Republic of the Philippines

SUPREME COURT
Manila

Upon arraignment, the accused plead not guilty. The court below made the
following findings of fact which, from an independent examination of the entire
testimony, we are convinced, are supported by the evidence beyond
reasonable doubt:

EN BANC
G.R. No. 39085 September 27, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle,
vs.
ANTONIO YABUT, defendant-appellant.
Felipe S. Abeleda for appellant.
Office of the Solicitor-General Hilado for appellee.
BUTTE, J.:
This is an appeal from the judgment of the Court of First Instance of Manila,
convicting the appellant of the crime of murder and assessing the death
penalty.
The appellant, Yabut, was charged in the Court of First Instance of Manila with
the crime of murder upon the following information:
That on or about the 1st day of August, 1932, in the City of Manila, Philippine
Islands, the accused Antonio Yabut, then a prisoner serving sentence in the
Bilibid Prison, in said city, did then and there, with intent to kill, wilfully,
unlawfully, feloniously and treacherously, assault, beat and use personal
violence upon one Sabas Aseo, another prisoner also serving sentence in
Bilibid, by then and there hitting the said Sabas Aseo suddenly and
unexpectedly from behind with a wooden club, without any just cause, thereby
fracturing the skull of said Sabas Aseo and inflicting upon him various other
physical injuries on different parts of the body which caused the death of the
latter about twenty-four (24) hours thereafter.
That at the time of the commission of this offense, the said Antonio Yabut was a
recidivist, he having previously been convicted twice of the crime of homicide
and once of serious physical injuries, by virtue of final sentences rendered by
competent tribunals.

La brigada de presos, conocida como Brigada 8-A Carcel, el 1. de agosto de

1932, estaba compuesta de unos 150 o mas penados, de largas condenas, al
mando del preso Jose Villafuerte, como Chief Squad Leader, y del preso
Vicente santos, como su auxiliar. forman parte de esta brigada el occiso Sabas
Aseo, o Asayo, el acusado Antonio Yabut y los presos llamados Apolonio Saulo,
Isaias Carreon, Melecio Castro, Mateo Bailon y los moros Taladie y Hasan.
Entre siete y media y ocho de la noche de la fecha de autos, estando ya
cerrado el pabellon de la brigada, pues se aproximaba la hora del descanso y
silencio dentro de la prision, mientras el jefe bastonero Villafuerte se hallaba
sentado sobre su mesa dentro de la brigada, vio al preso Carreon cerca de el, y
en aquel instante el acusado Yabut, dirigiendose a Carreon, le dijo que, si no
cobrada a uno que la debia, el (Yabut) le abofetearia. El jefe bastonero
Villafuerte trato de imponer silencio y dijo a los que hablaban que se
apaciguaran; pero, entre tanto, el preso Carreon se encaro con el otro preso
Saulo cobrandole dos cajetillas de cigarillos de diez centimos cada una que le
debia. Saulo contesto que ya le pagaria, pero Carreon, por toda contestacion,
pego en la cara a saulo y este quedo desvanecido. En vista de esto, el jefe
bastonero se dirigio a su cama para sacar la porra que estaba autorizado a
llevar. Simultaneamente Villafuerte vio que el preso Yabut pegaba con un palo
(Exhibit C) al otro preso Sabas Aseo, o Asayo, primeramente en la nuca y
despues en la cabeza, mientras estaba de espaldas el agregido Sabas, quien, al
recibir el golpe en la nuca, se inclino hacia delante, como si se agachara, y en
ese momento el acusado Yabut dio un paso hacia delante y con el palo de
madera que portaba dio otro golpe en la cabeza a Sabas Aseo, quien cayo al
suelo.
El jefe bastonero Villafuerte se acerco al agresor Yabut para desarmarle, pero
este le dijo: "No te acerques; de otro modo, moriras." No obstante la actitud
amenazadora de Yabut, Villafuerte se acerco y Yabut quiso darle un golpe que
iba dirigido a la cabeza, pero Villafuerte lo pudo desviar pcon la porra que
Ilevaba. Los dos lucharon y Ilegaron a abrazarse hasta que se le deslizo a
Villafuerte la porra que llevaba. Continuaron luchando ambos y el acusado
Yabut llego a soltar el palo Exhibit C con que acometia a Villafuerte y habia

malherido al preso Sabas Aseo. Despues de aquello, Yabut consiguio zafarse de

Villafuerte y se dirigio al otro extremo de la brigada, escondiendose dentro del
bao y alli fue cogido inmediatamente despues del suceso por el preso
Proceso Carangdang, que desempenaba el cargo de sargento de los policias
de la prision.

El penado conprendidoen este articulo se no fuere un delincuente habitual sera

indultado a los setenta aos, si hubiere ya cumplido la condena primitiva, o
cuando llegare a cumplirla despues de la edad sobredicha, a no ser que por su
conducta a por otras circunstancias no fuere digno de la gracia.
The English translation of article 160 is as follows:

We reject, as unworthy of belief, the testimony of Yabut that it was Villafuerte,

not he, who gave the fatal blow to the deceased Aseo. The testimonies of
Santiago Estrada, resident physician of the Bureau of Prisons and Dr. Pablo
Anzures of the Medico Legal Department of the University of the Philippines,
clearly establish that the death of Aseo was caused by subdural and cerebral
hemorrhages following the fracture of the skull resulting from the blow on the
head of Aseo. They further confirm the testimony of the four eyewitnesses that
the deceased was struck from behind.
On appeal to this court, the appellant advances the following assignments of
error:
1. The lower court erred in applying article 160 of the Revised Penal Code.
2. The lower court erred in holding that the evidence of the defense are
contradictory and not corroborated.
3. The lower court erred in holding that the crime of murder was established by
appreciating the qualifying circumstance of alevosia.
4. The lower court erred in finding the accused guilty of the crime of murder
beyond reasonable doubt.
In connection with the first assignment of error, we quote article 160 of the
Revised Penal Code, in the Spanish text, which is decisive:
Comision de un nuevo delito durante el tiempo de la condena por otro anterior
Pena. Los que comentieren algun delito despues de haber sino
condenados por sentencia firme no empezada a cumpir, o durante el tiempo de
su condena, seran castigados con la pena sealada por la ley para el nuevo
delito, en su grado maximo, sin perjuicio de lo dispuesto en la regla 5.a del
articulo 62.

Commission of another crime during service of penalty imposed for another

previous offense Penalty. Besides the provisions of rule 5 of article 62, any
person who shall commit a felony after having been convicted by final
judgment, before beginning to serve such sentence, or while serving the same,
shall be punished by the maximum period of the penalty prescribed by law for
the new felony.
Any convict of the class referred to in this article, who is not a habitual criminal,
shall be pardoned at the age of seventy years if he shall have already served out
his original sentence, or when he shall complete it after reaching said age,
unless by reason of his conduct or other circumstances he shall not be worthy of
such clemency.
The appellant places much stress upon the word "another" appearing in the
English translation of the headnote of article 160 and would have us accept his
deduction from the headnote that article 160 is applicable only when the new
crime which is committed by a person already serving sentence is different from
the crime for which he is serving sentence. Inasmuch as the appellant was
serving sentence for the crime of homicide, the appellant contends the court
below erred in applying article 160 in the present case which was a prosecution
for murder (involving homicide). While we do not concede that the appellant is
warranted in drawing the deduction mentioned from the English translation of
the caption of article 160, it is clear that no such deduction could be drawn
from the caption. Apart from this, however, there is no warrant whatever for
such a deduction (and we do not understand the appellant to assert it) from the
text itself of article 160. The language is plain and unambiguous. There is not
the slightest intimation in the text of article 160 that said article applies only in
cases where the new offense is different in character from the former offense for
which the defendant is serving the penalty.
It is familiar law that when the text itself of a statute or a treaty is clear and
unambiguous, there is neither necessity nor propriety in resorting to the

preamble or headings or epigraphs of a section of interpretation of the text,

especially where such epigraphs or headings of sections are mere catchwords
or reference aids indicating the general nature of the text that follows. (Cf. In re
Estate of Johnson, 39 Phil., 156, 166.) A mere glance at the titles to the articles
of the Revised Penal code will reveal that they were not intended by the
Legislature to be used as anything more than catchwords conveniently
suggesting in a general way the subject matter of each article. Being nothing
more than a convenient index to the contents of the articles of the Code, they
cannot, in any event have the effect of modifying or limiting the unambiguous
words of the text. Secondary aids may be consulted to remove, not to create
doubt.
The remaining assignments of error relate to the evidence. We have come to
the conclusion, after a thorough examination of the record, that the findings of
the court below are amply sustained by the evidence, except upon the fact of
the existence of treachery (alevosia). As some members of the court entertain a
reasonable doubt that the existence of treachery (alevosia) was established, it
results that the penalty assessed by the court below must be modified. We find
the defendant guilty of homicide and, applying article 249 of the Revised Penal
Code in connection with article 160 of the same, we sentence the defendantappellant to the maximum degree of reclusion temporal, that is to say, to
twenty years of confinement and to indemnify the heirs of the deceased Sabas
Aseo (alias Sabas Asayo), in the sum of P1,000. Costs de oficio.
Avancea, C.J., Street, Malcolm, Villa-Real, Abad Santos, Hull, Vickers, and
Imperial, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-30264 March 12, 1929
MANILA RAILROAD COMPANY, plaintiff-appellee,
vs.
INSULAR COLLECTOR OF CUSTOMS, defendant-appellant.
MALCOLM, J.:
The question involved in this appeal is the following: How should dust shields
be classified for the purposes of the tariff, under paragraph 141 or under
paragraph 197 of section 8 of the Tariff Law of 1909? These paragraphs placed
in parallel columns for purposes of comparison read:
141. Manufactures of wool not otherwise provided for, forty per centum ad
valorem
197. Vehicles for use on railways and tramways, and detached parts thereof, ten
per centum ad valorem.
Dust shields are manufactured of wool and hair mixed. The component material
of chief value is the wool. They are used by the Manila Railroad Company on all
of its railway wagons. The purpose of the dust shield is to cover the axle box in
order to protect from dust the oil deposited therein which serves to lubricate
the bearings of the wheel. "Dust guard," which is the same as "dust shield," is
defined in the work Car Builders' Cyclopedia of American Practice, 10th ed.,
1922, p. 41, as follows: "A this piece of wood, leather, felt, asbestos or other
material inserted in the dust guard chamber at the back of a journal box, and
fitting closely around the dust guard bearing of the axle. Its purpose is to
exclude dust and to prevent the escape of oil and waste. Sometimes called axle
packing or box packing."
Based on these facts, it was the decision of the Insular Collector of Customs
that dust shields should be classified as "manufactures of wool, not otherwise
provided for." That decision is entitled to our respect. The burden is upon the

importer to overcome the presumption of a legal collection of duties by proof

that their exaction was unlawful. The question to be decided is not whether the
Collector was wrong but whether the importer was right. (Erhardt vs. Schroeder
[1894], 155 U. S., 124; Behn, Meyer & Co. vs. Collector of Customs [1913], 26
Phil., 647.) On the other hand, His Honor, Judge Simplicio del Rosario, took an
opposite view, overruled the decision of the Collector of Customs, and held
that dust shields should be classified as "detached parts" of vehicles for the use
on railways. This impartial finding is also entitled to our respect. It is the general
rule in the interpretation of statutes levying taxes or duties not to extend their
provisions beyond the clear import of the language used. In every case of
doubt, such statutes are construed most strongly against the Government and
in favor of the citizen, because burdens are not to be imposed, nor presumed
to be imposed, beyond what the statutes expressly and clearly import. (U. S. vs.
Wigglesworth [1842], 2 Story, 369; Froehlich & Kuttner vs. Collector of Customs
[1911], 18 Phil., 461.)
There are present two fundamental considerations which guide the way out of
the legal dilemma. The first is by taking into account the purpose of the article
and then acknowledging that it is in reality used as a detached part or railways
vehicles. The second point is that paragraph 141 is a general provision while
paragraph 197 is a special provision. Where there is in the same statute a
particular enactment and also a general one which is embraced in the former,
the particular enactment must be operative, and the general enactment must
be taken to effect only such cases within its general language as are not within
the provisions of the particular enactment (25 R. C. L., p. 1010, citing numerous
cases).
We conclude that the trial judge was correct in classifying dust shields under
paragraph 197 of section 8 of the Tariff Law of 1909, and in refusing to classify
them under paragraph 141 of the same section of the law. Accordingly, the
judgment appealed from will be affirmed in its entirety, without special taxation
of costs in either instance.
Johnson, Street, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
[G.R. No. L-8191. February 27, 1956.]
DIOSDADO A. SITCHON, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8397. February 27, 1956]
RICARDO DE LA CRUZ, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8500. February 27, 1956]
FELINO PEA, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his
capacity as City Engineer of the City of Manila, Respondent-Appellee.
[G.R. No. L-8513. February 27, 1956]
SANTIAGO BROTAMONTE, ET AL., Petitioners-Appellants, vs. ALEJO
AQUINO, in his capacity as City Engineer of the City of Manila,
Respondent-Appellee.
[G.R. No. L-8516. February 27, 1956]
ERNESTO NAVARRO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO,
in his capacity as the City Engineer of the City of Manila, RespondentAppellee.
[G.R. No. L-8620. February 27, 1956]
AMADO SAYO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his
capacity as City Engineer of the City of Manila, Respondent-Appellee.

