48545664 Local Governments Digests

Mabelle O. Nebres | Local Governments Case Digests

Alvarez v. GuingonaFacts: HB 8817, entitled "An Act Converting the Municipality of Santiago into an Independent Component City to be known as the City of Santiago," was filed in the HoR, subsequently passed by the HoR, and transmitted to the Senate. A counterpart of HB 8817, SB 1243 was filed in the Senate, and was passed as well. The enrolled bill was submitted to and signed by the Chief Executive as RA 7720. When a plebiscite on the Act was held on July 13, 1994, a great majority of the registered voters of Santiago voted in favor of the conversion of Santiago into a city. Issue: Constitutionality of RA 7720. SC: YES, petition denied, presumption of constitutionality, no clear and unequivocal breach of the Consti.

1. WON Internal Revenue Allotments (IRAs) must be included in determining the average annual income for purposes of conversion.YES For a municipality to be converted into an independent component

city, its average annual income for the last two consecutive years (at that time, based on 1991 constant prices) must be at least 20M. Petitioners contend that the IRAs must be deducted from the municipality’s income because they are not income but transfers and/or budgetary aid from the NG and that they fluctuate depending on different factors.

The court in its discussion of what an LGU is said that:a. it is a political subdivision of the State which is constituted by law

and possessed of substantial control over its own affairs.b. It is an intra sovereign subdivision of one sovereign nation, but

not intended, however, to be an imperium in imperioc. It is autonomous in the sense that it is given more powers,

authority, responsibilities and resources. Since the LGU is given broadened powers and increased

responsibilities, it now operates on a much wider scale. More extensive operations, in turn, entail more expenses. The vesting of duty, responsibility and accountability in every LGU is accompanied with a provision for reasonably adequate resources to discharge its powers and effectively carry out its functions.

Availment of such resources is effectuated through the vesting in every LG unit of (1) the right to create and broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share being in the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the utilization and development of the national wealth, if any, within its territorial boundaries.

The court held that the IRAs were properly included because they are items of income and form part of the gross accretion of the funds of the LGU. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the LG unit. They thus constitute income which the LG can invariably rely upon as the source of much needed funds.

LGC, Sec 450 (c): "the average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income."

DOF Order 35-93: ANNUAL INCOME: revenues and receipts realized by provinces, cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Secs 284, 290 and 291 of the Code, but exclusive of non-recurring receipts, such as other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others.

2. WON considering that the Senate passed SB 1243, its own version of HB 8817, RA 7720 can be said to have originated in the HoR. YES Bills of local application are required to originate exclusively in the

HoR. Petitioners contend that since a bill of the same import was passed in the Senate, it cannot be said to have originated in the HoR.

Such is untenable because it cannot be denied that the HB was filed first (18 Apr 1993). The SB was filed 19 May. The HB was approved on third reading 17 Dec, and was transmitted to the Senate 28 Jan 1994.

The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, does not contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House bill.

The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the HoR, does not contravene the constitutional requirement that a bill of local application should originate in the HoR, for as long as the Senate does not act thereupon until it receives the House bill.

Tolentino v. SoF: “what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the HoR on the theory that, elected as they are from the districts, the members of the House can be expected to be more

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sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill.”

Basco v. PAGCORFacts: PAGCOR was created under PD 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law. To attain its objectives (centralize and integrate the right and authority to operate and conduct games of chance, generate additional revenue to fund infrastructure and socio-civic project, expand tourism, minimize evils prevalent in conduct and operation of gambling clubs) PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended or modified.Issues:

1. WON PD 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees. NO The City of Manila, being a mere Municipal corporation has no

inherent right to impose taxes. Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it." Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the "inherent power to tax"

The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" which has the power to "create and abolish municipal corporations" due to its "general legislative powers." Congress, therefore, has the power of control over LGs. And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power.

The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of LGs to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by PD 771 and was vested exclusively on the NG. Only the NG has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees

which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila.

LGs have no power to tax instrumentalities of the NG. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the NG. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers. PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere LG.

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal government.--> "supremacy" of the NG over LGs.

Holmes: absence of power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States

mere creatures of the State can defeat National policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation"

2. WON the Local Autonomy Clause of the Constitution will be violated by PD 1869. NO. Art x Sec 5, Consti: Each LG unit shall have the power to create its own

source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the LG.

power of LG to "impose taxes and fees" is subject to "limitations" which Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of LGs to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy.

principle of local autonomy under the 1987 Constitution simply means "decentralization." It does not make LGs sovereign within the state or an "imperium in imperio."

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LG: political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, LGs can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. LG in such a system can only mean a measure of decentralization of the function of government.

Vilas v. City of ManilaFacts: Vilas, Trigas, and aguado are creditors of Manila as it existed before the cession of the Philippine Islands (PI) to the US by the treaty of Paris. According to them, under its present charter from the Government of the PI is the same juristic person and liable upon the obligations of the old city. PI SC: different entity.Issue: WON notwithstanding the cession of the PI to the US followed by a reincorporation of the city, present municipality liable for obligations of old city. YES

The city as now incorporated has succeeded to all of the property rights of the old city and to the right to enforce all its causes of action. There is identity of purpose between Sp and Am charters and substantial identity of municipal powers, area, and inhabitants.

Argument against liability: ayuntamiento of Manila was a corporation entity created by the Sp government . when the sovereignty of Sp ceased, municipality, ceased as well.--> analogy to doctrine of principal and agent, death of principal=death of agent

Dual Character of Municipal Corporations: 1. Governmental: exercises by delegation a part of the sovereignty

of the state2. Private/Business: mere legal entity or juristic person. Stands for

the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred

In view of the dual character of municipal corporations, there is no public reason for presuming their total dissolution as a mere consequence of military occupation or territorial cession.

McKinley’s instruction: relinquishment or cession…cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds…

Property rights of municipal corporations and individuals were safeguarded. The cession did not operate as an extinction or dissolution of corporations. The legal entity survived both military occupation and cession. The corporate identity and liability of the city was not extinguished.

