G.R. Nos.
L-60549, 60553 to 60555 October 26, 1983 petitioners ask that we restrain respondent Court of
HEIRS OF JUANCHO ARDONA (represented by Gloria
Ardona) ANASTACIO C. CABILAO, HEIRS OF CIPRIANO
CABILAO (represented by Jose Cabilao) MODESTA
CABILAO, HEIRS OF ROMAN CABUENAS (represented
by Alberto Cabuenas), AGRIPINO GABISAY and
PRUDENCIA MABINI, ANTONIO LABRADOR and LUCIA
GABISAY, GERONIMO MABINI and MARCELINA SABAL,
INOCENCIO MABINI and ARSENIA REYES, PATRICIO
MABINI and GREGORIA BORRES, ANICETO GADAPAN
and MAXIMA GABISAY, BARTOLOME MAGNO and
CALINECA E. MAGNO, ALBERTO CABUENAS, NARCISO
CABUENAS and VICTORIA CABUENAS, EUTIQUIOSENO,
HEIRS OF ESPERIDION CABUENAS (represented by
Alberto Cabuenas), MAXIMINA NAVARO, SULPICIO
NAVARO, EDUARDO NAVARO, MARTINIANO ROMA (in
representation of Arcadio Mabini, deceased), MARTIN
SENO, FAUSTO ARDA, MAXIMA CABILAO, ESTRELLA
SENO, EDUVEGIS S. CABILAO, ROSARIO CABILAO,
MINORS DANILO, SOCORRO, JOSEFINA and MARITES,
all surnamed Cabilao, JUAN BORRES (represented by
Francisca Borres), RAMON JABADAN, JESUS ALIPAR
and LEONILA KABAHAR, ANTONIO LABRADOR, HEIRS
OF NICASIO GABISAY (represented by Arsenio
Gabisay), PACIFICO LABRADOR, DEMETRIO LABRADOR
and FRUCTOSA TABURA, VENANCIO DEL MAR,
MARINO DEL MAR, HEIRS OF TEODORA ARCILLO
(represented by Brigida Arcillo) DIONISIA GABUNADA,
HEIRS OF BUENAVENTURA FRANCISCO (represented by
Felicidad Sadaya Francisco), HEIRS OF VICTORIA C.
CABUENAS (represented by Alberto Cabuenas) HEIRS
OF CIPRIANO GABUNADA (represented by Claudio
Gabunada), petitioners,
vs.
HON. JUAN Y. REYES, Executive Judge and Presiding
Judge of Branch I, COURT OF FIRST instance OF CEBU,
and the PHILIPPINE TOURISM
AUTHORITY, respondents.
George M. Baladjay, Mario G. dela Victoria, Olegario
Sarmiento, Jr., and Democrito Barcenas for petitioners.
The Solicitor General for respondent Judge.
F.A. Sugue & Elino B. Lingas for Philippine Tourism
Authoirity
GUTIERREZ, JR., J.:
This is a petition for certiorari with preliminary
injunction challenging the constitutionality of
Presidential Decree No. 564, the Revised Charter of the
Philippine Tourism Authority, and Proclamation No.
2052 declaring the barangays of Sibugay, Malubog,
Babag and Sirao including the proposed Lusaran Dam in
the City of Cebu and in the municipalities of Argao and
Dalaguete in the province of Cebu as tourist zones. The
First Instance of Cebu and the Philippine Tourism
Authority (PTA) from enforcing and implementing the
writs of possession issued in four (4) expropriation cases
filed by PTA against the petitioners: Civil Cases Nos. R-
19562, R-19684, R-20701, and R-21608 of the Court of
First Instance of Cebu (Branch 1).
The Philippine Tourism Authority filed four (4)
Complaints with the Court of First Instance of Cebu City
for the expropriation of some 282 hectares of rolling
land situated in barangays Malubog and Babag, Cebu
City, under PTA's express authority "to acquire by
purchase, by negotiation or by condemnation
proceedings any private land within and without the
tourist zones" for the purposes indicated in Section 5,
paragraph B(2), of its Revised Charter (PD 564), more
specifically, for the development into integrated resort
complexes of selected and well-defined geographic
areas with potential tourism value. As uniformly alleged
in the complaints, the purposes of the expropriation
are:
xxx xxx xxx
V
Plaintiff, in line with the policy of the
government to promote tourism and
development of tourism projects will
construct in Barangays Malubog, Busay
and Babag, all of Cebu City, a sports
complex (basketball courts, tennis
courts, volleyball courts, track and field,
baseball and softball diamonds, and
swimming pools), clubhouse, gold
course, children's playground and a
nature area for picnics and horseback
riding for the use of the public.
The development plan, covering
approximately 1,000 hectares, includes
the establishment of an electric power
grid in the area by the National Power
Corporation, thus assuring the supply of
electricity therein for the benefit of the
whole community. Deep wells will also
be constructed to generate water
supply within the area. Likewise, a
complex sewerage and drainage system
will be devised and constructed to
protect the tourists and nearby
residents from the dangers of pollution.
Complimentary and support facilities
for the project will be constructed,
including public rest houses, lockers,
dressing rooms, coffee shops, shopping
malls, etc. Said facilities will create and
 offer employment opportunities to
residents of the community and further
generate income for the whole of Cebu
City.
Plaintiff needs the property above
described which is directly covered by
the proposed golf court.
xxx xxx xxx
The defendants in Civil Cases Nos. R-20701 and R-21608
filed their respective Opposition with Motion to Dismiss
and/or Reconsideration. The defendants in Civil Case
No. R-19562 filed a manifestation adopting the answer
of defendants in Civil Case No. R-19864. The
defendants, now petitioners, had a common allegation
in that the taking is allegedly not impressed with public
use under the Constitution.
In their motions to dismiss, the petitioners alleged, in
addition to the issue of public use, that there is no
specific constitutional provision authorizing the taking
of private property for tourism purposes; that assuming
that PTA has such power, the intended use cannot be
paramount to the determination of the land as a land
reform area; that limiting the amount of compensation
by Legislative fiat is constitutionally repugnant; and that
since the land is under the land reform program, it is
the Court of Agrarian Relations and not the Court of
First Instance that has jurisdiction over the
expropriation cases.
The Philippine Tourism Authority having deposited with
The Philippine National Bank, Cebu City Branch, an
amount equivalent to 10% of the value of the properties
pursuant to Presidential Decree No. 1533. the lower
court issued separate orders authorizing PTA to take
immediate possession of the premises and directing the
issuance of writs of possession.
On May 25, 1982, petitioners filed this petition
questioning the orders of the respondent Judge, The
respondents have correctly restated the grounds in the
petition as follows:
xxx xxx xxx
A. The complaints for expropriation lack
basis because the Constitution does not
provide for the expropriation of private
property for tourism or other related
purposes;
B. The writs of possession or orders
authorizing PTA to take immediate
possession is premature because the
"public use" character of the taking has
not been previously demonstrated;
C. The taking is not for public use in
contemplation of eminent domain law;
D. The properties in question have been
previously declared a land reform area;
consequently, the implementation of
the social justice pro- ,vision of the
Constitution on agrarian reform is
paramount to the right of the State to
expropriate for the purposes intended;
E. Proclamation No. 2052 declaring
certain barangays in Cebu City, which
include the lands subject of
expropriation as within a tourist zone, is
unconstitutional for it impairs the
obligation of contracts; "F. Since the
properties are within a land reform
area, it is the Court of Agrarian
Relations, not the lower court, that has
jurisdiction pursuant to Pres. Decree
No. 946;
F. The forcible ejectment of defendants
from the premises constitutes a
criminal act under Pres. Decree No.
583;
In their memorandum, the petitioners have summarized
the issues as follows:
I. Enforcement of the Writ of Possession
is Premature:
II. Presidential Decree 564 Amending
Presidential Decree l89 is
Constitutionally Repugnant:
III. The Condemnation is not for Public
Use, Therefore, Unconstitutional:
IV. The Expropriation for Tourism
Purposes of Lands Covered by the Land
Reform Program Violates the
Constitution:
V. Presidential Proclamation 2052 is
Unconstitutional:
VI. Presidential Decree No 1533 is
Unconstitutional:
VII. The Court of First Instance has no
Jurisdiction:
VIII. The Filing of the Present Petition is
not Premature.
The issues raised by the petitioners revolve around the
proposition that the actions to expropriate their
properties are constitutionally infirm because nowhere
in the Constitution can a provision be found which
allows the taking of private property for the promotion
of tourism.
The petitioners' arguments in their pleadings in support
of the above proposition are subsumed under the
following headings:
 1. Non-compliance with the "public
use" requirement under the eminent
domain provision of the Bill of Rights.
2. Disregard of the land reform nature
of the property being expropriated.
3. Impairment of the obligation of
contracts.
There are three provisions of the Constitution which
directly provide for the exercise of the power of
eminent domain. Section 2, Article IV states that private
property shall not be taken for public use without just
compensation. Section 6, Article XIV allows the State, in
the interest of national welfare or defense and upon
payment of just compensation to transfer to public
ownership, utilities and other private enterprises to be
operated by the government. Section 13, Article XIV
states that the Batasang Pambansa may authorize upon
payment of just compensation the expropriation of
private lands to be subdivided into small lots and
conveyed at cost to deserving citizens.
While not directly mentioning the expropriation of
private properties upon payment of just compensation,
the provisions on social justice and agrarian reforms
which allow the exercise of police power together with
the power of eminent domain in the implementation of
constitutional objectives are even more far-reaching
insofar as taking of private property is concerned.
Section 6, Article II provides:
Sec. 6. The State shall promote social
justice to ensure the dignity, welfare,
and security of all the people. Towards
its end, the State shall regulate the
acquisition, ownership, use, enjoyment,
and disposition of private property, and
equitably diffuse property ownership
and profits.
xxx xxx xxx
Section 12, Article XIV provides:
See. 12. The State shall formulate and
implement an agrarian reform program
aimed at emancipating the tenant from
the bondage of the soil and achieving
the goals enunciated in this
Constitution.
The equitable diffusion of property ownership in the
promotion of social justice implies the exercise,
whenever necessary, of the power to expropriate
private property. Likewise there can be no meaningful
agrarian reform program unless the power to
expropriate is utilized.
We cite all the above provisions on the power to
expropriate because of the petitioners' insistence on a
restrictive view of the eminent domain provision. The
thrust of all constitutional provisions on expropriation is
in the opposite direction.
As early as 1919, this Court in Visayan Refining Co. v.
Samus (40 Phil. 550) categorized the restrictive view as
wholly erroneous and based on a misconception of
fundamentals.
The petitioners look for the word "tourism" in the
Constitution. Understandably the search would be in
vain. The policy objectives of the framers can be
expressed only in general terms such as social justice,
local autonomy, conservation and development of the
national patrimony, public interest, and general
welfare, among others. The programs to achieve these
objectives vary from time to time and according to
place, To freeze specific programs like Tourism into
express constitutional provisions would make the
Constitution more prolix than a bulky code and require
of the framers a prescience beyond Delphic
proportions. The particular mention in the Constitution
of agrarian reform and the transfer of utilities and other
private enterprises to public ownership merely
underscores the magnitude of the problems sought to
be remedied by these programs. They do not preclude
nor limit the exercise of the power of eminent domain
for such purposes like tourism and other development
programs.
In the leading case of Visayan Refining Co. v.
Camus (supra), this Court emphasized that the power of
eminent domain is inseparable from sovereignty being
essential to the existence of the State and inherent in
government even in its most primitive forms. The only
purpose of the provision in the Bill of Rights is to
provide some form of restraint on the sovereign power.
It is not a grant of authority -
The power of eminent domain does not
depend for its existence on a specific
grant in the constitution. It is inherent
in sovereignty and exists in a sovereign
state without any recognition of it in
the constitution. The provision found in
most of the state constitutions relating
to the taking of property for the public
use do not by implication grant the
power to the government of the state,
but limit a power which would
otherwise be without limit.
The constitutional restraints are public use and just
compensation.
Do the purposes of the taking in this case constitute
"public use"?
The petitioners ask us to adopt a strict construction and
declare that "public use" means literally use by the
public and that "public use" is not synonymous with
"public interest", "public benefit", or "public welfare"
and much less "public convenience. "
The petitioners face two major obstacles. First, their
contention which is rather sweeping in its call for a
retreat from the public welfare orientation is unduly
restrictive and outmoded. Second, no less than the
lawmaker has made a policy determination that the
power of eminent domain may be exercised in the
promotion and development of Philippine tourism.