DECISION
CONCEPCION, J.:

These are six (6) class suits against the City Engineer of Manila to enjoin him
from carrying out his threat to demolish the houses of Petitioners herein, upon
the ground that said houses constitute public nuisances. In due course, the
Court of First Instance of Manila rendered separate, but substantially identical,
decisions adverse to the Petitioners, who have appealed therefrom directly to
this Court. Inasmuch as the fact are not disputed and the same issues have
been raised in all these cases, which were jointly heard before this Court, we
deem it fit to dispose of the appeals in one decision.
1. Case No. L-8191 (Case No. 21530 of the Court of First Instance of Manila)
was instituted by Diosdado A. Sitchon, Luis Gavino and Ponciano Adoremos, in
their own behalf and in representation of twenty-two (22) persons, named in an
annex to the petition. In 1947 and 1948, said Petitioners occupied portions of
the public street known as Calabash Road, City of Manila, and constructed
houses thereon, without the consent of the authorities. Later on, some of them
paid concession fees or damages, for the use of said portions of the street, to
a collector of the city treasurer, who issued receipts with an annotation
reading:chanroblesvirtuallawlibrary without prejudice to the order to vacate.
On or about July 5, 1952, Respondent City Engineer advised and ordered them
to vacate the place and remove their houses therefrom before August 5, 1952,
with the warning that otherwise he would effect the demolition of said houses
at their expense. This notice having been unheeded, a demolition team of the
office of the City Engineer informed the Petitioners in December, 1953, that
their houses would be removed, whereupon the case was instituted for the
purpose already stated. At the instance of Petitioners herein, the lower court
issued a writ of preliminary injunction.
2. Case No. L-8397 (Case No. 21755 of the Court of First Instance of Manila)
was brought by Ricardo de la Cruz, Isidro Perez and Fernando Figuerroa, in
their behalf and in representation of two hundred sixty-seven (267) persons,
who, sometime after the liberation of Manila, occupied portions of Antipolo and
Algeciras Streets, of said city, and constructed houses thereon, without any
authority therefor. Several Petitioners later paid concession fees or damages
to a collector of the city treasurer, and were given receipts with the
annotation:chanroblesvirtuallawlibrary without prejudice to the order to
vacate. The constructions were such that the roads and drainage on both sides
thereof were obstructed. In some places, the ditches used for drainage
purposes were completely obliterated. What is more, said ditches cannot be
opened, repaired or placed in proper condition because of said houses. On or
about May 15, 1952, Respondent City Engineer advised them to vacate the

place and remove their houses within a stated period, with the warning already
referred to. Hence, the institution of the case, upon the filing of which a writ of
preliminary injunction was issued.
3. Felino Pea, Francisco Morales and Jose Villanueva filed case No. L-8500
(Case No. 21535 of the Court of First Instance of Manila), on their own behalf
and in representation of about thirty (30) persons, who, without the
aforementioned authority, occupied portions of the street area of R. Papa
Extension, City of Manila, sometime after its liberation. As in the preceding
cases, several Petitioners paid concession fees or damages to a collector of
the city treasurer, without prejudice to the order to vacate, which was given
on May 10, 1952, with the warning that should they fail to remove said houses,
Respondent would do so, at their expense. Upon being advised, later on, of the
intention of Respondents agents to carry out said threat, the corresponding
petition was filed and a writ of preliminary injunction secured.
4.
Santiago Brotamonte, Godofredo Blanquiso and Salvador Justiniano
commenced case No. L-8513 (Case No. 21531 of the Court of First Instance of
Manila), on their behalf and in representation of forty-two (42) other persons,
who, without any authority, occupied portions of the bed of a branch of the
Estero de San Miguel, City of Manila, and constructed houses thereon,
sometime in 1947 and 1948. As in the cases already mentioned, some of them
paid concession fees or damages, without prejudice to the order to vacate,
which was given, with the usual warning, in December, 1953. The institution of
the case and a writ of preliminary injunction soon followed.
5. In case No. L-8516 (Case No. 21580 of the Court of First Instance of Manila),
Ernesto Navarro, Pablo Salas and Herminigildo Digap are Petitioners, on their
own behalf and in that of fifteen (15) persons, who, sometime after the
liberation of Manila, occupied portions of the bed of the Pasig River, at about
the end of Rio Vista Street, San Miguel, Manila, which are covered and
uncovered by the tide, and erected houses there on without any authority
therefor. Concession fees or damages were paid by some of them, without
prejudice to the order to vacate. After giving, on or about June 20, 1952, the
corresponding notice and warning, which were not heeded, Respondent
threatened to demolish said houses at Petitioners expense, whereupon the
case was instituted and a writ of preliminary injunction secured.
6. Case No. L-8620 (Case No. 22143 of the Court of First Instance of Manila)
was filed by Amado Sayo, Marciano Lamco and Victor Bernardo, on their behalf
and in that of twenty-two (22) other persons, who, in 1946 and 1947, occupied

portions of Torres Bugallon, Cavite, Misericordia and Antipolo Streets, in the

City of Manila, and constructed houses thereon, without any authority therefor.
Some paid monthly rentals and/or damages, and/or concession fees from
1946 to 1951, without prejudice to the order to vacate, which was given on
May 1, 1952, with the usual warning, followed, about two (2) years later, by a
threat to demolish said houses. Hence, the case, upon the filing of which writ of
preliminary injunction was issued.
After appropriate proceedings, the Court of First Instance of Manila rendered
separate decisions, the dispositive part of which, except in case No. L-8620, is
of the following tenor:chanroblesvirtuallawlibrary
Por tanto, el Juzgado sobresee esta causa por falta de meritos y ordena al
ingeniero de la ciudad de Maniia que haga la demolicion o la remocion de las
citadas casas, dentro de quince dias despues de haber avisado al efecto a los
aqui recurrentes, y a costa de los mismos.
In said case No. L-8620, the lower court rendered judgment as
follows:chanroblesvirtuallawlibrary
In view of the foregoing considerations the Court hereby
declares:chanroblesvirtuallawlibrary
(a) that the houses of all Petitioners in this case erected on the land which
forms part of Torres Bugallon, Cavite, Misericordia and Antipolo Streets
constitute public nuisance as defined by section 1112 of Ordinance No. 1600 of
the City of Manila and by Article 694 paragraphs 4 and 5 of the Civil Code and
(b) that the City Engineer of the City of Manila is the official authorized by
Article 1112 of Ordinance No. 1600 of the City of Manila and Article 699,
paragraph 3 of the Civil Code to abate said public nuisance and charge the
expenses thereof to Petitioners.
Petitioners contend that said decisions should be reversed upon the ground
that, in trying to demolish their respective houses without notice and hearing,
the city engineer sought to deprive them of their property without due process
of law, apart from the fact that, under Articles 701 and 702 of the new Civil
Code, the power to remove public nuisances is vested in the district health
officer, not in Respondent city engineer. It should be noted, however, that,
before expressing his intent to demolish the houses in question, Respondent
had advised and ordered the Petitioners to remove said houses, within the
periods stated in the corresponding notices; chan roblesvirtualawlibrarythat

Petitioners do not question, and have not questioned, the reasonableness or

sufficiency of said periods; chan roblesvirtualawlibraryand that they have never
asked Respondent herein to give them an opportunity to show that their houses
do not constitute public nuisances. Besides, it is not disputed that said houses
are standing on public streets, with the exception of the houses involved in
cases Nos. 8513 and 8516, which are built on portions of river beds. It is clear,
therefore, that said houses are public nuisances, pursuant to Articles 694 and
695 of the Civil Code of the Philippines, which is Republic Act No. 386,
reading:chanroblesvirtuallawlibrary
ART. 694. A nuisance is any act, omission, establishment, business,
condition of property, or anything else which:chanroblesvirtuallawlibrary
(1)
Injures or endangers the health or safety of others; chan
roblesvirtualawlibraryor
(2) Annoys or offends the senses; chan roblesvirtualawlibraryor
(3)
Shocks, defies or disregards decency or morality; chan
roblesvirtualawlibraryor
(4) Obstructs or interferes with the free passage of any public highway or
street, or any body of water; chan roblesvirtualawlibraryor
(5) Hinders or impairs the use of property.
ART. 695. Nuisance is either public or private. A public nuisance affects a
community or neighborhood or any considerable number of persons, although
the extent of the annoyance, danger or damage upon individuals may be
unequal. A private nuisance is one that is not included in the foregoing
definition. (Italics supplied.)
It is true that Articles 700 and 702 of the same Code
provide:chanroblesvirtuallawlibrary
ART. 700. The district health officer shall take care that one or all of the
remedies against a public nuisance are availed of.

have charge of the cralaw care of cralaw streets, canals and esteros cralaw;
chan roblesvirtualawlibraryto prevent the encroachment of private buildings
cralaw on the streets and public places cralaw; chan roblesvirtualawlibraryto
have supervision cralaw of all private docks, wharves, piers cralaw and other
property bordering on the harbor, rivers, esteros and waterways cralaw and
cralaw issue permits for the construction, repair and removal of the same and
enforce all ordinances relating to the same; chan roblesvirtualawlibraryto have
the care and custody of all sources of water supply cralaw; chan
roblesvirtualawlibraryto cause buildings dangerous to the public to be
cralaw; chan roblesvirtualawlibrarytorn down; chan roblesvirtualawlibraryand
to order the removal of buildings and structures erected in violation of the
ordinances cralaw. Obviously, articles 700 and 702 of Republic Act No. 386,
should yield to said section 31 of Republic Act No. 409, not only because the
former preceded the latter, but, also, because said section 31 of Republic Act
No. 409 is a special provision specifically designed for the City of Manila,
whereas said Articles 700 and 702 of the Civil Code are general provisions
applicable throughout the Philippines. Moreover, section 1122 of the Revised
Ordinance of the City of Manila (No. 1600) explicitly authorizes the action
sought to be taken by Respondent herein, by
providing:chanroblesvirtuallawlibrary
Whenever the owner or person responsible for any unauthorized obstruction
shall, after official notice from the proper department, refuse or neglect to
remove the same within a reasonable time, such obstruction shall be deemed a
public nuisance, and the city engineer is authorized to remove the same at the
owners expense.
Again, houses constructed, without governmental authority, on public streets
and waterways, obstruct at all times the free use by the public of said streets
and waterways, and, accordingly, constitute nuisances per se, aside from public
nuisances. As such, the summary removal thereof, without judicial process or
proceedings may be authorized by the statute or municipal ordinance, despite
the due process clause. (66 C.J.S. 733-734.)

ART. 702. The district health officer shall determine whether or not
abatement, without judicial proceedings, is the best remedy against a public
nuisance.

The police power of the state justifies the abatement or destruction, by

summary proceedings, of whatever may be regarded as a public nuisance; chan
roblesvirtualawlibraryand the legislature may authorize the summary abatement
of a nuisance without judicial process or proceeding.

However, section 31 of Republic Act No. 409, the Revised Charter of the City of
Manila, specifically places upon the city engineer the duty, among others, to

cralaw The remedy of summary abatement for violation of a municipal

ordinance may be used against a public nuisance. (66 C.J.S. 855, 856.)

When necessary to insure the public safety, the legislature may under its police
power authorize municipal authorities summarily to destroy property without
legal process or previous notice to the owner.
cralaw It is not an objection to the validity of a police regulation that it does
not provide for a hearing or for notice to the owner before his property is
subjected to restraint or destruction. (12 Am. Jur. 356, 357.)
In the exercise of the police power the state may authorize its officers
summarily to abate public nuisances without resort to legal proceedings and
without notice or a hearing.
Municipal Corporations generally have power to cause the abatement of public
nuisances summarily without resort to legal proceedings. (39 Am. Jur. 455,
456, 457.)
Being in conformity with the facts and the law, the decisions appealed from are
hereby affirmed in toto, and the writs of preliminary injunction issued by the
lower court dissolved, with costs against Petitioners-Appellants. It is SO
ORDERED.
Paras, C.J., Padilla, Montemayor, Reyes, A. Jugo, Bautista Angelo,
Labrador, Reyes, J. B. L. and Endencia., JJ., concur.

