4 Powers of Municipal Corporations (re: City); Police Power; Rules of Interpretation Whitelight Corporation v.

City of Manila To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. 40Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court. The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens. The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.41 The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant. 42 Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls, 44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism. Even as we design the precedents that establish the framework for analysis of due process or equal protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate

many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third political branch of government. We derive our respect and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching constitutional questions of the day. Telmo v. Bustamante The desistance of the complainant does not necessarily result in the dismissal of the administrative complaint because the Court attaches no persuasive value to a desistance, especially when executed as an afterthought.[25] It should be remembered that the issue in an administrative case is not whether the complaint states a cause of action against the respondent, but whether the public officials have breached the norms and standards of the public service.[26] Considering that petitioner admitted in his pleadings that he summarily removed the concrete posts erected by respondent, allegedly within the parameters of his authority as Municipal Engineer of Naic, Cavite, it is only proper that this case be decided on its merits rather than on the basis of the desistance of respondent. It cannot be denied that respondents property was taken by the National Government thru the Department of Public Works and Highways when it constructed the Noveleta-Naic-Tagaytay Road. What is not clear from the records of this case is whether respondents property was taken as part of the national road itself or only as part of the right-of-way easement therefor. We observe that the re-survey plan[27] of his property attached by respondent to his complaint and the survey plan[28] of the NoveletaNaic-Tagaytay Road submitted by petitioner appear to be different. Nevertheless, it is evident from the sketch plans that respondent could not enclose his property because it is now being used by the National Government. Therefore, whatever cause of action respondent may have in his claim for just compensation for the taking of his property, the same should be lodged against the National Government. While it is settled that respondent does not have the legal right to enclose the property, we should now determine whether petitioner indeed performed his official functions properly. First. Petitioner claims that his act of summarily removing respondents concrete posts was authorized under the National Building Code (Presidential Decree No. 1096). The provision he cites correctly pertains to Section 215, which reads Sec. 215. Abatement of Dangerous Buildings.When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the decree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines. To better understand this provision, we refer to Section 214 of the same law, which defines what are dangerous and ruinous buildings or structures susceptible of abatement. It provides Sec. 214. Dangerous and Ruinous Buildings or Structures. Dangerous buildings are those which are herein declared as such or are structurally unsafe or not provided with safe egress, or which constitute a fire hazard, or are otherwise dangerous to human

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life, or which in relation to existing use, constitute a hazard to safety or health or public welfare because of inadequate maintenance, dilapidation, obsolescence, or abandonment, or which otherwise contribute to the pollution of the site or the community to an intolerable degree. A careful reading of the foregoing provisions would readily show that they do not apply to the respondents situation. Nowhere was it shown that the concrete posts put up by respondent in what he believed was his and his co-owners property were ever declared dangerous or ruinous, such that they can be summarily demolished by petitioner. What is more, it appears that the concrete posts do not even fall within the scope of the provisions of the National Building Code. The Code does not expressly define the word building. However, we find helpful the dictionary definition of the word building, viz: [A] constructed edifice designed usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.[29] The provisions of the National Building Code would confirm that building as used therein conforms to this definition. Thus, applying the statutory construction principle of ejusdem generic,[30] the word structure should be construed in the context of the definition of the word building. The concrete posts put up by respondent on the property are not properly covered by the definition of the word building nor is it embraced in the corresponding interpretation of the word structure. Second. Petitioner contends that respondents concrete posts were in the nature of a nuisance per se, which may be the subject of summary abatement sans any judicial proceedings. Again, we disagree. A nuisance per se is that which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity.[31] Evidently, the concrete posts summarily removed by petitioner did not at all pose a hazard to the safety of persons and properties, which would have necessitated immediate and summary abatement. What they did, at most, was to pose an inconvenience to the public by blocking the free passage of people to and from the national road. Third. Petitioner likewise maintains that his authority to perform the assailed official act sprang from Section 23 of the Revised Philippine Highway Act. He posits that this provision is particularly implemented by Department Order No. 52, [32] Series of 2003 of the Department of Public Works and Highways for the Removal of Obstructions and Prohibited Uses within the Right-of-Way of National Roads. Department Order No. 52 directs all District Engineers to immediately remove or cause the removal of all obstructions and prohibited uses within the right-of-way of all national roads in their respective jurisdictions. These obstructions and prohibited uses include, among others, all kinds of private, temporary and permanent structures, such as buildings, houses, shanties, stores, shops, stalls, sheds, posts, canopies, billboards, signages, advertisements, fences, walls, railings, basketball courts, garbage receptacles,

and the like. The Department Order requires the District Engineers to issue notices to the concerned persons to remove the obstructions and prohibited uses within the right-of-way, and shall follow through prompt compliance with these notices and full implementation of the Order. It further provides that appropriate sanctions will be taken against those who fail to comply with its provisions. Gauging the action of petitioner based on the guidelines set by Department Order No. 52, from which he claims his authority, we cannot but conclude that petitioner went beyond the scope of his official power because it is the concerned District Engineer of the Department of Public Works and Highways who should have ordered respondent to remove the concrete posts. The petitioner failed to show that he was duly authorized by the District Engineer to implement the Department Order in Naic, Cavite. More importantly, even assuming that petitioner had been duly authorized to order the removal of the concrete posts of respondent, he failed to prove that he issued the required notice to respondent to remove the said structures before he did the removal himself. Note that petitioner, in fact, admitted in his pleadings that he summarily removed the said posts. United BF Homes v. City Mayor of Paranaque Power to Enact Zoning Ordinances The Municipal Council of Paraaque enacted Municipal Ordinance No. 97-08 pursuant to the provisions of RA 7160 and Executive Order No. 72.[14] Under Section 447 of RA 7160, the Sangguniang Bayan or the Municipal Council, as the legislative body of the municipality, has the power to enact ordinances for the general welfare of the municipality and its inhabitants. Among the functions of the Sangguniang Bayan enumerated under Section 447 of RA 7160 are: (2) Generate and maximize the use of resources and revenues for the development plans, program objectives and priorities of the municipality as provided for under Section 18 of this Code with particular attention to agro-industrial development and countryside growth and progress, and relative thereto, shall: xxxx (vii) Adopt a comprehensive land use plan for the municipality: Provided, That the formulation, adoption, or modification of said plan shall be in coordination with the approved provincial comprehensive land use plan;

(viii) Reclassify land within the jurisdiction of the municipality subject to the pertinent provision of this Code; (ix) Enact integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establish fire limits or zones, particularly in populous

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centers; and regulate the construction, repair or modification of building s within said fire limits or zones in accordance with the provisions of the Fire Code; (Emphasis supplied) On the other hand, Executive Order No. 72 provides: SECTION 1. Plan formulation or updating. (a) Cities and municipalities shall continue to formulate or update their respective comprehensive land use plans, in conformity with the land use planning and zoning standards and guidelines prescribed by the HLURB pursuant to national policies. As a policy recommending body of the LGU, the city or municipal development council (CDC/MDC) shall initiate the formulation or updating of its land use plan, in consultation with the concerned sectors in the community. For this purpose, the CDC/MDC may seek the assistance of any local official or field officer of NGAs operation in the LGU. The city or municipal planning and development coordinator (CPDC/MPDC) and/or the city or municipal agriculturist, if there is any, shall provide the technical support services and such other assistance as may be required by the CDC/MDC to effectively carry out this function. The comprehensive land use plan prepared by the CDC/MDC shall be submitted to the sangguniang panglungsod or sangguniang bayan, as the case may be, for enactment into a zoning ordinance. Such ordinance shall be enacted and approved in accordance with Articles 107 and 108 of the Implementing Rules and Regulations (IRR) of the LGC. (b) The comprehensive land use plans of component cities and municipalities shall be formulated, adopted, or modified in accordance with the approved provincial comprehensive land use plans. (c) Cities and municipalities of metropolitan Manila shall continue to formulate or update their respective comprehensive land use plans, in accordance with the land use planning and zoning standards and guidelines prescribed by the HLURB pursuant to EO 392, S. of 1990, and other pertinent national policies. x x x x (Emphasis supplied) Under Section 3(m), Rule 131 of the Rules of Court, there is a presumption that official duty has been regularly performed. Thus, in the absence of evidence to the contrary, there is a presumption that public officers performed their official duties regularly and legally and in compliance with applicable laws, in good faith, and in the exercise of sound judgment.[15] We find no sufficient evidence disputing the regularity of the enactment of Municipal Ordinance No. 97-08. Before the Municipal Council of Paraaque passed Municipal Ordinance No. 97-08,[16] it has been the subject of barangay consultations and committee hearings in accordance with Executive Order No. 72.

Reclassification of El Grande and Aguirre Avenues Contrary to petitioners allegations, we find Municipal Ordinance No. 97-08 reasonable and not discriminating or oppressive with respect to BF Homes Paraaque. As held by the Court of Appeals, the increasing number of homeowners in BF Homes Paraaque necessitated the addition of commercial areas in the subdivision to service the needs of the homeowners. In fact, several homeowners along El Grande and Aguirre Avenues already converted their residences into business establishments. Furthermore, as found by the Court of Appeals, El Grande and Aguirre Avenues are main thoroughfares in BF Homes Paraaque which have long been commercialized. Even petitioner UBFHAI, the recognized umbrella organization of all homeowners associations in BF Homes Paraaque, acknowledged the need for additional commercial area. Records reveal that as early as 30 July 1989, UBFHAI recommended for approval an Amended Integrated Zoning Policies and Guidelines for BF Homes Paraaque.[17] UBFHAI proposed another commercial zone in BF Homes Paraaque to accommodate the growing needs of the residents, thus: Subject to the approval of BF Homes, Inc., the Local Zoning Official/Planning Officer of Paraaque and the Metro Manila Commission and in recognition of the fact that the subdivision has tremendously grown in size and population since 1983 when the above-mentioned guidelines of the MMC [Ordinance 81-01] were promulgated, such that one commercial zone for the entire subdivision is now inadequate vis-a-vis the needs of the residents, the UBFHAI is proposing another commercial zone in Phase III of the Subdivision, in the vicinity of the Parish of the Presentation of the Child Jesus as follows: One lot deep along Aguirre Avenue from Gov. Santos St., to the end of Aguirre Avenue and two lots deep along El Grande from where it intersects Aguirre Avenue. Pending approval of the aforesaid proposal, commercial buildings constructed and existing in the aforesaid area will be given temporary-use permits good for five (5) years from December 31, 1986 or until December 31, 1991, after which, the same must revert to residential status, unless, in the meantime the proposal is approved, provided all such buildings must comply with the set-back and parking provision of the Metro Manila Commission Ordinance 81-01; I.M. 09-83. xxxx The term for temporary use permits of the designated commercial area shall be considered extended for 8 years from December 31, 1991 to December 31, 1998; without prejudice to the official conversion of the area under existing MMA/LGC guidelines to commercial.[18] (Emphasis supplied)

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Thus, UBFHAIs proposed new commercial area, encompassing El Grande and Aguirre Avenues, is substantially the same area, which Municipal Ordinance No. 97-08 later reclassified as a commercial zone. Furthermore, in the subsequent years, UBFHAI and its member homeowners associations endorsed the issuance of municipal and barangay permits for commercial establishments along El Grande and Aguirre Avenues. Contrary to petitioners allegations, the commercial establishments endorsed by UBFHAI were not mere convenience stores, which Metro Manila Commission Ordinance No. 81-01[19] and Municipal Ordinance No. 97-08 allow in residential areas. Among the commercial establishments which UBFHAI endorsed were a trading business,[20] electronics repair shop,[21] mini-grocery store,[22] beauty salon,[23]school,[24] dress shop,[25] and consultancy or management services business.[26] Clearly, the reclassification of El Grande and Aguirre Avenues in BF Homes Paraaque as commercial area was reasonable and justified under the circumstances. Non-Impairment of Contract Petitioners invoke Presidential Decree No. 957 (PD 957),[27] otherwise known as the Subdivision and Condominium Buyers Protective Decree. Petitioners maintain that PD 957 is intended primarily to protect the buyers and to ensure that subdivision developers keep their promises and representations. Petitioners allege that one of the promises of the developer of BF Homes Paraaque is that the property shall be used for residential purposes only. Petitioners assert that the reclassification of certain portions of BF Homes Paraaque from residential to commercial zone is unconstitutional because it impairs the contracts between the developer of BF Homes Paraaque and the lot buyers. The Court has upheld in several cases the superiority of police power over the nonimpairment clause.[28] The constitutional guaranty of non-impairment of contracts is limited by the exercise of the police power of the State, in the interest of public health, safety, morals and general welfare. [29] In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co.,[30] the Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations. The Court held: With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendantappelleeit should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. Invariably described as the most essential, insistent, and illimitable of powers and in a sense, the greatest and most powerful attribute of government, the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other

applicable constitutional guarantee. As this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company v. City of Davao, et al., police power is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life. We were even more emphatic in Vda. DeGenuino v. The Court of Agrarian Relations, et al., when We declared: We do not see why the public welfare when clashing with the individual right to property should not be made to prevail through the states exercise of its police power. Resolution No. 27. s-1960 declaring the western part of Highway 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.[31] (Emphasis supplied) Likewise, in Sangalang v. Intermediate Appellate Court,[32] the Court upheld Metro Manila Commission Ordinance No. 81-01, which reclassified Jupiter Street in Makati into a high-density commercial zone, as a legitimate exercise of police power. The Court held that the power of the Metro Manila Commission and the Makati Municipal Council to enact zoning ordinances for the general welfare prevails over the deed restrictions on the lot owners in Bel-Air Village which restricted the use of the lots for residential purposes only. The Court held: It is not that we are saying that restrictive easements, especially the easements herein in question, are invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction guarantees sanctity of contract and is said to be the law between the contracting parties, but while it is so, it cannot contravene law, morals, good customs, public order, or public policy. Above all, it cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. x x x[33] (Emphasis supplied)

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Similarly, in this case, Municipal Ordinance No. 97-08 is a legitimate exercise of police power and the reclassification of El Grande and Aguirre Avenues in BF Homes Paraaque is not arbitrary or unreasonable. Parayno v. Jovellanos The Exercise of Police Powers Respondent municipality invalidly used its police powers in ordering the closure/transfer of petitioner's gasoline station. While it had, under RA 7160, 14 the power to take actions and enact measures to promote the health and general welfare of its constituents, it should have given due deference to the law and the rights of petitioner. A local government is considered to have properly exercised its police powers only when the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive.15 The first requirement refers to the equal protection clause and the second, to the due process clause of the Constitution. 16 Respondent municipality failed to comply with the due process clause when it passed Resolution No. 50. While it maintained that the gasoline filling station of petitioner was less than 100 meters from the nearest public school and church, the records do not show that it even attempted to measure the distance, notwithstanding that such distance was crucial in determining whether there was an actual violation of Section 44. The different local offices that respondent municipality tapped to conduct an investigation never conducted such measurement either. Moreover, petitioner's business could not be considered a nuisance which respondent municipality could summarily abate in the guise of exercising its police powers. The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property,17 hence, it cannot be closed down or transferred summarily to another location. Manila v. Laguio Requisites for the valid exercise of Police Power are not met To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.[60]It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. [61] Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights[62] the due process clause. The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila[63] had already taken judicial notice of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of

motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-seekers.[64] The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Councils police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals and the eradication of the communitys social ills can be achieved through means less restrictive of private rights; it can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per seprotect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like which the City Council may lawfully prohibit, [65] it is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply because there are no pure places where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence anduniversality of sin in mans history.[66] The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were so and if that were allowed, then the ErmitaMalate area would not only be purged of its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its every nook and cranny would be laid bare to the estimation of the authorities. The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. While petitioners earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of wholesome, innocent establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and