The restrictive view of public use may be appropriate
for a nation which circumscribes the scope of
government activities and public concerns and which
possesses big and correctly located public lands that
obviate the need to take private property for public
purposes. Neither circumstance applies to the
Philippines. We have never been a laissez faire State,
And the necessities which impel the exertion of
sovereign power are all too often found in areas of
scarce public land or limited government resources.
Certain aspects of parliamentary government were
introduced by the 1973 amendments to the
Constitution with further modifications in the 1976 and
1981 amendments. Insofar as the executive and
legislative departments are concerned, the traditional
concept of checks and balances in a presidential form
was considerably modified to remove some roadblocks
in the expeditious implementation of national policies.
There was no such change for the judiciary. We remain
as a checking and balancing department even as all
strive to maintain respect for constitutional boundaries.
At the same time, the philosophy of coordination in the
pursuit of developmental goals implicit in the
amendments also constrains in the judiciary to defer to
legislative discretion iii the judicial review of programs
for economic development and social progress unless a
clear case of constitutional infirmity is established. We
cannot stop the legitimate exercise of power on an
invocation of grounds better left interred in a bygone
age and time.* As we review the efforts of the political
departments to bring about self-sufficiency, if not
eventual abundance, we continue to maintain the
liberal approach because the primary responsibility and
the discretion belong to them.
There can be no doubt that expropriation for such
traditions' purposes as the construction of roads,
bridges, ports, waterworks, schools, electric and
telecommunications systems, hydroelectric power
plants, markets and slaughterhouses, parks, hospitals,
government office buildings, and flood control or
irrigation systems is valid. However, the concept of
public use is not limited to traditional purposes. Here as
elsewhere the Idea that "public use" is strictly limited to
clear cases of "use by the public" has been discarded.
In the United States, the rule was enunciated in Berman
v. Parker (348 U.S. 25; 99 L. ed. 27) as follows:
We do not sit to determine whether a
particular housing project is or is not
desirable. The concept of the public
welfare is broad and inclusive. See
DayBrite Lighting, Inc. v. Missouri, 342
US 421, 424, 96 L ed 469, 472, 72 S Ct
405. The values it represents are
spiritual as well as physical, aesthetic as
well as monetary. It is within the power
of the legislature to determine that the
community should be beautiful as well
as healthy, spacious as well as clean,
well-balanced as well as carefully
patrolled. In the present case, the
Congress and its authorized agencies
have made determinations that take
into account a wide variety of values. It
is not for us to reappraise them. If those
who govern the District of Columbia
decide that the Nation's Capital should
be beautiful as well as sanitary, there is
nothing in the Fifth Amendment that
stands in the way.
Once the object is within the authority
of Congress, the right to realize it
through the exercise of eminent
domain is clear. For the power of
eminent domain is merely the means to
the end. See Luxton v. North River
Bridge Co. 153 US 525, 529, 530, 38 L ed
808, 810, 14 S Ct 891; United States v.
Gettysburg Electric R. Co. 160 US 668,
679, 40 L ed 576, 580, 16 S Ct 427.
In an earlier American case, where a village was isolated
from the rest of North Carolina because of the flooding
of the reservoir of a dam thus making the provision of
police, school, and health services unjustifiably
expensive, the government decided to expropriate the
private properties in the village and the entire area was
made part of an adjoining national park. The district
court and the appellate court ruled against the
expropriation or excess condemnation. The Court of
Appeals applied the "use by the public" test and stated
that the only land needed for public use was the area
directly flooded by the reservoir. The village may have
been cut off by the dam but to also condemn it was
excess condemnation not valid under the "Public use"
requirement. The U.S. Supreme Court in United States
ex rel TVA v. Welch (327 U.S, 546; 90 L. ed 843)
unanimously reversed the lower courts. It stated:
The Circuit Court of Appeals, without
expressly relying on a compelling rule of
construction that would give the
restrictive scope to the T.V.A. Act given
it by the district court, also interpreted
the statute narrowly. It first analyzed
the facts by segregating the total
problem into distinct parts, and thus
came to the conclusion that T.V.A.'s
purpose in condemning the land in
question was only one to reduce its
liability arising from the destruction of
the highway. The Court held that use of
the lands for that purpose is a "private"
and not a "public use" or, at best, a
"public use" not authorized by the
statute. we are unable to agree with
the reasoning and conclusion of the
Circuit Court of Appeals.
We think that it is the function of
Congress to decide what type of taking
is for a public use and that the agency
authorized to do the taking may do so
to the still extent of its statutory
authority, United States v. Gettysburg
Electric R. Co. 160 US 668, 679, 40 L ed
576, 580, 16 S Ct 427. ...
xxx xxx xxx
... But whatever may be the scope of
the judicial power to determine what is
a "public use" in Fourteenth
Amendment controversies, this Court
has said that when Congress has spoken
on this subject "Its decision is entitled
to deference until it is shown to involve
an impossibility." Old Dominion Land
Co. v. United States, 269, US 55, 66, 70
L ed 162, 46 S Ct 39. Any departure
from this judicial restraint would result
in courts deciding on what is and is not
a governmental function and in their
invalidating legislation on the basis of
their view on that question at the
moment of decision, a practice which
has proved impracticable in other fields.
See Case v. Bowles decided February 4,
1946, 437 US 92, 101, ante, 552, 559,
66 S Ct 438. New York v. United States,
326 US 572 ante 326, 66 S Ct 310). We
hold that the T.V.A. took the tracts here
involved for a public purpose, if, as we
think is the case, Congress authorized
the Authority to acquire, hold, and use
the lands to carry out the purposes of
the T.V.A. Act.
In the Philippines, Chief Justice Enrique M. Fernando
has aptly summarized the statutory and judicial trend as
follows:
The taking to be valid must be for public
use. There was a time when it was felt
that a literal meaning should be
attached to such a requirement.
Whatever project is undertaken must
be for the public to enjoy, as in the case
of streets or parks. Otherwise,
expropriation is not allowable. It is not
any more. As long as the purpose of the
taking is public, then the power of
eminent domain comes into play. As
just noted, the constitution in at least
two cases, to remove any doubt,
determines what is public use. One is
the expropriation of lands to be
subdivided into small lots for resale at
cost to individuals. The other is in the
transfer, through the exercise of this
power, of utilities and other private
enterprise to the government. It is
accurate to state then that at present
whatever may be beneficially employed
for the general welfare satisfies the
requirement of public use.
(Fernando, The Constitution of the
Philippines, 2nd ed., pp. 523-524)
The petitioners' contention that the promotion of
tourism is not "public use" because private
concessioners would be allowed to maintain various
facilities such as restaurants, hotels, stores, etc. inside
the tourist complex is impressed with even less merit.
Private bus firms, taxicab fleets, roadside restaurants,
and other private businesses using public streets end
highways do not diminish in the least bit the public
character of expropriations for roads and streets. The
lease of store spaces in underpasses of streets built on
expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively
to private airlines and shipping companies are still for
public use. The expropriation of private land for slum
clearance and urban development is for a public
purpose even if the developed area is later sold to
private homeowners, commercial firms, entertainment
and service companies, and other private concerns.
The petitioners have also failed to overcome the
deference that is appropriately accorded to
formulations of national policy expressed in legislation.
The rule in Berman u. Parker (supra) of deference to
legislative policy even if such policy might mean taking
from one private person and conferring on another
private person applies as well as in the Philippines.
... Once the object is within the
authority of Congress, the means by
which it will be attained is also for
Congress to determine. Here one of the
means chosen is the use of private
enterprise for redevelopment of the
area. Appellants argue that this makes
the project a taking from one
businessman for the benefit of another
businessman. But the means of
executing the project are for Congress
and Congress alone to determine, once
the public purpose has been
established. Selb Luxton v. North River
Bridge Co. (US) supra; cf. Highland v.
Russel Car & Snow Plow Co. 279 US 253,
73 L ed 688, 49 S Ct 314. The public end
may be as well or better served through
an agency of private enterprise than
through a department of government-
or so the Congress might conclude. We
cannot say that public ownership is the
sole method of promoting the public
purposes of community redevelopment
projects. What we have said also
disposes of any contention concerning
the fact that certain property owners in
the area may be permitted to
repurchase their properties for
redevelopment in harmony with the
over-all plan. That, too, is a legitimate
means which Congress and its agencies
may adopt, if they choose. (Berman v.
Parker, 99 L ed 38, 348 US 33, 34)
An examination of the language in the 1919 cases
of City of Manila v. Chinese Community of Manila (40
Phil, 349) and Visayan Refining Co. vs. Camus, earlier
cited, shows that from the very start of constitutional
government in our country judicial deference to
legislative policy has been clear and manifest in
eminent domain proceedings.
The expressions of national policy are found in the
revised charter of the Philippine Tourism Authority,
Presidential Decree No. 564:
WHEREAS, it is the avowed aim of the
government to promote Philippine
tourism and work for its accelerated
and balanced growth as well as for
economy and expediency in the
development of the tourism plant of
the country;
xxx xxx xxx
SECTION 1. Declaration of Policy. - It is
hereby declared to be the policy of the
State to promote, encourage, and
develop Philippine tourism as an
instrument in accelerating the
development of the country, of
strengthening the country's foreign
exchange reserve position, and of
protecting Philippine culture, history,
traditions and natural beauty,
internationally as well as domestically.
The power of eminent domain is expressly provided for
under Section 5 B(2) as follows:
xxx xxx xxx
2. Acquisition of Private Lands, Power of
Eminent Domain. — To acquire by
purchase, by negotiation or by
condemnation proceedings any private
land within and without the tourist
zones for any of the following reasons:
(a) consolidation of lands for tourist
zone development purposes, (b)
prevention of land speculation in areas
declared as tourist zones, (c) acquisition
of right of way to the zones, (d)
protection of water shed areas and
natural assets with tourism value, and
(e) for any other purpose expressly
authorized under this Decree and
accordingly, to exercise the power of
eminent domain under its own name,
which shall proceed in the manner
prescribed by law and/or the Rules of
Court on condemnation proceedings.
The Authority may use any mode of
payment which it may deem expedient
and acceptable to the land owners:
Provided, That in case bonds are used
as payment, the conditions and
restrictions set forth in Chapter III,
Section 8 to 13 inclusively, of this
Decree shall apply.
xxx xxx xxx
The petitioners rely on the Land Reform Program of the
government in raising their second argument. According
to them, assuming that PTA has the right to expropriate,
the properties subject of expropriation may not be
taken for the purposes intended since they are within
the coverage of "operation land transfer" under the
land reform program. Petitioners claim that certificates
of land transfer (CLT'S) and emancipation patents have
already been issued to them thereby making the lands
expropriated within the coverage of the land reform
area under Presidential Decree No. 2; that the agrarian
reform program occupies a higher level in the order of
priorities than other State policies like those relating to
the health and physical well- being of the people; and
that property already taken for public use may not be
taken for another public use.
We have considered the above arguments with
scrupulous and thorough circumspection. For indeed
any claim of rights under the social justice and land
reform provisions of the Constitution deserves the most
serious consideration. The Petitioners, however, have
failed to show that the area being developed is indeed a
land reform area and that the affected persons have
emancipation patents and certificates of land transfer.