!
!
!

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-41631 December 17, 1976
HON. RAMON D. BAGATSING, as Mayor of the City of Manila; ROMAN G.
GARGANTIEL, as Secretary to the Mayor; THE MARKET ADMINISTRATOR;
and THE MUNICIPAL BOARD OF MANILA, petitioners,
vs.
HON. PEDRO A. RAMIREZ, in his capacity as Presiding Judge of the Court
of First Instance of Manila, Branch XXX and the FEDERATION OF MANILA
MARKET VENDORS, INC., respondents.
Santiago F. Alidio and Restituto R. Villanueva for petitioners.
Antonio H. Abad, Jr. for private respondent.

On February 17, 1975, respondent Federation of Manila Market Vendors, Inc.

commenced Civil Case 96787 before the Court of First Instance of Manila
presided over by respondent Judge, seeking the declaration of nullity of
Ordinance No. 7522 for the reason that (a) the publication requirement under
the Revised Charter of the City of Manila has not been complied with; (b) the
Market Committee was not given any participation in the enactment of the
ordinance, as envisioned by Republic Act 6039; (c) Section 3 (e) of the AntiGraft and Corrupt Practices Act has been violated; and (d) the ordinance would
violate Presidential Decree No. 7 of September 30, 1972 prescribing the
collection of fees and charges on livestock and animal products.
Resolving the accompanying prayer for the issuance of a writ of preliminary
injunction, respondent Judge issued an order on March 11, 1975, denying the
plea for failure of the respondent Federation of Manila Market Vendors, Inc. to
exhaust the administrative remedies outlined in the Local Tax Code.
After due hearing on the merits, respondent Judge rendered its decision on
August 29, 1975, declaring the nullity of Ordinance No. 7522 of the City of
Manila on the primary ground of non-compliance with the requirement of
publication under the Revised City Charter. Respondent Judge ruled:

Federico A. Blay for petitioner for intervention.

MARTIN, J.:
The chief question to be decided in this case is what law shall govern the
publication of a tax ordinance enacted by the Municipal Board of Manila, the
Revised City Charter (R.A. 409, as amended), which requires publication of the
ordinance before its enactment and after its approval, or the Local Tax Code
(P.D. No. 231), which only demands publication after approval.
On June 12, 1974, the Municipal Board of Manila enacted Ordinance No. 7522,
"AN ORDINANCE REGULATING THE OPERATION OF PUBLIC MARKETS AND
PRESCRIBING FEES FOR THE RENTALS OF STALLS AND PROVIDING
PENALTIES FOR VIOLATION THEREOF AND FOR OTHER PURPOSES." The
petitioner City Mayor, Ramon D. Bagatsing, approved the ordinance on June
15, 1974.

There is, therefore, no question that the ordinance in question was not
published at all in two daily newspapers of general circulation in the City of
Manila before its enactment. Neither was it published in the same manner after
approval, although it was posted in the legislative hall and in all city public
markets and city public libraries. There being no compliance with the
mandatory requirement of publication before and after approval, the ordinance
in question is invalid and, therefore, null and void.
Petitioners moved for reconsideration of the adverse decision, stressing that (a)
only a post-publication is required by the Local Tax Code; and (b) private
respondent failed to exhaust all administrative remedies before instituting an
action in court.
On September 26, 1975, respondent Judge denied the motion.
Forthwith, petitioners brought the matter to Us through the present petition for
review on certiorari.

We find the petition impressed with merits.

1. The nexus of the present controversy is the apparent conflict between the
Revised Charter of the City of Manila and the Local Tax Code on the manner of
publishing a tax ordinance enacted by the Municipal Board of Manila. For, while
Section 17 of the Revised Charter provides:
Each proposed ordinance shall be published in two daily newspapers of general
circulation in the city, and shall not be discussed or enacted by the Board until
after the third day following such publication. * * * Each approved ordinance * *
* shall be published in two daily newspapers of general circulation in the city,
within ten days after its approval; and shall take effect and be in force on and
after the twentieth day following its publication, if no date is fixed in the
ordinance.
Section 43 of the Local Tax Code directs:
Within ten days after their approval, certified true copies of all provincial, city,
municipal and barrio ordinances levying or imposing taxes, fees or other
charges shall be published for three consecutive days in a newspaper or
publication widely circulated within the jurisdiction of the local government, or
posted in the local legislative hall or premises and in two other conspicuous
places within the territorial jurisdiction of the local government. In either case,
copies of all provincial, city, municipal and barrio ordinances shall be furnished
the treasurers of the respective component and mother units of a local
government for dissemination.
In other words, while the Revised Charter of the City of Manila requires
publication before the enactment of the ordinance and after the approval
thereof in two daily newspapers of general circulation in the city, the Local Tax
Code only prescribes for publication after the approval of "ordinances levying
or imposing taxes, fees or other charges" either in a newspaper or publication
widely circulated within the jurisdiction of the local government or by posting
the ordinance in the local legislative hall or premises and in two other
conspicuous places within the territorial jurisdiction of the local government.
Petitioners' compliance with the Local Tax Code rather than with the Revised
Charter of the City spawned this litigation.

There is no question that the Revised Charter of the City of Manila is a special
act since it relates only to the City of Manila, whereas the Local Tax Code is a
general law because it applies universally to all local governments. Blackstone
defines general law as a universal rule affecting the entire community and
special law as one relating to particular persons or things of a class. 1 And the
rule commonly said is that a prior special law is not ordinarily repealed by a
subsequent general law. The fact that one is special and the other general
creates a presumption that the special is to be considered as remaining an
exception of the general, one as a general law of the land, the other as the law
of a particular case. 2 However, the rule readily yields to a situation where the
special statute refers to a subject in general, which the general statute treats in
particular. The exactly is the circumstance obtaining in the case at bar. Section
17 of the Revised Charter of the City of Manila speaks of "ordinance" in
general, i.e., irrespective of the nature and scope thereof, whereas, Section 43
of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or
other charges" in particular. In regard, therefore, to ordinances in general, the
Revised Charter of the City of Manila is doubtless dominant, but, that dominant
force loses its continuity when it approaches the realm of "ordinances levying or
imposing taxes, fees or other charges" in particular. There, the Local Tax Code
controls. Here, as always, a general provision must give way to a particular
provision. 3 Special provision governs. 4 This is especially true where the law
containing the particular provision was enacted later than the one containing
the general provision. The City Charter of Manila was promulgated on June 18,
1949 as against the Local Tax Code which was decreed on June 1, 1973. The
law-making power cannot be said to have intended the establishment of
conflicting and hostile systems upon the same subject, or to leave in force
provisions of a prior law by which the new will of the legislating power may be
thwarted and overthrown. Such a result would render legislation a useless and
Idle ceremony, and subject the law to the reproach of uncertainty and
unintelligibility. 5
The case of City of Manila v. Teotico 6 is opposite. In that case, Teotico sued the
City of Manila for damages arising from the injuries he suffered when he fell
inside an uncovered and unlighted catchbasin or manhole on P. Burgos Avenue.
The City of Manila denied liability on the basis of the City Charter (R.A. 409)
exempting the City of Manila from any liability for damages or injury to persons
or property arising from the failure of the city officers to enforce the provisions
of the charter or any other law or ordinance, or from negligence of the City
Mayor, Municipal Board, or other officers while enforcing or attempting to

enforce the provisions of the charter or of any other law or ordinance. Upon the
other hand, Article 2189 of the Civil Code makes cities liable for damages for
the death of, or injury suffered by any persons by reason of the defective
condition of roads, streets, bridges, public buildings, and other public works
under their control or supervision. On review, the Court held the Civil Code
controlling. It is true that, insofar as its territorial application is concerned, the
Revised City Charter is a special law and the subject matter of the two laws, the
Revised City Charter establishes a general rule of liability arising from
negligence in general, regardless of the object thereof, whereas the Civil Code
constitutes a particular prescription for liability due to defective streets in
particular. In the same manner, the Revised Charter of the City prescribes a rule
for the publication of "ordinance" in general, while the Local Tax Code
establishes a rule for the publication of "ordinance levying or imposing taxes
fees or other charges in particular.
In fact, there is no rule which prohibits the repeal even by implication of a
special or specific act by a general or broad one. 7 A charter provision may be
impliedly modified or superseded by a later statute, and where a statute is
controlling, it must be read into the charter notwithstanding any particular
charter provision. 8 A subsequent general law similarly applicable to all cities
prevails over any conflicting charter provision, for the reason that a charter must
not be inconsistent with the general laws and public policy of the state. 9 A
chartered city is not an independent sovereignty. The state remains supreme in
all matters not purely local. Otherwise stated, a charter must yield to the
constitution and general laws of the state, it is to have read into it that general
law which governs the municipal corporation and which the corporation cannot
set aside but to which it must yield. When a city adopts a charter, it in effect
adopts as part of its charter general law of such character. 10
2. The principle of exhaustion of administrative remedies is strongly asserted by
petitioners as having been violated by private respondent in bringing a direct
suit in court. This is because Section 47 of the Local Tax Code provides that any
question or issue raised against the legality of any tax ordinance, or portion
thereof, shall be referred for opinion to the city fiscal in the case of tax
ordinance of a city. The opinion of the city fiscal is appealable to the Secretary
of Justice, whose decision shall be final and executory unless contested before
a competent court within thirty (30) days. But, the petition below plainly shows
that the controversy between the parties is deeply rooted in a pure question of
law: whether it is the Revised Charter of the City of Manila or the Local Tax

Code that should govern the publication of the tax ordinance. In other words,
the dispute is sharply focused on the applicability of the Revised City Charter or
the Local Tax Code on the point at issue, and not on the legality of the
imposition of the tax. Exhaustion of administrative remedies before resort to
judicial bodies is not an absolute rule. It admits of exceptions. Where the
question litigated upon is purely a legal one, the rule does not apply. 11 The
principle may also be disregarded when it does not provide a plain, speedy and
adequate remedy. It may and should be relaxed when its application may cause
great and irreparable damage. 12
3. It is maintained by private respondent that the subject ordinance is not a "tax
ordinance," because the imposition of rentals, permit fees, tolls and other fees
is not strictly a taxing power but a revenue-raising function, so that the
procedure for publication under the Local Tax Code finds no application. The
pretense bears its own marks of fallacy. Precisely, the raising of revenues is the
principal object of taxation. Under Section 5, Article XI of the New Constitution,
"Each local government unit shall have the power to create its own sources of
revenue and to levy taxes, subject to such provisions as may be provided by
law." 13 And one of those sources of revenue is what the Local Tax Code points
to in particular: "Local governments may collect fees or rentals for the
occupancy or use of public markets and premises * * *." 14 They can provide for
and regulate market stands, stalls and privileges, and, also, the sale, lease or
occupancy thereof. They can license, or permit the use of, lease, sell or
otherwise dispose of stands, stalls or marketing privileges. 15
It is a feeble attempt to argue that the ordinance violates Presidential Decree
No. 7, dated September 30, 1972, insofar as it affects livestock and animal
products, because the said decree prescribes the collection of other fees and
charges thereon "with the exception of ante-mortem and post-mortem
inspection fees, as well as the delivery, stockyard and slaughter fees as may be
authorized by the Secretary of Agriculture and Natural Resources." 16 Clearly,
even the exception clause of the decree itself permits the collection of the
proper fees for livestock. And the Local Tax Code (P.D. 231, July 1, 1973)
authorizes in its Section 31: "Local governments may collect fees for the
slaughter of animals and the use of corrals * * * "
4. The non-participation of the Market Committee in the enactment of
Ordinance No. 7522 supposedly in accordance with Republic Act No. 6039, an
amendment to the City Charter of Manila, providing that "the market

