it. Thus, in the following cases, wherein the filing
of the expropriation proceedings were all commenced prior to the promulgation of the
aforementioned decrees, we laid down the doctrine onjust compensation:

Municipality of Daet v. Court of Appeals (93 SCRA 503, 516),

xxx xxx xxx

"And in the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, the Court,
speaking thru now Chief Justice Fernando, reiterated the 'well-settled (rule) that just compensation
means the equivalent for the value of the property at the time of its taking. Anything beyond that is
more and anything short of that is less, than just compensation. It means a fair and full equivalent for
the loss sustained, which is the measure of the indemnity, not whatever gain would accrue to the
expropriating entity."

Garcia v. Court ofappeals (102 SCRA 597, 608),

xxx xxx xxx

"Hence, in estimating the market value, all the capabilities of the property and all the uses to
which it may be applied or for which it is adapted are to be considered and not merely the
condition it is in the time and the use to which it is then applied by the owner. All the facts as
to the condition of the property and its surroundings, its improvements and capabilities may
be shown and considered in estimating its value."

Republic v. Santos (141 SCRA 30, 35-36),

"According to section 8 of Rule 67, the court is not bound by the commissioners' report. It
may make such order or render such judgment as shall secure to the plaintiff the property
essential to the exercise of his right of condemnation, and to the defendant just
compensation for the property expropriated. This Court may substitute its own estimate of
the value as gathered from the record (Manila Railroad Company v. Velasquez, 32 Phil.
286)."

However, the promulgation of the aforementioned decrees practically set aside the above and many
other precedents hammered out in the course of evidence-laden, well argued, fully heard, studiously
deliberated, and judiciously considered court proceedings. The decrees categorically and
peremptorily limited the definition of just compensation thus:

P.D. No. 76:

xxx xxx xxx

"For purposes of just compensation in cases of private property acquired by the government
for public use, the basis shall be the current and fair market value declared by the owner or
administrator, or such market value as determined by the Assessor, whichever is lower."

P.D. No. 464:

 "Section 92. Basis for payment of just compensation in expropriation proceedings. — In
determining just compensation which private property is acquired by the government for
public use, the basis shall be the market value declared by the owner or administrator or
anyone having legal interest in the property, or such market value as determined by the
assessor, whichever is lower."

P.D. No. 794:

"Section 92. Basis for payment of just compensation in expropriation proceedings. — In

determining just compensation when private property is acquired by the government for
public use, the same shall not exceed the market value declared by the owner or
administrator or anyone having legal interest in the property, or such market value as
determined by the assessor, whichever is lower."

P.D. No. 1533:

"Section 1. In determining just compensation for private property acquired through eminent
domain proceedings, the compensation to be paid shall not exceed the value declared by the
owner or administrator or anyone having legal interest in the property or determined by the
assessor, pursuant to the Real Property Tax Code, whichever value is lower, prior to the
recommendation or decision of the appropriate Government office to acquire the property."

We are constrained to declare the provisions of the Decrees on just compensation unconstitutional
and void and accordingly dismiss the instant petition for lack of merit.

The method of ascertaining just compensation under the aforecited decrees constitutes
impermissible encroachment on judicial prerogatives. It tends to render this Court inutile in a matter
which under the Constitution is reserved to it for final determination.

Thus, although in an expropriation proceeding the court technically would still have the power to
determine the just compensation for the property, following the applicable decrees, its task would be
relegated to simply stating the lower value of the property as declared either by the owner or the
assessor. As a necessary consequence, it would be useless for the court to appoint commissioners
under Rule 67 of the Rules of Court. Moreover, the need to satisfy the due process clause in the
taking of private property is seemingly fulfilled since it cannot be said that a judicial proceeding was
not had before the actual taking. However, the strict application of the decrees during the
proceedings would be nothing short of a mere formality or charade as the court has only to choose
between the valuation of the owner and that of the assessor, and its choice is always limited to the
lower of the two. The court cannot exercise its discretion or independence in determining what is just
or fair. Even a grade school pupil could substitute for the judge insofar as the determination of
constitutional just compensation is concerned.