The records show that the area being developed into a
tourism complex consists of more than 808 hectares,
almost all of which is not affected by the land reform
program. The portion being expropriated is 282
hectares of hilly and unproductive land where even
subsistence farming of crops other than rice and corn
can hardly survive. And of the 282 disputed hectares,
only 8,970 square meters-less than one hectare-is
affected by Operation Land Transfer. Of the 40
defendants, only two have emancipation patents for the
less than one hectare of land affected. And this 8,970
square meters parcel of land is not even within the
sports complex proper but forms part of the 32 hectares
resettlement area where the petitioners and others
similarly situated would be provided with proper
housing, subsidiary employment, community centers,
schools, and essential services like water and electricity-
which are non-existent in the expropriated lands. We
see no need under the facts of this petition to rule on
whether one public purpose is superior or inferior to
another purpose or engage in a balancing of competing
public interests. The petitioners have also failed to
overcome the showing that the taking of the 8,970
square meters covered by Operation Land Transfer
forms a necessary part of an inseparable transaction
involving the development of the 808 hectares tourism
complex. And certainly, the human settlement needs of
the many beneficiaries of the 32 hectares resettlement
area should prevail over the property rights of two of
their compatriots.
The invocation of the contracts clause has no merit. The
non-impairment clause has never been a barrier to the
exercise of police power and likewise eminent domain.
As stated in Manigault v. Springs (199 U.S. 473) "parties
by entering into contracts may not stop the legislature
from enacting laws intended for the public good."
The applicable doctrine is expressed in Arce v.
Genato (69 SCRA 544) which involved the expropriation
of land for a public plaza. The Court stated:
xxx xxx xxx
... What is claimed is that there must be
a showing of necessity for such
condemnation and that it was not done
in this case in support of such a view,
reliance is placed on City of Manila v.
Arenano Law Colleges. (85 Phil. 663
[1950]) That doctrine itself is based on
the earlier case of City of Manila v.
Chinese Community of Manila, (50 Phil.
349) also, like Camus, a 1919 decision.
As could be discerned, however, in the
Arellano Law Colleges decision. it was
the antiquarian view of Blackstone with
its sanctification of the right to one's
estate on which such an observation
was based. As did appear in his
Commentaries: "So great is the regard
of the law for private property that it
will not, authorize the least violation of
it, even for the public good, unless
there exists a very great necessity
thereof." Even the most , cursory glance
at such well-nigh absolutist concept of
property would show its obsolete
character at least for Philippine
constitutional law. It cannot survive the
test of the 1935 Constitution with its
mandates on social justice and
protection to labor. (Article II, Section 5
of the 1935 Constitution reads: "The
promotion of social justice to unsure
the well-being and economic security of
all the people should be the concern of
the State." Article XI, Section 6 of the
same Constitution provides: "The State
shall afford protection to labor,
especially to working women and
minors, and shall regulate the relation
between landowner and tenant, and
between labor and capital in industry
and in agriculture. The State may
provide for compulsory arbitration.")
What is more, the present Constitution
pays even less heed to the claims of
property and rightly so. After stating
that the State shall promote social
justice, it continues: "Towards this end,
the State shall regulate the acquisition,
ownership, use, enjoyment, and
 disposition of private property, and
equitably diffuse property ownership
and profits." (That is the second
sentence of Article II, Section 6 of the
Constitution) If there is any need for
explicit confirmation of what was set
forth in Presidential Decree No. 42, the
above provision supplies it. Moreover,
that is merely to accord to what of late
has been the consistent course of
decisions of this Court whenever
property rights are pressed unduly. (Cf.
Alalayan v. National Power Corporation,
L-24396, July 29, 1968, 24 SCRA 172;
Agricultural Credit and Cooperative
Financing Administration v.
Confederation of Unions, L-21484, Nov.
29, 1969, 30 SCRA 649; Edu v. Ericta, L-
32096, Oct. 24, 1970, 35 SCRA 481; Phil.
Virginia Tobacco Administration v.
Court of Industrial Relations, L-32052,
July 25, 1975, 65 SCRA 416) The
statement therefore, that there could
be discerned a constitutional objection
to a lower court applying a Presidential
Decree, when it leaves no doubt that a
grantee of the power of eminent
domain need not prove the necessity
for the expropriation, carries its own
refutation.
xxx xxx xxx
The issue of prematurity is also raised by the
petitioners. They claim that since the necessity for the
taking has not been previously established, the issuance
of the orders authorizing the PTA to take immediate
possession of the premises, as well as the
corresponding writs of possession was premature.
Under Presidential Decree No. 42, as amended by
Presidential Decree No. 1533, the government, its
agency or instrumentality, as plaintiff in an
expropriation proceedings is authorized to take
immediate possession, control and disposition of the
property and the improvements, with power of
demolition, notwithstanding the pendency of the issues
before the court, upon deposit with the Philippine
National Bank of an amount equivalent to 10% of the
value of the property expropriated. The issue of
immediate possession has been settled in Arce v.
Genato (supra). In answer to the issue:
... whether the order of respondent
Judge in an expropriation case allowing
the other respondent, ... to take
immediate possession of the parcel of
land sought to be condemned for the
beautification of its public plaza,
without a prior hearing to determine
the necessity for the exercise of the
power of eminent domain, is vitiated by
jurisdictional defect, ...
this Court held that:
... It is not disputed that in issuing such
order, respondent Judge relied on
Presidential Decree No. 42 issued on
the 9th of November, 1972.
(Presidential Decree No. 42 is entitled
"Authorizing the Plaintiff in Eminent
Domain Proceedings to Take Possession
of the Property involved Upon
Depositing the Assessed Value for
Purposes of Taxation.") The question as
thus posed does not occasion any
difficulty as to the answer to be given.
This petition for certiorari must fail,
there being no showing that compliance
with the Presidential Decree, which
under the Transitory Provisions is
deemed a part of the law of the land,
(According to Article XVII, Section 3 par.
(2) of the Constitution: "All
proclamations, orders, decrees,
instructions and acts promulgated,
issued, or done by the incumbent
President shall be part of the law of the
land, and shall remain valid, legal,
binding, and effective even after lifting
of martial law or the ratification of this
Constitution, unless modified, revoked,
or superseded by subsequent
proclamations. orders, decrees
instructions, or other acts of the
incumbent President, or unless
expressly and explicitly modified or
repealed by the regular National
Assembly") would be characterized as
either an act in excess of jurisdiction or
a grave abuse of discretion. So we rule.
Likewise in Ramos v. Philippine Tourism Authority (G.R.
Nos. 52449-50, June 9, 1980), this Court held:
... condemnation or expropriation
proceedings is in the nature of one that
is quasi-in-rem wherein the fact that
the owner of the property is made a
party is not essentially indispensable
insofar was least as it conncerns is the
immediate taking of possession of the
property and the preliminary
 determination of its value, including the
amount to be deposited.
In their last argument, the petitioners claim that a
consequence of the expropriation proceedings would
be their forcible ejectment. They contend that such
forcible ejectment is a criminal act under Presidential
Decree No. 583. This contention is not valid.
Presidential Decree No. 583 prohibits the taking
cognizance or implementation of orders designed to
obstruct the land reform program. It refers to the
harassment of tenant- farmers who try to enforce
emancipation rights. It has nothing to do with the
expropriation by the State of lands needed for public
purposes. As a matter of fact, the expropriated area
does not appear in the master lists of the Ministry of
Agrarian Reforms as a teranted area. The petitioners'
bare allegations have not been supported with
particulars pointing to specific parcels which are subject
of tenancy contracts. The petitioners may be owner-
tillers or may have some form of possessory or
ownership rights but there has been no showing of their
being tenants on the disputed lands.
The petitioners have failed to overcome the burden of
anyone trying to strike down a statute or decree whose
avowed purpose is the legislative perception is the
public good. A statute has in its favor the presumption
of validity. All reasonable doubts should be resolved in
favor of the constitutionality of a law. The courts will
not set aside a law as violative of the Constitution
except in a clear case (People v. Vera, 65 Phil. 56). And
in the absence of factual findings or evidence to rebut
the presumption of validity, the presumption prevails
(Ermita-Malate Hotel, etc. v. Mayor of Manila, 20 SCRA
849; Morfe v. Mutuc, 22 SCRA 424).
The public respondents have stressed that the
development of the 808 hectares includes plans that
would give the petitioners and other displaced persons
productive employment, higher incomes, decent
housing, water and electric facilities, and better living
standards. Our dismissing this petition is, in part,
predicated on those assurances. The right of the PTA to
proceed with the expropriation of the 282 hectares
already Identified as fit for the establishment of a resort
complex to promote tourism is, therefore, sustained.
WHEREFORE, the instant petition for certiorari is hereby
DISMISSE D for lack of merit.
SO ORDERED.
Fernando, C.J, Concepcion, Jr., Guerrero, Melencio-
Herrera, Plana, Escolin and Relova, JJ., concur.
Aquino, J, concurs in the result.
De Castro, J, is on leave.
G.R. No. 97764 August 10, 1992
LEVY D. MACASIANO, Brigadier General/PNP Superintendent,
Metropolitan Traffic Command, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch
62, Regional Trial Court of Makati, Metro Manila,
MUNICIPALITY OF PARAÑAQUE, METRO MANILA, PALANYAG
KILUSANG BAYAN FOR SERVICE, respondents.
Ceferino, Padua Law Office for PalanyagKilusang Bayan for
service.
Manuel de Guia for Municipality of Parañaque.
MEDIALDEA, J.:
This is a petition for certiorari under Rule 65 of the Rules of
Court seeking the annulment of the decision of the Regional
Trial Court of Makati, Branch 62, which granted the writ of
preliminary injunction applied for by respondents
Municipality of Parañaque and PalanyagKilusang Bayan for
Service (Palanyag for brevity) against petitioner herein.
The antecedent facts are as follows:
On June 13, 1990, the respondent municipality passed
Ordinance No. 86, Series of 1990 which authorized the
closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena Streets located at Baclaran, Parañaque,
Metro Manila and the establishment of a flea market
thereon. The said ordinance was approved by the municipal
council pursuant to MMC Ordinance No. 2, Series of 1979,
authorizing and regulating the use of certain city and/or
municipal streets, roads and open spaces within Metropolitan
Manila as sites for flea market and/or vending areas, under
certain terms and conditions.
On July 20, 1990, the Metropolitan Manila Authority
approved Ordinance No. 86, s. 1990 of the municipal council
of respondent municipality subject to the following
conditions:
1. That the aforenamed streets are not used for
vehicular traffic, and that the majority of the residents do not
oppose the establishment of the flea market/vending areas
thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and that the
2 meters on both sides of the road shall be used by
pedestrians;
3. That the time during which the vending area is to be
used shall be clearly designated;
4. That the use of the vending areas shall be temporary
and shall be closed once the reclaimed areas are developed
and donated by the Public Estate Authority.
On June 20, 1990, the municipal council of Parañaque issued
a resolution authorizing Parañaque Mayor Walfrido N. Ferrer
to enter into contract with any service cooperative for the
establishment, operation, maintenance and management of
flea markets and/or vending areas.
On August 8, 1990, respondent municipality and respondent
Palanyag, a service cooperative, entered into an agreement
whereby the latter shall operate, maintain and manage the
flea market in the aforementioned streets with the obligation
to remit dues to the treasury of the municipal government of
Parañaque. Consequently, market stalls were put up by
respondent Palanyag on the said streets.
On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command,
ordered the destruction and confiscation of stalls along G.G.
Cruz and J. Gabriel St. in Baclaran. These stalls were later
returned to respondent Palanyag.
On October 16, 1990, petitioner Brig. General Macasiano
wrote a letter to respondent Palanyag giving the latter ten