committee shall formulate, recommend and adopt, subject to the ratification of

the municipal board, and approval of the mayor, policies and rules or regulation
repealing or maneding existing provisions of the market code" does not infect
the ordinance with any germ of invalidity. 17 The function of the committee is
purely recommendatory as the underscored phrase suggests, its
recommendation is without binding effect on the Municipal Board and the City
Mayor. Its prior acquiescence of an intended or proposed city ordinance is not a
condition sine qua non before the Municipal Board could enact such ordinance.
The native power of the Municipal Board to legislate remains undisturbed even
in the slightest degree. It can move in its own initiative and the Market
Committee cannot demur. At most, the Market Committee may serve as a
legislative aide of the Municipal Board in the enactment of city ordinances
affecting the city markets or, in plain words, in the gathering of the necessary
data, studies and the collection of consensus for the proposal of ordinances
regarding city markets. Much less could it be said that Republic Act 6039
intended to delegate to the Market Committee the adoption of regulatory
measures for the operation and administration of the city markets. Potestas
delegata non delegare potest.
5. Private respondent bewails that the market stall fees imposed in the disputed
ordinance are diverted to the exclusive private use of the Asiatic Integrated
Corporation since the collection of said fees had been let by the City of Manila
to the said corporation in a "Management and Operating Contract." The
assumption is of course saddled on erroneous premise. The fees collected do
not go direct to the private coffers of the corporation. Ordinance No. 7522 was
not made for the corporation but for the purpose of raising revenues for the
city. That is the object it serves. The entrusting of the collection of the fees does
not destroy the public purpose of the ordinance. So long as the purpose is
public, it does not matter whether the agency through which the money is
dispensed is public or private. The right to tax depends upon the ultimate use,
purpose and object for which the fund is raised. It is not dependent on the
nature or character of the person or corporation whose intermediate agency is
to be used in applying it. The people may be taxed for a public purpose,
although it be under the direction of an individual or private corporation. 18
Nor can the ordinance be stricken down as violative of Section 3(e) of the AntiGraft and Corrupt Practices Act because the increased rates of market stall fees
as levied by the ordinance will necessarily inure to the unwarranted benefit and
advantage of the corporation. 19 We are concerned only with the issue whether

the ordinance in question is intra vires. Once determined in the affirmative, the
measure may not be invalidated because of consequences that may arise from
its enforcement. 20
ACCORDINGLY, the decision of the court below is hereby reversed and set
aside. Ordinance No. 7522 of the City of Manila, dated June 15, 1975, is hereby
held to have been validly enacted. No. costs.
SO ORDERED.
Castro, C.J., Barredo, Makasiar, Antonio, Muoz Palma, Aquino and
Concepcion, Jr., JJ., concur.
Teehankee, J., reserves his vote.

Republic of the Philippines

SUPREME COURT
Manila

for damages against the City of Manila, its mayor, city engineer, city health
officer, city treasurer and chief of police. As stated in the decision of the trial
court, and quoted with approval by the Court of Appeals,

EN BANC

At the time of the incident, plaintiff was a practicing public accountant, a

businessman and a professor at the University of the East. He held responsible
positions in various business firms like the Philippine Merchandising Co., the
A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere
Packing Corporation. He was also associated with several civic organizations
such as the Wack Wack Golf Club, the Chamber of Commerce of the
Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of the
incident, plaintiff was prevented from engaging in his customary occupation for
twenty days. Plaintiff has lost a daily income of about P50.00 during his
incapacity to work. Because of the incident, he was subjected to humiliation
and ridicule by his business associates and friends. During the period of his
treatment, plaintiff was under constant fear and anxiety for the welfare of his
minor children since he was their only support. Due to the filing of this case,
plaintiff has obligated himself to pay his counsel the sum of P2,000.00.

G.R. No. L-23052 January 29, 1968

CITY OF MANILA, petitioner,
vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.
City Fiscal Manuel T. Reyes for petitioner.
Sevilla, Daza and Associates for respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner
of the Old Luneta and P. Burgos Avenue, Manila, within a "loading and
unloading" zone, waiting for a jeepney to take him down town. After waiting for
about five minutes, he managed to hail a jeepney that came along to a stop. As
he stepped down from the curb to board the jeepney, and took a few steps, he
fell inside an uncovered and unlighted catch basin or manhole on P. Burgos
Avenue. Due to the fall, his head hit the rim of the manhole breaking his
eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood
flowed therefrom, impairing his vision, several persons came to his assistance
and pulled him out of the manhole. One of them brought Teotico to the
Philippine General Hospital, where his injuries were treated, after which he was
taken home. In addition to the lacerated wound in his left upper eyelid, Teotico
suffered contusions on the left thigh, the left upper arm, the right leg and the
upper lip apart from an abrasion on the right infra-patella region. These injuries
and the allergic eruption caused by anti-tetanus injections administered to him
in the hospital, required further medical treatment by a private practitioner who
charged therefor P1,400.00.
As a consequence of the foregoing occurrence, Teotico filed, with the Court of
First Instance of Manila, a complaint which was, subsequently, amended

On the other hand, the defense presented evidence, oral and documentary, to
prove that the Storm Drain Section, Office of the City Engineer of Manila,
received a report of the uncovered condition of a catchbasin at the corner of P.
Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was
covered on the same day (Exhibit 4); that again the iron cover of the same catch
basin was reported missing on January 30, 1958, but the said cover was
replaced the next day (Exhibit 5); that the Office of the City Engineer never
received any report to the effect that the catchbasin in question was not
covered between January 25 and 29, 1968; that it has always been a policy of
the said office, which is charged with the duty of installation, repair and care of
storm drains in the City of Manila, that whenever a report is received from
whatever source of the loss of a catchbasin cover, the matter is immediately
attended to, either by immediately replacing the missing cover or covering the
catchbasin with steel matting that because of the lucrative scrap iron business
then prevailing, stealing of iron catchbasin covers was rampant; that the Office
of the City Engineer has filed complaints in court resulting from theft of said
iron covers; that in order to prevent such thefts, the city government has
changed the position and layout of catchbasins in the City by constructing them
under the sidewalks with concrete cement covers and openings on the side of

the gutter; and that these changes had been undertaken by the city from time
to time whenever funds were available.
After appropriate proceedings the Court of First Instance of Manila rendered
the aforementioned decision sustaining the theory of the defendants and
dismissing the amended complaint, without costs.
On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals,
except insofar as the City of Manila is concerned, which was sentenced to pay
damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of
Manila.
The first issue raised by the latter is whether the present case is governed by
Section 4 of Republic Act No. 409 (Charter of the City of Manila) reading:
The city shall not be liable or held for damages or injuries to persons or
property arising from the failure of the Mayor, the Municipal Board, or any other
city officer, to enforce the provisions of this chapter, or any other law or
ordinance, or from negligence of said Mayor, Municipal Board, or other officers
while enforcing or attempting to enforce said provisions.
or by Article 2189 of the Civil Code of the Philippines which provides:
Provinces, cities and municipalities shall be liable for damages for the death of,
or injuries suffered by, any person by reason of defective conditions of road,
streets, bridges, public buildings, and other public works under their control or
supervision.
Manila maintains that the former provision should prevail over the latter,
because Republic Act 409, is a special law, intended exclusively for the City of
Manila, whereas the Civil Code is a general law, applicable to the entire
Philippines.
The Court of Appeals, however, applied the Civil Code, and, we think, correctly.
It is true that, insofar as its territorial application is concerned, Republic Act No.
409 is a special law and the Civil Code a general legislation; but, as regards the
subject-matter of the provisions above quoted, Section 4 of Republic Act 409
establishes a general rule regulating the liability of the City of Manila for:
"damages or injury to persons or property arising from the failure of" city

officers "to enforce the provisions of" said Act "or any other law or ordinance,
or from negligence" of the city "Mayor, Municipal Board, or other officers while
enforcing or attempting to enforce said provisions." Upon the other hand,
Article 2189 of the Civil Code constitutes a particular prescription making
"provinces, cities and municipalities . . . liable for damages for the death of, or
injury suffered by any person by reason" specifically "of the defective
condition of roads, streets, bridges, public buildings, and other-public works
under their control or supervision." In other words, said section 4 refers to
liability arising from negligence, in general, regardless of the object thereof,
whereas Article 2189 governs liability due to "defective streets," in particular.
Since the present action is based upon the alleged defective condition of a
road, said Article 2189 is decisive thereon.
It is urged that the City of Manila cannot be held liable to Teotico for damages:
1) because the accident involving him took place in a national highway; and 2)
because the City of Manila has not been negligent in connection therewith.
As regards the first issue, we note that it is based upon an allegation of fact not
made in the answer of the City. Moreover, Teotico alleged in his complaint, as
well as in his amended complaint, that his injuries were due to the defective
condition of a street which is "under the supervision and control" of the City. In
its answer to the amended complaint, the City, in turn, alleged that "the streets
aforementioned were and have been constantly kept in good condition and
regularly inspected and the storm drains and manholes thereof covered by the
defendant City and the officers concerned" who "have been ever vigilant and
zealous in the performance of their respective functions and duties as imposed
upon them by law." Thus, the City had, in effect, admitted that P. Burgos
Avenue was and is under its control and supervision.
Moreover, the assertion to the effect that said Avenue is a national highway was
made, for the first time, in its motion for reconsideration of the decision of the
Court of Appeals. Such assertion raised, therefore, a question of fact, which had
not been put in issue in the trial court, and cannot be set up, for the first time,
on appeal, much less after the rendition of the decision of the appellate court,
in a motion for the reconsideration thereof.
At any rate, under Article 2189 of the Civil Code, it is not necessary for the
liability therein established to attach that the defective roads or streets belong
to the province, city or municipality from which responsibility is exacted. What

said article requires is that the province, city or municipality have either "control
or supervision" over said street or road. Even if P. Burgos Avenue were,
therefore, a national highway, this circumstance would not necessarily detract
from its "control or supervision" by the City of Manila, under Republic Act 409.
In fact Section 18(x) thereof provides:
Sec. 18. Legislative powers. The Municipal Board shall have the following
legislative powers:
xxxxxxxxx
(x) Subject to the provisions of existing law to provide for the laying out,
construction and improvement, and to regulate the use of streets, avenues,
alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to
provide for lighting, cleaning, and sprinkling of streets and public places; . . . to
provide for the inspection of, fix the license fees for and regulate the openings
in the same for the laying of gas, water, sewer and other pipes, the building and
repair of tunnels, sewers, and drains, and all structures in and under the same
and the erecting of poles and the stringing of wires therein; to provide for and
regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales
upon the streets and other public places; to provide for the abatement of
nuisances in the same and punish the authors or owners thereof; to provide for
the construction and maintenance, and regulate the use, of bridges, viaducts
and culverts; to prohibit and regulate ball playing, kite-flying, hoop rolling, and
other amusements which may annoy persons using the streets and public
places, or frighten horses or other animals; to regulate the speed of horses and
other animals, motor and other vehicles, cars, and locomotives within the limits
of the city; to regulate the lights used on all vehicles, cars, and locomotives; . . .
to provide for and change the location, grade, and crossing of railroads, and
compel any such railroad to raise or lower its tracks to conform to such
provisions or changes; and to require railroad companies to fence their
property, or any part thereof, to provide suitable protection against injury to
persons or property, and to construct and repair ditches, drains, sewers, and
culverts along and under their tracks, so that the natural drainage of the streets
and adjacent property shall not be obstructed.
This authority has been neither withdrawn nor restricted by Republic Act No.
917 and Executive Order No. 113, dated May 2, 1955, upon which the City
relies. Said Act governs the disposition or appropriation of the highway funds

and the giving of aid to provinces, chartered cities and municipalities in the
construction of roads and streets within their respective boundaries, and
Executive Order No. 113 merely implements the provisions of said Republic Act
No. 917, concerning the disposition and appropriation of the highway funds.
Moreover, it provides that "the construction, maintenance and improvement of
national primary, national secondary and national aid provincial and city roads
shall be accomplished by the Highway District Engineers and Highway City
Engineers under the supervision of the Commissioner of Public Highways and
shall be financed from such appropriations as may be authorized by the
Republic of the Philippines in annual or special appropriation Acts."
Then, again, the determination of whether or not P. Burgos Avenue is under the
control or supervision of the City of Manila and whether the latter is guilty of
negligence, in connection with the maintenance of said road, which were
decided by the Court of Appeals in the affirmative, is one of fact, and the
findings of said Court thereon are not subject to our review.
WHEREFORE, the decision appealed from should be as it is hereby affirmed,
with costs against the City of Manila. It is so ordered.1wph1.t
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro,
Angeles and Fernando, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

S. Cipriano, to the damage and prejudice of the said offended party in the
amount of P303,000.00.

CONTRARY TO LAW.

THIRD DIVISION

Upon arraignment[4] on March 27, 2000, appellant, assisted by counsel

de oficio, entered a plea of not guilty. Thereafter, trial on the merits ensued.