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patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations;[67] and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. Means employed are constitutionally infirm The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area. Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the premises of the erring establishment shall be closed and padlocked permanently. It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a persons fundamental right to liberty and property. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.[68] In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty. In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property.[77] The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.[78] It is intrusive and violative of the private property rights of individuals. The Constitution expressly provides in Article III, Section 9, that private property shall not be taken for public use without just compensation. The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a persons property to benefit society, then society should pay. The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. [79] There are two different types of taking that can be identified. A possessory taking occurs when the government confiscates or physically occupies property. A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property.[80] In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking also could be found if government regulation of the use of property went too far. When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise

of eminent domain and compensation to support the act. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. [82] No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was a question of degree and therefore cannot be disposed of by general propositions. On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness require that the economic loss caused by public action must be compensated by the government and thus borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action.[83] What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.[84] A regulation that permanently denies all economically beneficial or productive use of land is, from the owners point of view, equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable. [85] When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.[86] A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulations economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.[87] A restriction on use of property may also constitute a taking if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner. Rural Bank of Makati v. Municipality of Makati Anent the second issue, petitioner bank claims that the closure of respondent bank was an improper exercise of police power because a municipal corporation has no inherent but only delegated police power, which must be exercised not by the municipal mayor but by the municipal council through the enactment of ordinances. It also assailed the Court of Appeals for invoking the General Welfare Clause embodied in Section 16[17] of the Local Government Code of 1991, which took effect in 1992,[18] when the closure of the bank was actually done on July 31, 1991. Indeed the Local Government Code of 1991 was not yet in effect when the municipality ordered petitioner banks closure on July 31, 1991. However, the general welfare clause invoked by the Court of Appeals is not found on the provisions of said law alone. Even under the old Local Government Code (Batas Pambansa Blg. 337)[19] which was then in effect, a general welfare clause was provided for in Section 7 thereof. Municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with police powers in order to effectively accomplish and carry out the declared objects of their creation. [20] The authority of a local government unit to exercise police power under a general welfare clause is not a recent development. This was already provided for as early as the Administrative Code of 1917.[21] Since then it has been reenacted and implemented by new statutes on the matter. Thus, the closure of the bank was a valid exercise of police power pursuant to the general welfare clause contained in and restated by B.P. Blg. 337, which was then the law

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governing local government units. No reversible error arises in this instance insofar as the validity of respondent municipalitys exercise of police power for the general welfare is concerned. The general welfare clause has two branches. The first, known as the general legislative power, authorizes the municipal council to enact ordinances and make regulations not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. The second, known as the police power proper, authorizes the municipality to enact ordinances as may be necessary and proper for the health and safety, prosperity, morals, peace, good order, comfort, and convenience of the municipality and its inhabitants, and for the protection of their property.[22] In the present case, the ordinances imposing licenses and requiring permits for any business establishment, for purposes of regulation enacted by the municipal council of Makati, fall within the purview of the first branch of the general welfare clause. Moreover, the ordinance of the municipality imposing the annual business tax is part of the power of taxation vested upon local governments as provided for under Section 8 of B.P. Blg. 337,[23] to wit: Sec. 8. Authority to Create Sources of Revenue. (1) Each local government unit shall have the power to create its own sources of revenue and to levy taxes, subject to such limitations as may be provided by law. ... Implementation of these ordinances is vested in the municipal mayor, who is the chief executive of the municipality as provided for under the Local Government Code, to wit: Sec. 141. Powers and Duties. (1) The mayor shall be the chief executive of the municipal government and shall exercise such powers, duties and functions as provided in this Code and other laws. (2) He shall: ... (k) Grant licenses and permits in accordance with existing laws or municipal ordinances and revoke them for violation of the conditions upon which they have been granted; ... (o) Enforce laws, municipal ordinances and resolutions and issue necessary orders for their faithful and proper enforcement and execution; (p) Ensure that all taxes and other revenues of the municipality are collected, and that municipal funds are spent in accordance with law, ordinances and regulations; ... (t) Cause to be instituted judicial proceedings in connection with the violation of ordinances, for the collection of taxes, fees and charges, and for the recovery of property and funds of the municipality, and otherwise to protect the interest of the municipality; [24] (Emphasis supplied) ... Consequently, the municipal mayor, as chief executive, was clothed with authority to create a Special Task Force headed by respondent Atty. Victor A.L. Valero to enforce and implement said ordinances and resolutions and to file appropriate charges and prosecute violators.[25] Respondent Valero could hardly be faulted for performing his official duties under the cited circumstances. Lucena Grand Central Terminal v. JAC Liner Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide:

SEC. 3. Notice on Solicitor General. In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question. SEC. 4. Local government ordinances. In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local government unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard. (Emphasis and underscoring supplied) Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor General about the action is a jurisdictional defect. In fact, Rule 3, Section 22 gives the courts in any action involving the validity of any ordinance, inter alia, discretion to notify the Solicitor General. Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality, not just the validity, of a local government ordinance, directs that the Solicitor General shall also be notified and entitled to be heard. Who will notify him, Sec. 3 of the same rule provides it is the party which is assailing the local governments ordinance. More importantly, however, this Court finds that no procedural defect, fatal or otherwise, attended the disposition of the case. For respondent actually served a copy of its petition upon the Office of the Solicitor General onOctober 1, 1998, two days after it was filed. The Solicitor General has issued a Certification to that effect.[17] There was thus compliance with above-quoted rules. Respecting the issue of whether police power was properly exercised when the subject ordinances were enacted: As with the State, the local government may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a concurrence of a lawful subject and lawful method.[18] That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In Calalang v. Williams[19] which involved a statute authorizing the Director of Public Works to promulgate rules and regulations to regulate and control traffic on national roads, this Court held: In enacting said law, therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations.[20] (Emphasis supplied) The questioned ordinances having been enacted with the objective of relieving traffic congestion in the City of Lucena, they involve public interest warranting the interference of the State. The first requisite for the proper exercise of police power is thus present. Respondents suggestion to have this Court look behind the explicit objective of the ordinances which, to it, was actually to benefit the private interest of petitioner by coercing all bus operators to patronize its terminal does not lie.[21] Lim v. Pacquing[22] instructs: . . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select group which was later given authority to operate the jai-alai under PD No. 810. The examination of legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438 [1971] per Black, J.) There is, in the first place, absolute lack of evidence to support ADCs allegation of improper motivation in the issuance of PD No. 771. In the second place, as already averred, this Court cannot go behind the expressed and proclaimed purposes of PD No. 771, which are reasonable and even laudable. (Underscoring supplied)[23]

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This leaves for determination the issue of whether the means employed by the Lucena Sangguniang Panlungsod to attain its professed objective were reasonably necessary and not unduly oppressive upon individuals. With the aim of localizing the source of traffic congestion in the city to a single location,[24] the subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena, including those already existing, and allow the operation of only one common terminal located outside the city proper, the franchise for which was granted to petitioner. The common carriers plying routes to and from Lucena City are thus compelled to close down their existing terminals and use the facilities of petitioner. In De la Cruz v. Paras,[25] this Court declared unconstitutional an ordinance characterized by overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the operation of all night clubs, cabarets and dance halls within its jurisdiction for the protection of public morals. Held the Court: It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qual ify under the term reasonable. The objective of fostering public morals, a worthy and desir able end can be attained by a measure that does not encompass toowide a field. Certainly t he ordinance on its face is characterized by overbreadth. The purpose sought to be achieve d could have been attained by reasonable restrictions rather than by an absolute prohibitio n. The admonition in Salaveria should be heeded: The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. It is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed. (Underscoring supplied)[26] In Lupangco v. Court of Appeals,[27] this Court, in declaring unconstitutional the resolution subject thereof, advanced a similar consideration. That case involved a resolution issued by the Professional Regulation Commission which prohibited examinees from attending review classes and receiving handout materials, tips, and the like three days before the date of examination in order to preserve the integrity and purity of the licensure examinations in accountancy. Besides being unreasonable on its face and violative of academic freedom, the measure was found to be more sweeping than what was necessary, viz: Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages in the licensure examinations will be eradicated or at least minimized. Making the examinees suffer by depriving them of legitimate means of review or preparation on those last three precious days when they should be refreshing themselves with all that they have learned in the review classes and preparing their mental and psychological make-up for the examination day itself would be like uprooting the tree to get rid of a rotten branch. What is needed to be done by the respondent is to find out the source of such leakages and stop it right there. If corrupt officials or personnel should be terminated from their loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by examiners should be set up and if violations are committed, then licenses should be suspended or revoked. x x x (Emphasis and underscoring supplied)[28] Acebedo Optical v. CA Although petitioner agrees with the finding of the Court of Appeals that respondent City Mayor acted beyond the scope of his authority in imposing the assailed conditions in subject business permit, it has excepted to the ruling of the Court of Appeals that the said conditions nonetheless became binding on petitioner, once accepted, as a private agreement or contract. Petitioner maintains that the said special conditions are null and void for being ultra vires and cannot be given effect; and therefore, the principle of estoppel cannot apply against it.

On the other hand, the public respondents, City Mayor and City Legal Officer, private respondent SOPI and the Office of the Solicitor General contend that as a valid exercise of police power, respondent City Mayor has the authority to impose, as he did, special conditions in the grant of business permits. Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people.3 The State, through the legislature, has delegated the exercise of police power to local government units, as agencies of the State, in order to effectively accomplish and carry out the declared objects of their creation. 4 This delegation of police power is embodied in the general welfare clause of the Local Government Code which provides: Sec. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power.5 The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law. Section 171, paragraph 2 (n) of Batas Pambansa Bilang 337 otherwise known as the Local Government Code of 1983, reads: Sec. 171. The City Mayor shall: xxx n) Grant or refuse to grant, pursuant to law, city licenses or permits, and revoke the same for violation of law or ordinance or the conditions upon which they are granted. However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. Succinct and in point is the ruling of this Court, that: "x x x While a business may be regulated, such regulation must, however, be within the bounds of reason, i. e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. xxx xxx xxx xxx xxx The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right."[6] In the case under consideration, the business permit granted by respondent City Mayor to petitioner was burdened with several conditions. Petitioner agrees with the holding by the Court of Appeals that respondent City Mayor acted beyond his authority in imposing such special conditions in its permit as the same have no basis in the law or ordinance. Public respondents and private respondent SOPI, on the other hand, are one in saying that the imposition of said special conditions on petitioners business permit is well within the authority of the City Mayor as a valid exercise of police power.

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As aptly discussed by the Solicitor General in his Comment, the power to issue licenses and permits necessarily includes the corollary power to revoke, withdraw or cancel the same. And the power to revoke or cancel, likewise includes the power to restrict through the imposition of certain conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals,7 it was held that the power to license carries with it the authority to provide reasonable terms and conditions under which the licensed business shall be conducted. As the Solicitor General puts it: "If the City Mayor is empowered to grant or refuse to grant a license, which is a broader power, it stands to reason that he can also exercise a lesser power that is reasonably incidental to his express power, i. e. to restrict a license through the imposition of certain conditions, especially so that there is no positive prohibition to the exercise of such prerogative by the City Mayor, nor is there any particular official or body vested with such authority"[8] However, the present inquiry does not stop there, as the Solicitor General believes. The power or authority of the City Mayor to impose conditions or restrictions in the business permit is indisputable. What petitioner assails are the conditions imposed in its particular case which, it complains, amount to a confiscation of the business in which petitioner is engaged. Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession. Technology Developers v. CA 1. No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control if not prohibition of the operation of a business is essentially addressed to the then National Pollution Control Commission of the Ministry of Human Settlements, now the Environmental Management Bureau of the Department of Environment and Natural Resources, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virture of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriate measures are taken to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business. 2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also affect the health of the residents in the area," so that petitioner was ordered to stop its operation until further orders and it was required to bring the following: (1) Building permit; (2) Mayor's permit; and (3) Region III-Department of Environment and Natural Resources Anti-Pollution permit. 3 3. This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels. 4 The alleged NBI finding that

some of the signatures in the four-page petition were written by one person, 5 appears to be true in some instances, (particularly as among members of the same family), but on the whole the many signatures appear to be written by different persons. The certification of the barrio captain of said barrio that he has not received any complaint on the matter 6 must be because the complaint was sent directly to the Governor through the Acting Mayor. 4. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic Guina who in her report of December 8, 1988 observed that the fumes emitted by the plant of petitioner goes directly to the surrounding houses and that no proper air pollution device has been installed. 7 5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati on March 6,1987. 8 6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988. 9 Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community. All these factors justify the dissolution of the writ of preliminary injunction by the trial court and the appellate court correctly upheld the action of the lower court. Tatel v. Municipality of Virac Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with the police powers in order to effectively accomplish and carry out the declared objects of their creation. 3 Its authority emanates from the general welfare clause under the Administrative Code, which reads: The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. 4 For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria.

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5.