TVA: entitled to proceed to judgment.Lidasan v. COMELECFacts: RA 4790 (An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur) was signed into law. Dianaton is composed of Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan, Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain,Matimos and Magolatung. It was later found out that Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan were not within Lanao del Sur but within Cotabato. The COMELEC adopted a resolution recognizing the new municipality for purposes of election. Meanwhile, the Office of the President recommended that the COMELEC that the operation of the statute be suspended until clarified by correcting legislation. This triggered petitioner to file action.Issue: WON RA 4790 is unconstitutional. YES

The constitution requires that no bill must be enacted which shall embrace more than one subject which shall be expressed in the title of the bill. While the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein, the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation.

Test of the sufficiency of a title: whether or not it is misleading; technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth.

In this case, not the slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in this new Lanao del Sur town. The phrase "in the Province of Lanao del Sur," read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a two-pronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur.

Respondents: change in boundaries merely incidental. SC: NO! Transfer of a sizeable portion of territory from one province to another of necessity involves reduction of area, population and income of the first and the corresponding increase of those of the

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other. This is as important as the creation of a municipality. And yet, the title did not reflect this fact.

Felwa case: cannot be considered by the court, in this case, while no reference to elective officials were made, such were incidental to the creation of B, MP,I, and K-A.

Hume v. Village of Fruitport: An act to incorporate the village of Fruitport, in the County of Muskegon but statute included Ottawa. Declared unconstitutional for having more than one subject. Contention: “in the County of Muskegon” a mere surplusage. SC: the court cannot reject a part of the title for the purpose of saving the act.

RA 4790 cannot be salvaged with reference to the nine remaining towns. While where a portion of a statute is rendered unconstitutional and the remainder valid, the parts will be separated, and the constitutional portion upheld, it is not so when the parts of the statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.

Municipal corporations perform twin functions. Firstly. They serve as an instrumentality of the State in carrying out the functions of government. Secondly. They act as an agency of the community in the administration of local affairs. It is in the latter character that they are a separate entity acting for their own purposes and not a subdivision of the State.

several factors come to the fore in the consideration of whether a group of barrios is capable of maintaining itself as an independent municipality. Amongst these are population, territory, and income

Speaking of the original twenty-one barrios which comprise the new municipality, the explanatory note reads: the territory is now a progressive community; the aggregate population is large; and the collective income is sufficient to maintain an independent municipality. This bill, if enacted into law, will enable the inhabitants concerned to govern themselves and enjoy the blessings of municipal autonomy. Obviously, what was in the mind of the proponent was the 21 barrios, and not the nine remaining.

Republic v. City of Davao

Facts: Davao filed an application for a Certificate of Non-Coverage (CNC) for its proposed project, the Davao City Artica Sports Dome, with the Environmental Management Bureau (EMB), Region XI. The EMB denied the application after finding that the proposed project was within an environmentally critical area and ruled that, pursuant to Sec 2, PD 1586 (Environmental Impact Statement System), in relation to Sec 4, PD 1151, (Philippine Environment Policy), Davao must undergo the environmental impact assessment (EIA) process to secure an Environmental Compliance Certificate (ECC), before it can proceed with the construction of its project. Davao filed a petition for mandamus and injunction with the RTC of Davao alleging that its proposed project was neither an environmentally critical project nor within an environmentally critical area; thus outside the scope of the EIS system. Hence, it was the ministerial duty of the DENR, through the EMB, to issue a CNC in favor of respondent upon submission of the required documents. RTC: for Davao. LGUs not required by PDs 1586 & 1511 to comply with the EIS law. Only agencies and instrumentalities of the NG, including GOCCs, as well as private corporations, firms and entities are mandated to go through the EIA process for their proposed projects which have significant effect on the quality of the environment. An LGU, not being an agency or instrumentality of the NG, is deemed excluded under the principle of expressio unius est exclusio alterius. MR: deniedIssue: WON Davao is required to comply with the EIS law. YES.**Davao already expressed agreement that it must secure an ECC for proposed project, hence moot and academic, but the SC decided to still discuss issues to educate the bench and bar.

Davao cannot claim exemption from coverage of PD 1586. LGU a body politic and corporate endowed with powers to be

exercised by it in conformity with law. It performs dual functions: (1) Governmental functions are those that concern the health, safety and the advancement of the public good or welfare as affecting the public generally. LGU is an agency of the NG (2) Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for private advantage and benefit. LGU agent of the community in the administration of local affairs.

Sec 16 LGC: duty of the LGUs to promote the people’s right to a balanced ecology. As a body politic endowed with governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD 1586.

Sec 4 of PD 1586 clearly states that “no person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an ECC issued by the President or his duly authorized representative.” The CC

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defines a person as either natural or juridical. The state and its political subdivisions, LGUs are juridical persons. Undoubtedly therefore, LGUs are not excluded from the coverage of PD 1586.

State policy: achieve a balance between socio-economic development and environmental protection, which are the twin goals of sustainable development. This can only be possible if we adopt a comprehensive and integrated environmental protection program where all the sectors of the community are involved, i.e., the government and the private sectors. The LGUs, as part of the machinery of the government, cannot therefore be deemed as outside the scope of the EIS system.

*other issue: Davao must be granted ECC, it has duly proven that the dome will not be constructed in an environmentally critical area, hence, it becomes the ministerial duty of the DENR to issue the CNC.