(10) days to discontinue the flea market; otherwise, the
market stalls shall be dismantled.
Hence, on October 23, 1990, respondents municipality and
Palanyag filed with the trial court a joint petition for
prohibition and mandamus with damages and prayer for
preliminary injunction, to which the petitioner filed his
memorandum/opposition to the issuance of the writ of
preliminary injunction.
On October 24, 1990, the trial court issued a temporary
restraining order to enjoin petitioner from enforcing his
letter-order of October 16, 1990 pending the hearing on the
motion for writ of preliminary injunction.
On December 17, 1990, the trial court issued an order
upholding the validity of Ordinance No. 86 s. 1990 of the
Municipality' of Parañaque and enjoining petitioner Brig. Gen.
Macasiano from enforcing his letter-order against respondent
Palanyag.
Hence, this petition was filed by the petitioner thru the Office
of the Solicitor General alleging grave abuse of discretion
tantamount to lack or excess of jurisdiction on the part of the
trial judge in issuing the assailed order.
The sole issue to be resolved in this case is whether or not an
ordinance or resolution issued by the municipal council of
Parañaque authorizing the lease and use of public streets or
thoroughfares as sites for flea markets is valid.
The Solicitor General, in behalf of petitioner, contends that
municipal roads are used for public service and are therefore
public properties; that as such, they cannot be subject to
private appropriation or private contract by any person, even
by the respondent Municipality of Parañaque. Petitioner
submits that a property already dedicated to public use
cannot be used for another public purpose and that absent a
clear showing that the Municipality of Parañaque has been
granted by the legislature specific authority to convert a
property already in public use to another public use,
respondent municipality is, therefore, bereft of any authority
to close municipal roads for the establishment of a flea
market. Petitioner also submits that assuming that the
respondent municipality is authorized to close streets, it
failed to comply with the conditions set forth by the
Metropolitan Manila Authority for the approval of the
ordinance providing for the establishment of flea markets on
public streets. Lastly, petitioner contends that by allowing the
municipal streets to be used by market vendors the municipal
council of respondent municipality violated its duty under the
Local Government Code to promote the general welfare of
the residents of the municipality.
In upholding the legality of the disputed ordinance, the trial
court ruled:
. . . that Chanter II Section 10 of the Local Government Code
is a statutory grant of power given to local government units,
the Municipality of Parañaque as such, is empowered under
that law to close its roads, streets or alley subject to
limitations stated therein (i.e., that it is in accordance with
existing laws and the provisions of this code).
xxx xxx xxx
The actuation of the respondent Brig. Gen. Levi Macasiano,
though apparently within its power is in fact an
encroachment of power legally vested to the municipality,
precisely because when the municipality enacted the
ordinance in question — the authority of the respondent as
Police Superintendent ceases to be operative on the ground
that the streets covered by the ordinance ceases to be a
public thoroughfare. (pp. 33-34, Rollo)
We find the petition meritorious. In resolving the question of
whether the disputed municipal ordinance authorizing the
flea market on the public streets is valid, it is necessary to
examine the laws in force during the time the said ordinance
was enacted, namely, Batas PambansaBlg. 337, otherwise
known as Local Government Code, in connection with
established principles embodied in the Civil Code an property
and settled jurisprudence on the matter.
The property of provinces, cities and municipalities is divided
into property for public use and patrimonial property (Art.
423, Civil Code). As to what consists of property for public
use, Article 424 of Civil Code states:
Art. 424. Property for public use, in the provinces, cities and
municipalities, consists of the provincial roads, city streets,
the squares, fountains, public waters, promenades, and
public works for public service paid for by said provinces,
cities or municipalities.
All other property possessed by any of them is patrimonial
and shall be governed by this Code, without prejudice to the
provisions of special laws.
Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt.
Garcia Extension and Opena streets are local roads used for
public service and are therefore considered public properties
of respondent municipality. Properties of the local
government which are devoted to public service are deemed
public and are under the absolute control of Congress
(Province of Zamboanga del Norte v. City of Zamboanga, L-
24440, March 28, 1968, 22 SCRA 1334). Hence, local
governments have no authority whatsoever to control or
regulate the use of public properties unless specific authority
is vested upon them by Congress. One such example of this
authority given by Congress to the local governments is the
power to close roads as provided in Section 10, Chapter II of
the Local Government Code, which states:
Sec. 10. Closure of roads. — A local government unit may
likewise, through its head acting pursuant to a resolution of
its sangguniang and in accordance with existing law and the
provisions of this Code, close any barangay, municipal, city or
provincial road, street, alley, park or square. No such way or
place or any part of thereof shall be close without
indemnifying any person prejudiced thereby. A property thus
withdrawn from public use may be used or conveyed for any
purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed.
(Emphasis ours).
However, the aforestated legal provision which gives
authority to local government units to close roads and other
similar public places should be read and interpreted in
accordance with basic principles already established by law.
These basic principles have the effect of limiting such
authority of the province, city or municipality to close a public
street or thoroughfare. Article 424 of the Civil Code lays down
the basic principle that properties of public dominion devoted
to public use and made available to the public in general are
outside the commerce of man and cannot be disposed of or
leased by the local government unit to private persons. Aside
from the requirement of due process which should be
complied with before closing a road, street or park, the
closure should be for the sole purpose of withdrawing the
road or other public property from public use when
circumstances show that such property is no longer intended
or necessary for public use or public service. When it is
already withdrawn from public use, the property then
becomes patrimonial property of the local government unit
concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v.
Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA
481). It is only then that the respondent municipality can "use
or convey them for any purpose for which other real property
belonging to the local unit concerned might be lawfully used
or conveyed" in accordance with the last sentence of Section
10, Chapter II of Blg. 337, known as Local Government Code.
In one case, the City Council of Cebu, through a resolution,
declared the terminal road of M. Borces Street, Mabolo, Cebu
City as an abandoned road, the same not being included in
the City Development Plan. Thereafter, the City Council
passes another resolution authorizing the sale of the said
abandoned road through public bidding. We held therein that
the City of Cebu is empowered to close a city street and to
vacate or withdraw the same from public use. Such
withdrawn portion becomes patrimonial property which can
be the object of an ordinary contract (Cebu Oxygen and
Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those
roads and streets which are available to the public in general
and ordinarily used for vehicular traffic are still considered
public property devoted to public use. In such case, the local
government has no power to use it for another purpose or to
dispose of or lease it to private persons. This limitation on the
authority of the local government over public properties has
been discussed and settled by this Court en banc in
"Francisco V. Dacanay, petitioner v. Mayor MacariaAsistio, Jr.,
et al., respondents, G.R. No. 93654, May 6, 1992." This Court
ruled:
There is no doubt that the disputed areas from which the
private respondents' market stalls are sought to be evicted
are public streets, as found by the trial court in Civil Case No.
C-12921. A public street is property for public use hence
outside the commerce of man (Arts. 420, 424, Civil Code).
Being outside the commerce of man, it may not be the
subject of lease or others contract (Villanueva, et al. v.
Castañeda and Macalino, 15 SCRA 142 citing the Municipality
of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council
of Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48
O.G. 4860).
As the stallholders pay fees to the City Government for the
right to occupy portions of the public street, the City
Government, contrary to law, has been leasing portions of
the streets to them. Such leases or licenses are null and void
for being contrary to law. The right of the public to use the
city streets may not be bargained away through contract. The
interests of a few should not prevail over the good of the
greater number in the community whose health, peace,
safety, good order and general welfare, the respondent city
officials are under legal obligation to protect.
The Executive Order issued by acting Mayor Robles
authorizing the use of Heroes del '96 Street as a vending area
for stallholders who were granted licenses by the city
government contravenes the general law that reserves city
streets and roads for public use. Mayor Robles' Executive
Order may not infringe upon the vested right of the public to
use city streets for the purpose they were intended to serve:
i.e., as arteries of travel for vehicles and pedestrians.
Even assuming, in gratia argumenti, that respondent
municipality has the authority to pass the disputed ordinance,
the same cannot be validly implemented because it cannot be
considered approved by the Metropolitan Manila Authority
due to non-compliance by respondent municipality of the
conditions imposed by the former for the approval of the
ordinance, to wit:
1. That the aforenamed streets are not used for
vehicular traffic, and that the majority of the residents do(es)
not oppose the establishment of the flea market/vending
areas thereon;
2. That the 2-meter middle road to be used as flea
market/vending area shall be marked distinctly, and that the
2 meters on both sides of the road shall be used by
pedestrians;
3. That the time during which the vending area is to be
used shall be clearly designated;
4. That the use of the vending areas shall be temporary
and shall be closed once the reclaimed areas are developed
and donated by the Public Estate Authority. (p. 38, Rollo)
Respondent municipality has not shown any iota of proof that
it has complied with the foregoing conditions precedent to
the approval of the ordinance. The allegations of respondent
municipality that the closed streets were not used for
vehicular traffic and that the majority of the residents do not
oppose the establishment of a flea market on said streets are
unsupported by any evidence that will show that this first
condition has been met. Likewise, the designation by
respondents of a time schedule during which the flea market
shall operate is absent.
Further, it is of public notice that the streets along Baclaran
area are congested with people, houses and traffic brought
about by the proliferation of vendors occupying the streets.
To license and allow the establishment of a flea market along
J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and
Opena streets in Baclaran would not help in solving the
problem of congestion. We take note of the other
observations of the Solicitor General when he said:
. . . There have been many instances of emergencies and fires
where ambulances and fire engines, instead of using the
roads for a more direct access to the fire area, have to
maneuver and look for other streets which are not occupied
by stalls and vendors thereby losing valuable time which
could, otherwise, have been spent in saving properties and
lives.
Along G.G. Cruz Street is a hospital, the St. Rita Hospital.
However, its ambulances and the people rushing their
patients to the hospital cannot pass through G.G. Cruz
because of the stalls and the vendors. One can only imagine
the tragedy of losing a life just because of a few seconds
delay brought about by the inaccessibility of the streets
leading to the hospital.
The children, too, suffer. In view of the occupancy of the
roads by stalls and vendors, normal transportation flow is
disrupted and school children have to get off at a distance
still far from their schools and walk, rain or shine.
ACCORDINGLY, the petition is GRANTED and the decision of
the respondent Regional Trial Court dated December 17,
1990 which granted the writ of preliminary injunction
enjoining petitioner as PNP Superintendent, Metropolitan
Traffic Command from enforcing the demolition of market
stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena streets is hereby RESERVED and SET
ASIDE.
SO ORDERED.