Power of Eminent Domain; Reclassification of Land

Barangay Sindalan, San Fernando v. CA In general, eminent domain is defined as the power of the nation or a sovereign state to take, or to authorize the taking of, private property for a public use without the owners consent, conditioned upon payment of just compensation. [10] It is acknowledged as an inherent political right, founded on a common necessity and interest of appropriating the property of individual members of the community to the great necessities of the whole community.[11] The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III (Bill of Rights), Section 9 and (2) that no person shall be deprived of his/her life, liberty, or property without due process of law under Art. III, Sec. 1. However, there is no precise meaning of public use and the term is susceptible of myriad meanings depending on diverse situations. The limited meaning attached to public use is use by the public or public employment, that a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned.[12] The more generally accepted view sees public use as public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, [which] contributes to the general welfare and the prosperity of the whole community.[13] In this jurisdiction, public use is defined as whatever is beneficially employed for the community.[14] It is settled that the public nature of the prospective exercise of expropriation cannot depend on the numerical count of those to be served or the smallness or largeness of the community to be benefited.[15] The number of people is not determinative of whether or not it constitutes public use, provided the use is exercisable in common and is not limited to particular individuals.[16] Thus, the first essential requirement for a valid exercise of eminent domain is for the expropriator to prove that the expropriation is for a public use. In Municipality of Bian v. Garcia, this Court explicated that expropriation ends with an order of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation.[17] Another vital requisite for a valid condemnation is the payment of just compensation to the property owner. In the recent case of APO Fruits Corporation v. The Honorable Court of Appeals,[18] just compensation has been defined as the full and fair equivalent of the property taken from its owner by the expropriator, and that the gauge for computation is not the takers gain but the owners loss. In order for the payment to be just, it must be real, substantial, full, and ample. Not only must the payment be fair and correctly determined, but also, the Court in Estate of Salud Jimenez v. Philippine Export Processing Zonestressed that the payment should be made within a reasonable time from the taking of the property.[19] It succinctly explained that without prompt payment, compensation cannot be considered just inasmuch as the property owner is being made to suffer the consequences of being immediately deprived of the land while being made to wait for a

decade or more before actually receiving the amount necessary to cope with the loss. Thus, once just compensation is finally determined, the expropriator must immediately pay the amount to the lot owner. In Reyes v. National Housing Authority, it was ruled that 12% interest per annum shall be imposed on the final compensation until paid. [20] Thus, any further delay in the payment will result in the imposition of 12% interest per annum. However, in the recent case of Republic v. Lim, the Court enunciated the rule that where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property.[21] Since the individual stands to lose the property by compulsion of the law, the expropriation authority should not further prejudice the owners rights by delaying payment of just compensation. To obviate any possibility of delay in the payment, the expropriator should already make available, at the time of the filing of the expropriation complaint, the amount equal to the BIR zonal valuation or the fair market value of the property per tax declaration whichever is higher. The delayed payment of just compensation in numerous cases results from lack of funds or the time spent in the determination of the legality of the expropriation and/or the fair valuation of the property, and could result in dismay, disappointment, bitterness, and even rancor on the part of the lot owners. It is not uncommon for the expropriator to take possession of the condemned property upon deposit of a small amount equal to the assessed value of the land per tax declaration and then challenge the valuation fixed by the trial court resulting in an expropriate now, pay later situation. In the event the expropriating agency questions the reasonability of the compensation fixed by the trial court before the appellate court, then the latter may, upon motion, use its sound discretion to order the payment to the lot owner of the amount equal to the valuation of the property, as proposed by the condemnor during the proceedings before the commissioners under Sec. 6, Rule 67 of the Rules of Court, subject to the final valuation of the land. This way, the damage and prejudice to the property owner would be considerably pared down. On due process, it is likewise basic under the Constitution that the property owner must be afforded a reasonable opportunity to be heard on the issues of public use and just compensation and to present objections to and claims on them.[22] It is settled that taking of property for a private use or without just compensation is a deprivation of property without due process of law.[23] Moreover, it has to be emphasized that taking of private property without filing any complaint before a court of law under Rule 67 of the Rules of Court or existing laws is patently felonious, confiscatory, and unconstitutional. Judicial notice can be taken of some instances wherein some government agencies or corporations peremptorily took possession of private properties and usurped the owners real rights for their immediate use without first instituting the required court action. Running roughshod over the property rights of individuals is a clear and gross breach of the constitutional guarantee of due process, which should not be countenanced in a society where the rule of law holds sway. The intended expropriation of private property for the benefit of a private individual is clearly proscribed by the Constitution, declaring that it should be for public use or purpose. In Charles River Bridge v. Warren, the limitation on expropriation was underscored, hence: Although the sovereign power in free government may appropriate all property, public as well as private, for public purposes, making compensation therefore; yet it has never been understood, at least never in our republic, that the sovereign power can take the private property of A

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and give it to B by the right of eminent domain; or that it can take it at all, except for public purposes; or that it can take it for public purposes, without the duty and responsibility of ordering compensation for the sacrifice of the private property of one, for the good of the whole (11 Pet. at 642) (emphasis supplied).[28] US case law also points out that a member of the public cannot acquire a certain private easement by means of expropriation for being unconstitutional, because even if every member of the public should acquire the easement, it would remain a bundle of private easements.[29] Secondly, a compelling reason for the rejection of the expropriation is expressed in Section 29, PD 957, which provides: Sec. 29. Right of Way to Public Road.The owner or developer of a subdivision without access to any existing public road or street must secure a right of way to a public road or street and such right of way must be developed and maintained according to the requirement of the government authorities concerned. Considering that the residents who need a feeder road are all subdivision lot owners, it is the obligation of the Davsan II Subdivision owner to acquire a right-of-way for them. However, the failure of the subdivision owner to provide an access road does not shift the burden to petitioner. To deprive respondents of their property instead of compelling the subdivision owner to comply with his obligation under the law is an abuse of the power of eminent domain and is patently illegal. Without doubt, expropriation cannot be justified on the basis of an unlawful purpose. Thirdly, public funds can be used only for a public purpose. In this proposed condemnation, government funds would be employed for the benefit of a private individual without any legal mooring. In criminal law, this would constitute malversation. Didipio Earth-Savers Multi-Purpose Association v. Gozun Taking in Eminent Domain Distinguished from Regulation in Police Power The power of eminent domain is the inherent right of the state (and of those entities to which the power has been lawfully delegated) to condemn private property to public use upon payment of just compensation.17 On the other hand, police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property.18 Although both police power and the power of eminent domain have the general welfare for their object, and recent trends show a mingling 19 of the two with the latter being used as an implement of the former, there are still traditional distinctions between the two. Property condemned under police power is usually noxious or intended for a noxious purpose; hence, no compensation shall be paid.20 Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health, and prosperity of the state. Thus, an ordinance prohibiting theaters from selling tickets in excess of their seating capacity (which would result in the diminution of profits of the theater-owners) was upheld valid as this would promote the comfort, convenience and safety of the customers. 21 In U.S. v. Toribio,22 the court upheld the provisions of Act No. 1147, a statute regulating the slaughter of carabao

for the purpose of conserving an adequate supply of draft animals, as a valid exercise of police power, notwithstanding the property rights impairment that the ordinance imposed on cattle owners. A zoning ordinance prohibiting the operation of a lumber yard within certain areas was assailed as unconstitutional in that it was an invasion of the property rights of the lumber yard owners in People v. de Guzman.23 The Court nonetheless ruled that the regulation was a valid exercise of police power. A similar ruling was arrived at in Seng Kee S Co. v. Earnshaw and Piatt24 where an ordinance divided the City of Manila into industrial and residential areas. A thorough scrutiny of the extant jurisprudence leads to a cogent deduction that where a property interest is merely restricted because the continued use thereof would be injurious to public welfare, or where property is destroyed because its continued existence would be injurious to public interest, there is no compensable taking. 25 However, when a property interest is appropriated and applied to some public purpose, there is compensable taking.26 According to noted constitutionalist, Fr. Joaquin Bernas, SJ, in the exercise of its police power regulation, the state restricts the use of private property, but none of the property interests in the bundle of rights which constitute ownership is appropriated for use by or for the benefit of the public.27 Use of the property by the owner was limited, but no aspect of the property is used by or for the public.28 The deprivation of use can in fact be total and it will not constitute compensable taking if nobody else acquires use of the property or any interest therein.29 If, however, in the regulation of the use of the property, somebody else acquires the use or interest thereof, such restriction constitutes compensable taking. Thus, in City Government of Quezon City v. Ericta,30 it was argued by the local government that an ordinance requiring private cemeteries to reserve 6% of their total areas for the burial of paupers was a valid exercise of the police power under the general welfare clause. This court did not agree in the contention, ruling that property taken under the police power is sought to be destroyed and not, as in this case, to be devoted to a public use. It further declared that the ordinance in question was actually a taking of private property without just compensation of a certain area from a private cemetery to benefit paupers who are charges of the local government. Being an exercise of eminent domain without provision for the payment of just compensation, the same was rendered invalid as it violated the principles governing eminent domain. In People v. Fajardo,31 the municipal mayor refused Fajardo permission to build a house on his own land on the ground that the proposed structure would destroy the view or beauty of the public plaza. The ordinance relied upon by the mayor prohibited the construction of any building that would destroy the view of the plaza from the highway. The court ruled that the municipal ordinance under the guise of police power permanently divest owners of the beneficial use of their property for the benefit of the public; hence, considered as a taking under the power of eminent domain that could not be countenanced without payment of just compensation to the affected owners. In this case, what the municipality wanted was to impose an easement on the property in order to preserve the view or beauty of the public plaza, which was a form of utilization of Fajardos property for public benefit.32 While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement.33 In Ayala de Roxas v. City of Manila,34 it was held that the imposition of burden over a private property through easement was considered taking; hence, payment of just compensation is required. The Court declared: And, considering that the easement intended to be established, whatever may be the object thereof, is not merely a real right that will encumber the property, but is one tending to prevent the exclusive use of one portion of the same, by expropriating it for public use which, be it what it may, can not be accomplished unless the owner of the property condemned or seized be previously and duly indemnified, it is proper to protect the

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appellant by means of the remedy employed in such cases, as it is only adequate remedy when no other legal action can be resorted to, against an intent which is nothing short of an arbitrary restriction imposed by the city by virtue of the coercive power with which the same is invested. And in the case of National Power Corporation v. Gutierrez, 35 despite the NPCs protestation that the owners were not totally deprived of the use of the land and could still plant the same crops as long as they did not come into contact with the wires, the Court nevertheless held that the easement of right-of-way was a taking under the power of eminent domain. The Court said: In the case at bar, the easement of right-of-way is definitely a taking under the power of eminent domain. Considering the nature and effect of the installation of 230 KV MexicoLimay transmission lines, the limitation imposed by NPC against the use of the land for an indefinite period deprives private respondents of its ordinary use. A case exemplifying an instance of compensable taking which does not entail transfer of title is Republic v. Philippine Long Distance Telephone Co.36 Here, the Bureau of Telecommunications, a government instrumentality, had contracted with the PLDT for the interconnection between the Government Telephone System and that of the PLDT, so that the former could make use of the lines and facilities of the PLDT. In its desire to expand services to government offices, the Bureau of Telecommunications demanded to expand its use of the PLDT lines. Disagreement ensued on the terms of the contract for the use of the PLDT facilities. The Court ruminated: Normally, 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 said power may not be availed of to impose only a burden upon the owner of the condemned property, without loss of title and possession. It is unquestionable that real property may, through expropriation, be subjected to an easement right of way.37 In Republic v. Castellvi,38 this Court had the occasion to spell out the requisites of taking in eminent domain, to wit: (1) the expropriator must enter a private property; (2) the entry must be for more than a momentary period. (3) the entry must be under warrant or color of legal authority; (4) the property must be devoted to public use or otherwise informally appropriated or injuriously affected; (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. As shown by the foregoing jurisprudence, a regulation which substantially deprives the owner of his proprietary rights and restricts the beneficial use and enjoyment for public use amounts to compensable taking. In the case under consideration, the entry referred to in Section 76 and the easement rights under Section 75 of Rep. Act No. 7942 as well as the various rights to CAMC under its FTAA are no different from the deprivation of proprietary rights in the cases discussed which this Court considered as taking. Section 75 of the law in question reads: Easement Rights. - When mining areas are so situated that for purposes of more convenient mining operations it is necessary to build, construct or install on the mining areas or lands owned, occupied or leased by other persons, such infrastructure as roads, railroads, mills, waste dump sites, tailing ponds, warehouses, staging or storage areas and port facilities, tramways, runways, airports, electric transmission, telephone or telegraph lines, dams and their normal flood and catchment areas, sites for water wells, ditches, canals, new river beds, pipelines, flumes, cuts, shafts, tunnels, or mills, the contractor, upon payment of just compensation, shall be entitled to enter and occupy said mining areas or lands.

Masikip v. City of Pasig In the early case of US v. Toribio,[7] this Court defined the power of eminent domain as the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. It has also been described as the power of the State or its instrumentalities to take private property for public use and is inseparable from sovereignty and inherent in government.[8] The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof to local government units, other public entities and public utility corporations,[9] subject only to Constitutional limitations. Local governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute.[10] Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power of eminent domain to local government units and lays down the parameters for its exercise, thus: 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, 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 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 expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking.[11] In this case, petitioner contends that respondent City of Pasig failed to establish a genuine necessity which justifies the condemnation of her property. While she does not dispute the intended public purpose, nonetheless, she insists that there must be a genuine necessity for the proposed use and purposes. According to petitioner, there is already an established sports development and recreational activity center at Rainforest Park in Pasig City, fully operational and being utilized by its residents, including those from Barangay Caniogan. Respondent does not dispute this. Evidently, there is no genuine necessity to justify the expropriation. The right to take private property for public purposes necessarily originates from the necessity and the taking must be limited to such necessity. In City of Manila v. Chinese Community of Manila,[12] we held that the very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law College,[13] we ruled that necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as

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would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit. Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to expropriate petitioners property. Our scrutiny of the records shows that the Certification[14]issued by the Caniogan Barangay Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan. Iloilo City v. Legaspi Petitioner has the irrefutable right to exercise its power of eminent domain. It being a local government unit, the basis for its exercise is granted under Section 19 of Rep. Act No. 7160, to wit: 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. The requisites for authorizing immediate entry are as follows: (1) the filing of a complaint for expropriation sufficient in form and substance; and (2) the deposit of the amount equivalent to fifteen percent (15%) of the fair market value of the property to be expropriated based on its current tax declaration.[31 Upon compliance with these requirements, the issuance of a writ of possession becomes ministerial. In the case at bar, petitioner avers that the Amended Complaint it filed complies with both requisites, thus entitling it to a writ of possession as a matter of right and the issuance thereof becoming ministerial on the part of the lower court even without any hearing. On the other hand, private respondents allege that the Amended Complaint is not sufficient in form and substance since it failed to allege compliance with the mandatory requirements for the exercise of the power of eminent domain for purposes of socialized housing. Section 1 of Rule 67 of the Revised Rules of Civil Procedure reads: Section 1. The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part hereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint.

The Court finds the Amended Complaint sufficient in form and substance, and the amount of P2,809,696.50 deposited with the Regional Trial Court of Iloilo is equivalent to fifteen percent (15%)[33 of the fair market value of the property sought to be expropriated per current tax declaration. On the averment of private respondents that the Amended Complaint failed to allege compliance with the mandatory requirements[34 for the exercise of the power of eminent domain for purposes of socialized housing as interpreted in the Filstream cases, it appears that the Amended Complaint did contain allegations showing compliance therewith.[35 However, whether there is, indeed, compliance with these requirements, the Court deems it not proper to resolve the issue at this time. Hearing must be held to establish compliance. In City of Manila v. Serrano,[36 this Court ruled that hearing is still to be held to determine whether or not petitioner indeed complied with the requirements provided in Rep. Act No. 7279. x x x The determination of this question must await the hearing on the complaint for expropriation, particularly the hearing for the condemnation of the properties sought to be expropriated. From the foregoing, it is clear that an evidentiary hearing must be conducted if compliance with the requirements for socialized housing has been made. This hearing, however, is not a hearing to determine if a writ of possession is to be issued, but whether there was compliance with the requirements for socialized housing. For a writ of possession to issue, only two requirements are required: the sufficiency in form and substance of the complaint and the required provisional deposit. In fact, no hearing is required for the issuance of a writ of possession. The sufficiency in form and substance of the complaint for expropriation can be determined by the mere examination of the allegations of the complaint. In this case, the sufficiency of the Amended Complaint was further confirmed by public respondent when he set the case for pre-trial and hearing. We likewise find private respondents claim that petitioner cannot change its position regarding the immediate issuance of the writ of possession on the ground of estoppel, to be untenable. First, estoppel may be successfully invoked only if the party fails to raise the question in the early stages of the proceedings.[37 In the case before us, Petitioner, through its counsel, undeniably committed a mistake when it agreed that the resolution of its Motion for Issuance of Writ of Possession be made by public respondent after a hearing is conducted and after it has adduced its evidence. To remedy this, petitioner immediately filed a Motion for Reconsideration. The filing thereof was precisely for the purpose of rectifying the error it committed. With the timely filing of the motion for reconsideration, petitioner cannot be held in estoppel because it right away asked the court to nullify the agreement it entered into. The filing of the motion for reconsideration which was done at the earliest possible time clearly negates the presence of estoppel. Second, under the facts of the case, estoppel should not apply because petitioner is simply following the procedure laid down by the rules and jurisprudence. Under Section 19[38 of Rep. Act No. 7160 (law governing exercise of eminent domain by local government units [LGU]) and Section 2[39 of Rule 67 of the Revised Rules of Civil Procedure (law governing exercise of eminent domain by entities other than LGUs), and in the cases of Robern Development Corporation v. Quitain, et al., and Biglang-awa v. Bacalla, et al., a prior hearing is not required before a writ of possession can be issued. As above discussed, a complaint, sufficient in form and substance, and the required deposit, are the only requirements before a writ of possession can be issued. Thus, petitioner should not be prevented from changing and correcting its position when the same is in accord with the rules and jurisprudence. Private respondents argue that petitioner waived its right to ask for the immediate possession of Lot No. 935 since it took the latter eight (8) months and twelve (12) days from the filing of the Amended Complaint, and nine (9) months and thirteen (13) days from the filing of the Original Complaint, before it filed the Motion for Issuance of Writ of Possession.