San Juan v. CSCFacts: When the Provinicial Board Officer position was left vacant, Rizal Governor San Juan informed Director Abella of the Department of Budget and Management that a certain Santos had assumed office as acting PBO and requested Abella to endorse Santos’ appointment. Abella, however recommended Almajose on the basis of a comparative study of all MBOs which included San Juan’s nominees. According to Abella, Almajose was the most qualified since she was the only CPA among the contenders. DMB Usec Cabuquit signed Almajose’s appointment papers upon Abella’s recommendation. Unaware of Almajose’s appointment, San Juan reiterated his request for Santos’ appointment in a letter to Sec. Carague. DBM Reg. Dir. Galvez wrote San Jose that Santos and his other recommendees did not meet the minimum requirements under Local Budget Circular 31 for the position of local budget officer and required San Jose to submit at least three other nominees. After finding out about Almajose’s appointment San Juan wrote Carague protesting against the said appointment on the grounds that Cabuquit is not legally authorized to appoint the PBO; that Almajose lacks the required three years work experience as provided in LBC 31; and that under EO 112, it is the Gov., not the RD or a Congressman, who has the power to recommend nominees for the position of PBO. DBM, through its Director of the Bureau of Legal & Legislative Affairs (BLLA) Afurung, issued a Memorandum ruling that the San Juan's letter-protest is not meritorious considering that DBM validly exercised its prerogative in filling-up the contested position since none of the his nominees met the prescribed requirements. San Juan then moved for a reconsideration of the BLLA ruling. Such

was denied. He then wrote the CSC which issued resolutions upholding Almajose’s appointment.Issue: WON the DBM can appoint anyone in the event that the Governor recommends unqualified persons. NO.

issue is not merely about validity of appointment of PBO, but involves the application of a most important constitutional policy and principle, local autonomy.

Where a law is capable of two interpretations, one in favor of centralized power in Malacañang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy.

McKinley's Instructions: establishment of municipal governments, natives afforded the opportunity to manage their own local officers to the fullest extent of which they are capable and subject to the least degree of supervision and control

1935 Constitution: limited the executive power over local governments to "general supervision . . . as may be provided by law."

Tecson v. Salas: presidential competence is not even supervision in general, but general supervision as may be provided by law. He could not thus go beyond the applicable statutory provisions, which bind and fetter his discretion on the matter.

o Supervision goes no further than "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties."

o Control "means the power of an officer to alter or modify or nullify or set aside what a subordinate had done in the performance of their duties and to substitute the judgment of the former for that of the latter."

RA 2264, "An Act Amending the Law Governing Local Governments by Increasing Their Autonomy and Reorganizing Local Governments" was passed. It was followed in 1967 when Republic Act No. 5185, the Decentralization Law was enacted, giving "further autonomous powers to local governments governments."

1973 Constitution: the state shall guarantee and promote the autonomy of LGUs, especially the barangay to ensure their fullest development as self-reliant communities.

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article on Local Government was incorporated into the Constitution. It called for a LGC defining more responsive and accountable local government structures.

The exercise of greater local autonomy is even more marked in the present Constitution.Article II, Section 25 on State Policies provides:

Sec. 25. The State shall ensure the autonomy of local governments

The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in greater detail the provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of Article X provide:

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.Sec. 3. The Congress shall enact a LGC which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different LGUs their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local governments to develop self-reliance and resoluteness in the handling of their own funds, the goal of meaningful local autonomy is frustrated and set back.The right given by Local Budget Circular No. 31 which states:

Sec. 6.0 — The DBM reserves the right to fill up any existing vacancy where none of the nominees of the local chief executive meet the prescribed requirements.

is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.

The PBO is expected to synchronize his work with DBM. More important, however, is the proper administration of fiscal affairs at the local level. Provincial and municipal budgets are prepared at the local level and after completion are

forwarded to the national officials for review. They are prepared by the local officials who must work within the constraints of those budgets. They are not formulated in the inner sanctums of an all-knowing DBM and unilaterally imposed on local governments whether or not they are relevant to local needs and resources. It is for this reason that there should be a genuine interplay, a balancing of viewpoints, and a harmonization of proposals from both the local and national officials. It is for this reason that the nomination and appointment process involves a sharing of power between the two levels of government.It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices and Judges. Under Article VIII of the Constitution, nominations for judicial positions are made by the Judicial and Bar Council. The President makes the appointments from the list of nominees submitted to her by the Council. She cannot apply the DBM procedure, reject all the Council nominees, and appoint another person whom she feels is better qualified. There can be no reservation of the right to fill up a position with a person of the appointing power's personal choice.The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez required the Provincial Governor to submit at least three other names of nominees better qualified than his earlier recommendation. It was a meaningless exercise. The appointment of the private respondent was formalized before the Governor was extended the courtesy of being informed that his nominee had been rejected. The complete disregard of the local government's prerogative and the smug belief that the DBM has absolute wisdom, authority, and discretion are manifest.In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local governments as institutions of democracy is measured by the degree of autonomy that they enjoy. Citing Tocqueville, he stated that "local assemblies of citizens constitute the strength of free nations. . . . A people may establish a system of free government but without the spirit of municipal institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706).Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based.

Pimentel v. AguirreFacts:Tan v. COMELECFacts:

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Ganzon v. CSCFacts:Cordillera Broad Coalition v. COAFacts:Limbona v. MangelinFacts:

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Pelaez v. Auditor GeneralFacts: Pursuant to Sec 68 of the RAC, the President issued EOs 93-121, 124, and 126-129 which created 33 provinces. Pelaez instituted the present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of said EOs and/or any disbursement by said municipalities. Pelaez claims that RA 2370 had already impliedly repealed Sec 68. RA 2370, Sec 3:Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress; All barrios existing at the time of the passage of this Act shall come under the provisions hereof. When RA 2370 became effective, barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the proposed barrio is situated."ISSUE: If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities? NO.

The statutory denial of the presidential authority to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios.

On delegation of legislative power: While the power to fix such common boundary, in order to avoid

or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature — involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities — the authority to create municipal corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" or "solely and exclusively the exercise of legislative power. " Municipal corporations are purely the creatures of statutes.

Although Congress may delegate to another branch of the Government the power to fill in the details in the execution,

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enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to.

Schechter case: NIRA unconstitutional. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code making authority thus conferred is an unconstitutional delegation of legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a broader connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a statutory grant of authority to the President to do anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the democratic system established by our

Constitution, which it is the special duty and privilege of this Court to uphold.

the executive orders in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be given.

On the President’s power of control:Sec 10 (1), Art. VII, Consti: The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned.