In the case of National Housing Authority v. Reyes (123 SCRA 245), this Court upheld P.D. No. 464,
as further amended by P.D. Nos. 794, 1224 and 1259. In this case, the petitioner National Housing
Authority contended that the owner's declaration at P1,400.00 which happened to be lower than the
assessor's assessment, is the just compensation for the respondent's property under section 92 of
P.D. No. 464. On the other hand, the private respondent stressed that while there may be basis for
the allegation that the respondent judge did not follow the decree, the matter is still subject to his
final disposition, he having been vested with the original and competent authority to exercise his
judicial discretion in the light of the constitutional clauses on due process and equal protection.
To these opposing arguments, this Court ruled ihat under the conceded facts, there should be a
recognition that the law as it stands must be applied; that the decree having spoken so clearly and
unequivocably calls for obedience; and that on a matter where the applicable law speaks in no
uncertain language, the Court has no choice except to yield to its command. We further stated that
"the courts should recognize that the rule introduced by P.D. No. 76 and reiterated in subsequent
decrees does not upset the established concepts of justice or the constitutional provision on just
compensation for, precisely, the owner is allowed to make his own valuation of his property."

While the Court yielded to executive prerogative exercised in the form of absolute law-making
power, its members, nonetheless, remained uncomfortable with the implications of the decision and
the abuse and unfairness which might follow in its wake. For one thing, the President himself did not
seem assured or confident with his own enactment. It was not enough to lay down the law on
determination of just compensation in P.D. 76. It had to be repeated and reiterated in P.D. 464, P.D.
794, and P.D. 1533. The provision is also found in P.D. 1224, P.D. 1259 and P.D. 1313. Inspite of its
effectivity as general law and the wide publicity given to it, the questioned provision or an even
stricter version had to be embodied in cases of specific expropriations by decree as in P.D. 1669
expropriating the Tambunting Estate and P.D. 1670 expropriating the Sunog Apog area in Tondo,
Manila.

In the present petition, we are once again confronted with the same question of whether the courts
under P.D. 1533, which contains the same provision on just compensation as its predecessor
decrees, still have the power and authority to determine just compensation, independent of what is
stated by the decree and to this effect, to appoint commissioners for such purpose.

This time, we answer in the affirmative.

In overruling the petitioner's motion for reconsideration and objection to the commissioner's report,
the trial court said:

"Another consideration why the Court is empowered to appoint commissioners to assess the
just compensation of these properties under eminent domain proceedings, is the well-
entrenched ruling that 'the owner of property expropriated is entitled to recover from
expropriating authority the fair and full value of the lot, as of the time when possession
thereof was actually taken by the province, plus consequential damages — including
attorney's fees — from which the consequential benefits, if any should be deducted, with
interest at the legal rate, on the aggregate sum due to the owner from and after the date of
actual taking.' (Capitol Subdivision, Inc. v. Province of Negros Occidental, 7 SCRA 60). In
fine, the decree only establishes a uniform basis for determining just compensation which the
Court may consider as one of the factors in arriving at 'just compensation,' as envisage in the
Constitution. In the words of Justice Barredo, "Respondent court's invocation of General
Order No. 3 of September 21, 1972 is nothing short of an unwarranted abdication of judicial
authority, which no judge duly imbued with the implications of the paramount principle of
independence of the judiciary should ever think of doing." (Lina v. Purisima, 82 SCRA 344,
351; Cf. Prov. of Pangasinan v. CFI Judge of Pangasinan, Br. VIII, 80 SCRA 117) Indeed,
where this Court simply follows PD 1533, thereby limiting the determination of just
compensation on the value declared by the owner or administrator or as determined by the
Assessor, whichever is lower, it may result in the deprivation of the landowner's right of due
process to enable it to prove its claim to just compensation, as mandated by the Constitution.
(Uy v. Genato, 57 SCRA 123). The tax declaration under the Real Property Tax Code is,
undoubtedly, for purposes of taxation."
We are convinced and so rule that the trial court correctly stated that the valuation in the decree may
only serve as a guiding principle or one of the factors in determining just compensation but it may
not substitute the court's own judgment as to what amount should be awarded and how to arrive at
such amount. A return to the earlier well-established doctrine, to our mind, is more in keeping with
the principle that the judiciary should live up to its mission "by vitalizing and not denigrating
constitutional rights." (See Salonga v. Cruz Paño, 134 SCRA 438, 462; citing Mercado v. Court of
First Instance of Rizal, 116 SCRA 93.) The doctrine we enunciated in National Housing Authority v.
Reyes, supra, therefore, must necessarily be abandoned if we are to uphold this Court's role as the
guardian of the fundamental rights guaranteed by the due process and equal protection clauses and
as the final arbiter over transgressions committed against constitutional rights.