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Petitioner did not waive its right. Section 19 of Rep. Act No. 7160 does not put a time limit as to when a local government may immediately take possession of the real property. Said section provides that the local government unit may take immediate possession of the property upon the filing of the expropriation proceedings and upon making a deposit of at least fifteen percent (15%) of the fair market value of the property based on its current tax declaration. As long as the expropriation proceedings have been commenced and the deposit has been made, the local government unit cannot be barred from praying for the issuance of a writ of possession. Lagcao v. Labra However, while we recognize that housing is one of the most serious social problems of the country, local government units do not possess unbridled authority to exercise their power of eminent domain in seeking solutions to this problem. There are two legal provisions which limit the exercise of this power: (1) 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;[12] and (2) private property shall not be taken for public use without just compensation. [13] Thus, the exercise by local government units of the power of eminent domain is not absolute. In fact, Section 19 of RA 7160 itself explicitly states that such exercise must comply with the provisions of the Constitution and pertinent laws. The exercise of the power of eminent domain drastically affects a landowners right to private property, which is as much a constitutionally-protected right necessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and liberty.[14] Whether directly exercised by the State or by its authorized agents, the exercise of eminent domain is necessarily in derogation of private rights. [15] For this reason, the need for a painstaking scrutiny cannot be overemphasized. The due process clause cannot be trampled upon each time an ordinance orders the expropriation of a private individuals property. The courts cannot even adopt a handsoff policy simply because public use or public purpose is invoked by an ordinance, or just compensation has been fixed and determined. In De Knecht vs. Bautista,[16] we said: It is obvious then that a land-owner is covered by the mantle of protection due process affords. It is a mandate of reason. It frowns on arbitrariness, it is the antithesis of any governmental act that smacks of whim or caprice. It negates state power to act in an oppressive manner. It is, as had been stressed so often, the embodiment of the sporting idea of fair play. In that sense, it stands as a guaranty of justice. That is the standard that must be met by any governmental agency in the exercise of whatever competence is entrusted to it. As was so emphatically stressed by the present Chief Justice, Acts of Congress, as well as those of the Executive, can deny due process only under pain of nullity. xxx. The foundation of the right to exercise eminent domain is genuine necessity and that necessity must be of public character. [17] Government may not capriciously or arbitrarily choose which private property should be expropriated. In this case, there was no showing at all why petitioners property was singled out for expropriation by the city ordinance or what necessity impelled the particular choice or selection. Ordinance No. 1843 stated no reason for the choice of petitioners property as the site of a socialized housing project.

Condemnation of private lands in an irrational or piecemeal fashion or the random expropriation of small lots to accommodate no more than a few tenants or squatters is certainly not the condemnation for public use contemplated by the Constitution. This is depriving a citizen of his property for the convenience of a few without perceptible benefit to the public.[18] RA 7279 is the law that governs the local expropriation of property for purposes of urban land reform and housing. Sections 9 and 10 thereof provide: SEC 9. Priorities in the Acquisition of Land. Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries; Alienable lands of the public domain; Unregistered or abandoned and idle lands; (d) Those within the declared Areas or Priority Development, Zonal Improvement Program sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; Bagong Lipunan Improvement of Sites and Services or BLISS which have not yet been acquired; and Privately-owned lands.

(b) (c)

(e) (f)

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of government lands. (Emphasis supplied). SEC. 10. Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: xxx. (Emphasis supplied). In the recent case of Estate or Heirs of the Late Ex-Justice Jose B.L. Reyes et al. vs. City of Manila,[19] we ruled that the above-quoted provisions are strict limitations on the exercise of the power of eminent domain by local government units, especially with respect to (1) the order of priority in acquiring land for socialized housing and (2) the resort to expropriation proceedings as a means to acquiring it. Private lands rank last in the order of priority for purposes of socialized housing. In the same vein, expropriation proceedings may be resorted to only after the other modes of acquisition are exhausted.

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Compliance with these conditions is mandatory because these are the only safeguards of oftentimes helpless owners of private property against what may be a tyrannical violation of due process when their property is forcibly taken from them allegedly for public use. We have found nothing in the records indicating that the City of Cebu complied strictly with Sections 9 and 10 of RA 7279. Ordinance No. 1843 sought to expropriate petitioners property without any attempt to first acquire the lands listed in (a) to (e) of Section 9 of RA 7279. Likewise, Cebu City failed to establish that the other modes of acquisition in Section 10 of RA 7279 were first exhausted. Moreover, prior to the passage of Ordinance No. 1843, there was no evidence of a valid and definite offer to buy petitioners property as required by Section 19 of RA 7160.[20] We therefore find Ordinance No. 1843 to be constitutionally infirm for being violative of the petitioners right to due process. It should also be noted that, as early as 1998, petitioners had already obtained a favorable judgment of eviction against the illegal occupants of their property. The judgment in this ejectment case had, in fact, already attained finality, with a writ of execution and an order of demolition. But Mayor Garcia requested the trial court to suspend the demolition on the pretext that the City was still searching for a relocation site for the squatters. However, instead of looking for a relocation site during the suspension period, the city council suddenly enacted Ordinance No. 1843 for the expropriation of petitioners lot. It was trickery and bad faith, pure and simple. The unconscionable manner in which the questioned ordinance was passed clearly indicated that respondent City transgressed the Constitution, RA 7160 and RA 7279. For an ordinance to be valid, it must not only be within the corporate powers of the city or municipality to enact but must also be passed according to the procedure prescribed by law. It must be in accordance with certain well-established basic principles of a substantive nature. These principles require that an ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable.[21] Ordinance No. 1843 failed to comply with the foregoing substantive requirements. A clear case of constitutional infirmity having been thus established, this Court is constrained to nullify the subject ordinance. We recapitulate: first, as earlier discussed, the questioned ordinance is repugnant to the pertinent provisions of the Constitution, RA 7279 and RA 7160; second, the precipitate manner in which it was enacted was plain oppression masquerading as a pro-poor ordinance; third, the fact that petitioners small property was singled out for expropriation for the purpose of awarding it to no more than a few squatters indicated manifest partiality against petitioners, and fourth, the ordinance failed to show that there was a reasonable relation between the end sought and the means adopted. While the objective of the City of Cebu was to provide adequate housing to slum dwellers, the means it employed in pursuit of such objective fell short of what was legal, sensible and called for by the circumstances.

Jesus is Lord Christian School Foundation v. Pasig Eminent Domain: Nature and Scope The right of eminent domain is usually understood to be an ultimate right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose. The nature and scope of such power has been comprehensively described as follows: It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare. Thus, the right of eminent domain appertains to every independent government without the necessity for constitutional recognition. The provisions found in modern constitutions of civilized countries relating to the taking of property for the public use do not by implication grant the power to the government, but limit the power which would, otherwise, be without limit. Thus, our own Constitution provides that [p]rivate property shall not be taken for public use without just compensation. Furthermore, the due process and equal protection clauses act as additional safeguards against the arbitrary exercise of this governmental power.[41] Strict Construction and Burden of Proof 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.[42] It is one of the harshest proceedings known to the law. Consequently, when the sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting the power.[43] The authority to condemn is to be strictly construed in favor of the owner and against the condemnor.[44] When the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained.[45] Corollarily, the respondent, which is the condemnor, has the burden of proving all the essentials necessary to show the right of condemnation.[46] It has the burden of proof to establish that it has complied with all the requirements provided by law for the valid exercise of the power of eminent domain. The grant of the power of eminent domain to local government units is grounded on Section 19 of R.A. No. 7160 which reads: 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. The Court declared that the following requisites for the valid exercise of the power of eminent domain by a local government unit must be complied with: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, 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.

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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.[47] Valid and Definite Offer Article 35 of the Rules and Regulations Implementing the Local Government Code provides: ARTICLE 35. Offer to Buy and Contract of Sale. (a) The offer to buy private property for public use or purpose shall be in writing. It shall specify the property sought to be acquired, the reasons for its acquisition, and the price offered. (b) If the owner or owners accept the offer in its entirety, a contract of sale shall be executed and payment forthwith made. (c) If the owner or owners are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The chairman of the appropriation or finance committee of the sanggunian, or in his absence, any member of the sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed. (d) The contract of sale shall be supported by the following documents: (1) Resolution of the sanggunian authorizing the local chief executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract; (2) Ordinance appropriating the amount specified in the contract; and (3) Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disbursed or spent for any purpose other than to pay for the purchase of the property involved. The respondent was burdened to prove the mandatory requirement of a valid and definite offer to the owner of the property before filing its complaint and the rejection thereof by the latter.[48] It is incumbent upon the condemnor to exhaust all reasonable efforts to obtain the land it desires by agreement.[49] Failure to prove compliance with the mandatory requirement will result in the dismissal of the complaint.[50] An offer is a unilateral proposition which one party makes to the other for the celebration of a contract.[51] It creates a power of acceptance permitting the offeree, by accepting the offer, to transform the offerors promise into a contractual obligation.[52] Corollarily, the offer must be complete, indicating with sufficient clearness the kind of contract intended and definitely stating the essential conditions of the proposed contract.[53] An offer would require, among other things, a clear certainty on both the object and the cause or consideration of the envisioned contract.[54] The purpose of the requirement of a valid and definite offer to be first made to the owner is to encourage settlements and voluntary acquisition of property needed for public purposes in order to avoid the expense and delay of a court action.[55] The law is designed to give to the owner the opportunity to sell his land without the expense and inconvenience of a protracted and expensive litigation. This is a substantial right which should be protected in every instance.[56] It encourages acquisition without litigation and spares not only the landowner but also the condemnor, the expenses and delays of litigation. It permits the landowner to receive full compensation, and the entity acquiring the property, immediate use and enjoyment of the property. A reasonable offer in good faith, not merely perfunctory or pro forma offer, to acquire the property for a reasonable price must be made to the owner or his privy. [57] A singlebona fide offer that is rejected by the owner will suffice. The expropriating authority is burdened to make known its definite and valid offer to all the owners of the property. However, it has a right to rely on what appears in the certificate of title covering the land to be expropriated. Hence, it is required to make its offer only to the registered owners of the property. After all, it is well-settled that persons dealing with property covered by a Torrens certificate of title are not required to go beyond what appears on its face.

Bardillon v. Masili Jurisdiction Over Expropriation Petitioner claims that, since the value of the land is only P11,448, the MTC had jurisdiction over the case.[9] On the other hand, the appellate court held that the assessed value of the property was P28,960.[10] Thus, the MTC did not have jurisdiction over the expropriation proceedings, because the amount involved was beyond theP20,000 jurisdictional amount cognizable by MTCs. An expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use.[11] As such, it is incapable of pecuniary estimation and should be filed with the regional trial courts.[12] This was explained by the Court in Barangay San Roque v. Heirs of Francisco Pastor:[13] It should be stressed that the primary consideration in an expropriation suit is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the observance of due process. In the main, the subject of an expropriation suit is the governments exercise of eminent domain, a matter that is incapable of pecuniary estimation. True, the value of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to determine the just compensation for it. This, however, is merely incidental to the expropriation suit. Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation. Verily, the Court held in Republic of the Philippines v. Zurbano that condemnation proceedings are within the jurisdiction of Courts of First Instance, the forerunners of the regional trial courts. The said case was decided during the effectivity of the Judiciary Act of 1948 which, like BP 129 in respect to RTCs, provided that courts of first instance had original jurisdiction over all civil actions in which the subject of the litigation is not capable of pecuniary estimation. The 1997 amendments to the Rules of Court were not intended to change these jurisprudential precedents.[14] To reiterate, an expropriation suit is within the jurisdiction of the RTC regardless of the value of the land, because the subject of the action is the governments exercise of eminent domain -- a matter that is incapable of pecuniary estimation.

Saguitan v. Mandaluyong City Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare.[14] It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare.[15] Thus, the right of eminent domain appertains to every independent government without the necessity for constitutional recognition. [16] The provisions found in modern constitutions of civilized countries relating to the taking of property for the public use do not by implication grant the power to the government, but limit a power which would otherwise be without limit.[17] Thus, our own Constitution provides that "[p]rivate property shall not be taken for public use without just compensation."[18] Furthermore, the due process and equal protection clauses[19] act as additional safeguards against the arbitrary exercise of this governmental power. Since the exercise of the power of eminent domain affects an individual's right to private property, a constitutionally-protected right necessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and

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liberty,[20] the need for its circumspect operation cannot be overemphasized. In City of Manila vs. Chinese Community of Manila we said:[21] 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 the 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 doubt[ful] interpretation. (Bensley 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 governmental 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. ...(Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.) The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that such power may be validly delegated to local government units, other public entities and public utilities, although the scope of this delegated legislative power is necessarily narrower than that of the delegating authority and may only be exercised in strict compliance with the terms of the delegating law.[22] micks The basis for the exercise of the power of eminent domain by local government units is section 19 of RA 7160 which provides that: A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, purpose, or welfare for the benefits 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. Despite the existence of this legislative grant in favor of local governments, it is still the duty of the courts to determine whether the power of eminent domain is being exercised in accordance with the delegating law.[23] In fact, the courts have adopted a more censorious attitude in resolving questions involving the proper exercise of this delegated power by local bodies, as compared to instances when it is directly exercised by the national legislature.[24] The courts have the obligation to determine whether the following requisites have been complied with by the local government unit concerned: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to

exercise the power of eminent domain or pursue expropriation proceedings over a particular private property .calr 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.[25] In the present case, the City of Mandaluyong seeks to exercise the power of eminent domain over petitioners' property by means of a resolution, in contravention of the first requisite. The law in this case is clear and free from ambiguity. Section 19 of the Code requires an ordinance, not a resolution, for the exercise of the power of eminent domain. We reiterate our ruling in Municipality of Paraaque v. V.M. Realty Corporation[26] regarding the distinction between an ordinance and a resolution. In that 1998 case we held that:miso 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 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. We cannot uphold respondent's contention that an ordinance is needed only to appropriate funds after the court has determined the amount of just compensation. An examination of the applicable law will show that an ordinance is necessary to authorize the filing of a complaint with the proper court since, beginning at this point, the power of eminent domain is already being exercised. Rule 67 of the 1997 Revised Rules of Court reveals that expropriation proceedings are comprised of two stages: (1) the first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit; it ends with an order, if not in a dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint; (2) the second phase is concerned with the determination by the court of the just compensation for the property sought to be taken; this is done by the court with the assistance of not more than three (3) commissioners.[27] Clearly, although the determination and award of just compensation to the defendant is indispensable to the transfer of ownership in favor of the plaintiff, it is but the last stage of the expropriation proceedings, which cannot be arrived at without an initial finding by the court that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint. An order of condemnation or dismissal at this stage would be final, resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. Also, it is noted that as soon as the complaint is filed the plaintiff shall already have the right to enter upon the possession of the real property involved upon depositing with the court 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.[28] Therefore, an ordinance

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promulgated by the local legislative body authorizing its local chief executive to exercise the power of eminent domain is necessary prior to the filing by the latter of the complaint with the proper court, and not only after the court has determined the amount of just compensation to which the defendant is entitled.basra Neither is respondent's position improved by its reliance upon Article 36 (a), Rule VI of the IRR which provides that: If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, LGU may expropriate said property through a resolution of the sanggunian authorizing its chief executive to initiate expropriation proceedings. The Court has already discussed this inconsistency between the Code and the IRR, which is more apparent than real, in Municipality of Paraaque vs. V.M. Realty Corporation,[29] which we quote hereunder: 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 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 must act pursuant to an ordinance. Therefore, while we remain conscious of the constitutional policy of promoting local autonomy, we cannot grant judicial sanction to a local government unit's exercise of its delegated power of eminent domain in contravention of the very law giving it such power. Moday v. CA Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty.[14] It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose.[15] Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities.[16] For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation.[17] The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly provided for in Batas Pambansa Blg. 337, the Local Government Code[18] in force at the time expropriation proceedings were initiated. Section 9 of said law states: "Section 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." What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang Panlalawigan disapproved Resolution No. 43-89. Section 153 of B.P. Blg. 337 provides: "Sec. 153. Sangguniang Panlalawigan Review. (1) Within thirty days after receiving copies of approved ordinances, resolutions and executive orders promulgated by the municipal mayor, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial fiscal, who shall examine them promptly and inform the sangguniang panlalawigan in writing of any defect or impropriety which he may discover therein and make such comments or recommendations as shall appear to him proper.