Indeed one can only imagine the garbage and litter left by
vendors on the streets at the end of the day. Needless to say,
these cause further pollution, sickness and deterioration of
health of the residents therein. (pp. 21-22, Rollo)

Respondents do not refute the truth of the foregoing findings

and observations of petitioners. Instead, respondents want
this Court to focus its attention solely on the argument that
the use of public spaces for the establishment of a flea
market is well within the powers granted by law to a local
government which should not be interfered with by the
courts.

Verily, the powers of a local government unit are not

absolute. They are subject to limitations laid down by toe
Constitution and the laws such as our Civil Code. Moreover,
the exercise of such powers should be subservient to
paramount considerations of health and well-being of the
members of the community. Every local government unit has
the sworn obligation to enact measures that will enhance the
public health, safety and convenience, maintain peace and
order, and promote the general prosperity of the inhabitants
of the local units. Based on this objective, the local
government should refrain from acting towards that which
might prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public

have a legal right to demand the demolition of the illegally
constructed stalls in public roads and streets and the officials
of respondent municipality have the corresponding duty
arising from public office to clear the city streets and restore
them to their specific public purpose.

The instant case as well as the Dacanay case, involves an

ordinance which is void and illegal for lack of basis and
authority in laws applicable during its time. However, at this
point, We find it worthy to note that Batas PambansaBlg.
337, known as Local Government Lode, has already been
repealed by Republic Act No. 7160 known as Local
Government Code of 1991 which took effect on January 1,
1992. Section 5(d) of the new Code provides that rights and
obligations existing on the date of effectivity of the new Code
and arising out of contracts or any other source of prestation
involving a local government unit shall be governed by the
original terms and conditions of the said contracts or the law
in force at the time such rights were vested.