The basic unfairness of the decrees is readily apparent.

Just compensation means the value of the property at the time of the taking. It means a fair and full
equivalent for the loss sustained. All the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be considered.

In this particular case, the tax declarations presented by the petitioner as basis for just compensation
were made by the Lapu-Lapu municipal, later city assessor long before martial law, when land was
not only much cheaper but when assessed values of properties were stated in figures constituting
only a fraction of their true market value. The private respondent was not even the owner of the
properties at the time. It purchased the lots for development purposes. To peg the value of the lots
on the basis of documents which are out of date and at prices below the acquisition cost of present
owners would be arbitrary and confiscatory.

Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire town with the exception of the poblacion. Individual
differences are never taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land described as "cogonal"
has been cultivated for generations. Buildings are described in terms of only two or three classes of
building materials and estimates of areas are more often inaccurate than correct. Tax values can
serve as guides but cannot be absolute substitutes for just compensation.

To say that the owners are estopped to question the valuations made by assessors since they had
the opportunity to protest is illusory. The overwhelming mass of land owners accept unquestioningly
what is found in the tax declarations prepared by local assessors or municipal clerks for them. They
do not even look at, much less analyze, the statements. The Idea of expropriation simply never
occurs until a demand is made or a case filed by an agency authorized to do so.

It is violative of due process to deny to the owner the opportunity to prove that the valuation in the
tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to allow
the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of a court
promulgated only after expert commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and considerations essential to a
fair and just determination have been judiciously evaluated.

As was held in the case of Gideon v. Wainwright (93 ALR 2d,733,742):

"In the light of these and many other prior decisions of this Court, it is not surprising that the Betts
Court, when faced with the contention that 'one charged with crime, who is unable to obtain counsel
must be furnished counsel by the State,' conceded that '[E]xpressions in the opinions of this court
lend color to the argument. . .' 316 U.S., at 462, 463, 86 L ed. 1602, 62 S Ct. 1252. The fact is that in
deciding as it did-that "appointment of counsel is not a fundamental right, essential to a fair trial" —
the Court in Betts v. Brady made an ubrupt brake with its own well-considered precedents. In
returning to these old precedents, sounder we believe than the new, we but restore constitutional
principles established to achieve a fair system of justice. . ."

We return to older and more sound precedents. This Court has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules. (See Salonga v. Cruz Pano, supra).

The determination of "just compensation" in eminent domain cases is a judicial function. The
executive department or the legislature may make the initial determinations but when a party claims
a violation of the guarantee in the Bill of Rights that private property may not be taken for public use
without just compensation, no statute, decree, or executive order can mandate that its own
determination shall prevail over the court's findings. Much less can the courts be precluded from
looking into the "just-ness" of the decreed compensation.