LGUs: fundamental law permits him to wield no more authority than that of checking whether said local governments or the officers thereof perform their duties as provided by statutory enactments. The President cannot interfere with local governments, so long as the same or its officers act Within the scope of their authority.

Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create

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municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words, Sec 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has over said executive departments, bureaus or offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment.

Municipality of Kapalong v. MoyaFacts: Pres. Garcia created the Municipality of Santo Tomas from portions of the Municipality of Kapalong. Sto. Tomas now asserts jurisdiction over eight barrios of Kapalong. Sto. Tomas then filed a complaint against Kapalong for settlement of the municipal boundary dispute. Issue: WON Santo Tomas legally exists. NO.

As ruled in the Pelaez case, the President has no power to create a municipality. Since private respondent has no legal personality, it can not be a party to any civil action, and as such, Judge Moya should have dismissed the case, since further proceedings would be pointless. The Rules of Court expressly provides that only "entities authorized by law may be parties in a civil action.

Alvarez v. Guingona (supra, see p.1)Cawaling v. COMELECFacts: President Estrada signed into law RA 8806 (Act Creating The City Of Sorsogon By Merging The Municipalities Of Bacon And Sorsogon In The Province Of Sorsogon, And Appropriating Funds Therefor). The COMELEC conducted a plebiscite in Bacon and Sorsogon and submitted the matter for ratification. The Plebiscite City Board of Canvassers (PCBC) then proclaimed the creation of the City of Sorsogon as having been ratified and approved by the majority of the votes cast in the plebiscite. Cawaling, invoking his rights as a taxpayer, filed a petition for certiorari seeking the annulment of the plebiscite and challenging RA 8806.

Issues:1. WON the creation of Sorsogon City by merging two municipalities violates

Section 450(a) LGC (in relation to Section 10, Article X of the Constitution) which requires that only "a municipality or a cluster of barangays may be converted into a component city" NO.

Criteria for the creation of a city:SECTION 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of specific funds, transfers, and non-recurring income."

Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase "A municipality or a cluster of barangays may be converted into a component city" is not a criterion but simply one of the modes by which a city may be created. Section 10, Article X of the Constitution, quoted earlier and which petitioner cited in support of his posture, allows the merger of LGUs to create a province city, municipality or barangay in accordance with the criteria established by the Code.

The creation of an entirely new LGU through a division or a merger of existing LGUs is recognized under the Constitution, provided that such merger or division shall comply with the requirements prescribed by the Code.

2. WON it violates the “one bill one subject” rule. NO.

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Petitioner contends that R.A. No. 8806 actually embraces two principal subjects which are: (1) the creation of the City of Sorsogon, and (2) the abolition of the Municipalities of Bacon and Sorsogon. While the title of the Act sufficiently informs the public about the creation of Sorsogon City, petitioner claims that no such information has been provided on the abolition of the Municipalities of Bacon and Sorsogon.

Contrary to petitioner's assertion, there is only one subject embraced in the title of the law, that is, the creation of the City of Sorsogon. The abolition/cessation of the corporate existence of the Municipalities of Bacon and Sorsogon due to their merger is not a subject separate and distinct from the creation of Sorsogon City. Such abolition/cessation was but the logical, natural and inevitable consequence of the merger. Otherwise put, it is the necessary means by which the City of Sorsogon was created. Hence, the title of the law, "An Act Creating the City of Sorsogon by Merging the Municipalities of Bacon and Sorsogon in the Province of Sorsogon, and Appropriating Funds Therefor," cannot be said to exclude the incidental effect of abolishing the two municipalities, nor can it be considered to have deprived the public of fair information on this consequence.

3. WON the plebiscite was timely conducted. YES. The law was first published in the August 25, 2000 issue of

TODAY a newspaper of general circulation. Then on September 01, 2000, it was published in a newspaper of local circulation in the Province of Sorsogon. Thus, the publication of the law was completed on September 1, 2000, which date, according to the COMELEC, should be the reckoning point in determining the 120-day period within which to conduct the plebiscite, not from the date of its approval (August 16, 2000) when the law had not yet been published. The COMELEC argues that since publication is indispensable for the effectivity of a law, citing the landmark case of Tañada vs. Tuvera, it could only schedule the plebiscite after the Act took effect. Thus, the COMELEC concludes, the December 16, 2000 plebiscite was well within the 120-day period from the effectivity of the law on September 1, 2000

the plebiscite shall be conducted within 120 days from the date of the effectivity of the law, not from its approval. While the same provision allows a law or ordinance to fix "another date"

for conducting a plebiscite, still such date must be reckoned from the date of the effectivity of the law.

Consequently, the word "approval" in Section 54 of R.A. No. 8806, which should be read together with Section 65 (effectivity of the Act) thereof, could only mean "effectivity" as used and contemplated in Section 10 of the Code. This construction is in accord with the fundamental rule that all provisions of the laws relating to the same subject should be read together and reconciled to avoid inconsistency or repugnancy to established jurisprudence

Pelaez v. Auditor General (supra, see p.14)Municipality of Candijay v. CAFacts: The Municipalities of Alicia and Candijay were in dispute over barrio/barangay Pagahat. The RTC ruled in favor of Candijay.CA :

1. Court rejected the boundary line being claimed by petitioner since it would in effect place "practically all of Barrio Pagahat . . . , part of Barrio Cagongcagong and portions of Barrio Putlongcam and La Hacienda and all of Barrio Mahayag and Barrio del Monte within the territorial jurisdiction of Candijay." Candijay will not only engulf the entire barrio of Pagahat, but also of the barrios of Putlongcam, Mahayag, Del Monte, Cagongcagong, and a part of the Municipality of Mabini. Candijay will eat up a big chunk of territories far exceeding her territorial jurisdiction under the law creating her.