[G. R. No. 148233. June 8, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. LUISITO D. BUSTINERA,

appellant.
DECISION
CARPIO MORALES, J.:
From the decision[1] of the Regional Trial Court, Branch 217, Quezon City
finding appellant Luisito D. Bustinera guilty beyond reasonable doubt of
qualified theft[2] for the unlawful taking of a Daewoo Racer GTE Taxi and
sentencing him to suffer the penalty of reclusion perpetua, he comes to this
Court on appeal.
In an information[3] dated June 17, 1997, appellant was indicted as
follows:
The undersigned accuses LUISITO D. BUSTINERA of the crime of Qualified
Theft, committed as follows:
That on or about the 25th day of December up to the 9th day of January, 1997,
in Quezon City, Philippines, the said accused being then employed as one [of]
the taxi Drivers of Elias S. Cipriano, an Operator of several taxi cabs with
business address at corner 44 Commonwealth Avenue, iliman (sic), this City, and
as such has free access to the taxi he being driven, did then and there willfully,
unlawfully and feloniously with intent to gain, with grave abuse of confidence
reposed upon him by his employer and without the knowledge and consent of
the owner thereof, take, steal and carry away a Daewoo Racer GTE Taxi with
Plate No. PWH-266 worth P303,000.00, Philippine Currency, belonging to Elias

From the evidence for the prosecution, the following version is

established.
Sometime in 1996, Edwin Cipriano (Cipriano), who manages ESC
Transport, the taxicab business of his father, hired appellant as a taxi driver and
assigned him to drive a Daewoo Racer with plate number PWH-266. It was
agreed that appellant would drive the taxi from 6:00 a.m. to 11:00 p.m, after
which he would return it to ESC Transports garage and remit the boundary fee
in the amount of P780.00 per day.[5]
On December 25, 1996, appellant admittedly reported for work and
drove the taxi, but he did not return it on the same day as he was supposed to.
Q: Now, Mr. Witness, on December 25, 1996, did you
report for work?
A: Yes, sir.
Q: Now, since you reported for work, what are your duties
and responsibilities as taxi driver of the taxi
company?
A: That we have to bring back the taxi at night with
the boundary.
Q: How much is your boundary?
A: P780.00, sir.
Q: On December 25, 1996, did you bring out any taxi?
A: Yes, sir.
Q:

Now, when ever (sic) you bring out a taxi, what

procedure [do] you follow with that company?

A: That we have to bring back the taxi to the company

and before we leave we also sign something, sir.

Quezon City.[10] Cipriano lost no time in repairing to Regalado Street where he

recovered the taxi.[11]

Q: What is that something you mentioned?

Upon the other hand, while appellant does not deny that he did not
return the taxi on December 25, 1996 as he was short of the boundary fee, he
claims that he did not abandon the taxi but actually returned it on January 5,
1997;[12]
and that on December 27, 1996, he gave the amount of
P2,000.00[13] to his wife whom he instructed to remit the same to Cipriano as
payment of the boundary fee[14] and to tell the latter that he could not return
the taxi as he still had a balance thereof.[15]

A: On the record book and on the daily trip ticket, sir.

Q: You said that you have to return your taxi at the end of
the day, what is then the procedure reflect (sic) by
your company when you return a taxi?
A: To remit the boundary and to sign the record book and
daily trip ticket.
Q: So, when you return the taxi, you sign the record
book?
A: Yes, sir.
Q: You mentioned that on December 25, 1996, you
brought out a taxi?
A: Yes, sir.
Q: What kind of taxi?
A: Daewoo taxi, sir.
Q:

Now did you return the taxi on December 25,

1996?

A: I was not able to bring back the taxi because I was

short of my boundary, sir.[6]
The following day, December 26, 1996, Cipriano went to appellants
house to ascertain why the taxi was not returned.[7] Arriving at appellants
house, he did not find the taxi there, appellants wife telling him that her
husband had not yet arrived.[8] Leaving nothing to chance, Cipriano went to
the Commonwealth Avenue police station and reported that his taxi was
missing.[9]
On January 9, 1997, appellants wife went to the garage of ESC Transport
and revealed that the taxi had been abandoned in Regalado Street, Lagro,

Appellant, however, admits that his wife informed him that when she
went to the garage to remit the boundary fee on the very same day (December
27, 1996),[16] Cipriano was already demanding the return of the taxi.[17]
Appellant maintains though that he returned the taxi on January 5, 1997
and signed the record book,[18] which was company procedure, to show that
he indeed returned it and gave his employer P2,500.00[19] as partial payment
for the boundary fee covering the period from December 25, 1996 to January
5, 1997.
Continuing, appellant claims that as he still had a balance in the
boundary fee, he left his drivers license with Cipriano;[20] that as he could not
drive, which was the only work he had ever known, without his drivers license,
and with the obligation to pay the balance of the boundary fee still lingering,
his wife started working on February 18, 1997 as a stay-in maid for Cipriano,
with a monthly salary of P1,300.00,[21] until March 26, 1997 when Cipriano told
her that she had worked off the balance of his obligation;[22] and that with his
obligation extinguished, his drivers license was returned to him.[23]
Brushing aside appellants claim that he returned the taxi on January 5,
1997 and that he had in fact paid the total amount of P4,500.00, the trial court
found him guilty beyond reasonable doubt of qualified theft by Decision of May
17, 2001, the dispositive portion of which is quoted verbatim:
WHEREFORE, judgment is hereby rendered finding accused guilty beyond
reasonable doubt as charged, and he is accordingly sentenced to suffer the
penalty of Reclusion Perpetua and to pay the costs.
In the service of his sentence, accused is ordered credited with four-fifths (4/5) of
the preventive imprisonment undergone by him there being no showing that he

agreed in writing to abide by the same disciplinary rules imposed upon

convicted prisoners.
SO ORDERED.[24] (Emphasis and italics in the original)
Hence, the present appeal anchored on the following assigned errors:
I.
THE COURT A QUO GRAVELY ERRED IN CONCLUDING WITHOUT
CONCRETE BASIS THAT THE ACCUSED-APPELLANT HAS INTENT TO GAIN
WHEN HE FAILED TO RETURN THE TAXI TO ITS GARAGE.
II.
THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED
THEFT.[25]
It is settled that an appeal in a criminal proceeding throws the whole case
open for review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment even if they have not been specifically
assigned.[26]
Appellant was convicted of qualified theft under Article 310 of the
Revised Penal Code, as amended for the unlawful taking of a motor vehicle.
However, Article 310 has been modified, with respect to certain vehicles,[27] by
Republic Act No. 6539, as amended, otherwise known as "AN ACT
PREVENTING AND PENALIZING CARNAPPING.
When statutes are in pari materia[28] or when they relate to the same
person or thing, or to the same class of persons or things, or cover the same
specific or particular subject matter,[29] or have the same purpose or object,[30]
the rule dictates that they should be construed together interpretare et
concordare leges legibus, est optimus interpretandi modus.[31] Every statute
must be so construed and harmonized with other statutes as to form a uniform
system of jurisprudence,[32] as this Court explained in City of Naga v. Agna,[33]
viz:

. . . When statutes are in pari materia, the rule of statutory construction dictates
that they should be construed together. This is because enactments of the same
legislature on the same subject matter are supposed to form part of one
uniform system; that later statutes are supplementary or complimentary to the
earlier enactments and in the passage of its acts the legislature is supposed to
have in mind the existing legislation on the same subject and to have enacted
its new act with reference thereto. Having thus in mind the previous statutes
relating to the same subject matter, whenever the legislature enacts a new law,
it is deemed to have enacted the new provision in accordance with the
legislative policy embodied in those prior statutes unless there is an express
repeal of the old and they all should be construed together. In construing
them the old statutes relating to the same subject matter should be
compared with the new provisions and if possible by reasonable
construction, both should be so construed that effect may be given to
every provision of each. However, when the new provision and the old
relating to the same subject cannot be reconciled the former shall prevail
as it is the latter expression of the legislative will . . . [34] (Emphasis and
underscoring supplied; citations omitted)
The elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the consent of the owner; and (5) that
the taking be accomplished without the use of violence against or intimidation
of persons or force upon things.[35]
Theft is qualified when any of the following circumstances is present: (1)
the theft is committed by a domestic servant; (2) the theft is committed with
grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail
matter or large cattle; (4) the property stolen consists of coconuts taken from
the premises of a plantation; (5) the property stolen is fish taken from a fishpond
or fishery; and (6) the property was taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance.[36]
On the other hand, Section 2 of Republic Act No. 6539, as amended
defines carnapping as the taking, with intent to gain, of a motor vehicle
belonging to another without the latter's consent, or by means of violence
against or intimidation of persons, or by using force upon things. The elements
of carnapping are thus: (1) the taking of a motor vehicle which belongs to

another; (2) the taking is without the consent of the owner or by means of
violence against or intimidation of persons or by using force upon things; and
(3) the taking is done with intent to gain.[37]
Carnapping is essentially the robbery or theft of a motorized vehicle,[38]
the concept of unlawful taking in theft, robbery and carnapping being the
same.[39]
In the 2000 case of People v. Tan[40] where the accused took a Mitsubishi
Gallant and in the later case of People v. Lobitania[41] which involved the taking
of a Yamaha motorized tricycle, this Court held that the unlawful taking of motor
vehicles is now covered by the anti-carnapping law and not by the provisions on
qualified theft or robbery.
There is no arguing that the anti-carnapping law is a special law, different
from the crime of robbery and theft included in the Revised Penal Code. It
particularly addresses the taking, with intent to gain, of a motor vehicle
belonging to another without the latter's consent, or by means of violence
against or intimidation of persons, or by using force upon things. But a careful
comparison of this special law with the crimes of robbery and theft readily
reveals their common features and characteristics, to wit: unlawful taking, intent
to gain, and that personal property belonging to another is taken without the
latter's consent. However, the anti-carnapping law particularly deals with
the theft and robbery of motor vehicles. Hence a motor vehicle is said to
have been carnapped when it has been taken, with intent to gain, without the
owner's consent, whether the taking was done with or without the use of force
upon things. Without the anti-carnapping law, such unlawful taking of a
motor vehicle would fall within the purview of either theft or robbery
which was certainly the case before the enactment of said statute.[42]
(Emphasis and underscoring supplied; citations omitted.)
It is to be noted, however, that while the anti-carnapping law penalizes
the unlawful taking of motor vehicles, it excepts from its coverage certain
vehicles such as roadrollers, trolleys, street-sweepers, sprinklers, lawn mowers,
amphibian trucks and cranes if not used on public highways, vehicles which run
only on rails and tracks, and tractors, trailers and tractor engines of all kinds and
used exclusively for agricultural purposes. By implication, the theft or robbery
of the foregoing vehicles would be covered by Article 310 of the Revised Penal
Code, as amended and the provisions on robbery, respectively.[43]