We, therefore, hold that P.D. No. 1533, which eliminates the court's discretion to appoint
commissioners pursuant to Rule 67 of the Rules of Court, is unconstitutional and void. To hold
otherwise would be to undermine the very purpose why this Court exists in the first place.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. The temporary
restraining order issued on February 16, 1982 is LIFTED and SET ASIDE.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento
and Cortes, JJ., concur.
Teehankee, C.J., in the result.
Yap, J., on leave.
Petition dismissed. Order lifted and set aside.
G.R. No. 127820 July 20, 1998

MUNICIPALITY OF PARAÑAQUE, petitioner,

vs.

V.M. REALTY CORPORATION, respondent.

PANGANIBAN, J.:

A local government unit (LGU), like the Municipality of Parañaque, cannot authorize an expropriation
of private property through a mere resolution of its lawmaking body. The Local Government Code
expressly and clearly requires an ordinance or a local law for the purpose. A resolution that merely
expresses the sentiment or opinion of the Municipal Council will not suffice. On the other hand, the
principle of res judicata does not bar subsequent proceedings for the expropriation of the same
property when all the legal requirements for its valid exercise are complied with.

Statement of the Case

These principles are applied by this Court in resolving this petition for review on certiorari of the July
22, 1996 Decision of the Court of Appeals in CA GR CV No. 48048, which affirmed in toto
1 2 3

the Regional Trial Court's August 9, 1994 Resolution. The trial court dismissed the
4

expropriation suit as follows:

The right of the plaintiff to exercise the power of eminent domain is not
disputed. However, such right may be exercised only pursuant to an
Ordinance (Sec. 19, R.A No. 7160). In the instant case, there is no such
ordinance passed by the Municipal Council of Parañaque enabling the
Municipality, thru its Chief Executive, to exercise the power of eminent
domain. The complaint, therefore, states no cause of action.

Assuming that plaintiff has a cause of action, the same is barred by a

prior judgment. On September 29, 1987, the plaintiff filed a complaint
for expropriation involving the same parcels of land which was
docketed as Civil Case No. 17939 of this Court (page 26, record). Said
case was dismissed with prejudice on May 18, 1988 (page 39, record).
The order of dismissal was not appealed, hence, the same became final.
The plaintiff can not be allowed to pursue the present action without
violating the principle of [r]es [j]udicata. While defendant in Civil Case
No. 17939 was Limpan Investment Corporation, the doctrine of res
judicata still applies because the judgment in said case (C.C. No. 17939)
is conclusive between the parties and their successors-in-interest (Vda.
de Buncio vs. Estate of the late Anita de Leon). The herein defendant is
the successor-in-interest of Limpan Investment Corporation as shown
by the "Deed of Assignment Exchange" executed on June 13, 1990.

WHEREFORE, defendant's motion for reconsideration is hereby

granted. The order dated February 4, 1994 is vacated and set aside.
 This case is hereby dismissed. No pronouncement as to costs.

SO ORDERED. 5

Factual Antecedents

Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, the Municipality of
6

Parañaque filed on September 20, 1993, a Complaint for expropriation against Private
7

Respondent V.M. Realty Corporation over two parcels of land (Lots 2-A-2 and 2-B-1 of
Subdivision Plan Psd-17917), with a combined area of about 10,000 square meters, located at
Wakas, San Dionisio, Parañaque, Metro Manila, and covered by Torrens Certificate of Title
No. 48700. Allegedly, the complaint was filed "for the purpose of alleviating the living
conditions of the underprivileged by providing homes for the homeless through a socialized
housing project." Parenthetically, it was also for this stated purpose that petitioner,
8

pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, previously made an
9

offer to enter into a negotiated sale of the property with private respondent, which the latter
did not accept.10

Finding the Complaint sufficient in form and substance, the Regional Trial Court of Makati,
Branch 134, issued an Order dated January 10, 1994, giving it due course. Acting on
11

petitioner's motion, said court issued an Order dated February 4, 1994, authorizing 12

petitioner to take possession of the subject property upon deposit with its clerk of court of an
amount equivalent to 15 percent of its fair market value based on its current tax declaration.