2. Trial court erred in relying on Exh. X-Commissioner [exhibit for petitioner], because, in effect, it included portions of Barrios Putlongcam and La Hacienda within the jurisdiction of Candijay when said barrios are undisputedly part of Alicia’s territory under EO265 creating the latter"

3. After an examination of the respective survey plans of petitioner and respondent submitted as exhibits, court: "both plans are inadequate insofar as identifying the monuments of the boundary line between Candijay and the Municipality of Mabini (which is not a party to this case) as declared by the Provincial Board of Bohol. Neither plan shows where Looc-Tabasan, Lomislis Island, Tagtang Canlirong, mentioned in the aforequoted boundary line declared by the Provincial Board of Bohol, are actually located." The respondent Court, after weighing and considering the import of certain official acts, including EO. 265 dated September 16, 1949 (which created the municipality of Alicia from out of certain barrios of the municipality of Mabini), and Act 968 of the Philippine Commission dated October 31, 1903 (which set forth the respective component

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territories of the municipalities of Mabini and Candijay), concluded that "Barrio Bulawan from where barrio Pagahat originated is not mentioned as one of the barrios constituted as part of defendant-appellant Municipality of Alicia. Neither do they show that Barrio Pagahat forms part of plaintiff-appellant Municipality of Candijay."

4. CA: there is an equiponderance of evidence When the scale shall stand upon an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant. Under said principle, the plaintiff must rely on the strength of his evidence and not on the weakness of defendant's claim. Even if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance of evidence on his side if such evidence is insufficient in itself to establish his cause of action

Issues: 1. WON the CA erred in its application of the principle of "equiponderance of evidence", for having based its ruling against petitioner on documentary evidence which, petitioner claims, are void, 2. that the challenged Decision "does not solve the problem of both towns but throws them back again to their controversy."

With respect to the first and second grounds, we find that the issues of fact in this case had been adequately passed upon by respondent Court in its Decision, which is well-supported by the evidence on record. The determination of equiponderance of evidence by the respondent Court involves the appreciation of evidence by the latter tribunal, which will not be reviewed by this Court unless shown to be whimsical or capricious; here, there has been no such showing.

Neither party was able to make out a case; neither side could establish its cause of action and prevail with the evidence it had. As a consequence thereof, the courts can only leave them as they are. In such cases, courts have no choice but to dismiss the complaints/petitions.

3.Alicia’s purported lack of juridical personality, as a result of having been created under a void executive order

Candijay commenced its collateral attack on the juridical personality of Alicia some thirty five years after it first came into existence in 1949. It appears that, after presentation of its evidence, Candijay asked the trial court to bar Alicia from presenting its evidence on the ground that it had no juridical personality. Candijay contended that EO 265 issued by is null and void ab initio, inasmuch as Sec 68 of the RAC, on which said EO

was based, constituted an undue delegation of legislative powers to the President of the Philippines, and was therefore declared unconstitutional, per this Court's ruling in Pelaez vs. Auditor General.

Municipality of San Narciso, Quezon vs. Mendez, Sr: EO 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal district, and later the Municipality of San Andres, began and continued to exercise the powers and authority of a duly created LGU. Granting that EO 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of EO 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez vs. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of EO 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State's recognition of the continued existence of the Municipality of San Andres:

1. EO 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement.

2. Under AO 33, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.

3. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon.

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4. Section 442 (d) of the LGC to the effect that municipal districts "organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities."

No pretension of unconstitutionality per se of Section 442 (d) of the LGC is proffered. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442 (d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving "validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with," are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights. All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded.

Alicia's situation in the instant case is strikingly similar to that of the municipality of San Andres. Alicia was created by virtue of EO 265 in 1949, or ten years ahead of the municipality of San Andres, and therefore had been in existence for all of sixteen years when Pelaez vs. Auditor General was promulgated. And various governmental acts throughout the years all indicate the State's recognition and acknowledgment of the existence thereof.

For instance, under AO 33 above-mentioned, the Municipality of Alicia was covered by the 7th Municipal Circuit Court of Alicia-Mabini for the province of Bohol. Likewise, under the Ordinance appended to the 1987 Constitution, the Municipality of Alicia is one of twenty municipalities comprising the Third District of Bohol.

Inasmuch as respondent municipality of Alicia is similarly situated as the municipality of San Andres, it should likewise benefit from the effects of Sec 442 (d) of the LGC, and should henceforth be considered as a regular, de jure municipality.

Vilas v. City of Manila (supra, see p.3)Padilla v. COMELECFacts: A plebiscite in the matter of the creation of the Municipality of Tulay-Na-Lupa was held in the municipality of Labo pursuant to RA 7155 and the Constitution. Only 2890 favored its creation while 339 voted against it. The Plebiscite Board of Canvassers declared the rejection and disapproval of the independent Municipality of TNL. Gov. Padilla seeks to set aside the plebiscite and prays that a new plebiscite be undertaken because the previous one was a complete failure and the results obtained were invalid and illegal because the plebiscite should have been conducted only in the political units affected, i.e., the 12 barangays comprising TNL, to the exclusion of the remaining areas of the mother unit. Issue: WON the plebiscite conducted is valid. YES.

Padilla’s contention that the Tan ruling has been superseded by the ratification of the 1987 Constitution, hence reinstating the Paredes ruling is untenable. Old law: “political unit or units” New law: “political units” The deletion of the words “unit or” does not affect the Tan ruling.

Concom debates: Davide asked for deletion of “unit or” because the plebiscite is to be conducted in all units affected.

Political units directly affected: residents of the political entity who would be economically dislocated by the separation of a portion thereof = units which would participate in the plebiscite.

Tan v. COMELEC (supra, see p.8)Miranda v. AguirreFacts: In 1994, RA 7720 converting the municipality of Santiago to an independent component city was signed into law and thereafter ratified in a plebiscite. Four years later, RA 8528 which amended RA 7720 was enacted, changing the status of Santiago from an ICC to a component city. Petitioners assail the constitutionality of RA 8528 because it does not provide for submitting the law for ratification by the people of Santiago City in a proper plebiscite. Issues:

1. WON petitioners have standing. YES. Rule: constitutionality of law can be challenged by one who will

sustain a direct injury as a result of its enforcement

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Miranda was mayor when he filed the petition, his rights would have been greatly affected. Other petitioners are residents and voters of Santiago.