(2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such ordinance, resolution or executive order invalid in whole or in part, entering its actions upon the minutes and advising the proper municipal authorities thereof. The effect of such an action shall be to annul the ordinance, resolution or executive order in question in whole or in part. The action of the sangguniang panlalawigan shall be final. xxx xxx xxx." (Emphasis supplied.) The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not render said resolution null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual milieu then obtaining, the Court's pronouncements in Velazco v. Blas,[19] where we cited significant early jurisprudence, are applicable to the case at bar. "The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is 'beyond the powers conferred upon the council or president making the same.' Absolutely no other ground is recognized by the law. A strictly legal question is before the provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative functions of the municipal council or president. Such has been the consistent course of executive authority."[20] Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property. As regards the accusation of political oppression, it is alleged that Percival Moday incurred the ire of then Mayor Anuncio C. Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch plan.[21] The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process of law must be observed. [22] The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking[23], has ruled that the necessity of exercising eminent domain must be genuine and of a public character.[24] Government may not capriciously choose what private property should be taken.

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6.

Local Legislative Power (re: Municipality)

Ferrer, Jr. v. Roco, Jr Declaratory relief is defined as an action by any person interested in a deed, will, contract or other written instrument, executive order or resolution, to determine any question of construction or validity arising from the instrument, executive order or regulation, or statute, and for a declaration of his rights and duties thereunder. The only issue that may be raised in such a petition is the question of construction or validity of the provisions in an instrument or statute. It is settled that the requisites of an action for declaratory relief are: 1] the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; 2] the terms of said documents and the validity thereof are doubtful and require judicial construction; 3] there must have been no breach of the documents in question; 4] there must be an actual justiciable controversy or the ripening seeds of one between persons whose interests are adverse; 5] the issue must be ripe for judicial determination; and 6] adequate relief is not available through other means or other forms of action or proceeding.[19] [emphasis supplied]

In this case, the issue raised by petitioners is clearly not yet ripe for judicial determination. Nowhere in the assailed resolutions and ordinance does it show that the public respondents acted on private respondents application with finality. What appears therefrom is that the application of private respondent for development permit has been endorsed to the Housing and Land Use Regulatory Board (HLURB) for appropriate action, the latter being the sole regulatory body for housing and land development. Under the doctrine of primary administrative jurisdiction, courts cannot or will not determine a controversy where the issues for resolution demand the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact. In other words, if a case is such that its determination requires the expertise, specialized training and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the courts is had even if the matter may well be within their proper jurisdiction Paranaque v. VM Realty Corporation 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.[24] (Italics supplied.)

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.[25] An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latters control and restraints, imposed through the law conferring the power or in other legislations.[26] In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. It provides as follows: Section 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[28] to show that a resolution may suffice to support the exercise of eminent domain by an LGU. [29] This case, however, is not in point because the applicable law at that time was BP 337, [30] the previous Local Government Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160,[31] the 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 petitioners 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. [32] An ordinance possesses a general and permanent character, but a 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

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applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice.[34] In the instant case, there is no reason 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. [35] Accordingly, the manifest change in the legislative language -- 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.[37] It is axiomatic that the clear letter of the law is controlling and cannot 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 must 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.[38]Indeed, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it Montuerto v. Ty The law is clear. Under Section 443(a) and (d) of Republic Act (R.A.) No. 71605 or the Local Government Code, the head of a department or office in the municipal government, such as the Municipal Budget Officer, shall be appointed by the mayor with the concurrence of the majority of all Sangguniang Bayan members6 subject to civil service law, rules and regulations. Per records, the appointment of petitioner was never submitted to the Sangguniang Bayan for its concurrence or, even if so submitted, no such concurrence was obtained. Such factual finding of quasi-judicial agencies, especially if adopted and affirmed by the CA, is deemed final and conclusive and may not be reviewed on appeal by this Court. This Court is not a trier of facts and generally, does not weigh anew evidence already passed upon by the CA. Absent a showing that this case falls under any of the exceptions to this general rule, this Court will refrain from disturbing the findings of fact of the tribunals below. Moreover, we agree with the ruling of the CA that the verbal concurrence allegedly given by the Sanggunian, as postulated by the petitioner, is not the concurrence required and envisioned under R.A. No. 7160. The Sanggunian, as a body, acts through a resolution or an ordinance. Absent such resolution of concurrence, the appointment of petitioner failed to comply with the mandatory requirement of Section 443(a) and (d) of R.A. No. 7160. Without a valid appointment, petitioner acquired no legal title to the Office of Municipal Budget Officer, even if she had served as such for ten years. Accordingly, the CSC has the authority to recall the appointment of the petitioner

Ocampo v. People Petitioner Ocampo also asserts that Sec. 203(f) of the Local Government Code of 1983,[26] which authorized the provincial governor to enter into business transactions on behalf of the province, did not expressly require the concurrence of the provincial board unlike its counterpart provision in the Local Government Code of 1991.[27]Further, petitioner Ocampo states that in any case, the lack of authority of one who enters into a contract in the name of another does not render the contract void under Art. 1409 of the Civil Code,[28] as ruled by the Sandiganbayan, but only unenforceable under Art. 1403(1) of the Civil Code. He points out that unenforceable contracts are susceptible of ratification, and in this case, the Provincial Board of Tarlac can be deemed to have ratified the MOA when it passed the following resolutions:Resolution No. 76, which confirmed and ratified the TMOA among the Province of Tarlac, LTFI and the BUILD, wherebythe liability of LTFI in favor of the Province of Tarlac in the total amount of P40 million was transferred to and assumed byBUILD;[29] and (1) (2) Resolution No. 199, whichauthorized petitioner Ocampo to sign the Deed of Assignment between the Province of Tarlac and LTFI, whereby LTFI assignedloans, sewing machines and other assignable documents in favor of the Province of Tarlac to settle the balance of its obligationin the amount of P16,618,403.00. [30]

The Court holds that since petitioner Ocampo was not duly authorized by theSangguniang Panlalawigan to enter into the MOA, the agreement is an unenforceable contract under Sec. 1403 of the Civil Code: Art. 403. The following contracts are unenforceable, unless they are ratified:(1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; x x x. Unenforceable contracts are governed by the following provisions of the Civil Code: Art. 1404. Unauthorized contracts are governed by article 1317and the principles of agency in Title X of this Book.Art. 1317. No one may contract in the name of another without being authorized by the latter, or unless he has by law or right to represent him.A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party.[31] The Court finds that the MOA has been impliedly ratified by the Sangguniang Panlalawigan as it has not directly impugned the validity of the MOA despite knowledge of this controversy. Implied ratification is also shown by the following acts: 1) The Sangguniang Panlalawigan subsequently recognized the transfer of liabilities of LTFI in favor of the Province of Tarlac to BUILD in the amount of P40 million contained in a TMOA.[32] It authorized petitioner Ocampo to sign in behalf of the Province of Tarlac the Deed of Assignment entered into by the Province of Tarlac and LTFI[33] which extinguished the remaining loan obligations of LTFI obtained under the MOA.

2)

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City of Caloocan v. Court of Appeals Sec. 455 of the Local Government Code provides, among others, the powers and duties of a city mayor, thus: Sec. 455. Chief Executive: Powers, Duties and Compensation.- (a) The city mayor, as the chief executive of the city government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective, and economical governance the purpose of which is the general welfare of the city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall: (1) x x x; (3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agroindustrial development and countryside growth and progress and, relative thereto shall: xxx (ix) Institute or cause to be instituted administrative or judicial proceedings for violation of ordinances in the collection of taxes, fees or charges, and for the recovery of funds and property; and cause the city to be defended against all suits to ensure that its interests, resources and rights shall be adequately protected. x x x. (emphasis supplied) Meanwhile, Section 9 of the Charter of the City of Caloocan provides: Section 9. General powers and duties of the Mayor. - The Mayor shall have immediate control over the executive and administrative functions of the different departments of the city, subject to the supervision of the President of the Philippines. He shall have the following general powers and duties: xxx (d) To cause to be instituted judicial proceedings to recover property and funds of the city wherever found, to cause to be defended all suits against the city, and otherwise to protect the interests of the city; x x x.23 From the foregoing, it is clear that the mayor has the authority to file suits "for the recovery of funds and property" on behalf of the city, even without the prior authorization from the Sanggunian. This conclusion is strengthened by the fact that nowhere in the enumerated powers and duties of the Sanggunian24 can one find the requirement of such prior authorization in favor of the mayor for the purpose of filing suits on behalf of the city. Civil Case No. C-18308 was filed by Malonzo to enjoin the registration of what he deemed to be an anomalous deed of sale, while Civil Case No. C-18337 was instituted to annul the Deed of Absolute Sale and to cancel the title issued to Gotesco. Obviously, these suits were filed, initially to preserve, and subsequently to recover, the property subject of the said suits, to protect the interests of the City of Caloocan over the said parcel of land. Thus, it can be said that the institution of Civil Cases Nos. C-18308 and C-18337 was made within the bounds of Malonzos authority as the city mayor. Dolar v. Barangay Lublub According to petitioner, the subject donation is, by force of Article 745 [15] of the Civil Code, void, the accepting barangay captain being without sufficient authority for the purpose. On this point, petitioner cites Section 88 of Batas Pambansa Blg. 337[16] - the law then in force - and Sections 91 and 389 the Local Government Code of 1991[17]. In gist, these provisions empower the punong barangay to enter into contracts for the barangay upon

authorization of the Sangguniang Barangay, or, in the alternative, the Sanggunian may authorize the barangay head to enter into contracts for the barangay. Excepting, however, respondent barangay alleged that then barangay captain Jose Militar accepted the donation in the same Deed of Donation per authority granted by the barangay council.[18] The question then of whether Militar was clothed with authority to accept the donation for respondent barangay stands as disputed. Since the present recourse is interposed on pure questions of law, we need not resolve the factual issue regarding Militars authority, or lack of it, to accept the donation in behalf of respondent barangay. It should be pointed out, nevertheless, that petitioner is hardly the proper party to challenge the validity of the donation which is presumed to be valid - on the ground he presently invokes. The honor to question Militars ultra vires act, if this be the case, belongs to the Sanggunian of Barangay P.D. Monfort North. And more to the point, even assuming ex gratia argumenti petitioners legal standing to raise such a question, the final answer would still lean towards the validity of the donation. For, from the allegations of all the parties, it would appear that, through the years, theSanggunian of Lublub as well as all the succeeding Sangunians of P.D. Monfort North neither repudiated the acceptance of the donation by Militar nor acted in a manner reflective of their opposition to the donation. On the contrary, the respondent barangay has been enjoying the material and public-service benefits arising from the infrastructures projects put up on the subject property. In a very real sense, therefore, the Sangguniang Barangay and the good people of P.D. Monfort North, by availing themselves of such benefits for more than two decades now, effectively ratified Militars acceptance of the donation. This brings us to the question of the efficaciousness of the donation. Petitioner asserts that the 1981 and 1989 deeds of donation, pursuant to the uniform automatic rescission/reversion clauses therein, ceased to be effective upon respondents failure to meet the conditions for which it was charged to fulfill. To petitioner, the automatic rescission/reversion clause works, in appropriate instances, to revoke the donation and revert the ownership of the donated property to the donor without the need of judicial intervention. In support of this argument, petitioner cites De Luna vs. Abrigo[19] wherein this Court put to rest any lingering doubt as to the validity of a stipulation providing for the automatic reversion of the donated property to the donor upon non-compliance by the donee of the conditions or charges incumbent upon him. Cited likewise is the subsequent complementary holding in Roman Catholic Archbishop of Manila vs. Court of Appeals[20], thus: Although it is true that under Article 764 of the Civil Code an action for the revocation of a donation must be brought within four (4) years from the non-compliance of the conditions of the donation, the same is not applicable in the case at bar. The deed of donation involved herein expressly provides for automatic reversion of the property donated in case of violation of the condition therein, hence a judicial declaration revoking the same is not necessary.