From the foregoing, since appellant is being accused of the unlawful

taking of a Daewoo sedan, it is the anti-carnapping law and not the provisions
of qualified theft which would apply as the said motor vehicle does not fall
within the exceptions mentioned in the anti-carnapping law.
The designation in the information of the offense committed by appellant
as one for qualified theft notwithstanding, appellant may still be convicted of
the crime of carnapping. For while it is necessary that the statutory designation
be stated in the information, a mistake in the caption of an indictment in
designating the correct name of the offense is not a fatal defect as it is not the
designation that is controlling but the facts alleged in the information which
determines the real nature of the crime.[44]
In the case at bar, the information alleges that appellant, with intent to
gain, took the taxi owned by Cipriano without the latters consent.[45] Thus, the
indictment alleges every element of the crime of carnapping,[46] and the
prosecution proved the same.
Appellants appeal is thus bereft of merit.
That appellant brought out the taxi on December 25, 1996 and did not
return it on the same day as he was supposed to is admitted.[47]
Unlawful taking, or apoderamiento, is the taking of the motor vehicle
without the consent of the owner, or by means of violence against or
intimidation of persons, or by using force upon things; it is deemed complete
from the moment the offender gains possession of the thing, even if he has no
opportunity to dispose of the same.[48]
While the nature of appellants possession of the taxi was initially lawful
as he was hired as a taxi driver and was entrusted possession thereof, his act of
not returning it to its owner, which is contrary to company practice and against
the owners consent transformed the character of the possession into an
unlawful one.[49] Appellant himself admits that he was aware that his
possession of the taxi was no longer with Ciprianos consent as the latter was
already demanding its return.
Q: Also you said that during your direct testimony that
when you gave your wife the P2,500.00, you also
told her to go to the company to ask the company
for permission for you to use the taxi since you were

then still short of the boundary. Alright, after telling

that to your wife and after seeing your wife between
December 27, 1996 and January 5, 1997, did you
ask your wife what was the answer of the company
to that request of yours?
A: He did not allow me, sir, and he even [got] angry with
me.
Q: So, when did you learn that the company was not
agreeable to your making use of the taxicab without
first returning it to the company?
A: Before the new year, sir.
Q: When you said new year, you were referring to January
1, 1997?
A: Either December 29 or December 30, 1996, sir.
Q: So, are you telling us that even if you knew already
that the company was not agreeable to your
making use of the taxicab continually (sic)
without returning the same to the company, you
still went ahead and make (sic) use of it and
returned it only on January 5, 1997.
A: Yes, sir.[50] (Emphasis and underscoring supplied)
Appellant assails the trial courts conclusion that there was intent to gain
with the mere taking of the taxi without the owners consent. He maintains that
his reason for failing to return the taxi was his inability to remit the boundary
fee, his earnings that day not having permitted it; and that there was no intent
to gain since the taking of the taxi was not permanent in character, he having
returned it.
Appellants position does not persuade.
Intent to gain or animus lucrandi is an internal act, presumed from the
unlawful taking of the motor vehicle.[51] Actual gain is irrelevant as the
important consideration is the intent to gain.[52] The term gain is not merely
limited to pecuniary benefit but also includes the benefit which in any other

sense may be derived or expected from the act which is performed.[53] Thus,
the mere use of the thing which was taken without the owners consent
constitutes gain.[54]
In Villacorta v. Insurance Commission[55] which was reiterated in
Association of Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co,
Inc.,[56] Justice Claudio Teehankee (later Chief Justice), interpreting the theft
clause of an insurance policy, explained that, when one takes the motor vehicle
of another without the latters consent even if the motor vehicle is later
returned, there is theft, there being intent to gain as the use of the thing
unlawfully taken constitutes gain:
Assuming, despite the totally inadequate evidence, that the taking was
temporary and for a joy ride, the Court sustains as the better view[57] that
which holds that when a person, either with the object of going to a certain
place, or learning how to drive, or enjoying a free ride, takes possession of a
vehicle belonging to another, without the consent of its owner, he is guilty of
theft because by taking possession of the personal property belonging to
another and using it, his intent to gain is evident since he derives therefrom
utility, satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites
in his work Groizard who holds that the use of a thing constitutes gain and
Cuello Calon who calls it hurt de uso.[58] (Emphasis and underscoring
supplied; citation omitted)
Besides, the trial court did not believe appellants claim that he in fact
returned the taxi on January 5, 1997.
The Court can not (sic) believe accuseds assertion that he returned the subject
vehicle on January 5, 1997 to the garage and that he had in fact paid the
amount of P4,500.00 in partial payment of his unremitted boundary for ten
(10) days. He could not even be certain of the exact amount he allegedly paid
the taxicab owner. On direct-examination, he claimed that he paid Edwin
Cipriano on December 27, 1996 the amount of P2,000.00 and it was his wife
who handed said amount to Cipriano, yet on cross-examination, he claimed
that he gave P2,500.00 to his wife on that date for payment to the taxicab
owner.[59]
The rule is well-entrenched that findings of fact of the trial court are
accorded the highest degree of respect and will not be disturbed on appeal
absent any clear showing that the trial court had overlooked, misunderstood or

misapplied some facts or circumstances of weight and significance which, if

considered, would alter the result of the case.[60] The reason for the rule being
that trial courts have the distinct advantage of having heard the witnesses
themselves and observed their deportment and manner of testifying or their
conduct and behavior during the trial.[61]
Other than his bare and self-serving allegations, appellant has not shown
any scintilla of evidence that he indeed returned the taxi on January 5, 1997.
Q: You said that you returned the taxi on January 5, 1997,
correct?
A: Yes, sir.
Q: Now, Mr. Witness, did you sign any record when
you returned the taxi?
A: Yes, sir.
Q: Do you have any copy of that record?
A: They were the one (sic) in-charge of the record book
and I even voluntarily left my drivers license
with them, sir.
Q: You said that you did not return the taxi because you
were short of (sic) boundary, did you turn over any
money to your employer when you returned the
taxi?
A: I gave them [an] additional P2,500.00, sir.
Q: At the time when you returned the taxi, how much was
your short indebtedness (sic) or short boundary (sic)?
A: I was short for ten (10) days, and I was able to pay
P4,500.00.
Q:

Do you have any receipt to show receipt of

payment for this P4,500.00?

A:

They were the ones having the record of my

payment, and our agreement was that I have to

pay the balance in installment.[62] (Emphasis

supplied)
While appellant maintains that he signed on January 5, 1997 the record
book indicating that he returned the taxi on the said date and paid Cipriano the
amount of P4,500.00 as partial payment for the boundary fee, appellant did not
produce the documentary evidence alluded to, to substantiate his claim. That
such alleged record book is in the possession of Cipriano did not prevent him
from producing it as appellant has the right to have compulsory process issued
to secure the production of evidence on his behalf.[63]
The trial court having convicted appellant of qualified theft instead of
carnapping, it erred in the imposition of the penalty. While the information
alleges that the crime was attended with grave abuse of confidence, the same
cannot be appreciated as the suppletory effect of the Revised Penal Code to
special laws, as provided in Article 10 of said Code, cannot be invoked when
there is a legal impossibility of application, either by express provision or by
necessary implication.[64]
Moreover, when the penalties under the special law are different from
and are without reference or relation to those under the Revised Penal Code,
there can be no suppletory effect of the rules, for the application of penalties
under the said Code or by other relevant statutory provisions are based on or
applicable only to said rules for felonies under the Code.[65]
Thus, in People v. Panida[66] which involved the crime of carnapping and
the penalty imposed was the indeterminate sentence of 14 years and 8 months,
as minimum, to 17 years and 4 months, as maximum, this Court did not apply
the provisions of the Revised Penal Code suppletorily as the anti-carnapping
law provides for its own penalties which are distinct and without reference to
the said Code.
The charge being simple carnapping, the imposable penalty is imprisonment
for not less than 14 years and 8 months and not more than 17 years and 4
months. There can be no suppletory effect of the rules for the application
of penalties under the Revised Penal Code or by other relevant statutory
provisions based on, or applicable only to, the rules for felonies under the
Code. While it is true that the penalty of 14 years and 8 months to 17
years and 4 months is virtually equivalent to the duration of the medium
period of reclusion temporal, such technical term under the Revised Penal
Code is not given to that penalty for carnapping. Besides, the other

penalties for carnapping attended by the qualifying circumstances stated

in the law do not correspond to those in the Code. The rules on penalties in
the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and
special laws of the same formulation. For this reason, we hold that the proper
penalty to be imposed on each of accused-appellants is an indeterminate
sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as
maximum.[67] (Emphasis and underscoring supplied; citations omitted)
Appellant being then culpable for carnapping under the first clause of
Section 14 of Republic Act No. 6539, as amended, the imposable penalty is
imprisonment for not less than 14 years and 8 months, not more than 17 years
and 4 months,[68] for, as discussed above, the provisions of the Revised Penal
Code cannot be applied suppletorily and, therefore, the alleged aggravating
circumstance of grave abuse of confidence cannot be appreciated.
Applying Section 1 of Act No. 4103,[69] as amended, otherwise known as
the Indeterminate Sentence Law, if the offense is punishable by a special law,
the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and
the minimum term shall not be less than the minimum prescribed by the same
the penalty imposed being a range.[70]
WHEREFORE, the judgment of the Regional Trial Court of Quezon City,
Branch 217, in Crim Case No. Q-97-71956, finding appellant Luisito D.
Bustinera guilty beyond reasonable doubt of qualified theft, is REVERSED and
SET ASIDE, and another judgment entered in its place, finding him guilty
beyond reasonable doubt of the crime of carnapping under Republic Act No.
6539, as amended and sentencing him to an indeterminate penalty of Fourteen
(14) Years and Eight (8) Months, as minimum, to Seventeen (17) Years and Four
(4) Months, as maximum.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

!
!

EN BANC

URBANO M. MORENO, G.R. No. 168550

Petitioner,

Present:

PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
- versus - YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
COMMISSION ON ELECTIONS TINGA,
and NORMA L. MEJES, CHICO-NAZARIO,
Respondents. GARCIA, and

VELASCO, J.,
JJ.

Promulgated:

August 10, 2006

x------------------------------------------------------------------------------------ x

DECISION

TINGA, J.:

In this Petition[1] dated July 6, 2005, Urbano M. Moreno (Moreno)

assails the Resolution[2] of the Commission on Elections (Comelec) en banc
dated June 1, 2005, affirming the Resolution[3] of the Comelec First Division
dated November 15, 2002 which, in turn, disqualified him from running for the
elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the
July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from

running for Punong Barangay on the ground that the latter was convicted by
final judgment of the crime of Arbitrary Detention and was sentenced to suffer
imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August
27, 1998.

Moreno filed an answer averring that the petition states no cause of

action because he was already granted probation. Allegedly, following the case
of Baclayon v. Mutia,[4] the imposition of the sentence of imprisonment, as well
as the accessory penalties, was thereby suspended. Moreno also argued that
under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge
of the probation shall operate to restore to him all civil rights lost or suspended
as a result of his conviction and to fully discharge his liability for any fine
imposed. The order of the trial court dated December 18, 2000 allegedly
terminated his probation and restored to him all the civil rights he lost as a
result of his conviction, including the right to vote and be voted for in the July
15, 2002 elections.

The case was forwarded to the Office of the Provincial Election

Supervisor of Samar for preliminary hearing. After due proceedings, the
Investigating Officer recommended that Moreno be disqualified from running
for Punong Barangay.

The Comelec First Division adopted this recommendation. On

motion for reconsideration filed with the Comelec en banc, the
Resolution of the First Division was affirmed. According to the Comelec en
banc, Sec. 40(a) of the Local Government Code provides that those sentenced
by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence, are disqualified from running for any elective local position.
[5] Since Moreno was released from probation on December 20, 2000,
disqualification shall commence on this date and end two (2) years thence. The
grant of probation to Moreno merely suspended the execution of his sentence
but did not affect his disqualification from running for an elective local
office.

Further, the Comelec en banc held that the provisions of the Local
Government Code take precedence over the case of Baclayon v. Mutia cited by
Moreno and the Probation Law because it is a much later enactment and a
special law setting forth the qualifications and disqualifications of elective local
officials.

In this petition, Moreno argues that the disqualification under the

Local Government Code applies only to those who have served their sentence
and not to probationers because the latter do not serve the adjudged sentence.
The Probation Law should allegedly be read as an exception to the Local
Government Code because it is a special law which applies only to
probationers. Further, even assuming that he is disqualified, his subsequent
election as Punong Barangay allegedly constitutes an implied pardon of his
previous misconduct.

In its Comment[6] dated November 18, 2005 on behalf of the

Comelec, the Office of the Solicitor General argues that this Court in Dela Torre
v. Comelec[7] definitively settled a similar controversy by ruling that conviction
for an offense involving moral turpitude stands even if the candidate was
granted probation. The disqualification under Sec. 40(a) of the Local
Government Code subsists and remains totally unaffected notwithstanding the
grant of probation.

Moreno filed a Reply to Comment[8] dated March 27, 2006,

reiterating his arguments and pointing out material differences between his
case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable

to him. According to Moreno, Dela Torre v. Comelec involves a conviction for

violation of the Anti-Fencing Law, an offense involving moral turpitude covered
by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the
petitioner in that case, applied for probation nearly four (4) years after his
conviction and only after appealing his conviction, such that he could not have
been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted

probation within the period specified therefor. He never served a day of his
sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local
Government Code does not apply to him.

The resolution of the present controversy depends on the application

of the phrase within two (2) years after serving sentence found in Sec. 40(a) of
the Local Government Code, which reads:

Sec. 40. Disqualifications. The

following persons are disqualified from running for
any elective local position:

(a) Those sentenced by final

judgment for an offense involving moral turpitude
or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years
after serving sentence; [Emphasis supplied.]
. . . .