2. WON petition involves a political question. NO. PQ: concerned with issues dependent upon the wisdom, not

legality, of a particular measure, Justiciable issue: implies a given right, legally demandable and

enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right

Case at bar=justiciable. WON petitioners have right to a plebiscite is a legal question. WON laws passed by Congress comply with the requirements of the Consti pose questions that this court alone can decide.

3. WON the change involved any creation, division, merger, abolition or substantial alteration of boundaries. YES.

4. WON a plebiscite is necessary considering the change was a mere reclassification from ICC to CC. YES.

A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of LGUs involve a common denominator — material change in the political and economic rights of the LGUs directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the people "in the political units directly affected."

Sec 10, Art X addressed the undesirable practice in the past whereby LGUs were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the LGU directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of LGUs. It is one instance where the people in their sovereign capacity decide on a matter that affects them — direct democracy of the people as opposed to democracy thru people's representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to LGUs.

The changes that will result from the downgrading of the city of Santiago from an independent component city to a component city are many and cannot be characterized as insubstantial.

The independence of the city as a political unit will be diminished:

- The city mayor will be placed under the administrative supervision of the provincial governor.

- The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela.

- Taxes that will be collected by the city will now have to be shared with the province.

When RA 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when RA 8528 downgrades the status of their city. There is more reason to consult the people when a law substantially diminishes their right.

Rule II, Art 6, paragraph (f) (1) of the IRRs of the LGC is in accord with the Constitution when it provides that no creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.

The rules cover all conversions, whether upward or downward in character, so long as they result in a material change in the LGU directly affected, especially a change in the political and economic rights of its people.

Tobias v. AbalosFacts: Prior to the enactment of RA 7675 (An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known as the City of Mandaluyong) the municipalities of Mandaluyong and San Juan belonged to only one legislative district. Pursuant to the LGC, a plebiscite was held where the people of Mandaluyong were asked whether they approved of the conversion of the Municipality of Mandaluyong into a highly urbanized city. The turnout at the plebiscite was only 14.41% of the voting population. Nevertheless, 18,621 voted

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"yes" whereas 7,911 voted "no." By virtue of these results, RA 7675 was deemed ratified and in effect. Petitioners, invoking their rights as taxpayers and as residents of Mandaluyong, come before the court to assail the constitutionality of RA 7675. Issue: WON RA 7675 unconstitutional. YES.

1. RA 7675 contravenes the "one subject-one bill" rule. Sec. 26(1), Consti: Every bill passed by the Congress shall

embrace only one subject which shall be expressed in the title thereof.

Petitioners: inclusion of the assailed Section 49 in the subject law resulted in the latter embracing two principal subjects: (1) the conversion of Mandaluyong into a highly urbanized city; and (2) the division of the congressional district of San Juan/Mandaluyong into two separate districts.

the statutory conversion of Mandaluyong into a highly urbanized city with a population of not less than two hundred fifty thousand indubitably ordains compliance with the "one city-one representative" proviso in the Constitution: Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" (Article VI, Section 5(3), Constitution). Hence, it is in compliance with the aforestated constitutional mandate that the creation of a separate congressional district for the City of Mandaluyong is decreed under Article VIII, Section 49 of R..A. No. 7675.

The creation of a separate congressional district for Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly urbanized city but is a natural and logical consequence of its conversion into a highly urbanized city. Verily, the title of R.A. No. 7675, "An Act Converting the Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong" necessarily includes and contemplates the subject treated under Section 49 regarding the creation of a separate congressional district for Mandaluyong.

Sumulong v. Comelec: the constitutional requirement as now expressed in Article VI, Section 26(1) "should be given a practical rather than a technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions are germane to that general subject."

Lidasan v. Comelec: Of course, the Constitution does not require Congress to employ in the title of an enactment, language of

such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill and the public, of the nature, scope and consequences of the proposed law and its operation"

2. WON the division of San Juan and Mandaluyong into separate congressional districts under Section 49 of the assailed law resulting in an increase in the composition of the House of Representatives beyond that provided in Article VI, Sec. 5(1) of the Constitution.

Sec. 5(1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party list system of registered national, regional and sectoral parties or organizations.

Limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, "unless otherwise provided by law." The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by RA 7675 is not unconstitutional.

3. WON the division was made pursuant to a census showing that the subject municipalities have attained the minimum population requirements. NO.

Petitioners: there is no mention in the assailed law of any census to show that Mandaluyong and San Juan had each attained the minimum requirement of 250,000 inhabitants to justify their separation into two legislative districts.

Such does not suffice to strike down the validity of RA 7675. The said Act enjoys the presumption of having passed through the regular congressional processes, including due consideration by the members of Congress of the minimum requirements for the establishment of separate legislative districts. At any rate, it is not required that all laws emanating from the legislature must

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contain all relevant data considered by Congress in the enactment of said laws.

4. WON Section 49 has the effect of preempting the right of Congress to reapportion legislative districts. NO.

Sec. 5(4): Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this section.

Petitioners: Section 49 of RA 7675 preempts the right of Congress to reapportion legislative districts

argument borders on the absurd since petitioners overlook the glaring fact that it was Congress itself which drafted, deliberated upon and enacted the assailed law, including Section 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself.

5. WON the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district.

The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong.

6. WON the subject law has resulted in "gerrymandering," which is the practice of creating legislative districts to favor a particular candidate or party. NO.

As correctly observed by the Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed law, is the incumbent representative of the former San Juan/Mandaluyong district, having consistently won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamora's constituency has in fact been diminished, which development could hardly be considered as favorable to him.

Dela Cruz v. ParasFacts: Ordinance 84 was passed by the Municipality of Bocaue. Petitioners are business owners who had been previously issued licenses by the Municipal Mayor of Bocaue Issues:

1. WON a municipality may rely on its police power to justify the enactment of the assailed ordinance. NO.

Police power granted to municipal corporations: "General power of council to enact ordinances and make regulations.- The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein."