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Zamora v. Caballero The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53(a) of the LGC which provides: Section 53. Quorum.(a) A majority of all members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results. (Emphasis supplied) Quorum is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act.[44] Majority, when required to constitute a quorum, means the number greater than half or more than half of any total. [45] In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that majority of each House shall constitute a quorum, Section 53 of the LGC is more exacting as it requires that the majority of allmembers of the sanggunian . . . elected and qualified shall constitute a quorum. The difference in the wordings of the Constitution and the LGC is not merely a matter of style and writing as respondents would argue, but is actually a matter of meaning and intention.[46] The qualification in the LGC that the majority be based on those elected and qualified was meant to allow sanggunians to function even when not all members thereof have been proclaimed. [47] And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave. What should be important then is the concurrence of election to and qualification for the office. And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence. The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of sanggunian members present when there is no quorum.[48] A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts done during an unauthorized session. Board Member Sotto is then deemed not resigned because there was no quorum when her letter of irrevocable resignation was noted by the Sanggunian. For the same reason, Resolution Nos. 05 and 07 are of no legal effect. Even assuming arguendo that there were indeed thirteen members present during the questioned February 26, 2001 session, Resolution No. 05 declaring the entire province of Compostela Valley under state of calamity is still null and void because the motion for its approval was approved by only six members.[49] When there are thirteen members present at a session, the vote of only six members can not, at any instance, be deemed to be in compliance with Section 107(g)[50] of the Rules and Regulations Implementing the LGC

which requires the concurrence of the approval by the majority of the members present and the existence of a quorum in order to validly enact a resolution. The motion to grant the Governor authority to enter into the construction contract is also deemed not approved in accordance with the law even if it received seven affirmative votes, which is already the majority of thirteen, due to the defect in the seventh vote. For as priorly stated, as the Journal confirms, after all six members voted in the affirmative, Board Member Osorio, as acting presiding officer, relinquished his seat to Board Member Arafol and thereafter cast his vote as a member in favor of granting authority to the Governor.[51] This Court is faced with an act clearly intended to circumvent an express prohibition under the law a situation that will not be condoned. [52] The LGC clearly limits the power of presiding officers to vote only in case of a tie, to wit: Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan x x x. The presiding officer shall vote only to break a tie. (b) In the event of inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. x x x (Italics in the original. Emphasis supplied.) While acting as presiding officer, Board Member Osorio may not, at the same time, be allowed to exercise the rights of a regular board member including that of voting even when there is no tie to break. A temporary presiding officer who merely steps into the shoes of the presiding officer could not have greater power than that possessed by the latter[53] who can vote only in case of a tie. Lastly, for a resolution authorizing the governor to enter into a construction contract to be valid, the vote of the majority of all members of the Sanggunian, and not only of those present during the session, is required in accordance with Section 468 [54] of the LGC in relation to Article 107[55] of its Implementing Rules. Even including the vote of Board Member Osorio, who was then the Acting Presiding Officer, Resolution No. 07 is still invalid. Applying Section 468 of the LGC and Article 107 of its Implementing Rules, there being fourteen members in the Sanggunian, the approval of eight members is required to authorize the governor to enter into the Contract with the Allado Company since it involves the creation of liability for payment on the part of the local government unit. Caloocan City v. Allarde n the instant case, the City Council of Caloocan already approved and passed Ordinance No. 0134, Series of 1992, allocating the amount of P439,377.14 for respondent Santiagos back salaries plus interest. Thus this case fell squarely within the exception. For all intents and purposes, Ordinance No. 0134, Series of 1992, was the corresponding appropriation as required by law. The sum indicated in the ordinance for Santiago were deemed automatically segregated from the other budgetary allocations of the City of Caloocan and earmarked solely for the Citys monetary obligation to her. The judgment of the trial court could then be validly enforced against such funds. Indeed, this conclusion is further buttressed by the Certification issued on December 23, 1992 by Norberto C. Azarcon, City Treasurer of Caloocan: CERTIFICATION This is to certify that according to the records available in this Office the claim for backwages of the HON. JUDGE DELFINA H. SANTIAGOhas been properly obligated and can be collected in accordance with existing accounting and auditing rules and regulations.

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This is to certify further that in case the claim is not collected within the present fiscal year, such claim shall be entered in the books of Accounts Payable and can still be collected in the next fiscal year x x x x (Underscoring supplied) Petitioners reliance on Municipality of Makati vs. Court of Appeals, et al.,[15 and Commissioner of Public Highways vs. San Diego,[16 does not help their cause.[17 Both cases implicitly affirmed that public funds may be garnished if there is a statute which appropriated the amount so garnished. Thus, in Municipality of Makati, citing San Diego, we unequivocally held that: In this jurisdiction, well-settled is the rule that public funds are not subject to levy and execution, unless otherwise provided by statute x x x x Similarly, we cannot agree with petitioners argument that the appropriation ordinance of the City Council did not authorize PNB to release the funds because only the City Mayor could authorize the release thereof. A valid appropriation of public funds lifts its exemption from execution. Here, the appropriation passed by the City Council of Caloocan providing for the payment of backwages to respondent was duly approved and signed by both the council and then Mayor Macario Asistio, Jr. The mayors signature approving the budget ordinance was his assent to the appropriation of funds for respondent Santiagos backwages. If he did not agree with such allocation, he could have vetoed the item pursuant to Section 55 of the Local Government Code.18 There was no such veto. In view of the foregoing discourse, we dismiss petitioners unfounded assertion, probably made more out of sheer ignorance of prevailing jurisprudence than a deliberate attempt to mislead us, that the rule that public funds (are) beyond the reach of levy and garnishment is not qualified by any condition.[19 We now come to the issue of the legality of the levy on the three motor vehicles belonging to the City of Caloocan which petitioners claimed to be exempt from execution, and which levy was based on an alias writ that had purportedly expired. Suffice it to say that Judge Allarde, in his Order dated November 10, 1992,[20 already lifted the levy on the three vehicles, thereby formally discharging them from the jurisdiction of the court and turning them over to the City Government of Caloocan: x x x x the levy of the three (3) vehicles made by Sheriff Alberto Castillo pursuant to the Orders of this Court dated October 1 and 8, 1992 is hereby lifted and the said Sheriff is hereby ordered to return the same to the City Government in view of the satisfaction of the decision in these cases x x x x It is thus unnecessary for us to discuss a moot issue. We turn to the third issue raised by petitioners that the auction sale by Sheriff Alberto A. Castillo of the motor vehicle with plate no. SBH-165 was tainted with serious irregularities. We need not emphasize that the sheriff enjoys the presumption of regularity in the performance of the functions of his office. This presumption prevails in the absence of substantial evidence to the contrary and cannot be overcome by bare and self-serving allegations. The petitioners failed to convince us that the auction sale conducted by the sheriff indeed suffered from fatal flaws. No evidence was adduced to prove that the sheriff had been remiss in the performance of his duties during the public auction sale. Indeed it would be injudicious for us to assume, as petitioners want us to do, that the sheriff failed to follow the established procedures governing public auctions. Malonzo v. Zamora

Pulong ng Sangguniang Panlungsod na ginanap noong ika2 ng Hulyo 1998 sa Bagong Gusali ng Pamahalaang Lungsod ng Caloocan."[10] During said meeting, the Sanggunian created an Ad Hoc Committee composed of seven (7) members to study the existing house rules. Thereafter, it enacted Ordinance No. 0254, Series of 1998. As we have held in our Decision dated July 27, 1999, such succession of events is legally permissible. The law does not require the completion of the updating or adoption of the internal rules of procedure before the Sanggunian could act on any other matter like the enactment of an ordinance. It simply requires that the matter of adopting or updating the internal rules of procedure be taken up during the first day of session. It would be inequitable to read something more into the requirement of the law and use it as a basis for finding petitioners guilty of misconduct, especially when the charge is serious enough to warrant a penalty of suspension from office for three (3) months without pay. Miso Fourth. Respondents maintain that assuming that the Sanggunian can legally take up matters pertaining to the supplemental budget even before the adoption or updating of its existing rules of procedure, the circumstances that preceded the enactment of the supplemental budget were irregular since there was undue haste in conducting the three readings of Ordinance No. 0254, Series of 1998, in one session day. There is nothing in the law, however, which prohibits that the three readings of a proposed ordinance be held in just one session day. Respondents themselves are aware of this. And it certainly is not the function of this Court to speculate that the councilors were not given ample time for reflection and circumspection before the passage of the proposed ordinance by conducting the three readings in just one day considering that it was a certain Eduardo Tibor, by himself as taxpayer, and not the councilors themselves, who raised such complaint. It might not be amiss to point out that the salaries of the city employees were to be funded by the said ordinance which embodied the supplemental budget for 1998, hence, the urgency for its passage. Even the five (5) councilors [11] who abstained from voting for the passage of Ordinance 0254, Series of 1998 took advantage of its benefits by submitting to the office of petitioner Malonzo the names of the employees assigned to their respective offices for salary and accounting purposes.[12] Nexold Finally. Respondents assert that assuming that the OP erred in its appreciation of the facts on record, no grave abuse of discretion correctible by a special civil action for certiorari may be attributed thereto. But there was grave abuse of discretion on the part of the OP. Its findings are totally devoid of support in the record. Hence, the Decision of respondent Executive Secretary, suspending the petitioners, on the basis of the said findings, constitutes grave abuse of discretion amounting to an act done in excess of jurisdiction.

Casino v. CA Third. Respondents maintain that Ordinance No. 0254, Series of 1998 was enacted without sufficient compliance with the requirement of Section 50 of the Local Government Code requiring that house rules be adopted or updated. The records satisfactorily show, however, that the Sanggunnian took up the matter of adopting a set of house rules in its general meeting entitled, "Katitikan ng Karaniwang

We do not agree. Resolution No. 378 was declared invalid by the Court of Appeals for failure to comply with the required votes necessary for its validity. Although the charter of the City of Gingoog and the Local Government Code require only a majority for the enactment of an ordinance, Resolution No. 49 cannot be validly amended by the resolution in question without complying with the categorical requirement of a three-fourths vote

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incorporated in the very same ordinance sought to be amended. The pertinent provisions in the aforesaid city charter and the Local Government Code obviously are of general application and embrace a wider scope or subject matter. In the enactment of ordinances in general, the application of the aforementioned laws cannot be disputed. Undeniably, however, Section 6.44 of said ordinance regarding amendments thereto is a specific and particular provision for said ordinance and explicitly provides for a different number of votes. Where there is in the same statute a particular enactment and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general statement must be taken to affect only such cases within its language as are not within the provisions of the particular enactment. 13 In the instant case, although the general law on the matter requires a mere majority, the higher requisite vote in Resolution No. 49 shall govern since municipal authorities are in a better position to determine the evils sought to be prevented by the inclusion or incorporation of particular provisions in enacting a particular statute and, therefore, to pass the appropriate ordinance to attain the main object of the law. 14 This more stringent requirement on the necessary votes for amendments to Resolution No. 49 apparently forestalled the apprehended contingency for, to borrow the words of respondent court, "in an apparent attempt to get rid of this legal stumbling block (the prohibition against a cockpit in a residential zone under Proclamation 49), the Sangguniang Panglunsod of Gingoog City passed Resolution No. 378, Code Ordinance, series of 1985," . . . "thereby reclassifying Block 125 into a recreational zone."15 Withal, it is legally permissible, as exceptions to the general provisions on measures covered by city charters and the Local Government Code, that the vote requirement in certain ordinances may be specially provided for, as in the case of Section 6.44 of Resolution No. 49, instead of the usual majority Vote. 16 In sum, Block 125 where Coliseum is located remains classified as a residential area, hence the operation of a cockpit therein is prohibited. This weighty consideration, which should actually be the principal basis for the nullification by respondent court of the two mayor's permits issued to petitioner (private respondent-appellant therein), was explained as follows: The rules and regulations promulgated by the Commission on June 1, 1981 in connection with the operation of all cockpits in the Philippines particularly Section 6 and 12 thereof reads as follows: Sec. 6. Site and Constructions of cockpits. Cockpits shall be constructed and operated within the appropriate areas as prescribed in zoning laws or ordinances. Sec. 12. Registration of cockpits. All cockpits in the Philippines shall register with the Philippine Gamefowl Commission not later than September 30, 1981. No cockpit shall be allowed to operate without the proper registration certificate being secured annually, not later than January 31. xxx xxx xxx

In the case at bar, there was no registration certificate issued, much less authorization to operate given by the PGC to the private respondentappellant, a condition precedent before a grant of mayors permit or license to conduct cockfighting. Therefore, the mayor's permits issued to private respondent are null and void. Obviously, the PGC did not grant the private respondent-appellant the proper registration certificate to operate his cockpit because the same was not constructed within the appropriate areas as prescribed in zoning laws or ordinances of Gingoog City pursuant to Section 6 of Rules and Regulation of the PGC. . . . 17 It bears mention, however, that the issue in this case is the validity of the city mayor's permits of April 22,1986 and January 5, 1987 and the nullity whereof is affirmed in this opinion. Respondents observe that they see no useful purpose in having said permits declared null and void since they are already functus officio. We agree, however, with the stance taken respondent court that this adjudication would still be in order since it can hereafter serve as a guide for the proper and legal issuance of mayor's permits to cockpits owners. As pertinently quoted, justice demands that we act then, not only for the vindication of the outraged rights, though gone, but also for the guidance of and as a restraint upon the future.

Negros Occidental II Electric v. Dumaguete

To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to punish non-members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible justification for the issuance of a subpoena and for the punishment of non-members for contumacious behaviour would be for said power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow local legislative bodies or administrative agencies to exercise these powers without express statutory basis would run afoul of the doctrine of separation of powers. Thus, the contempt power, as well as the subpoena power, which the framers of the fundamental law did not expressly provide for but which the then Congress has asserted essentially for self-preservation as one of three co-equal branches of the government cannot be deemed implied in the delegation of certain legislative functions to local legislative bodies. These cannot be presumed to exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P. 337 which provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the contempt power in conjunction with the subpoena power in any government body inevitably poses a potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to testify, the law cannot be liberally construed to have impliedly granted such powers to local legislative bodies. It cannot be lightly presumed that the sovereign people, the ultimate source of all government powers, have reposed these powers in all government agencies. The intention of the sovereign people, through their representatives in the legislature, to

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share these unique and awesome powers with the local legislative bodies must therefore clearly appear in pertinent legislation. There being no provision in the Local Government Code explicitly granting local legislative bodies, the power to issue compulsory process and the power to punish for contempt, the Sanggunian Panlungsod of Dumaguete is devoid of power to punish the petitioners Torres and Umbac for contempt. The Ad-Hoc Committee of said legislative body has even less basis to claim that it can exercise these powers. 5. Even assuming that the respondent Sangguniang Panlungsod and the respondent AdHoc Committee had the power to issue the subpoena and the order complained of, such issuances would still be void for being ultra vires. The contempt power (and the subpoena power) if actually possessed, may only be exercised where the subject matter of the investigation is within the jurisdiction of the legislative body (Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As admitted by the respondents in their Comment, the investigation to be conducted by the Ad-Hoc Committee was to look into the use by NORECO II of inefficient power lines "of pre-war vintage" which the latter had acquired from the Visayan Electric Com. company, and "to hear the side of the petitioners" (Comment, Rollo, p. 50). It comes evident that the inquiry would touch upon the efficiency of the electric service of NORECO II and, necessarily, its compliance with the franchise. Such inquiry is beyond the jurisdiction of the respondent Sangguniang Panlungsod and the respondent committee. There is no doubt that a city government has the power to enact ordinances regulating the installation and maintenance of electric power lines or wires within its territorial jurisdiction. The power subsists notwithstanding the creation of the National Electrification Administration (NEA), to which body the franchise powers of local government units were transferred by Presidential Decree No. 269. Section 42 of the Decree states: SEC. 42. Repeal of Franchise Powers of Municipal City and Provincial Governments. The powers of municipal, city and provincial governments to grant franchises, as provided for in Title 34 of the Philippines Statutes or in any special law, are hereby repealed; Provided, That this section shall not impair or invalidate any franchise heretofore lawfully granted by such a government or repeal any other subsisting power of such governments to require that electric facilities and related properties be so located, constructed and operated and maintained as to be safe to the public and not to unduly interfere with the primary use of streets, roads, alleys and other public ways, buildings and grounds over, upon or under which they may be built. (This Section was not among those amended by Pres. Dec. Nos. 1370 [May 2, 1978] and 1645 [October 8, 1979]). This particular power of the city government is included in the enumeration of powers and duties of a Sangguniang Panlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337, February 10, 1983), to wit: SEC. 177. Powers and Duties. The Sangguniang Panlungsod shall: xxx xxx xxx

(j) . . . regulate the digging and excavation for the laying of gas, water, power, and other pipelines, the building and repair of tunnels, sewers and drains, and all structures thereunder; the placing, stringing, attaching, installing, repair and construction of all gas mains, electric, telegraph and telephone wires,conduits meters and other apparatus, and the correction, condemnation of the same when dangerous or defective; xxx xxx xxx The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the installation and maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in order to protect the city residents from the hazards these may pose. In aid of this ordinance making power, said body or any of its committees may conduct investigations similar to, but not the same as, the legislative investigations conducted by the national legislature. As already discussed, the difference lies in the lack of subpoena power and of the power to punish for contempt on the part of the local legislative bodies. They may only invite resource persons who are willing to supply information which may be relevant to the proposed ordinance. The type of investigation which may be conducted by the Sangguniang PanLungsod does not include within its ambit an inquiry into any suspected violation by an electric cooperative of the conditions of its electric franchise. The power to inquire into the efficiency of the service supplied by electric cooperatives is within the franchising powers of the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.: (2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not then furnishing, and is unable to or unailling within reasonable time to furnish adequate and dependable service on an area coverage within such area; xxx xxx xxx In the exercise of this power, the NEA may conduct hearings and investigations, issle subpoenas and invoke the aid of the courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269). Clearly, then, the Sangguniang Panlungsod of Dumaguete cannot look into an suspected failure of NORECO II to comply with the standards of electric service prescribed by law and in its franchise. The proper recourse is to file a complaint with the NEA against NORECO II if there be sufficient basis therefor.