We should mention at this juncture that there is no need to rule on

whether Arbitrary Detention, the crime of which Moreno was convicted by final
judgment, involves moral turpitude falling under the first part of the abovequoted provision. The question of whether Arbitrary Detention is a crime
involving moral turpitude was never raised in the petition for disqualification
because the ground relied upon by Mejes, and which the Comelec used in its
assailed resolutions, is his alleged disqualification from running for a local
elective office within two (2) years from his discharge from probation after
having been convicted by final judgment for an offense punishable by Four (4)
Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a
determination that the crime of Arbitrary Detention involves moral turpitude is

not decisive of this case, the crucial issue being whether Morenos sentence was
in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our

pronouncement therein that the grant of probation does not affect the
disqualification under Sec. 40(a) of the Local Government Code was based
primarily on the finding that the crime of fencing of which petitioner was
convicted involves moral turpitude, a circumstance which does not obtain in this
case. At any rate, the phrase within two (2) years after serving sentence
should have been interpreted and understood to apply both to those who have
been sentenced by final judgment for an offense involving moral turpitude and
to those who have been sentenced by final judgment for an offense punishable
by one (1) year or more of imprisonment. The placing of the comma (,) in the
provision means that the phrase modifies both parts of Sec. 40(a) of the Local
Government Code.

The Courts declaration on the effect of probation on Sec. 40(a) of

the Local Government Code, we should add, ought to be considered an obiter
in view of the fact that Dela Torre was not even entitled to probation because
he appealed his conviction to the Regional Trial Court which, however, affirmed
his conviction. It has been held that the perfection of an appeal is a
relinquishment of the alternative remedy of availing of the Probation Law, the
purpose of which is to prevent speculation or opportunism on the part of an
accused who, although already eligible, did not at once apply for probation,
but did so only after failing in his appeal.[9]

Sec. 40(a) of the Local Government Code appears innocuous enough

at first glance. The phrase service of sentence, understood in its general
and common sense, means the confinement of a convicted

person in a penal facility for the period adjudged by the court.[10] This
seemingly clear and unambiguous provision, however, has spawned a
controversy worthy of this Courts attention because the Comelec, in the
assailed resolutions, is alleged to have broadened the coverage of the law to
include even those who did not serve a day of their sentence because they
were granted probation.

Moreno argues, quite persuasively, that he should not have been

disqualified because he did not serve the adjudged sentence having been
granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing

defendant on probation is not a sentence but is rather, in effect, a suspension of
the imposition of sentence. We held that the grant of probation to petitioner
suspended the imposition of the principal penalty of imprisonment, as well as
the accessory penalties of suspension from public office and from the right to
follow a profession or calling, and that of perpetual special disqualification from
the right of suffrage. We thus deleted from the order granting probation the
paragraph which required that petitioner refrain from continuing with her
teaching profession.

Applying this doctrine to the instant case, the accessory penalties of

suspension from public office, from the right to follow a profession or calling,
and that of perpetual special disqualification from the right of suffrage,
attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period[11] imposed upon Moreno were similarly
suspended upon the grant of probation.

It appears then that during the period of probation, the probationer

is not even disqualified from running for a public office because the accessory
penalty of suspension from public office is put on hold for the duration of the
probation.

Clearly, the period within which a person is under probation cannot

be equated with service of the sentence adjudged. Sec. 4 of the Probation Law
specifically provides that the grant of probation suspends the execution of the
sentence. During the period of probation,[12] the probationer does not serve
the penalty imposed upon him by the court but is merely required to comply
with all the conditions prescribed in the probation order.[13]

It is regrettable that the Comelec and the OSG have

misapprehended the real issue in this case. They focused on the fact that
Morenos judgment of conviction attained finality upon his application for
probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply

applying the law to the letter. Sec. 40(a) of the Local Government Code
unequivocally disqualifies only those who have been sentenced by final
judgment for an offense punishable by imprisonment of one (1) year or more,
within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not
served their sentence by reason of the grant of probation which, we reiterate,
should not be equated with service of sentence, should not likewise be
disqualified from running for a local elective office because the two (2)-year
period of ineligibility under Sec. 40(a) of the Local Government Code does not
even begin to run.

The fact that the trial court already issued an order finally discharging
Moreno fortifies his position. Sec. 16 of the Probation Law provides that [t]he
final discharge of the probationer shall operate to restore to him all civil rights
lost or suspended as a result of his conviction and to fully discharge his liability
for any fine imposed as to the offense for which probation was granted. Thus,
when Moreno was finally discharged upon the courts finding that he has
fulfilled the terms and conditions of his probation, his case was deemed
terminated and all civil rights lost or suspended as a result of his conviction
were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local

Government Code which gives room for judicial interpretation,[14] our
conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government

Code afford us no clue as to the intended meaning of the phrase service of
sentence, i.e., whether the legislature also meant to disqualify those who have
been granted probation. The Courts function, in the face of this seeming
dissonance, is to interpret and harmonize the Probation Law and the Local
Government Code. Interpretare et concordare legis legibus est optimus
interpretandi.

Probation is not a right of an accused but a mere privilege, an act of

grace and clemency or immunity conferred by the state, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense of which he was convicted.[15] Thus, the

Probation Law lays out rather stringent standards regarding who are qualified
for probation. For instance, it provides that the benefits of probation shall not
be extended to those sentenced to serve a maximum term of imprisonment of
more than six (6) years; convicted of any offense against the security of the
State; those who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one (1) month and one (1)
day and/or a fine of not less than P200.00; those who have been once on
probation; and those who are already serving sentence at the time the
substantive provisions of the Probation Law became applicable.[16]

It is important to note that the disqualification under Sec. 40(a) of the

Local Government Code covers offenses punishable by one (1) year or more of
imprisonment, a penalty which also covers probationable offenses. In spite of
this, the provision does not specifically disqualify probationers from running for
a local elective office. This omission is significant because it offers a glimpse
into the legislative intent to treat probationers as a distinct class of offenders
not covered by the disqualification.

Further, it should be mentioned that the present Local Government

Code was enacted in 1991, some seven (7) years after Baclayon v. Mutia was
decided. When the legislature approved the enumerated disqualifications
under Sec. 40(a) of the Local Government Code, it is presumed to have
knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the
disqualification from holding public office. That it chose not to include
probationers within the purview of the provision is a clear expression of the
legislative will not to disqualify probationers.

On this score, we agree with Moreno that the Probation Law should
be construed as an exception to the Local Government Code. While the Local
Government Code is a later law which sets forth the qualifications and
disqualifications of local elective officials, the Probation Law is a special
legislation which applies only to probationers. It is a canon of statutory
construction that a later statute, general in its terms and not expressly repealing
a prior special statute, will ordinarily not affect the special provisions of such
earlier statute.[17]

In construing Sec. 40(a) of the Local Government Code in a way that

broadens the scope of the disqualification to include Moreno, the Comelec
committed an egregious error which we here correct. We rule that Moreno was

not disqualified to run for Punong Barangay of Barangay Cabugao, Daram,

Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan
Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at

the time of his conviction of the crime of Arbitrary Detention. He claims to have
obtained a fresh mandate from the people of Barangay Cabugao, Daram,
Samar in the July 15, 2002 elections. This situation calls to mind the poignant
words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v.
Comelec[18] where he said that it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.

WHEREFORE, the petition is GRANTED. The Resolution of the

Commission on Elections en banc dated June 1, 2005 and the Resolution of its
First Division dated November 15, 2002, as well as all other actions and orders
issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on
Elections is directed to proceed in accordance with this Decision. No
pronouncement as to costs.

SO ORDERED.

!
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5955 September 19, 1952
JOSE L. LAXAMANA, petitioner,
vs.
JOSE T. BALTAZAR, respondent.
Gerardo S. Limlingan and Jose L. Baltazar for petitioner.
Macapagal, Punzalan and Yabut for respondent.
Ramon Duterte and Pedro Lopez as amici curiae.
BENGZON, J.:
When in July 1952 the mayor of Sexmoan, Pampanga, was suspended, the vicemayor Jose T. Salazar, assumed office as mayor by virtue of section 2195 of the
Revised Administrative Code. However, the provincial governor, acting under
section 21 (a) of the Revised Election Code (R.A. 180), with the consent of the
provincial board appointed Jose L. Laxamana, as mayor of Sexmoan, who
immediately took the corresponding official oath.
Result: this quo warranto proceeding, based solely on the petitioner's
proposition that the section first mentioned has been repealed by the
subsequent provision of the Revised Election Code.
If there was such repeal, this petition should be granted, and Laxamana
declared the lawful mayor of Sexmoan. Otherwise it must be denied.1
The two statutory provisions read as follows:
SEC. 2195. Temporary disability of the mayor. Upon the occasion of the
absence, suspension, or other temporary disability of the Mayor, his duties shall
be discharged by the Vice-Mayor, or if there be no Vice-Mayor, by the councilor
who at the last general election received the highest number of votes.

SEC. 21 (a). Vacancy in elective provincial, city or municipal office. Whenever

a temporary vacancy in any elective local office occurs, the same shall be filled
by appointment by the President if it is a provincial or city office, and by the
provincial governor, with the consent of the Provincial Board, if it is a municipal
office. (R.A. 180, the Revised Election Code.
SEC. 21 (a) The portion relating to municipal offices was taken from
section 2180 of the Revised Administrative Code, which partly provided:
SEC. 2180. Vacancies in municipal office. (a) In case of a temporary vacancy
in any municipal office, the same shall be filled by appointment by the
provincial governor, with the consent of the provincial board.
(b) In case of a permanent vacancy in any municipal office, the same shall be
filled by appointment by the provincial board, except in case of a municipal
president, in which the permanent vacancy shall be filled by the municipal vicepresident. . . .
It will be seen that under this section, when the office of municipal president
(now mayor) become permanently vacant the vice-president stepped into the
office. The section omitted reference to temporary vacancy of such office
because section 2195 governed that contingency. In this regard sections 2180
and 2195 supplemented each other. Paragraph (a) of section 2180 applied to
municipal offices in general, other than that of the municipal president.
Under the Revised Administrative Code, specially the two sections indicated
there was no doubt in Government circles that when the municipal president
was suspended from office, the vice-president took his place.
Temporary vacancy in office of municipal president. Paragraph (a) of this
section (2180) should be construed to cover only municipal offices other than
the office of president. Section 2195 of the Administrative Code should be
applied in case of the absence, suspension, or other temporary disability of the
municipal president. (Op. Atty. Gen. Sept. 21, 1917; Ins. Aud. Oct. 23, 1927.)
(Araneta, Administrative Code Vol. IV p. 2838)
Municipal president cannot designate acting president. There is no provision
of law expressly or implied authorizing the municipal president to designate any
person to act in his stead during his temporary absence or disability. From the

provision of section 2195 of the code, it is clear that the vice-president or, if
there be no vice-president, the councilor who at the last general election
received the highest number of votes, should automatically (without any formal
designation) discharge the duties of the president. (Op. Ins. Aud. March 2,
1926) (Araneta Administrative Code Vol. IV, p. 2839)
Now it is reasonable to assume that the incorporation of the above section
2180 into the Revised Election Law as section 21 (a) did not have the effect of
enlarging its scope,2 to supersede or repeal section 2195, what with the
presumption against implied repeals.3 "Where a statute has received a
contemporaneous and practical interpretation and the statute as interpreted is
re-enacted, the practical interpretation is accorded greater weight than it
ordinarily receives, and is regarded as presumptively the correct interpretation
of the law. The rule here is based upon the theory that the legislature is
acquainted with the contemporaneous interpretation of a statute, especially
when made by an administrative body or executive officers charged with the
duty of administering or enforcing the law, and therefore impliedly adopts the
interpretation upon re-enactment." (Sutherland Statutory Construction, sec.
5109.)
Indeed, even disregarding their origin, the allegedly conflicting sections, could
be interpreted in the light of the principle of statutory construction that when a
general and a particular provision are inconsistent the latter is paramount to the
former (sec. 288, Act 190). In other words, section 2195 referring particularly to
vacancy in the office of mayor, must prevail over the general terms of section 21
(a) as to vacancies of municipal (local) offices. Otherwise stated, section 2195
may be deemed an exception to or qualification of the latter.4 "Where one
statute deals with a subject in general terms, and another deals with a part of
the same subject in a more detailed way, the two should be harmonized if
possible; but if there is any conflict, the latter will prevail, regardless of whether
it was passed prior to the general statute." (Sutherland Statutory Construction,
sec. 5204)
In a recent decision,5 we had occasion to pass on a similar situation repeal by
subsequent general provision of a prior special provision and we said,:
It is well-settled that a special and local statute, providing for a particular case
or class of cases, is not repealed by a subsequent statute, general in its terms,
provisions and application, unless the intent to repeal or alter is manifest,

although the terms of the general act are broad enough to include the cases
embraced in the special law. . . . It is a canon of statutory construction that a
later statute, general in its terms and not expressly repealing a prior special
statute, will ordinarily not affect the special provisions, of such earlier statute.
(Steamboat Company vs. Collector, 18 Wall. (U.S.), 478; Cass County vs. Gillett,
100 U.S. 585; Minnesota vs. Hitchcock, 185 U.S. 373, 396.)
Where there are two statutes, the earlier special and the later general the
terms of the general brood enough to include the matter provided for in the
special the fact that one is special and the other is general creates a
presumption that the special is to be considered as remaining an exception to
the general, one as a general law of the land, the other as the law of a particular
case. (State vs. Stoll, 17 Wall. (U.S.) 425)
In fact even after the Revised Election Code was enacted, the Department of
the Interior and the office of executive Secretary who are charged with the
supervision of provincial and municipal governments have "consistently held
that in case of the suspension or other temporary disability of the mayor, the
vice-mayor shall, by operation of law, assume the office of the mayor, and if the
vice-mayor is not available, the said office shall be discharged by the first
councilor." (Annex 5 of the answer.)
Needless to say, the contemporaneous construction placed upon the statute by
the executive officers charged with its execution deserves great weight in the
courts.6
Consequently it is our ruling that when the mayor of a municipality is
suspended, absent or temporarily unable, his duties should be discharged by
the vice-mayor in accordance with sec. 2195 of the Revised Administrative
Code.
This quo warranto petition is dismissed with costs. So ordered.1wphl.nt
Paras, C.J., Pablo, Padilla, Montemayor, Jugo, Bautista Angelo and Labrador,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