US v. Abendan: An ordinance enacted by virtue of police power is valid unless it contravenes the fundamental law, an act of the legislature, against public policy, or is unreasonable, partial, discriminating or in derogation of a common right.

US v. Salaveria: The general welfare clause has two branches: 1. attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law.

2.It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. It is a general rule that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State.

If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would pass the test of validity. **reasonableness, consonance with the general powers and purposes of municipal corporations, consistency with the laws or policy of the State.

It is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed.

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2. WON a municipality has no authority to prohibit a lawful business, occupation or calling. NO.

RA 938: the municipal or city board or council of each chartered city shall have the power to regulate by ordinance the establishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within its territorial jurisdiction: . . . Then on May 21, 1954, the first section was amended to include not merely "the power to regulate, but likewise "prohibit . . ." The title, however, remained the same and the exact wording was followed. The power granted remains that of regulation, not prohibition. There is thus support for the view advanced by petitioners that to construe RA 938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question.

There is a wide gap between the exercise of a regulatory power "to provide for the health and safety, promote the prosperity, improve the morals," in the language of the Administrative Code, such competence extending to all "the great public needs," and to interdict any calling, occupation, or enterprise.

It is clear that municipal corporations cannot prohibit the operation of might clubs. They may be regulated, but not prevented from carrying on their business.

Technology Developers v. CAFacts: TD received a letter from acting mayor Cruz, ordering the full cessation of the operation of its plant located at Guyong, Sta. Maria, Bulacan, until further order. The letter likewise requested its plant manager to bring with him to the office of the mayor the following: a) Building permit; b) Mayor's permit; c) Region III-Pollution of Environment and Natural Resources Anti-Pollution Permit. In compliance with said undertaking, petitioner commenced to secure "Region III-Department of Environmental and Natural Resources Anti-Pollution Permit," although among the permits previously secured prior to the operation of petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued by the then National Pollution Control Commission (now Environmental Management Bureau) and is now at a stage where the Environmental Management Bureau is trying to determine the correct kind of anti-pollution devise to be installed as part of petitioner's request for the renewal of its permit.

TD's attention having been called to its lack of mayor's permit, it sent its representatives to the office of the mayor to secure the same but were not entertained. On April 6, 1989, without previous and reasonable notice upon

petitioner, respondent acting mayor ordered the Municipality's station commander to padlock the premises of petitioner's plant, thus effectively causing the stoppage of its operation.

RTC: action for certiorari, prohibition, mandamus with preliminary injunction. Closure order was issued in grave abuse of discretion. Judge issued of the writ of preliminary mandatory injunction.

MR: RTC issued an order (a) setting aside the order which granted a Writ of Preliminary Mandatory Injunction, and (b) dissolving the writ consequently issued.

CA: certiorari and prohibition with preliminary injunction. In due course the petition was denied for lack of merit.

MR: denied.

Issue: WON the appellate court committed a grave abuse of discretion in rendering its question decision and resolution. NO.

The authority of the local executive to protect the community from pollution is the center of this controversy.

The following circumstances militate against the maintenance of the writ of preliminary injunction sought by petitioner:

1. No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control if not prohibition of the operation of a business is essentially addressed to the then National Pollution Control Commission of the Ministry of Human Settlements, now the Environmental Management Bureau of the Department of Environment and Natural Resources, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virture of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriate measures are taken to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business.

2. The Acting Mayor, in a letter of February 16, 1989, called the attention of petitioner to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also affect the health of the residents in the area," so that petitioner was ordered to stop its operation until further orders and it was required to bring its permits (see facts)

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3. This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels.

4. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic Guina who in her report of December 8, 1988 observed that the fumes emitted by the plant of petitioner goes directly to the surrounding houses and that no proper air pollution device has been installed.

5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati on March 6,1987.

6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988. Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community. TD: huge investment. SC: such is concomitant with the

need to promote investment and contribute to the growth of the economy is the equally essential imperative of protecting the health, nay the very lives of the people, from the deleterious effect of the pollution of the environment.

Chua Huat v. CA

Facts: Manuel Uy and Sons, Inc., requested the City Engineer and Building Official of Manila, to condemn the dilapidated structures located at 1271 to 1277 Pedro Gil St. and 1553 to 1557 Paz St., Paco, Manila, all occupied by petitioners. Notices of condemnation were issued, stating that the subject buildings were found to be in dangerous condition and therefore condemned, subject to the confirmation of the Mayor as required by Section 276 of the Compilation of Ordinances of the City of Manila. The orders were based on the inspection reports made by Architect Oscar D. Andres and the Memorandum-Reports made by the Evaluation Committee of the Office of the City Engineer, which all showed that the subject buildings suffer from structural deterioration by more than 50% and as much as 80%.

Civil Engineer Romulo C. Molas, a private practitioner, inspected the abovementioned structures upon the request of petitioners herein. In his evaluation report, he stated that although the buildings are old, they are still structurally sound and have a remaining economic life of at least eight years.

Three months after the notices of condemnation were issued, petitioners formally protested against said notices of condemnation on the ground that the buildings are still in good physical condition and are structurally sound based on the abovementioned certification of Civil Engineer Romulo C. Molas.

On 26 April 1983, Maria Gamboa, one of the petitioners herein, was informed of the issuance by the City Engineer of the demolition order with respect to the building located at 1565 Paz St., Paco, Manila, and was told to vacate the premises within 15 days from notice.

On 2 May 1983, petitioners filed the instant Petition for Prohibition, with Preliminary Injunction and/or Restraining Order, against City Mayor Ramon Bagatsing, City Engineer and Building Officer Romulo del Rosario and Manuel Uy and Sons, Inc., praying that a restraining order or preliminary injunction be issued enjoining respondents from proceeding with the announced demolition of the subject buildings, this petition be given due course, and after hearing, respondents be prohibited from demolishing said buildings. They alleged a grave abuse of discretion amounting to lack of jurisdiction and that there is no other plain, speedy, and adequate remedy.