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7.

Other Corporate Powers

MMDA v. Trackworks In the case at bar, we find that TRACKWORKS sufficiently established a right to be protected by a writ of preliminary injunction. The contract with the MRTC vested it the exclusive right to undertake advertising and promotional activities at the MRT 3 structure. The Court of Appeals therefore correctly ruled that what is involved here is not an indiscriminate posting and installation of commercial advertisements but one sanctioned by a contract. If not restrained, the dismantling of, and prohibition from, installing advertisements at the MRT 3 will cause irreparable injury to TRACKWORKS. This is especially so because TRACKWORKS is generally not entitled to recover damages resulting from acts of public officers done in their official capacity and in the honest belief that they have such power.[15] Unless bad faith is clearly proven, TRACKWORKS will be left without recourse even if petitioner is later declared without authority to prohibit the posting of billboards and streamers at the MRT 3 structure. Indeed, prudence dictates that the status quo be preserved until the merits of the case can be heard fully. Moreover, the issuance of a writ of preliminary injunction pending determination of the case is proper because TRACKWORKS successfully raise the issue of petitioners power to effect the dismantling of the disputed commercial advertisements. The general rule that a statute or ordinance enjoys the presumption of validity and as such, cannot be restrained by injunction,[16] finds no application here. The core issue in the present case is not the validity of the law or statute sought to be enforced by petitioner but its authority to enforce the same. Though the proper construction of the applicable statutes may incidentally be addressed, the disposition of the instant controversy hinges on the focal question of whether or not petitioner can validly prohibit the installation of commercial advertisements at the MRT 3 structure on the basis of MMDA Regulation No. 96009;[17]Presidential Decree (PD) No. 1096, or the National Building Code of the Philippines and its Implementing Rules and Regulations; and Metropolitan Manila Commission (MMC) Memorandum Circular No. 88-09,[18]dated September 16, 1988. TRACKWORKS contends that petitioner cannot validly prohibit the installation of commercial advertisement at the MRT 3 structure on the basis alone of MMDA Regulation No. 96-009 because it neither has legislative nor police power. It also avers that petitioner does not have the authority to enforce the pertinent provisions on Signs under the Building Code and its Implementing Rules[19] because the power to enforce the same is lodged with the Secretary of the Department of Public Works and Highways MMDA v. Concerned Citizens of Manila Bay Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited only to water pollution incidents, which are situations that presuppose the occurrence of specific, isolated pollution events requiring the corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires cleanup operations to restore the body of water to pre-spill condition, which means that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-today operations of businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152. To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of their respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming, respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the definition of the phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting definition. As pointed out, the phrases cleanup operations and accidental spills do not appear in said Sec. 17, not even in the chapter where said section is found. Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as water quality has deteriorated to a degree where its state will adversely affect its best usage. This section, to stress, commands concerned government agencies, when appropriate, to take such measures as may be necessary to meet the prescribed water quality standards. In fine, the underlying duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident. For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup work for the polluters account. Petitioners assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents.[35] Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is well-nigh impossible to draw the line between a specific and a general pollution incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions water pollution incidents which may be caused by polluters in the waters of the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically

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adverts to any person who causes pollution in or pollutes water bodies, which may refer to an individual or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the contaminants eventually end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and faceless polluters that they can validly be categorized as beyond the specific pollution incident level. Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody has been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation. The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the petitioner-departmentagencies and the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other judicial discipline describes as continuing mandamus,[36] the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.[37] The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las Pias) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting waterways, river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If there is one factor responsible for the pollution of the major river systems and the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse these important bodies of water would be for naught. The DENR Secretary said as much.[38] Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water Code,[39] which prohibits the building of structures within a given length along banks of rivers and other waterways. Art. 51 reads: The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and

salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind. (Emphasis added.) Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the banks of the Pasig River, other major rivers, and connecting waterways. But while they may not be treated as unauthorized constructions, some of these establishments undoubtedly contribute to the pollution of the Pasig River and waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-complying industrial establishments set up, within a reasonable period, the necessary waste water treatment facilities and infrastructure to prevent their industrial discharge, including their sewage waters, from flowing into the Pasig River, other major rivers, and connecting waterways. After such period, non-complying establishments shall be shut down or asked to transfer their operations. At this juncture, and if only to dramatize the urgency of the need for petitionersagencies to comply with their statutory tasks, we cite the Asian Development Bankcommissioned study on the garbage problem in Metro Manila, the results of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of the report: 1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic liquids that flow along the surface and seep into the earth and poison the surface and groundwater that are used for drinking, aquatic life, and the environment. 2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump sites and surrounding areas, which is presumably generated by households that lack alternatives to sanitation. To say thatManila Bay needs rehabilitation is an understatement. 3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and Manila Bay.[40] Given the above perspective, sufficient sanitary landfills should now more than ever be established as prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below: Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be established and operated, nor any practice or disposal of solid waste by any person, including LGUs which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act: Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this Act. (Emphasis added.) RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended on February 21, 2006 has come and gone, but no single sanitary

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landfill which strictly complies with the prescribed standards under RA 9003 has yet been set up. In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste matters in roads, canals, esteros, and other public places, operation of open dumps, open burning of solid waste, and the like. Some sludge companies which do not have proper disposal facilities simply discharge sludge into the Metro Manila sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from vessels, and unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction by human or machine of substances to the aquatic environment including dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances, from any water, land or air transport or other human-made structure. In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates.

the potential hazards of the Flag Scheme. This Court cannot determine the reasonableness of the Flag Scheme based on mere surmises and speculations. MMDA v. Bel-Air Village Association Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Jjlex Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of Bulacan.[40] Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning; and this coordination, "especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the flames of rebellion and discontent [were] part of reform measures under Martial Law essential to the safety and security of the State." [41] Metropolitan Manila was established as a "public corporation" with the following powers: Calrs-pped "Section 1. Creation of the Metropolitan Manila.There is hereby created a public corporation, to be known as the Metropolitan Manila, vested with powers and attributes of a corporation including the power to make contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer and dispose of property and such other powers as are necessary to carry out its purposes. The Corporation shall be administered by a Commission created under this Decree."[42] The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) vested with the following powers: "Sec. 4. Powers and Functions of the Commission. - The Commission shall have the following powers and functions: 1. To act as a central government to establish and administer programs and provide services common to the area; 2. To levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness. Existing tax measures should, however, continue to be operative until otherwise modified or repealed by the Commission; 3. To charge and collect fees for the use of public service facilities; 4. To appropriate money for the operation of the metropolitan government and review appropriations for the city and municipal units within its jurisdiction with authority to disapprove the same if found to be not in accordance with the established policies of the Commission, without prejudice to any contractual obligation of the local government units involved existing at the time of approval of this Decree; 5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within Metropolitan Manila;

Francisco v. Fernando A citizen can raise a constitutional question only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) a favorable action will likely redress the injury. 3 On the other hand, a party suing as a taxpayer must specifically show that he has a sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute. 4 Petitioner meets none of the requirements under either category. Nor is there merit to petitioners claim that the Court should relax the standing requirement because of the "transcendental importance" of the issues the petition raises. As an exception to the standing requirement, the transcendental importance of the issues raised relates to the merits of the petition. 5 Thus, the party invoking it must show, among others, the presence of a clear disregard of a constitutional or statutory prohibition. 6 Petitioner has not shown such clear constitutional or statutory violation. On the Flag Schemes alleged lack of legal basis, we note that all the cities and municipalities within the MMDAs jurisdiction, 7 except Valenzuela City, have each enacted anti-jaywalking ordinances or traffic management codes with provisions for pedestrian regulation. Such fact serves as sufficient basis for respondents implementation of schemes, or ways and means, to enforce the anti-jaywalking ordinances and similar regulations. After all, the MMDA is an administrative agency tasked with the implementation of rules and regulations enacted by proper authorities. 8 The absence of an anti-jaywalking ordinance in Valenzuela City does not detract from this conclusion absent any proof that respondents implemented the Flag Scheme in that city. Further, the petition ultimately calls for a factual determination of whether the Flag Scheme is a reasonable enforcement of anti-jaywalking ordinances and similar enactments. This Court is not a trier of facts. 9 The petition proffers mere surmises and speculations on

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6. To enact or approve ordinances, resolutions and to fix penalties for any violation thereof which shall not exceed a fine of P10,000.00 or imprisonment of six years or both such fine and imprisonment for a single offense; 7. To perform general administrative, executive and policy-making functions; 8. To establish a fire control operation center, which shall direct the fire services of the city and municipal governments in the metropolitan area; 9. To establish a garbage disposal operation center, which shall direct garbage collection and disposal in the metropolitan area; 10. To establish and operate a transport and traffic center, which shall direct traffic activities; Jjjuris 11. To coordinate and monitor governmental and private activities pertaining to essential services such as transportation, flood control and drainage, water supply and sewerage, social, health and environmental services, housing, park development, and others; 12. To insure and monitor the undertaking of a comprehensive social, economic and physical planning and development of the area; 13. To study the feasibility of increasing barangay participation in the affairs of their respective local governments and to propose to the President of the Philippines definite programs and policies for implementation; 14. To submit within thirty (30) days after the close of each fiscal year an annual report to the President of the Philippines and to submit a periodic report whenever deemed necessary; and 15. To perform such other tasks as may be assigned or directed by the President of the Philippines." Sc jj The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. P. D. No. 824 further provided: "Sec. 9. Until otherwise provided, the governments of the four cities and thirteen municipalities in the Metropolitan Manila shall continue to exist in their present form except as may be inconsistent with this Decree. The members of the existing city and municipal councils in Metropolitan Manila shall, upon promulgation of this Decree, and until December 31, 1975, become members of the Sangguniang Bayan which is hereby created for every city and municipality of Metropolitan Manila. In addition, the Sangguniang Bayan shall be composed of as many barangay captains as may be determined and chosen by the Commission, and such number of representatives from other sectors of the society as may be appointed by the President upon recommendation of the Commission. x x x. The Sangguniang Bayan may recommend to the Commission ordinances, resolutions or such measures as it may adopt; Provided, that no such ordinance, resolution or measure

shall become effective, until after its approval by the Commission; and Provided further, that the power to impose taxes and other levies, the power to appropriate money and the power to pass ordinances or resolutions with penal sanctions shall be vested exclusively in the Commission." The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMCs approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Sce-dp Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided: Sj cj "Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. Section 2. The territorial and political subdivisions shall enjoy local autonomy." The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao.[43] Section 11 of the same Article X thus provided: "Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination." The Constitution itself expressly provides that Congress may, by law, create "special metropolitan political subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies. [44] Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority, viz: "Section 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area."[45] In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA.[46] It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMAs power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila."[47]The MMAs governing body, the Metropolitan Manila Council, although composed of the mayors of

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the component cities and municipalities, was merely given the power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation of resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power.[48] Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMAs jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly."[49] When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. R. A. No. 7924 originated as House Bill No. 14170/ 11116 and was introduced by several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the House of Representatives by the Committee on Local Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the local government units in the National Capital Region (NCR), with former Chairmen of the MMC and MMA,[50]and career officials of said agencies. When the bill was first taken up by the Committee on Local Governments, the following debate took place: "THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been debated a long time ago, you know. Its a special we can create a special metropolitan political subdivision. Supreme Actually, there are only six (6) political subdivisions provided for in the Constitution: barangay, municipality, city, province, and we have the Autonomous Region of Mindanao and we have the Cordillera. So we have 6. Now. HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous Region, that is also specifically mandated by the Constitution. THE CHAIRMAN: Thats correct. But it is considered to be a political subdivision. What is the meaning of a political subdivision? Meaning to say, that it has its own government, it has its own political personality, it has the power to tax, and all governmental powers: police power and everything. All right. Authority is different; because it does not have its own government. It is only a council, it is an organization of political subdivision, powers, no, which is not imbued with any political power. Esmmis If you go over Section 6, where the powers and functions of the Metro Manila Development Authority, it is purely coordinative. And it provides here that the council is policymaking. All right. Under the Constitution is a Metropolitan Authority with coordinative power. Meaning to say, it coordinates all of the different basic services which have to be delivered to the constituency. All right. There is now a problem. Each local government unit is given its respective as a political subdivision. Kalookan has its powers, as provided for and protected and guaranteed by the Constitution. All right, the exercise. However, in the exercise of that power, it might be

deleterious and disadvantageous to other local government units. So, we are forming an authority where all of these will be members and then set up a policy in order that the basic services can be effectively coordinated. All right. justice Of course, we cannot deny that the MMDA has to survive. We have to provide some funds, resources. But it does not possess any political power. We do not elect the Governor. We do not have the power to tax. As a matter of fact, I was trying to intimate to the author that it must have the power to sue and be sued because it coordinates. All right. It coordinates practically all these basic services so that the flow and the distribution of the basic services will be continuous. Like traffic, we cannot deny that. Its before our eyes. Sewerage, flood control, water system, peace and order, we cannot deny these. Its right on our face. We have to look for a solution. What would be the right solution? All right, we envision that there should be a coordinating agency and it is called an authority. All right, if you do not want to call it an authority, its alright. We may call it a council or maybe a management agency. x x x."[51] Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected.[56] R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President,[57] whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA.Newmiso Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA under R. A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues as they are unnecessary. Esmso We stress that this decision does not make light of the MMDAs noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our peoples productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law.