2. That the term of this contract is three years from December 10, 1932, to
November 30, 1935.
xxxxxxxxx

EN BANC
G.R. No. L-40188 July 27, 1934
THE EMPLOYEES' CLUB, INC., petitioner-appellee,
vs.
CHINA BANKING CORPORATION, oppositor-appellant.
Feria and La O for appellant.
Ciriaco C. Magsanoc for appellee.
DIAZ, J.:
This is an appeal taken by the oppositor-appellant China Banking Corporation,
as mortgage creditor of the Intestate Estate of Jose Javier Go Chioco, from the
order entered by the trial court on May 16, 1933, requiring it to surrender the
register of deeds of the City of Manila the duplicate transfer certificate of title
No. 21192 of the said registry, which it has in its possession, in order that the
contract of lease evidenced by Exhibit A which was executed under judicial
authorization on November 29, 1932, by the administrator of the intestate
estate of said deceased Jose Javier Go Chioco might be noted thereon and
entered in the corresponding records.
The oppositor-appellant contends that the order appealed from is not
enforceable because the contract of lease to which it refers was not, and is not,
by its nature, registerable in the registry of deeds. Its grounds are: that said
contract does not create a real right and that, under the provisions of the Civil
Code and the Mortgage Law, only real rights are susceptible of registration in
the registry of deeds, with no other exception than those cases in which the
lease is for a period exceeding six years, or the rent corresponding to three
years is paid in advance, or there is an express covenant requiring the lease to
be inscribed in the registry of deeds.
The only pertinent clauses of the contract of lease in question are the second
and the fourteenth, which translated read as follows:

14. In case of sale of the property where the subject matter of this lease is
situated, the lessor is bound impose upon the purchaser the obligation to
respect the present contract of lease.
In passing, it should be stated that there is no dispute between the parties with
respect to the following facts: that during the lifetime of Jose Javier Go Chioco,
of whose intestate estate Francisco Gumila is the judicial administrator, the
appellant granted him a loan of some two hundred fifty thousand pesos; that
to, secure the payment of said loan, said debtor mortgaged, among other
properties belonging to him, his property at No. 419 Dasmarias Street,
Binondo, Manila, which is covered by the above-mentioned transfer certificate
of title; that inasmuch as the obligation of said Jose Javier Go Chioco or his
intestate estate, which was secured by the aforesaid mortgage, became due,
the appellant instituted civil case No. 42578 of the Court of First Instance of
Manila for the recovery of the debt; and that while said case was pending, the
administrator of the intestate estate of said deceased mortgagor leased to the
appellee, in the manner above stated, the third floor of the property referred to
in said contract of lease Exhibit A.
The appellant, in support of its contention that said contract of lease was and is
not, registerable, because its term is only for three years and the rent
corresponding to said term of three years has not been paid in advance, nor
was there any covenant between the lessor and the lessee, requiring the
contract to be inscribed in the registry of deeds, invokes and quotes Manresa's
commentary on article 1571 of the Civil Code, which reads as follows:
In Chapter I of this title, we have amply discussed the question whether or not a
lease creates a real right in favor of the lessee. From our study of the preceding
and the actual state of legislation, we are led to the conclusion that, in our law,
the right created in favor of the lessee by reason of the contract is, as a general
rule, personal in nature, and, by exception, real, when it is among the cases
provided for in article 2, No. 5, of the Mortgage Law, that is, when the lease is
for a period exceeding six years; the rent for three years is paid in advance, or
there is an ex- press covenant for its inscription in the registry of deeds, which

are the only three cases in which the lease is registerable." (10 Manresa, page
637.)
The article commented on partly provides as follows:
ART. 1571. The purchaser of a leased estate shall be entitled to terminate any
lease in force at the time of making the sale unless the contrary is stipulated,
and subject to the provisions of the Mortgage Law.
The appellant forgets, or rather ignores, the fact that the property in question is
registered, not under the old Mortgage Law but under Act No. 496, in
accordance with the Torrens system: and it forgets furthermore that the latter
Act expressly provides that all interests and this word includes the interest
arising from a contract of lease, like that which the petitioner-appellee has in its
favor in land registered in the registry under said Act are not only susceptible
of registration therein but must necessarily be registered in order to affect third
persons. Sections 51 and 52 of the said Act provide as follows:
SEC. 51. Every conveyance, mortgage, lease, lien, attachment, order, decree,
instrument, or entry affecting registered land which would under existing laws, if
recorded, filed, or entered in the office of the register of deeds, affect the real
estate to which it relates shall, if registered, filed, or entered in the office of the
register of deeds in the province or city where the real estate to which such
instrument relates lies, be notice to all persons from the time of such
registering, filing, or entering.
SEC. 52. No new certificate shall be entered or issued upon any transfer of
registered land which does not divest the land in fee simple from the owner or
from some one of the registered owners. All interests in registered land less
than an estate in fee simple shall be registered by filing with the register of
deeds the instrument creating or transferring or claiming such interest and by a
brief memorandum thereof made by the register of deeds upon the certificate
of title, signed by him. A similar memorandum shall also be made on the
owner's duplicate. The cancellation or extinguishment of such interest shall be
registered in the same manner.
The appellant contends that the provisions of section 52 are not applicable in
this case because, according to it, the section in question refers exclusively to
real rights or is erroneous, on the ground that the Spanish text of the law is

relied upon by the appellant whereas Act No. 496 was originally enacted by the
Legislature in English. (Act No. 63.) The rule that governs in this jurisdiction is
that the English text of a law should prevail over the Spanish text when the
same had been promulgated in that language. (Section 15 of the Revised
Administrative Code of 1917.)
The Spanish translation of the phrase: "All interests in registered land" used inn
the said section 52, which reads: "La inscripcion o registro de todo derecho
real", is inaccurate because it restricts the meaning expressed by the phrase in
question, which is, that all interests in registerable, without the necessity,
however, of issuing a new certificate of title therefor.
What is stated herein is not in conflict with the provisions of section 51 which
reads: "Every . . . lease . . . affecting registered land which would under existing
laws, if recorded, filed, or entered in the office of the registered of deeds, etc.",
because the phrase "which would under existing laws" used therein does not
necessarily mean the Mortgage Law or the Civil Code. It also includes Act No.
496 of which said section is a part because, as already stated, said Act requires,
rather than permits, the inscription in the registry of all rights or interests in
registered land, whether the same arises from a mortgage, from an attachment,
or from a lease or any other lien.
We should not be understood as giving no force to the provisions of article
1571 of the Civil Code with respect to the right of the purchaser of a leased
estate to terminate the lease existing at the time of the sale. It would be too
premature to decide said question at this time, for the reason that neither have
the parties raised it nor do the alleged and Proven facts call for the same.
Perhaps said provisions will be of value especially in the appellant's case if, at
the proper time, it becomes the purchaser of the property in question in the
proceedings instituted by it against the intestate estate of the deceased Jose
Javier Go Chioco for the recovery of the debt, on the ground that the case
involves a lease executed after the constitution of the mortgage in its favor.
However, this does not, for the reasons already stated, prevent the lease
granted to the appellee from being inscribed in the registry of deeds in order to
protect it, at least, from other liens that may be constituted on the property
which is the subject matter of the lease.
Wherefore, this court considers it necessary for the appellant to surrender to the
register of deeds of the City of Manila the duplicate of transfer certificate of title

No. 21192, which it has in its possession, in order that said official may make a
notation on the said document as well as on the original thereof and in the
corresponding records of his office, of the contract of lease contained in Exhibit
A.

The circumstance that the defendant may perhaps be entitled to terminate the
lease, although the same be registered if it becomes the purchaser of the
property, is of no moment, for the reason that such may not be the case and the
defendant is entitled in all cases to be protected in its mortgage credit.

The order appealed from is affirmed, with the costs against the appellant. So
ordered.

ABAD SANTOS, J., dissenting:

I dissent.

Street, Malcolm, Villa-Real, Hull, Vickers, Imperial and Butte, JJ., concur.

Separate Opinions

I am of the opinion that a contract of lease of real property for a period not
exceeding six years is not entitled to be recorded, unless the stipulated rent has
been paid in advance for three or more years, or the parties thereto have
expressly agreed that the same be recorded. (Mortgage Law, article 2 [5].)

AVANCEA, C.J., dissenting:

I agree with the dissenting opinion of Justice Abad Santos. My point of view,
however, goes farther. Even granting that the lease of the property in favor of
the plaintiff is registerable, it cannot be registered in so far as it affects the
mortgage rights of the defendant previously registered. The purpose of the
mortgage is to secure with the value thereof the payment of the debt. In this
sense, it may be said that it affects the value of the property more than the
property itself. It is for this essential reason in the mortgage that the debtor
cannot diminish the value of the mortgage property and, therefore, cannot
execute any act which might in one way or another tend to cause its
depreciation.
If the lease, in favor of the plaintiff is registered, it would affect third persons
and would have to be respected by the legal effect of the registration thereof. It
can easily be understood that a lease for a period which must be respected,
necessarily causes depreciation in the value of the property in case the same is
sold, or, what is more, it may not be sold because of this circumstance. In this
way, if in the proceedings already instituted by the defendant for the recovery
of the debt, the property is sold, it will not obtain the price which it should
otherwise obtain in the absence of the registered lease, and perhaps the
amount due the defendant may not be recovered for lack of a purchaser of the
property with said lien.
Inasmuch as the registration of the lease affects the mortgage rights of the
defendant in the manner above stated, such registration cannot be made.

Section 52 of Act No 496 does not require or authorize mere personal

covenants to be recorded. The term "all interest in registered land less than an
estates in the land or real rights. It does not include personal contracts relating
to real property, which can convey no interest in the land. (Storz vs. Kirsch, 78
Ind. A., 431; 138 N. E., 36.)
In this jurisdiction, the nature and effect of a contract of lease are governed by
the provisions of the Civil Code. While by the common law a lease conveys an
interest inland, under our law it does not; it is a mere personal con- tract. (Civil
Code, arts. 1542 and 1543; 10 Manresa, p.637; Berwind-White Coal Mining
Company vs. Boriquen Sugar Company, 6 Porto Rico Fed., 252.) It creates no
estate or interest in land.
While the common law regards a lease for years as the grant of an estate, the
civil law on the other hand regards a lease for years as a mere transfer of the
use and enjoyment of the property. Hence, in the various civil-law jurisdictions,
there are statutes defining a lease as a contract by which one party gives to the
other the enjoyment of a thing at a fixed price, and as a contract in which one
party under-takes to give to the other the use of a thing for a definite or
indefinite period in consideration of a price certain. A lease has also been
defined as a contract by which one of the parties agrees to give to the other for
a fixed time and price the use or profit of a thing, or of his services. A lease is a
commutative and a personal contract. (35 C. J., 1141.)

It is not necessary to the validity of a lease that it be recorded, but leases of real
property which are not duly recorded have no effect as against third persons.
(Civil Code, article 1549.) Under the Mortgage Law a lease of real property may
be recorded (1) if it is for a period exceeding six years, (2) if rent has been paid
thereon in advance for three or more years, and (3) if it contains a special
covenant by which record thereof is required. (Art. 2[5].)