On February 21, 1994, private respondent filed its Answer containing affirmative defenses
and a counterclaim, alleging in the main that (a) the complaint failed to state a cause of
13

action because it was filed pursuant to a resolution and not to an ordinance as required by
RA 7160 (the Local Government Code); and (b) the cause of action, if any, was barred by a
prior judgment or res judicata. On private respondent's motion, its Answer was treated as a
motion to dismiss. On March 24, 1991, petitioner filed its opposition, stressing that the
14 15

trial court's Order dated February 4, 1994 was in accord with Section 19 of RA 7160, and that
the principle of res judicata was not applicable.

Thereafter, the trial court issued its August 9, 1994 Resolution nullifying its February 4, 1994
16

Order and dismissing the case. Petitioner's motions for reconsideration and transfer of venue
were denied by the trial court in a Resolution dated December 2, 1994. Petitioner then
17

appealed to Respondent Court, raising the following issues:

1. Whether or not the Resolution of the Parañaque

Municipal Council No. 93-95, Series of 1993 is a
substantial compliance of the statutory requirement of
Section 19, R.A. 7180 [sic] in the exercise of the power of
eminent domain by the plaintiff-appellant.

2. Whether or not the complaint in this case states no

cause of action.

3. Whether or not the strict adherence to the literal

observance to the rule of procedure resulted in
technicality standing in the way of substantial justice.
 4. Whether or not the principle of res judicata is
applicable to the present case. 18

As previously mentioned, the Court of Appeals affirmed in toto the trial court's Decision.
Respondent Court, in its assailed Resolution promulgated on January 8, 1997, denied 19

petitioner's Motion for Reconsideration for lack of merit.

Hence, this appeal. 20

The Issues

Before this Court, petitioner posits two issues, viz.:

1. A resolution duly approved by the municipal council has the same

force and effect of an ordinance and will not deprive an expropriation
case of a valid cause of action.

2. The principle of res judicata as a ground for dismissal of case is not

applicable when public interest is primarily involved. 21

The Court's Ruling

The petition is not meritorious.

First Issue:

Resolution Different from an Ordinance

Petitioner contends that a resolution approved by the municipal council for the purpose of
initiating an expropriation case "substantially complies with the requirements of the law" 22

because the terms "ordinance" and "resolution" are synonymous for "the purpose of
bestowing authority [on] the local government unit through its chief executive to initiate the
expropriation proceedings in court in the exercise of the power of eminent domain." 23

Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the Rules and
Regulations Implementing the Local Government Code, which provides. "If the LGU fails to
acquire a private property for public use, purpose, or welfare through purchase, the LGU may
expropriate said property through a resolution of the Sanggunian authorizing its chief
executive to initiate expropriation proceedings." (Emphasis supplied.)
24

The Court disagrees. The power of eminent domain is lodged in the legislative branch of
government, which may delegate the exercise thereof to LGUs, other public entities and
public utilities. An LGU may therefore exercise the power to expropriate private property
25

only when authorized by Congress and subject to the latter's control and restraints, imposed
"through the law conferring the power or in other legislations." In this case, Section 19 of
26

RA 7160, which delegates to LGUs the power of eminent domain, also lays down the
parameters for its exercise. It provides as follows:

Sec. 19. Eminent Domain. A local government unit may, through its
chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, or purpose, or welfare for the
benefit of the poor and the landless, upon payment of just
 compensation, pursuant to the provisions of the Constitution and
pertinent laws: Provided, however, That the power of eminent domain
may not be exercised unless a valid and definite offer has been
previously made to the owner, and such offer was not accepted:
Provided, further, That the local government unit may immediately take
possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of at
least fifteen percent (15%) of the fair market value of the property based
on the current tax declaration of the property to be expropriated:
Provided, finally, That, the amount to be paid for the expropriated
property shall be determined by the proper court, based on the fair
market value at the time of the taking of the property. (Emphasis
supplied)

Thus, the following essential requisites must concur before an LGU can exercise the power
of eminent domain:

1. An ordinance is enacted by the local legislative council authorizing

the local chief executive, in behalf of the LGU, to exercise the power of
eminent domain or pursue expropriation proceedings over a particular
private property.