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Province of Rizal v. Executive Secretary In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust the DENR with the guardianship and safekeeping of the Marikina Watershed Reservation and our other natural treasures. However, although the DENR, an agency of the government, owns the Marikina Reserve and has jurisdiction over the same, this power is not absolute, but is defined by the declared policies of the state, and is subject to the law and higher authority. Section 2, Title XIV, Book IV of the Administrative Code of 1987, while specifically referring to the mandate of the DENR, makes particular reference to the agencys being subject to law and higher authority, thus: SEC. 2. Mandate. - (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.

talking with at the time this was established may no longer be incumbent and this is our difficulty now. That is what we are trying to do now, a continuing dialogue.[47] The ambivalent reply of Director Uranza was brought to the fore when, at the height of the protest rally and barricade along Marcos Highway to stop dump trucks from reaching the site, all the municipal mayors of the province of Rizal openly declared their full support for the rally and notified the MMDA that they would oppose any further attempt to dump garbage in their province.[48] The municipal mayors acted within the scope of their powers, and were in fact fulfilling their mandate, when they did this. Section 16 allows every local government unit to exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare, which involve, among other things, promot(ing) health and safety, enhance(ing) the right of the people to a balanced ecology, and preserv(ing) the comfort and convenience of their inhabitants. In Lina , Jr. v. Pao,[49] we held that Section 2 (c), requiring consultations with the appropriate local government units, should apply to national government projects affecting the environmental or ecological balance of the particular community implementing the project. Rejecting the petitioners contention that Sections 2(c) and 27 of the Local Government Code applied mandatorily in the setting up of lotto outlets around the country, we held that: From a careful reading of said provisions, we find that these apply only to national programs and/or projects which are to be implemented in a particular local community. Lotto is neither a program nor a project of the national government, but of a charitable institution, the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code. Section 27 of the Code should be read in conjunction with Section 26 thereof. Section 26 reads: SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-

With great power comes great responsibility. It is the height of irony that the public respondents have vigorously arrogated to themselves the power to control the San Mateo site, but have deftly ignored their corresponding responsibility as guardians and protectors of this tormented piece of land. II. THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT UNITS ALL THE NECESSARY POWERS TO PROMOTE THE GENERAL WELFARE OF THEIR INHABITANTS The circumstances under which Proclamation No. 635 was passed also violates Rep. Act No. 7160, or the Local Government Code. Contrary to the averment of the respondents, Proclamation No. 635, which was passed on 28 August 1995, is subject to the provisions of the Local Government Code, which was approved four years earlier, on 10 October 1991. Section 2(c) of the said law declares that it is the policy of the state to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. Likewise, Section 27 requires prior consultations before a program shall be implemented by government authorities and the prior approval of the sanggunian is obtained. During the oral arguments at the hearing for the temporary restraining order, Director Uranza of the MMDA Solid Waste Management Task Force declared before the Court of Appeals that they had conducted the required consultations. However, he added that (t)his is the problem, sir, the officials we may have been

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renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna. (emphasis supplied) We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas,[50] where we held that there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical. Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants the sangguniang bayan the power to, among other things, enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e) Code. These include: (1) Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)] (2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of this Code; [Section 447 (2)(vi-ix)] (3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, providing for the establishment, maintenance, protection, and conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects.and, subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the

water supply of the municipality and, for this purpose,extending the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulating the consumption, use or wastage of water. [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultationwith the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the projects implementation is illegal.

Albon v. Fernando Moreover, under subdivision laws,23 lots allotted by subdivision developers as road lots include roads, sidewalks, alleys and planting strips.24 Thus, what is true for subdivision roads or streets applies to subdivision sidewalks as well. Ownership of the sidewalks in a private subdivision belongs to the subdivision owner/developer until it is either transferred to the government by way of donation or acquired by the government through expropriation. Section 335 of RA 7160 is clear and specific that no public money or property shall be appropriated or applied for private purposes. This is in consonance with the fundamental principle in local fiscal administration that local government funds and monies shall be spent solely for public purposes. 25 In Pascual v. Secretary of Public Works,26 the Court laid down the test of validity of a public expenditure: it is the essential character of the direct object of the expenditure which must determine its validity and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion.27 Incidental advantage to the public or to the State resulting from the promotion of private interests and the prosperity of private enterprises or business does not justify their aid by the use of public money.28 In Pascual, the validity of RA 920 ("An Act Appropriating Funds for Public Works") which appropriated P85,000 for the construction, repair, extension and improvement of feeder roads within a privately-owned subdivision was questioned. The Court held that where the land on which the projected feeder roads were to be constructed belonged to a private person, an appropriation made by Congress for that purpose was null and void.29 In Young v. City of Manila,30 the City of Manila undertook the filling of low-lying streets of the Antipolo Subdivision, a privately-owned subdivision. The Court ruled that as long as the private owner retained title and ownership of the subdivision, he was under the obligation to reimburse to the city government the expenses incurred in land-filling the streets. Moreover, the implementing rules of PD 957, as amended by PD 1216, provide that it is the registered owner or developer of a subdivision who has the responsibility for the maintenance, repair and improvement of road lots and open spaces of the subdivision prior to their donation to the concerned LGU. The owner or developer shall be deemed relieved of the responsibility of maintaining the road lots and open space only upon

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securing a certificate of completion and executing a deed of donation of these road lots and open spaces to the LGU.31 Therefore, the use of LGU funds for the widening and improvement of privatelyowned sidewalks is unlawful as it directly contravenes Section 335 of RA 7160. This conclusion finds further support from the language of Section 17 of RA 7160 which mandates LGUs to efficiently and effectively provide basic services and facilities. The law speaks of infrastructure facilities intended primarily to service the needs of the residents of the LGU and "which are funded out of municipal funds."32 It particularly refers to "municipal roads and bridges" and "similar facilities."33 Applying the rules of ejusdem generis, the phrase "similar facilities" refers to or includes infrastructure facilities like sidewalks owned by the LGU. Thus, RA 7160 contemplates that only the construction, improvement, repair and maintenance of infrastructure facilities owned by the LGU may be bankrolled with local government funds. Clearly, the question of ownership of the open spaces (including the sidewalks) in Marikina Greenheights Subdivision is material to the determination of the validity of the challenged appropriation and disbursement made by the City of Marikina. Similarly significant is the character of the direct object of the expenditure, that is, the sidewalks. Javier v. CA Private respondents claim that the abolition of the Office of the Provincial Engineer is not only constitutionally infirm but also violative of General Order No. 3 issued shortly after the proclamation of martial law in 1972. Private respondents explain that Section 9, Article XVII, of the 1973 Constitution Sec. 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors. has been so framed as to allow the policy and purpose behind General Order No. 3 to continue, i.e., to consolidate in the hands of the President, the power to appoint, dismiss and control all officials of the government, both national and local, in line with the nature and spirit of martial law. 7 Respondents quote a portion of the Journal of the Constitutional Convention during its 287th plenary session of 25 November 1972, where their counsel, Arturo Pacificador, a constitutional convention delegate, stated on the floor during the discussions on Section 9, Article XVII, of the 1973 Constitution, that ". . . the local government unit who may believe that an office they (have) created is no longer necessary may petition the President to issue a decree abolishing the same, but it will be beyond their power to abolish by themselves said office in view of the clear mandate of the provision of the Constitution." 8 Undoubtedly, Section 9, Article XVII, of the 1973 Constitution did convey an authority to carry out a valid reorganization in any branch or agency of the Government, 9 recalling to mind General Order No. 3 issued on 22 September 1972, but this general provision could not have meant or envisioned an absolute proscription on local governments, if and when minded, from themselves creating or abolishing positions, an authority that they theretofore had under the then existing laws. One such law was Section 18 of Republic Act No. 5185 (Local Autonomy Act), then still in force, which empowered provincial governments to create, among other positions, the office of a provincial engineer. While the law did not expressly vest on provincial governments the power to abolish that office, absent, however, any contrary provision, that authority should be deemed embraced by implication from the power to create it. Section 23 of the Act, in fact, expressed that an "implied power of a province . . . (should) be liberally construed in its favor" and "(a)ny fair

and reasonable doubt as to the existence of the power should be interpreted in favor of local government and it (should) be presumed to exist." We must rule then that the power of the province of Antique to abolish the office in question did exist at the time. The real debatable issue focuses on the real reasons behind the questioned action of the provincial board. An abolition of office is not per se objectionable but this rule carries a caveat that the act is done in good faith. We have scrutinized closely the records, most especially in this case, in view of the disagreement between the trial court and the appellate court on their factual findings; the result of our examination is that there, indeed, appears to be evidence to support their own respective findings. On the one hand, valid reasons have been shown that tend to substantiate the need at the time for the abolition of the office in question by the Provincial Board. Upon the other hand, it cannot be discounted that personal and political motives did contribute in no small measure in that final decision of the board. In sum, we see a situation where the abolition of the office could have well been justified except for the convexity of circumstances attendant to the decision process that clearly appear to have greatly influenced the final action taken by the board. We are not prepared, however, to conclude a clear case of bad faith on the part of respondents. Given the peculiar factual settings heretofore expressed, we would have, under ordinary circumstances, simply issued an order of reinstatement. The Court cannot, however, close its eyes to the multifarious and significant events that have since taken place on, among other things, the national and local government structures, as well as their offices and incumbents; the law itself, both constitutional and statutory; as well as the personal and other circumstances of concerned parties, including no less than petitioners and private respondents themselves. It is our considered view that in lieu of an order for reinstatement of private respondents, an award for backwages, equivalent to five (5) years without qualification or deduction, should be paid to said respondents. City of Angeles Pursuant to the wording of Sec. 31 of P.D. 957 as above amended by the aforequoted P.D. No. 1216, private respondent is under legal obligation to donate the open space exclusively allocated for parks, playgrounds and recreational use to the petitioner. This can be clearly established by referring to the original provision of Sec. 31 of P.D. 957, which reads as follows: SECTION 31. Donation of roads and open spaces to local government. The registered owner or developer of the subdivision or condominium project, upon completion of the development of said project may, at his option, convey by way of donation the roads and open spaces found within the project to the city or municipality wherein the project is located. Upon acceptance of the donation by the city or municipality concerned, no portion of the area donated shall thereafter be converted to any other purpose or purposes unless after hearing, the proposed conversion is approved by the Authority. (Italics supplied) It will be noted that under the aforequoted original provision, it was optional on the part of the owner or developer to donate the roads and open spaces found within the project to the city or municipality where the project is located. Elsewise stated, there was no legal obligation to make the donation. However, said Sec. 31 as amended now states in its last paragraph: Upon their completion x x x, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local government to accept; provided, however, that the parks and playgrounds may be donated to the Homeowners Association of the project with the consent of the city or municipality concerned. x x x. It is clear from the aforequoted amendment that it is no longer optional on the part of the subdivision owner/developer to donate the open space for parks and playgrounds; rather

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there is now a legal obligation to donate the same. Although there is a proviso that the donation of the parks and playgrounds may be made to the homeowners association of the project with the consent of the city of municipality concerned, nonetheless, the owner/developer is still obligated under the law to donate. Such option does not change the mandatory character of the provision. The donation has to be made regardless of which donee is picked by the owner/developer. The consent requirement before the same can be donated to the homeowners association emphasizes this point. Petitioners contend that the 3.5% to 9% allotted by Sec. 31 for parks, playgrounds and recreational uses should be based on the gross area of the entire subdivision, and not merely on the area of the open space alone, as contended by private respondent and as decided by the respondent Court.[10] The petitioners are correct. The language of Section 31 of P.D. 957 as amended by Section 2 of P.D. 1216 is wanting in clarity and exactitude, but it can be easily inferred that the phrase gross area refers to the entiresubdivision area. The said phrase was used four times in the same section in two sentences, the first of which reads: x x x For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty per cent (30%) of the gross area for open space. x x x. Here, the phrase 30% of the gross area refers to the total area of the subdivision, not of the open space. Otherwise, the definition of open space would be circular. Thus, logic dictates that the same basis be applied in the succeeding instances where the phrase open space is used, i.e., 9% of gross area . . . 7% of gross area . . . 3.5% of gross area . . . Moreover, we agree with petitioners that construing the 3.5% to 9% as applying to the totality of the open space would result in far too small an area being devoted for parks, playgrounds, etc., thus rendering meaningless and defeating the purpose of the statute. This becomes clear when viewed in the light of the original requirement of P.D. 953 (Requiring the Planting of Trees in Certain Places, etc.), Section 2 of which reads: Sec. 2. Every owner of land subdivided into residential/commercial/industrial lots after the effectivity of this Decree shall reserve, develop and maintain not less than thirty percent (30%) of the total area of the subdivision, exclusive of roads, service streets and alleys, as open space for parks and recreational areas. No plan for a subdivision shall be approved by the Land Registration Commission or any office or agency of the government unless at least thirty percent (30%) of the total area of the subdivision, exclusive of roads, service streets and alleys, is reserved as open space for parks and recreational areas x x x. To our mind, it is clear that P.D. 1216 was an attempt to achieve a happy compromise and a realistic balance between the imperatives of environmental planning and the need to maintain economic feasibility in subdivision and housing development, by reducing the required area for parks, playgrounds and recreational uses from thirty percent (30%) to only 3.5% - 9% of the entire area of the subdivision. Third Issue: Imposition of Conditions in Donation of Open Space Petitioners argue that since the private respondent is required by law to donate the parks and playgrounds, it has no right to impose the condition in the Amended Deed of Donation that the properties donated shall be devoted and utilized solely for the site of the Angeles City Sports Center. It cannot prescribe any condition as to the use of the area donated because the use of the open spaces is already governed by P.D. 1216. In other words, the donation should be absolute. Consequently, the conditions in the amended deed which were allegedly violated are deemed not written. Such being the case, petitioners cannot be considered to have committed any violation of the terms and conditions of the said amended deed, as the donation is deemed unconditional, and it follows that there is no basis for revocation of the donation. However, the general law on donations does not prohibit the imposition of conditions on a donation so long as the conditions are not illegal or impossible.[11] In regard to donations of open spaces, P.D. 1216 itself requires among other things that the recreational areas to be donated be based, as aforementioned, on a percentage

(3.5%, 7%, or 9%) of the total area of the subdivision depending on whether the subdivision is low -, medium -, or high-density. It further declares that such open space devoted to parks, playgrounds and recreational areas are non-alienable public land and nonbuildable. However, there is no prohibition in either P.D. 957 or P.D. 1216 against imposing conditions on such donation. We hold that any condition may be imposed in the donation, so long as the same is not contrary to law, morals, good customs, public order or public policy. The contention of petitioners that the donation should be unconditional because it is mandatory has no basis in law. P.D. 1216 does not provide that the donation of the open space for parks and playgrounds should be unconditional. To rule that it should be so is tantamount to unlawfully expanding the provisions of the decree.[12] In the case at bar, one of the conditions imposed in the Amended Deed of Donation is that the donee should build a sports complex on the donated land. Since P.D. 1216 clearly requires that the 3.5% to 9% of the gross area allotted for parks and playgrounds is nonbuildable, then the obvious question arises whether or not such condition was validly imposed and is binding on the donee. It is clear that the non-buildable character applies only to the 3.5% to 9% area set by law. If there is any excess land over and above the 3.5% to 9% required by the decree, which is also used or allocated for parks, playgrounds and recreational purposes, it is obvious that such excess area is not covered by the nonbuildability restriction. In the instant case, if there be an excess, then the donee would not be barred from developing and operating a sports complex thereon, and the condition in the amended deed would then be considered valid and binding. To determine if the over 50,000 square meter area donated pursuant to the amended deed would yield an excess over the area required by the decree, it is necessary to determine under which density category the Timog Park subdivision falls. If the subdivision falls under the low density or open market housing category, with 20 family lots or below per gross hectare, the developer will need to allot only 3.5% of gross area for parks and playgrounds, and since the donated land constitutes more than five (5) percent of the total land area of the subdivision,[13] there would therefore be an excess of over 1.5% of gross area which would not be non-buildable. Petitioners, on the other hand, alleged (and private respondent did not controvert) that the subdivision in question is a medium-density or economic housing subdivision based on the sizes of the family lots donated in the amended deed,[14] for which category the decree mandates that not less than 7% of gross area be set aside. Since the donated land constitutes only a little more than 5% of the gross area of the subdivision, which is less than the area required to be allocated for non-buildable open space, therefore there is no excess land to speak of. This then means that the condition to build a sports complex on the donated land is contrary to law and should be considered as not imposed.

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