G.R. No. 112889 April 18, 1995
BIENVENIDO O. MARQUEZ, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and EDUARDO T.
RODRIGUEZ, respondents.
VITUG, J.:
The Court is called upon, in this petition for certiorari, to
resolve the conflicting claims of the parties on the meaning of
the term "fugitive from justice as that phrase is so used under
the provisions of Section 40(e) of the Local Government Code
(Republic Act No. 7160). That law states:
Sec. 40. Disqualifications. The following persons are
disqualified from running for any elective local position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-political cases here
or abroad(.)
Bienvenido Marquez, a defeated candidate for the elective
position for the elective position in the Province of Quezon in
the 11th May 1992 elections filed this petition
for certiorari praying for the reversal of the resolution of the
Commission on Elections ("COMELEC") which dismissed his
petition for quo warranto against the winning candidate,
herein private respondent Eduardo Rodriguez, for being
allegedly a fugitive from justice.
It is averred that at the time private respondent filed his
certificate of candidacy, a criminal charge against him for ten
(10) counts of insurance fraud or grand theft of personal
property was still pending before the Municipal Court of Los
Angeles Judicial District, County of Los Angeles, State of
California, U.S.A. A warrant issued by said court for his arrest,
it is claimed, has yet to be served on private respondent on
account of his alleged "flight" from that country.
Before the 11th May 1992 elections, a petition for
cancellation (SPA 92-065) of respondent's certificate of
candidacy, on the ground of the candidate's disqualification
under Section 40(e) of the Local Government Code, was filed
by petitioner with the COMELEC. On 08 May 1992, the
COMELEC dismissed the petition.
Petitioner's subsequent recourse to this Court (in G.R. No.
105310) from the 08th May 1992 resolution of COMELEC was
dismissed without prejudice, however, to the filing in due
time of a possible post-election quo warranto proceeding
against private respondent. The Court, in its resolution of 02
June 1992, held:
Evidently, the matter elevated to this Court was a pre-
proclamation controversy. Since the private respondent had
already been proclaimed as the duly elected Governor of the
Province of Quezon, the petition below for disqualification
has ceased to be a pre-proclamation controversy. In Casimiro
vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio
vs. Commission on Elections, G.R. Nos. 84678-79, jointly
decided on 29 March 1989, 171 SCRA 468, this court held that
a pre-proclamation controversy is no longer viable at this
point of time and should be dismissed. The proper remedy of
the petitioner is to pursue the disqualification suit in a
separate proceeding.
ACCORDINGLY, the Court Resolved to DISMISS the petition,
without prejudice to the filing of the appropriate proceedings
in the proper forum, if so desired, within ten (10) days from
notice. 1
Private respondent was proclaimed Governor-elect of
Quezon on 29 May 1992. Forthwith, petitioner instituted quo
warranto proceedings (EPC 92-28) against private respondent
before the COMELEC. In its 02 February 1993 resolution, the
COMELEC (Second Division) dismissed the petition. The
COMELEC En Banc, on 02 December 1993, denied a
reconsideration of the resolution.
Hence, this petition for certiorari, the core issue of which,
such as to be expected, focuses on whether private
respondent who, at the time of the filing of his certificate of
candidacy (and to date), is said to be facing a criminal
charge before a foreign court and evading a warrant for his
arrest comes within the term "fugitive from justice"
contemplated by Section 40(e) of the Local Government Code
and, therefore, disqualified from being a candidate for, and
thereby ineligible from holding on to, an elective local office.
Petitioner's position is perspicuous and to the point. The law,
he asseverates, needs no further interpretation and
construction. Section 40(e) of Republic Act No. 7160, is rather
clear, he submits, and it disqualifies "fugitive from justice"
includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged flee
to avoid prosecution. This definition truly finds support from
jurisprudence (Philippine Law Dictionary, Third Edition, p.
399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p.
671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes
vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275
Pacific Reporter, 2d., p. 792), and it may be so conceded as
expressing the general and ordinary connotation of the term.
In turn, private respondent would have the Court respect the
conclusions of the Oversight Committee which, conformably
with Section 533 2 of R.A. 7160, was convened by the
President to "formulate and issue the appropriate rules and
regulations necessary for the efficient and effective
implementation of any and all provisions of the Code to
ensure compliance with the principles of Local Autonomy.
Here are some excerpts from the committee's deliberations:
CHAIRMAN MERCADO. Session is resumed.
So, we are in agreement to retain Line 12, Page 36, as is. So
next, Page 39.
CHAIRMAN DE PEDRO. Kay Benny Marquez.
REP. CUENCO: What does he want?
CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan.
Bahala na kung kuwestiyunin ang constitutionality nito before
the Supreme Court later on.
REP. CUENCO. Anong nakalagay diyan?
CHAIRMAN DE PEDRO. Iyong disqualification to run for public
office.
Any person who is a fugitive from justice in criminal or
nonpolitical cases here or abroad.
Mabigat yung abroad. One who is facing criminal charges
with the warrant of arrest pending, unserved. . .
HONORABLE SAGUISAG. I think that is even a good point, ano
— what is a fugitive? It is not defined. We have loose
understanding. . .
CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms
iyong fugitive.
Si Benny umalis na, with the understanding na okay na sa atin
ito.
THE CHAIRMAN. Whether we have this rule or not she can
run. She is not a fugitive from justice. Mrs. Marcos can run at
this point and I have held that for a long time ago. So can. . .
MS. DOCTOR. Mr. Chairman. . .
THE CHAIRMAN. Yes.
MS. DOCTOR. Let's move to. . .
THE CHAIRMAN. Wait, wait, wait. Can we just agree on the
wording, this is very important. Manny, can you come up?
MR. REYES. Let's use the word conviction by final judgment.
THE CHAIRMAN. Fugitive means somebody who is convicted
by final judgment. Okay,. Fugitive means somebody who is
convicted by final judgment. Insert that on Line 43 after the
semi-colon. Is that approved? No objection, approved (TSN,
Oversight Committee, 07 May 1991).
xxx xxx xxx
THE CHAIRMAN. Andy, saan ba naman itong amendment on
page 2? Sino ba ang gumawa nito? Okay, on page 2, lines 43
and 44, "fugitive from justice". What "fugitive"? Sino ba ang
gumawa nito, ha?
MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we
agree to clarify the word "fugitive".
THE CHAIRMAN. "Fugitive from justice means a person" ba
ito, ha?
MR. SANCHEZ. Means a person...
THE CHAIRMAN. Ha?
HON. REYES. A person who has been convicted.
THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from
justice shall mean or means one who has been convicted by
final judgment. It means one who has been convicted by final
judgment.
HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.
THE CHAIRMAN. Ano? Sige, tingnan natin.
HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin
siya?
THE CHAIRMAN. O, tama na yan, fugitive from justice. He has
been convicted by final judgment, meaning that if he is simply
in jail and because he put up, post bail, but the case is still
being reviewed, that is not yet conviction by final judgment. 3
The Oversight Committee evidently entertained serious
apprehensions on the possible constitutional infirmity of
Section 40(e) of Republic Act No. 7160 if the disqualification
therein meant were to be so taken as to embrace those who
merely were facing criminal charges. A similar concern was
expressed by Senator R. A. V. Saguisag who, during the
bicameral conference committee of the Senate and the
House of Representatives, made this reservation:
. . . de ipa-refine lang natin 'yung language especially 'yung,
the scope of fugitive. Medyo bothered ako doon, a. 4
The Oversight Committee finally came out with Article 73 of
the Rules and Regulations Implementing the Local
Government Code of 1991. It provided:
Art. 73. Disqualifications. — The following persons shall be
disqualified from running for any elective local position:

(a) . . .

(e) Fugitives from justice in criminal or non-political cases

here or abroad. Fugitive from justice refers to a person who
has been convicted by final judgment. 5 (Emphasis supplied)

Private respondent reminds us that the construction placed

upon law by the officials in charge of its enforcement
deserves great and considerable weight (Atlas Consolidated
Mining and Development Corp. vs. CA, 182 SCRA 166, 181).
The Court certainly agrees; however, when there clearly is no
obscurity and ambiguity in an enabling law, it must merely be
made to apply as it is so written. An administrative rule or
regulation can neither expand nor constrict the law but must
remain congruent to it. The Court believes and thus
holds, albeit with some personal reservations of
the ponente (expressed during the Court's en
banc deliberations), that Article 73 of the Rules and
Regulations Implementing the Local Government Code of
1991, to the extent that it confines the term "fugitive from
justice" to refer only to a person (the fugitive) "who has been
convicted by final judgment." is an inordinate and undue
circumscription of the law.

Unfortunately, the COMELEC did not make any definite

finding on whether or not, in fact, private respondent is a
"fugitive from justice" as such term must be interpreted and
applied in the light of the Court's opinion. The omission is
understandable since the COMELEC dismissed outrightly the
petition for quo warranto on the basis instead of Rule 73 of
the Rules and Regulations promulgated by the Oversight
Committee. The Court itself, not being a trier of facts, is thus
constrained to remand the case to the COMELEC for a
determination of this unresolved factual matter.

WHEREFORE, the questioned resolutions of the Commission

on Elections are REVERSED and SET ASIDE, and the case is
hereby REMANDED to the Commission which is DIRECTED to
proceed and resolve the case with dispatch conformably with
the foregoing opinion. No special pronouncement on costs.

SO ORDERED.

Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and

Francisco, JJ., concur.
G.R. No. L-29993 October 23, 1978
LAUDENCIO TORIO, GUILLERMO EVANGELISTA,
MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS
MACARANAS, MAXIMO MANANGAN, FIDEL
MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN,
all Members of the Municipal Council of Malasiqui in
1959, Malasiqui, Pangasinan, petitioners,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO,
ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA,
VIRGINIA, REMEDIOS and ROBERTO, all surnamed
FONTANILLA, and THE HONORABLE COURT OF
APPEALS, respondents.
G.R. No. L-30183 October 23, 1978
MUNICIPALITY OF MALASIQUI, petitioner,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO,
ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA,
VIRGINIA, REMEDIOS and ROBERTO, all surnamed
FONTANILLA, and the Honorable COURT OF
APPEALS, respondents.
Julian M. Armas, Assistant Provincial Fiscal for
petitioners.
Isidro L. Padilla for respondents.
MUÑOZ PALMA, J.:
These Petitions for review present the issue of whether
or not the celebration of a town fiesta authorized by a
municipal council under Sec. 2282 of the Municipal Law
as embodied in the Revised Administrative Code is a
governmental or a corporate or proprietary function of
the municipality.
A resolution of that issue will lead to another, viz the
civil liability for damages of the Municipality of
Malasiqui, and the members of the Municipal Council of
Malasiqui, province of Pangasinan, for a death which
occurred during the celebration of the town fiesta on
January 22, 1959, and which was attributed to the
negligence of the municipality and its council members.
The following facts are not in dispute:
On October 21, 1958, the Municipal Council of
Malasiqui, Pangasinan, passed Resolution No. 159
whereby "it resolved to manage the 1959 Malasiqui
town fiesta celebration on January 21, 22, and 23,
1959." Resolution No. 182 was also passed creating the
"1959 Malasiqui 'Town Fiesta Executive Committee"
which in turn organized a sub-committee on
entertainment and stage, with Jose Macaraeg as
Chairman. the council appropriated the amount of
P100.00 for the construction of 2 stages, one for the
"zarzuela" and another for the cancionan Jose
Macaraeg supervised the construction of the stage and
as constructed the stage for the "zarzuela" was "5-½
meters by 8 meters in size, had a wooden floor high at
the rear and was supported by 24 bamboo posts — 4 in
a row in front, 4 in the rear and 5 on each side — with
bamboo braces." 1
The "zarzuela" entitled "Midas Extravaganza" was
donated by an association of Malasiqui employees of
the Manila Railroad Company in Caloocan, Rizal. The
troupe arrived in the evening of January 22 for the
performance and one of the members of the group was
Vicente Fontanilla. The program started at about 10:15
o'clock that evening with some speeches, and many
persons went up the stage. The "zarzuela" then began
but before the dramatic part of the play was reached,
the stage collapsed and Vicente Fontanilla who was at
the rear of the stage was pinned underneath. Fontanilia
was taken to tile San Carlos General Hospital where he
died in the afternoon of the following day.
The heirs of Vicente Fontanilia filed a complaint with
the Court of First Instance of Manila on September 11,
1959 to recover damages. Named party-defendants
were the Municipality of Malasiqui, the Municipal
Council of Malasiqui and all the individual members of
the Municipal Council in 1959.
Answering the complaint defendant municipality
invoked inter alia the principal defense that as a legally
and duly organized public corporation it performs
sovereign functions and the holding of a town fiesta
was an exercise of its governmental functions from
which no liability can arise to answer for the negligence
of any of its agents.
The defendant councilors inturn maintained that they
merely acted as agents of the municipality in carrying
out the municipal ordinance providing for the
management of the town fiesta celebration and as such
they are likewise not liable for damages as the
undertaking was not one for profit; furthermore, they
had exercised due care and diligence in implementing
the municipal ordinance. 2
After trial, the Presiding Judge, Hon. Gregorio T. Lantin
narrowed the issue to whether or not the defendants
exercised due diligence 'm the construction of the
stage. From his findings he arrived at the conclusion
that the Executive Committee appointed by the
municipal council had exercised due diligence and care
like a good father of the family in selecting a competent
man to construct a stage strong enough for the
occasion and that if it collapsed that was due to forces
beyond the control of the committee on entertainment,
consequently, the defendants were not liable for
damages for the death of Vicente Fontanilla. The
complaint was accordingly dismissed in a decision dated
July 10, 1962. 3
The Fontanillas appealed to the Court of Appeals. In a
decision Promulgated on October 31, 1968, the Court of
Appeals through its Fourth Division composed at the
time of Justices Salvador V. Esguerra, Nicasio A. Yatco
and Eulogio S. Serrano reversed the trial court's decision
and ordered all the defendants-appellees to pay jointly
and severally the heirs of Vicente Fontanilla the sums of
P12,000.00 by way of moral and actual damages:
P1200.00 its attorney's fees; and the costs. 4
The case is now before Us on various assignments of
errors all of which center on the proposition stated at
the sentence of this Opinion and which We repeat:
Is the celebration of a town fiesta an undertaking in the
excercise of a municipality's governmental or public
function or is it or a private or proprietary character?
1. Under Philippine laws municipalities are political
bodies corporate and as such ag endowed with the
faculties of municipal corporations to be exercised by
and through their respective municipal governments in
conformity with law, and in their proper corporate
name, they may inter alia sue and be sued, and contract
and be contracted with. 5
The powers of a municipality are twofold in character
public, governmental or political on the one hand, and
corporate, private, or proprietary on the other.
Governmental powers are those exercised by the
corporation in administering the powers of the state
and promoting the public welfare and they include the
legislative, judicial public, and political Municipal
powers on the other hand are exercised for the special
benefit and advantage of the community and include
those which are ministerial private and corporate. 6
As to when a certain activity is governmental and when
proprietary or private, that is generally a difficult matter
to determine. The evolution of the municipal law in
American Jurisprudence, for instance, has shown that;
none of the tests which have evolved and are stated in
textbooks have set down a conclusive principle or rule,
so that each case will have to be determined on the
basis of attending circumstances.
In McQuillin on Municipal Corporations, the rule is
stated thus: "A municipal corporation proper has ... a
public character as regards the state at large insofar as
it is its agent in government, and private (so-called)
insofar as it is to promote local necessities and
conveniences for its own community. 7
Another statement of the test is given in City of Kokomo
v. Loy, decided by the Supreme Court of Indiana in
1916, thus:
Municipal corporations exist in a dual capacity, and
their functions are two fold. In one they exercise the
right springing from sovereignty, and while in the
performance of the duties pertaining thereto, their acts
are political and governmental Their officers and agents
in such capacity, though elected or appointed by the are
nevertheless public functionaries performing a public
service, and as such they are officers, agents, and
servants of the state. In the other capacity the
municipalities exercise a private. proprietary or
corporate right, arising from their existence as legal
persons and not as public agencies. Their officers and
agents in the performance of such functions act in
behalf of the municipalities in their corporate or in.
individual capacity, and not for the state or sovereign
power. (112 N. E 994-995)
In the early Philippine case of Mendoza v. de Leon 1916,
the Supreme Court, through Justice Grant T. Trent,
relying mainly on American Jurisprudence classified
certain activities of the municipality as governmental,
e.g.: regulations against fire, disease, preservation of
public peace, maintenance of municipal prisons,
establishment of schools, post-offices, etc. while the
following are corporate or proprietary in character, viz:
municipal waterwork, slaughter houses, markets,
stables, bathing establishments, wharves, ferries, and
fisheries. 8 Maintenance of parks, golf courses,
cemeteries and airports among others, are also
recognized as municipal or city activities of a
proprietary character. 9
2. This distinction of powers becomes important for
purposes of determining the liability of the municipality
for the acts of its agents which result in an injury to
third persons.
If the injury is caused in the course of the performance
of a governmental function or duty no recovery, as a
rule, can be. had from the municipality unless there is
an existing statute on the matter, 10 nor from its officers,
so long as they performed their duties honestly and in
good faith or that they did not act wantonly and
maliciously. 11 In Palafox, et al., v. Province of Ilocos
Norte, et al., 1958, a truck driver employed by the
provincial government of Ilocos Norte ran over Proceto
Palafox in the course of his work at the construction of a
road. The Supreme Court in affirming the trial court's
dismissal of the complaint for damages held that the
province could not be made liable because its employee
was in the performance of a governmental function —
the construction and maintenance of roads — and
however tragic and deplorable it may be, the death of
Palafox imposed on the province no duty to pay
monetary consideration. 12
With respect to proprietary functions, the settled rule is
that a municipal corporation can be held liable to third
persons ex contract 13 or ex delicto. 14
Municipal corporations are subject to be sued upon
contracts and in tort. ...
xxx xxx xxx
The rule of law is a general one, that the superior or
employer must answer civilly for the negligence or want
of skill of its agent or servant in the course or fine of his
employment, by which another, who is free from
contributory fault, is injured. Municipal corporations
under the conditions herein stated, fall within the
operation of this rule of law, and are liable, accordingly,
to civil actions for damages when the requisite
elements of liability co-exist. ... (Dillon on Municipal
Corporations, 5th ed. Sec. 1610,1647, cited in Mendoza
v. de Leon, supra. 514)
3. Coming to the cam before Us, and applying the
general tests given above, We hold that the ho of the
town fiesta in 1959 by the municipality of Malsiqui
Pangasinan was an exercise of a private or proprietary
function of the municipality.
Section 2282 of the Chatter on Municipal Law of the
Revised Administrative Code provides:
Section 2282. Celebration of fiesta. — fiesta may be
held in each municipality not oftener than once a year
upon a date fixed by the municipal council A fiesta s not
be held upon any other date than that lawfully fixed
therefor, except when, for weighty reasons, such as
typhoons, foundations, earthquakes, epidemics, or
other public ties, the fiesta cannot be hold in the date
fixed in which case it may be held at a later date in the
same year, by resolution of the council.
This provision simply gives authority to the municipality
to accelebrate a yearly fiesta but it does not impose
upon it a duty to observe one. Holding a fiesta even if
the purpose is to commemorate a religious or historical
event of the town is in essence an act for the special
benefit of the community and not for the general
welfare of the public performed in pursuance of a policy
of the state. The mere fact that the celebration, as
claimed was not to secure profit or gain but merely to
provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks
is not a source of income for the nonetheless it is
private undertaking as distinguished from the
maintenance of public schools, jails, and the like which
are for public service.
As stated earlier, there can be no hard and fast rule for
purposes of determining the true nature of an
undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element,
however beneficial to the public the undertaking may
be, is that it is governmental in essence, otherwise. the
function becomes private or proprietary in character.
Easily, no overnmental or public policy of the state is
involved in the celebration of a town fiesta. 15
4. It follows that under the doctrine of respondent
superior, petitioner-municipality is to be held liable for
damages for the death of Vicente Fontanilia if that was
at- tributable to the negligence of the municipality's
officers, employees, or agents.
Art. 2176, Civil Code: Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. . .
Art. 2180, Civil Code: The obligation imposed by article
2176 is demandable not only for one's own acts or
omission, but also for those of persons for whom one is
responsible. . .
On this point, the Court of Appeals found and held that
there was negligence.
The trial court gave credence to the testimony of Angel
Novado, a witness of the defendants (now petitioners),
that a member of the "extravaganza troupe removed
two principal braces located on the front portion of the
stage and u them to hang the screen or "telon", and
that when many people went up the stage the latter
collapsed. This testimony was not believed however by
respondent appellate court, and rightly so. According to
said defendants, those two braces were "mother" or
"principal" braces located semi-diagonally from the
front ends of the stage to the front posts of the ticket
booth located at the rear of the stage and were
fastened with a bamboo twine. 16 That being the case, it
becomes incredible that any person in his right mind
would remove those principal braces and leave the
front portion of the stage practically unsuported
Moreover, if that did happen, there was indeed
negligence as there was lack of suspension over the use
of the stage to prevent such an occurrence.
At any rate, the guitarist who was pointed to by Novado
as the person who removed the two bamboo braces
denied having done go. The Court of Appeals said
"Amor by himself alone could not have removed the
two braces which must be about ten meters long and
fastened them on top of the stags for the curtain. The
stage was only five and a half meters wide. Surely, it,
would be impractical and unwieldy to use a ten meter
bamboo pole, much more two poles for the stage
curtain. 17
The appellate court also found that the stage was not
strong enough considering that only P100.00 was
appropriate for the construction of two stages and
while the floor of the "zarzuela" stage was of wooden
planks, the Post and braces used were of bamboo
material We likewise observe that although the stage
was described by the Petitioners as being supported by
"24" posts, nevertheless there were only 4 in front, 4 at
the rear, and 5 on each side. Where were the rest?
The Court of Appeals thus concluded
The court a quo itself attributed the collapse of the
stage to the great number of onlookers who mounted
the stage. The municipality and/or its agents had the
necessary means within its command to prevent such
an occurrence. Having filed to take the necessary steps
to maintain the safety of the stage for the use of the
participants in the stage presentation prepared in
connection with the celebration of the town fiesta,
particularly, in preventing non participants or spectators
from mounting and accumulating on the stage which
was not constructed to meet the additional weight- the
defendant-appellees were negligent and are liable for
the death of Vicente Fontanilla . (pp. 30-31, rollo, L-
29993)
The findings of the respondent appellate court that the
facts as presented to it establish negligence as a matter
of law and that the Municipality failed to exercise the
due diligence of a good father of the family, will not
disturbed by Us in the absence of a clear showing of an
abuse of discretion or a gross misapprehension of
facts." 18
Liability rests on negligence which is "the want of such
care as a person of ordinary prudence would exercise
under the circumstances of the case." 19
Thus, private respondents argue that the "Midas
Extravaganza" which was to be performed during the
town fiesta was a "donation" offered by an association
of Malasiqui employees of the Manila Railroad Co. in
Caloocan, and that when the Municipality of Malasiqui
accepted the donation of services and constructed
precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect
that the Municipality through its "Committee on
entertainment and stage" would build or put up a stage
or platform strong enough to sustain the weight or
burden of the performance and take the necessary
measures to insure the personal safety of the
participants. 20 We agree.
Quite relevant to that argument is the American case
of Sanders v. City of Long Beach, 1942, which was an
action against the city for injuries sustained from a fall
when plaintiff was descending the steps of the city
auditorium. The city was conducting a "Know your City
Week" and one of the features was the showing of a
motion picture in the city auditorium to which the
general public was invited and plaintiff Sanders was one
of those who attended. In sustaining the award for
Damages in favor of plaintiff, the District Court of
Appeal, Second district, California, held inter alia that
the "Know your City Week" was a "proprietary activity"
and not a "governmental one" of the city, that
defendant owed to plaintiff, an invitee the duty of
exercising ordinary care for her safety, and plaintiff was
entitled to assume that she would not be exposed to a
danger (which in this case consisted of lack of sufficient
illumination of the premises) that would come to her
through a violation of defendant duty. 21
We can say that the deceased Vicente Fontanilla was
similarly situated as Sander The Municipality of
Malasiqui resolved to celebrate the town fiesta in
January of 1959; it created a committee in charge of the
entertainment and stage; an association of Malasiqui
residents responded to the call for the festivities and
volunteered to present a stage show; Vicente Fontanilla
was one of the participants who like Sanders had the
right to expect that he would be exposed to danger on
that occasion.
Lastly, petitioner or appellant Municipality cannot
evade ability and/or liability under the c that it was Jose
Macaraeg who constructed the stage. The municipality
acting through its municipal council appointed
Macaraeg as chairman of the sub-committee on
entertainment and in charge of the construction of the
"zarzuela" stage. Macaraeg acted merely as an agent of
the Municipality. Under the doctrine of respondent
superior mentioned earlier, petitioner is responsible or
liable for the negligence of its agent acting within his
assigned tasks. 22
... when it is sought to render a municipal corporation
liable for the act of servants or agents, a cardinal inquiry
is, whether they are the servants or agents of the
corporation. If the corporation appoints or elects them,
can control them in the discharge of their duties, can
continue or remove the can hold them responsible for
the manner in which they discharge their trust, and if
those duties relate to the exercise of corporate powers,
and are for the benefit of the corporation in its local or
special interest, they may justly be regarded as its
agents or servants, and the maxim of respondent
superior applies." ... (Dillon on Municipal Corporations,
5th Ed., Vol IV, p. 2879)
5. The remaining question to be resolved centers on the
liability of the municipal councilors who enacted the
ordinance and created the fiesta committee.
The Court of Appeals held the councilors jointly and
solidarity liable with the municipality for damages
under Article 27 of the Civil Code which provides that d
any person suffering ing material or moral loss because
a public servant or employee refuses or neglects,
without just cause to perform his official duty may file
an action for damages and other relief at the latter. 23
In their Petition for review the municipal councilors
allege that the Court of Appeals erred in ruling that the
holding of a town fiesta is not a governmental function
and that there was negligence on their part for not
maintaining and supervising the safe use of the stage, in
applying Article 27 of the Civil Code against them and in
not holding Jose Macaraeg liable for the collapse of the
stage and the consequent death of Vicente Fontanilla. 24
We agree with petitioners that the Court of Appeals
erred in applying Article 27 of the Civil Code against the
for this particular article covers a case of nonfeasance
or non-performance by a public officer of his official
duty; it does not apply to a case of negligence or
misfeasance in carrying out an official duty.
If We are led to set aside the decision of the Court of
Appeals insofar as these petitioners are concerned, it is
because of a plain error committed by respondent court
which however is not invoked in petitioners' brief.
In Miguel v. The Court of appeal. et al., the Court,
through Justice, now Chief Justice, Fred Ruiz Castro,
held that the Supreme Court is vested with ample
authority to review matters not assigned as errors in an
appeal if it finds that their consideration and resolution
are indispensable or necessary in arriving at a just
decision in a given case, and that tills is author under
Sec. 7, Rule 51 of the Rules of Court. 25 We believe that
this pronouncement can well be applied in the instant
case.
The Court of Appeals in its decision now under review
held that the celebration of a town fiesta by the
Municipality of Malasiqui was not a governmental
function. We upheld that ruling. The legal consequence
thereof is that the Municipality stands on the same
footing as an ordinary private corporation with the
municipal council acting as its board of directors. It is an
elementary principle that a corporation has a
personality, separate and distinct from its officers,
directors, or persons composing it 26 and the latter are
not as a rule co-responsible in an action for damages for
tort or negligence culpa aquilla committed by the
corporation's employees or agents unless there is a
showing of bad faith or gross or wanton negligence on
their part. 27
xxx xxx xxx
The ordinary doctrine is that a director, merely by
reason of his office, is not personally Stable for the torts
of his corporation; he Must be shown to have
personally voted for or otherwise participated in them
... Fletcher Encyclopedia Corporations, Vol 3A Chapt 11,
p. 207)
Officers of a corporation 'are not held liable for the
negligence of the corporation merely because of their
official relation to it, but because of some wrongful or
negligent act by such officer amounting to a breach of
duty which resulted in an injury ... To make an officer of
a corporation liable for the negligence of the
corporation there must have been upon his part such a
breach of duty as contributed to, or helped to bring
about, the injury; that is to say, he must be a participant
in the wrongful act. ... (pp. 207-208, Ibid.)
PREMISES CONSIDERED, We AFFIRM in toto the decision
of the Court of Appeals insofar as the Municipality of
Malasiqui is concerned (L-30183), and We absolve the
municipal councilors from liability and SET ASIDE the
judgment against them (L-9993).
Without pronouncement as to costs.
SO ORDERED,
Teehankee (Chairman), Makasiar, Fernandez, and
Guerrero, JJ., concur.