2. The power of eminent domain is exercised for public use, purpose or

welfare, or for the benefit of the poor and the landless.

3. There is payment of just compensation, as required under Section 9,

Article III of the Constitution, and other pertinent laws.

4. A valid and definite offer has been previously made to the owner of
the property sought to be expropriated, but said offer was not accepted.
27

In the case at bar, the local chief executive sought to exercise the power of eminent domain
pursuant to a resolution of the municipal council. Thus, there was no compliance with the
first requisite that the mayor be authorized through an ordinance. Petitioner cites Camarines
Sur vs. Court of Appeals to show that a resolution may suffice to support the exercise of
28

eminent domain by an LGU. This case, however, is not in point because the applicable law
29

at that time was BP 337, the previous Local Government Code, which had provided that a
30

mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160, the 31

present Local Government Code which was already in force when the Complaint for
expropriation was filed, explicitly required an ordinance for this purpose.

We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance"
are synonymous. A municipal ordinance is different from a resolution. An ordinance is a law,
but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a
specific matter. An ordinance possesses a general and permanent character, but a
32

resolution is temporary in nature. Additionally, the two are enacted differently — a third
reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a
majority of all the Sanggunian members. 33

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it
would have simply adopted the language of the previous Local Government Code. But
Congress did not. In a clear divergence from the previous Local Government Code, Section
19 of RA 7160 categorically requires that the local chief executive act pursuant to an
ordinance. Indeed, "[l]egislative intent is determined principally from the language of a
statute. Where the language of a statute is clear and unambiguous, the law is applied
according to its express terms, and interpretation would be resorted to only where a literal
interpretation would be resorted to only where a literal interpretation would be either
impossible or absurd or would lead to an injustice." In the instant case, there is no reason
34

to depart from this rule, since the law requiring an ordinance is not at all impossible, absurd,
or unjust.

Moreover, the power of eminent domain necessarily involves a derogation of a fundamental

or private right of the people. Accordingly, the manifest change in the legislative language
35

— from "resolution" under BP 337 to "ordinance" under RA 7160 — demands a strict

construction. "No species of property is held by individuals with greater tenacity, and is
guarded by the Constitution and laws more sedulously, than the right to the freehold of
inhabitants. When the legislature interferes with that right and, for greater public purposes,
appropriates the land of an individual without his consent, the plain meaning of the law
should not be enlarged by doubtful interpretation." 36

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a
resolution to authorize an LGU to exercise eminent domain. This is clearly misplaced,
because Section 19 of RA 7160, the law itself, surely prevails over said rule which merely
seeks to implement it. It is axiomatic that the clear letter of the law is controlling and cannot
37

be amended by a mere administrative rule issued for its implementation. Besides, what the
discrepancy seems to indicate is a mere oversight in the wording of the implementing rules,
since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent
domain, the chief executive of the LGU act pursuant to an ordinance.

In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the
Constitution, which provides that "territorial and political subdivisions shall enjoy local
autonomy." It merely upholds the law as worded in RA 7160. We stress that an LGU is created
by law and all its powers and rights are sourced therefrom. It has therefore no power to
amend or act beyond the authority given and the limitations imposed on it by law. Strictly
speaking, the power of eminent domain delegated to an LGU is in reality not eminent but
"inferior" domain, since it must conform to the limits imposed by the delegation, and thus
partakes only of a share in eminent domain. Indeed, "the national legislature is still the
38

principal of the local government units, which cannot defy its will or modify or violate it."39

Complaint Does Not

State a Cause of Action

In its Brief filed before Respondent Court, petitioner argues that its Sangguniang Bayan
passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of
1993, and ratified all the acts of its mayor regarding the subject expropriation.40