xxx xxx xxx

Directors who merely employ one to give a fireworks

Ambition on the corporate are not personally liable for
the negligent acts of the exhibitor. (p. 211, Ibid.)

On these people We absolve Use municipal councilors

from any liability for the death of Vicente Fontanilla.
The records do not show that said petitioners directly
participated in the defective construction of the
"zarzuela" stage or that they personally permitted
spectators to go up the platform.

6. One last point We have to resolve is on the award of

attorney's fees by respondent court. Petitioner-
municipality assails the award.

Under paragraph 11, Art. 2208 of the Civil Code

attorney's fees and expenses of litigation may be
granted when the court deems it just and equitable. In
this case of Vicente Fontanilla, although respondent
appellate court failed to state the grounds for awarding
attorney's fees, the records show however that
attempts were made by plaintiffs, now private
respondents, to secure an extrajudicial compensation
from the municipality: that the latter gave prorases and
assurances of assistance but failed to comply; and it was
only eight month after the incident that the bereaved
family of Vicente Fontanilla was compelled to seek relief
from the courts to ventilate what was believed to be a
just cause. 28

We hold, therefore, that there is no error committed in

the grant of attorney's fees which after all is a matter of
judicial discretion. The amount of P1,200.00 is fair and
reasonable.
G.R. No. L-24670 December 14, 1979
ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant,
vs.
FEATI BANK AND TRUST CO., defendant-appellee.
Ramirez & Ortigas for appellant.
Tañada, Teehankee & Carreon for appellee.
SANTOS, J.:
An appeal interposed on June 23, 1965 by plaintiff-appellant,
Ortigas & Co., Limited Partnership, from the decision of the
Court of First Instance of Rizal, Branch VI, at Pasig, Hon.
Andres Reyes presiding, which dismissed its complaint in Civil
Case No. 7706, entitled, "Ortigas & Company, Limited
Partnership, plaintiff, v. Feati Bank and Trust Company,
defendant," for lack of merit.
The following facts — a reproduction of the lower court's
findings, which, in turn, are based on a stipulation of facts
entered into by the parties are not disputed. Plaintiff
(formerly known as "Ortigas, Madrigal y Cia") is a limited
partnership and defendant Feati Bank and Trust Co., is a
corporation duly organized and existing in accordance with
the laws of the Philippines. Plaintiff is engaged in real estate
business, developing and selling lots to the public, particularly
the Highway Hills Subdivision along Epifanio de los Santos
Avenue, Mandaluyong, Rizal. 1
On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y
Angeles and Natividad Angeles, as vendees, entered into
separate agreements of sale on installments over two parcels
of land, known as Lots Nos. 5 and 6, Block 31, of the Highway
Hills Subdivision, situated at Mandaluyong, Rizal. On July 19,
1962, the said vendees transferred their rights and interests
over the aforesaid lots in favor of one Emma Chavez. Upon
completion of payment of the purchase price, the plaintiff
executed the corresponding deeds of sale in favor of Emma
Chavez. Both the agreements (of sale on installment) and the
deeds of sale contained the stipulations or restrictions that:
1. The parcel of land subject of this deed of sale shall be used
the Buyer exclusively for residential purposes, and she shall
not be entitled to take or remove soil, stones or gravel from it
or any other lots belonging to the Seller.
2. All buildings and other improvements (except the fence)
which may be constructed at any time in said lot must be, (a)
of strong materials and properly painted, (b) provided with
modern sanitary installations connected either to the public
sewer or to an approved septic tank, and (c) shall not be at a
distance of less than two (2) meters from its boundary lines. 2
The above restrictions were later annotated in TCT Nos.
101509 and 101511 of the Register of Deeds of Rizal, covering
the said lots and issued in the name of Emma Chavez. 3
Eventually, defendant-appellee acquired Lots Nos. 5 and 6,
with TCT Nos. 101613 and 106092 issued in its name,
respectively and the building restrictions were also annotated
therein. 4 Defendant-appellee bought Lot No. 5 directly from
Emma Chavez, "free from all liens and encumbrances as
stated in Annex 'D', 5 while Lot No. 6 was acquired from
Republic Flour Mills through a "Deed of Exchange," Annex
"E". 6 TCT No. 101719 in the name of Republic Flour Mills
likewise contained the same restrictions, although defendant-
appellee claims that Republic Flour Mills purchased the said
Lot No. 6 "in good faith. free from all liens and
encumbrances," as stated in the Deed of Sale, Annex
"F" 7 between it and Emma Chavez.
Plaintiff-appellant claims that the restrictions annotated on
TCT Nos. 101509, 101511, 101719, 101613, and 106092 were
imposed as part of its general building scheme designed for
the beautification and development of the Highway Hills
Subdivision which forms part of the big landed estate of
plaintiff-appellant where commercial and industrial sites are
also designated or established. 8
Defendant-appellee, upon the other hand, maintains that the
area along the western part of Epifanio de los Santos Avenue
(EDSA) from Shaw Boulevard to Pasig River, has been
declared a commercial and industrial zone, per Resolution
No. 27, dated February 4, 1960 of the Municipal Council of
Mandaluyong, Rizal. 9 It alleges that plaintiff-appellant
'completely sold and transferred to third persons all lots in
said subdivision facing Epifanio de los Santos Avenue" 10 and
the subject lots thereunder were acquired by it "only on July
23, 1962 or more than two (2) years after the area ... had
been declared a commercial and industrial zone ... 11
On or about May 5, 1963, defendant-appellee began laying
the foundation and commenced the construction of a
building on Lots Nos. 5 and 6, to be devoted to banking
purposes, but which defendant-appellee claims could also be
devoted to, and used exclusively for, residential purposes.
The following day, plaintiff-appellant demanded in writing
that defendant-appellee stop the construction of the
commerical building on the said lots. The latter refused to
comply with the demand, contending that the building was
being constructed in accordance with the zoning regulations,
defendant-appellee having filed building and planning permit
applications with the Municipality of Mandaluyong, and it
had accordingly obtained building and planning permits to
proceed with the construction.12
On the basis of the foregoing facts, Civil Case No. 7706, supra,
was submitted in the lower court for decision. The complaint
sought, among other things, the issuance of "a writ of
preliminary injunction ... restraining and enjoining defendant,
its agents, assigns, and those acting on its or their behalf from
continuing or completing the construction of a commercial
bank building in the premises ... involved, with the view to
commanding the defendant to observe and comply with the
building restrictions annotated in the defendant's transfer
certificate of title."
In deciding the said case, the trial court considered, as the
fundamental issue, whether or not the resolution of the
Municipal Council of Mandaluyong declaring Lots Nos. 5 and
6, among others, as part of the commercial and industrial
zone of the municipality, prevailed over the building
restrictions imposed by plaintiff-appellant on the lots in
question. 13 The records do not show that a writ of
preliminary injunction was issued.
The trial court upheld the defendant-appellee and dismissed
the complaint, holding that the subject restrictions were
subordinate to Municipal Resolution No. 27, supra. It
predicated its conclusion on the exercise of police power of
the said municipality, and stressed that private interest
should "bow down to general interest and welfare. " In short,
it upheld the classification by the Municipal Council of the
area along Epifanio de los Santos Avenue as a commercial
and industrial zone, and held that the same rendered
"ineffective and unenforceable" the restrictions in question
as against defendant-appellee. 14 The trial court decision
further emphasized that it "assumes said resolution to be
valid, considering that there is no issue raised by either of the
parties as to whether the same is null and void. 15
On March 2, 1965, plaintiff-appellant filed a motion for
reconsideration of the above decision, 16 which motion was
opposed by defendant-appellee on March 17, 1965. 17 It
averred, among others, in the motion for reconsideration
that defendant- appellee "was duty bound to comply with the
conditions of the contract of sale in its favor, which
conditions were duly annotated in the Transfer Certificates of
Title issued in her (Emma Chavez) favor." It also invited the
trial court's attention to its claim that the Municipal Council
had (no) power to nullify the contractual obligations assumed
by the defendant corporation." 18
The trial court denied the motion for reconsideration in its
order of March 26, 1965. 19
On April 2, 1965 plaintiff-appellant filed its notice of appeal
from the decision dismissing the complaint and from the
order of March 26, 1965 denying the motion for
reconsideration, its record on appeal, and a cash appeal
bond." 20 On April 14, the appeal was given due course 21 and
the records of the case were elevated directly to this Court,
since only questions of law are raised. 22
Plaintiff-appellant alleges in its brief that the trial court erred
— ordinances or regulations"; 33 for the municipality. Clearly,
I. When it sustained the view that Resolution No. 27, series of
1960 of the Municipal Council of Mandaluyong, Rizal
declaring Lots Nos. 5 and 6, among others, as part of the
commercial and industrial zone, is valid because it did so in
the exercise of its police power; and
II. When it failed to consider whether or not the Municipal
Council had the power to nullify the contractual obligations
assumed by defendant-appellee and when it did not make a
finding that the building was erected along the property line,
when it should have been erected two meters away from said
property line. 23
The defendant-appellee submitted its counter-assignment of
errors. In this connection, We already had occasion to hold
in Relativo v. Castro 24 that "(I)t is not incumbent on the
appellee, who occupies a purely defensive position, and is
seeking no affirmative relief, to make assignments of error, "
The only issues to be resolved, therefore, are: (1) whether
Resolution No. 27 s-1960 is a valid exercise of police power;
and (2) whether the said Resolution can nullify or supersede
the contractual obligations assumed by defendant-appellee.
1. The contention that the trial court erred in sustaining the
validity of Resolution No. 27 as an exercise of police power is
without merit. In the first place, the validity of the said
resolution was never questioned before it. The rule is that the
question of law or of fact which may be included in the
appellant's assignment of errors must be those which have
been raised in the court below, and are within the issues
framed by the parties. 25 The object of requiring the parties to
present all questions and issues to the lower court before
they can be presented to the appellate court is to enable the
lower court to pass thereon, so that the appellate court upon
appeal may determine whether or not such ruling was
erroneous. The requirement is in furtherance of justice in
that the other party may not be taken by surprise. 26 The rule
against the practice of blowing "hot and cold" by assuming
one position in the trial court and another on appeal will, in
the words of Elliot, prevent deception. 27 For it is well-settled
that issues or defenses not raised 28 or properly litigated 29 or
pleaded 30 in the Court below cannot be raised or entertained
on appeal.
In this particular case, the validity of the resolution was
admitted at least impliedly, in the stipulation of facts below.
when plaintiff-appellant did not dispute the same. The only
controversy then as stated by the trial court was whether or
not the resolution of the Municipal Council of Mandaluyong
... which declared lots Nos. 4 and 5 among others, as a part of
the commercial and industrial zone of the municipality,
prevails over the restrictions constituting as encumbrances
on the lots in question. 31 Having admitted the validity of the
subject resolution below, even if impliedly, plaintiff-appellant
cannot now change its position on appeal.
But, assuming arguendo that it is not yet too late in the day
for plaintiff-appellant to raise the issue of the invalidity of the
municipal resolution in question, We are of the opinion that
its posture is unsustainable. Section 3 of R.A. No. 2264,
otherwise known as the Local Autonomy Act," 32 empowers a
Municipal Council "to adopt zoning and subdivision
the law does not restrict the exercise of the power through
an ordinance. Therefore, granting that Resolution No. 27 is
not an ordinance, it certainly is a regulatory measure within
the intendment or ambit of the word "regulation" under the
provision. As a matter of fact the same section declares that
the power exists "(A)ny provision of law to the contrary
notwithstanding ... "
An examination of Section 12 of the same law 34 which
prescribes the rules for its interpretation likewise reveals that
the implied power of a municipality should be "liberally
construed in its favor" and that "(A)ny fair and reasonable
doubt as to the existence of the power should be interpreted
in favor of the local government and it shall be presumed to
exist." The same section further mandates that the general
welfare clause be liberally interpreted in case of doubt, so as
to give more power to local governments in promoting the
economic conditions, social welfare and material progress of
the people in the community. The only exceptions under
Section 12 are existing vested rights arising out of a contract
between "a province, city or municipality on one hand and a
third party on the other," in which case the original terms and
provisions of the contract should govern. The exceptions,
clearly, do not apply in the case at bar.
2. With regard to the contention that said resolution cannot
nullify the contractual obligations assumed by the defendant-
appellee – referring to the restrictions incorporated in the
deeds of sale and later in the corresponding Transfer
Certificates of Title issued to defendant-appellee – it should
be stressed, that while non-impairment of contracts is
constitutionally guaranteed, the rule is not absolute, since it
has to be reconciled with the legitimate exercise of police
power, i.e., "the power to prescribe regulations to promote
the health, morals, peace, education, good order or safety
and general welfare of the people. 35 Invariably described as
"the most essential, insistent, and illimitable of
powers" 36 and "in a sense, the greatest and most powerful
attribute of government, 37 the exercise of the power may be
judicially inquired into and corrected only if it is capricious,
'whimsical, unjust or unreasonable, there having been a
denial of due process or a violation of any other applicable
constitutional guarantee. 38 As this Court held through Justice
Jose P. Bengzon in Philippine Long Distance Company vs. City
of Davao, et al. 39 police power "is elastic and must be
responsive to various social conditions; it is not, confined
within narrow circumscriptions of precedents resting on past
conditions; it must follow the legal progress of a democratic
way of life." We were even more emphatic in Vda. de
Genuino vs. The Court of Agrarian Relations, et al., 40 when
We declared: "We do not see why public welfare when
clashing with the individual right to property should not be
made to prevail through the state's exercise of its police
power.
Resolution No. 27, s-1960 declaring the western part of
highway 54, now E. de los Santos Avenue (EDSA, for short)
from Shaw Boulevard to the Pasig River as an industrial and
commercial zone, was obviously passed by the Municipal
Council of Mandaluyong, Rizal in the exercise of police power
to safeguard or promote the health, safety, peace, good
order and general welfare of the people in the locality,
Judicial notice may be taken of the conditions prevailing in
the area, especially where lots Nos. 5 and 6 are located. The
lots themselves not only front the highway; industrial and
commercial complexes have flourished about the place.
EDSA, a main traffic artery which runs through several cities
and municipalities in the Metro Manila area, supports an
endless stream of traffic and the resulting activity, noise and
pollution are hardly conducive to the health, safety or welfare
of the residents in its route. Having been expressly granted
the power to adopt zoning and subdivision ordinances or
regulations, the municipality of Mandaluyong, through its
Municipal 'council, was reasonably, if not perfectly, justified
under the circumstances, in passing the subject resolution.
The scope of police power keeps expanding as civilization
advances, stressed this Court, speaking thru Justice Laurel in
the leading case of Calalang v. Williams et al., 41 Thus-
As was said in the case of Dobbins v. Los Angeles (195 US 223,
238 49 L. ed. 169), 'the right to exercise the police power is a
continuing one, and a business lawful today may in the future,
because of changed situation, the growth of population or
other causes, become a menace to the public health and
welfare, and be required to yield to the public good.' And in
People v. Pomar (46 Phil. 440), it was observed
that 'advancing civilization is bringing within the scope of
police power of the state today things which were not
thought of as being with in such power yesterday. The
development of civilization), the rapidly increasing
population, the growth of public opinion, with an increasing
desire on the part of the masses and of the government to
look after and care for the interests of the individuals of the
state, have brought within the police power many questions
for regulation which formerly were not so
considered. 42 (Emphasis, supplied.)
Thus, the state, in order to promote the general welfare, may
interfere with personal liberty, with property, and with
business and occupations. Persons may be subjected to all
kinds of restraints and burdens, in order to secure the general
comfort health and prosperity of the state 43 and to this
fundamental aim of our Government, the rights of the
individual are subordinated. 44
The need for reconciling the non-impairment clause of the
Constitution and the valid exercise of police power may also
be gleaned from Helvering v. Davis 45 wherein Mr. Justice
Cardozo, speaking for the Court, resolved the conflict
"between one welfare and another, between particular and
general, thus —
Nor is the concept of the general welfare static. Needs that
were narrow or parochial a century ago may be interwoven in
our day with the well-being of the nation What is critical or
urgent changes with the times. 46
The motives behind the passage of the questioned resolution
being reasonable, and it being a " legitimate response to a
felt public need," 47 not whimsical or oppressive, the non-
impairment of contracts clause of the Constitution will not
bar the municipality's proper exercise of the power. Now
Chief Justice Fernando puts it aptly when he declared: "Police
power legislation then is not likely to succumb to the
challenge that thereby contractual rights are rendered
nugatory." 48
Furthermore, We restated in Philippine American Life Ins. Co.
v. Auditor General 49 that laws and reservation of essential
attributes of sovereign power are read into contracts agreed
upon by the parties. Thus —
Not only are existing laws read into contracts in order to fix
obligations as between the parties, but the reservation of
essential attributes of sovereign power is also read into
contracts as a postulate of the legal order. The policy of
protecting contracts against impairments presupposes the
maintenance of a government by virtue of which contractual
relations are worthwhile – a government which retains
adequate authority to secure the peace and good order of
society.
Again, We held in Liberation Steamship Co., Inc. v. Court of
Industrial Relations, 50 through Justice J.B.L. Reyes, that ... the
law forms part of, and is read into, every contract, unless
clearly excluded therefrom in those cases where such
exclusion is allowed." The decision in Maritime Company of
the Philippines v. Reparations Commission, 51 written for the
Court by Justice Fernando, now Chief Justice, restates the
rule.
One last observation. Appellant has placed unqualified
reliance on American jurisprudence and authorities 52 to
bolster its theory that the municipal resolution in question
cannot nullify or supersede the agreement of the parties
embodied in the sales contract, as that, it claims, would
impair the obligation of contracts in violation of the
Constitution. Such reliance is misplaced.
In the first place, the views set forth in American decisions
and authorities are not per se controlling in the Philippines,
the laws of which must necessarily be construed in
accordance with the intention of its own lawmakers and such
intent may be deduced from the language of each law and
the context of other local legislation related
thereto. 53 and Burgess, et al v. Magarian, et al., 55 two Of the
cases cited by plaintiff-appellant, lend support to the
conclusion reached by the trial court, i.e. that the municipal
resolution supersedes/supervenes over the contractual
undertaking between the parties. Dolan v. Brown, states that
"Equity will not, as a rule, enforce a restriction upon the use
of property by injunction where the property has so changed
in character and environment as to make it unfit or
unprofitable for use should the restriction be enforced, but
will, in such a case, leave the complainant to whatever
remedy he may have at law. 56 (Emphasis supplied.) Hence,
the remedy of injunction in Dolan vs. Brown was denied on
the specific holding that "A grantor may lawfully insert in his
deed conditions or restrictions which are not against public
policy and do not materially impair the beneficial enjoyment
of the estate. 57 Applying the principle just stated to the
present controversy, We can say that since it is now
unprofitable, nay a hazard to the health and comfort, to use
Lots Nos. 5 and 6 for strictly residential purposes, defendants-
appellees should be permitted, on the strength of the
resolution promulgated under the police power of the
municipality, to use the same for commercial purposes.
In Burgess v. Magarian et al. it was, held that "restrictive
covenants running with the land are binding on all
subsequent purchasers ... " However, Section 23 of the zoning
ordinance involved therein contained a proviso expressly
declaring that the ordinance was not intended "to interfere
with or abrogate or annul any easements, covenants or other
agreement between parties." 58 In the case at bar, no such
proviso is found in the subject resolution.
It is, therefore, clear that even if the subject building
restrictions were assumed by the defendant-appellee as
vendee of Lots Nos. 5 and 6, in the corresponding deeds of
sale, and later, in Transfer Certificates of Title Nos. 101613
and 106092, the contractual obligations so assumed cannot
prevail over Resolution No. 27, of the Municipality of
Mandaluyong, which has validly exercised its police power
through the said resolution. Accordingly, the building
restrictions, which declare Lots Nos. 5 and 6 as residential,
cannot be enforced.
IN VIEW OF THE FOREGOING, the decision appealed from,
dismissing the complaint, is hereby AFFIRMED. "without
pronouncement as to costs.
SO ORDERED.