This argument is bereft of merit. In the first place, petitioner merely alleged the existence of
such an ordinance, but it did not present any certified true copy thereof. In the second place,
petitioner did not raise this point before this Court. In fact, it was mentioned by private
respondent, and only in passing. In any event, this allegation does not cure the inherent
41

defect of petitioner's Complaint for expropriation filed on September 23, 1993. It is hornbook
doctrine that
 . . . in a motion to dismiss based on the ground that the complaint fails
to state a cause of action, the question submitted before the court for
determination is the sufficiency of the allegations in the complaint
itself. Whether those allegations are true or not is beside the point, for
their truth is hypothetically admitted by the motion. The issue rather is:
admitting them to be true, may the court render a valid judgment in
accordance with the prayer of the complaint? 42

The fact that there is no cause of action is evident from the face of the Complaint for
expropriation which was based on a mere resolution. The absence of an ordinance
authorizing the same is equivalent to lack of cause of action. Consequently, the Court of
Appeals committed no reversible error in affirming the trial court's Decision which dismissed
the expropriation suit.

Second Issue:

Eminent Domain Not Barred by Res Judicata

As correctly found by the Court of Appeals and the trial court, all the requisites for the
43 44

application of res judicata are present in this case. There is a previous final judgment on the
merits in a prior expropriation case involving identical interests, subject matter and cause of
action, which has been rendered by a court having jurisdiction over it.

Be that as it may, the Court holds that the principle of res judicata, which finds application in
generally all cases and proceedings, cannot bar the right of the State or its agent to
45

expropriate private property. The very nature of eminent domain, as an inherent power of the
State, dictates that the right to exercise the power be absolute and unfettered even by a prior
judgment or res judicata. The scope of eminent domain is plenary and, like police power, can
"reach every form of property which the State might need for public use." "All separate
46

interests of individuals in property are held of the government under this tacit agreement or
implied reservation. Notwithstanding the grant to individuals, the eminent domain, the
highest and most exact idea of property, remains in the government, or in the aggregate body
of the people in their sovereign capacity; and they have the right to resume the possession of
the property whenever the public interest requires it." Thus, the State or its authorized
47

agent cannot be forever barred from exercising said right by reason alone of previous non-
compliance with any legal requirement.

While the principle of res judicata does not denigrate the right of the State to exercise
eminent domain, it does apply to specific issues decided in a previous case. For example, a
final judgment dismissing an expropriation suit on the ground that there was no prior offer
precludes another suit raising the same issue; it cannot, however, bar the State or its agent
from thereafter complying with this requirement, as prescribed by law, and subsequently
exercising its power of eminent domain over the same property. By the same token, our
48

ruling that petitioner cannot exercise its delegated power of eminent domain through a mere
resolution will not bar it from reinstituting similar proceedings, once the said legal
requirement and, for that matter, all others are properly complied with. Parenthetically and by
parity of reasoning, the same is also true of the principle of "law of the case." In Republic vs.
De Knecht, the Court ruled that the power of the State or its agent to exercise eminent
49

domain is not diminished by the mere fact that a prior final judgment over the property to be
expropriated has become the law of the case as to the parties. The State or its authorized
agent may still subsequently exercise its right to expropriate the same property, once all
legal requirements are complied with. To rule otherwise will not only improperly diminish the
power of eminent domain, but also clearly defeat social justice.

WHEREFORE, the petition is hereby DENIED without prejudice to petitioner's proper exercise
of its power of eminent domain over subject property. Costs against petitioner.

SO ORDERED.

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

Footnotes

1 Rollo, pp. 21-25.

2 Special Sixth Division, composed of J. Antonio M. Martinez (now an

associate justice of the Supreme Court), ponente and chairman; and JJ.
Ricardo P. Galvez and Hilarion L. Aquino, concurring.

3 See rollo, p. 25.

4 Penned by acting Presiding Judge Paul T. Arcangel.

5 Resolution of the Regional Trial Court, p. 2; rollo, p. 70.

6 Rollo, pp. 41-43.

7 Ibid., pp. 27-32.

8 Petitioner's Memorandum, p. 1; rollo, p. 184.

9 Rollo, pp. 37-38.

10 Complaint, p. 3; rollo, p. 29.

11 Rollo, p. 45.

12 Ibid., p. 47.

13 Ibid., pp. 48-51.

14 Private respondent's Memorandum, pp. 1-2; rollo, pp. 197-198.

15 Rollo, pp. 66-68.

16 Ibid., pp. 69-70.

17 Ibid., pp. 71-72.

18 Ibid., pp. 78-79.

19 Ibid., p. 26.

20 The case was deemed submitted for resolution on March 13, 1998, when the
Court received private respondent's Memorandum.

21 Petitioner's Memorandum, p. 3; rollo, p. 187.

22 Ibid., p. 4; rollo, p. 188.

23 Ibid.

24 Paragraph A.

25 Moday vs. Court of Appeals, 268 SCRA 586, 592, February 20, 1997.

26 Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173, 179-180,
May 17, 1993, per Quiason, J.

27 Senator Aquilino Q. Pimentel, Jr., The Local Government Code of 1991: The
Key To National Development, 1993 ed., p. 110.

28 Supra.

29 Petitioner's Memorandum, p. 6; rollo, p. 189.

30 Approved on February 10, 1983 and published in 79 OG No. 7. See Maday

vs. Court of Appeals, supra, p. 593. Sec. 9 of BP 337 reads:

Sec. 9. Eminent Domain. — A local government unit may,

through its head and acting pursuant to a resolution of its
sanggunian, exercise the right of eminent domain and institute
condemnation proceedings for public use or purpose.

31 Effective January 1, 1992.

32 Mascuñana vs. Provincial Board of Negros Occidental, 79 SCRA 399, 405,

October 18, 1977; cited in private respondent's Memorandum, p. 5.

33 Art. 107, pars. a and c, Implementing Rules and Regulations of RA 7160;

cited in Pimentel, Jr., supra, pp. 163-164.

34 Azarcon vs. Sandiganbayan, 268 SCRA 747, 762, February 26, 1997, per
Panganiban, J.; citing Ramirez vs. Court of Appeals, 248 SCRA 590, 596,
September 28, 1995.

35 City of Manila vs. Chinese Community of Manila, 40 Phil 349, 366 (1919), and
Arriete vs. Director of Public Works, 58 Phil 507, 511 (1933). See also Bernas,
Joaquin G., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 1996 ed., p. 348.
36 Justice Isagani A. Cruz, Constitutional Law, 1993 ed., p. 59.

37 See Villa vs. Llanes Jr., 120 SCRA 81, 84 January 21, 1983, and Wise & Co.
vs. Meer, 78 Phil 655, 676 (1947). See also Art. 7, Civil Code of the Philippines.

38 Bernas, supra, pp. 348-349.

39 Magtajas vs. Pryce Properties, Corp., Inc., 234 SCRA 255, 272-273, July 20,
1994, per Cruz, J.

40 Rollo, pp. 81-82.

41 See private respondent's Memorandum, pp. 5-6; rollo, pp. 201-202.

42 Travel Wide Associated Sales (Phils.), Inc. vs. Court of Appeals, 199 SCRA
205, 210, July 15, 1991, per Cruz, J.; citing The Heirs of Juliana Clavano vs.
Genato, 80 SCRA 217, 222, October 28, 1977.

43 Decision, p. 5; rollo, p. 25.

44 Resolution of the Regional Trial Court, p. 2; rollo, p. 70.

45 Republic vs. Director of Lands, 39 SCRA 651, 657, September 11, 1980.

46 Bernas, supra, p. 349.

47 Ibid.

48 See National Power Corporation vs. Court of Appeals, 254 SCRA 577, March
11, 1996.

49 182 SCRA 142, 147-148, February 12, 1990.