The Mayor confirmed the rest of the condemnation orders issued by the respondent City Engineer.

City Mayor and City Engineer: petition should be dismissed on the following grounds: (a) that it involves questions of facts which should be ventilated before the Regional Trial Court of Manila; (b) the subject buildings were condemned and ordered removed after it was established that they had suffered from defects or deterioration thereby posing perils to the lives and limbs not only of petitioners but also to the public in general; (c) the power to condemn buildings and structures in the City of Manila falls within the exclusive domain of the City Engineer pursuant to Sections 275 and 276 of its Compilation of Ordinances (also Revised Ordinances 1600); (d) the power to condemn and remove buildings and structures is an exercise of the police power granted the City of Manila to promote public safety; and (e) administrative decisions falling within the executive jurisdiction cannot be set aside by courts of justice except on proof of grave abuse of discretion, fraud or error of law.

Manuel Uy and Sons, Inc: petition is premature, unreasonable and deserves no consideration as petitioners have not exhausted readily-available administrative remedies and that the validity of the questioned condemnation and demolition orders entails questions of facts not entertainable in this petition. It

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alleges that the condemnation orders were not immediately executory, as the finding of the City Engineer/Building Official is still subject to the approval of the Mayor per Section 276 of the Compilation of Ordinances of the City of Manila. Moreover, under Section 5.3, Rule VII of the Implementing Rules and Regulations of P.D. No. 1096, the owner of a building may appeal to the Secretary of Public Works and Communications, whose decision is final, the finding or declaration of the Building Official and ask that a re-inspection or re-investigation of the building or structure be made; for not availing of this remedy, petitioners failed to exhaust administrative remedies.

Issue: WON the mayor and city engineer committed grave abuse of discretion amounting to lack of jurisdiction in issuing the condemnation orders. NO.

It is patently obvious that petitioners have no valid grievance for the remedy of certiorari under Rule 65 of the Rules of Court to be available to them. It is explicitly clear from Section 1 of Rule 65 of the Rules of Court that for certiorari to be available: (a) a tribunal, board or office exercising judicial function acted without or in excess of its or his jurisdiction, or with grave abuse of discretion, and (b) that there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. Petitioners failed to show the presence of both elements.

The power to condemn buildings and structures in the City of Manila falls within the exclusive jurisdiction of the City Engineer, who is at the same time the Building Official (Sec. 206, P.D. 1096).

Sections 275 and 276 of the Compilation of Ordinances of the City of Manila (also Revised Ordinances 1600), provide: "SEC. 275. Deterioration and Defects. All buildings or parts of buildings which show defects in any essential parts shall be repaired and put in safe condition at once, or if the deterioration be greater than fifty per centum of the value of the building, as estimated by the city engineer, they shall be removed.

SEC. 276. Condemnation Proceedings. Whenever in the judgment of the City Engineer any building or portion of building has been damaged by any cause to such an extent as to be dangerous for use, he may condemn the same and shall immediately notify the owner and the Mayor of his action. If the owner or his agent be not willing to abide by thus order of condemnation, he may make formal objection within the period

of seven days following such notification. The Mayor shall hear the owner or his agent and his experts and also the city engineer, deciding the case on the evidence presented. If the Mayor confirms the action of the city engineer, the owner or his agent shall immediately proceed to remove the building within fifteen days from the date on which he was notified of such final action. Should the owner or his agent not comply with the decision of the Mayor the building shall be removed at his expense and the city will proceed to recover against him for the amount expended."

Section 215 of P.D. 1096, otherwise known as the National Building Code, also states the authority of the Building Official with respect to dangerous buildings, to wit: "When any building or structure is found or declared to be dangerous or ruinous, the Building official shall order its repair, vacation or demolition depending upon the degree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines."

From the abovementioned provisions, it is unquestionable that the Building Official has the authority to order the condemnation and demolition of buildings which are found to be in a dangerous or ruinous condition. It is also clear from the Compilation of Ordinances of the City of Manila that the Mayor has the power to confirm or deny the action taken by the Building Official with respect to the dangerous or ruinous buildings.

City Engineer and Building Official, Romulo M. del Rosario, can, therefore, validly issue the questioned condemnation and demolition orders. This is also true with the respondent Mayor who can approve or deny the condemnation orders as provided in Section 276 of the Compilation of Ordinances of the City of Manila.

It is a settled doctrine that there is grave abuse of discretion amounting to lack of jurisdiction "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."

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We find no grave abuse of discretion on the part of the respondent City Engineer because the orders were made only after thorough ocular inspections were conducted by the City's Building Inspectors. The results of the inspections were set forth in a memorandum dated 16 November 1982 where it was shown that all the buildings had architectural, structural, sanitary, plumbing and electrical defects of up to 80%.

The Mayor's act of approving the condemnation orders was likewise done in accordance with law. The protest made by petitioners was submitted only on 22 February 1983, or three months after the notices of condemnation were issued, and clearly beyond the seven days prescribed under Section 276 of the Compilation of Ordinances of the City of Manila.

Moreover, appeal was likewise available to petitioners. The Implementing Rules and Regulations promulgated by the then Ministry of Public Works to implement P.D. No. 1096, under the title Abatement/Demolition of Buildings, provide: "5. Procedure for Demolition of Buildings. The following steps shall be observed in the abatement/demolition of buildings under this Rule: 5.1. There must be a finding or declaration by the Building Official that the building or structure is a nuisance, ruinous or dangerous . . .5.3. Within the fifteen-day period, the owner may, if he so desires, appeal to the Secretary the finding or declaration of the Building Official and ask that a re-inspection or re-investigation of the building or structure be made . . .5.6. The decision of the Secretary on the appeal shall be final."

Certiorari will not be then because petitioners failed to exhaust all the administrative remedies. This Court has long upheld the doctrine of exhaustion of administrative remedies because it rests on the assumption that the administrative body, board or officer, if given the chance to correct its/his mistake or error, may amend its/his decision on a given matter. Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. There

are, of course, exceptions to this rule, but none is available to petitioners.

Binay v. Domingo

Facts: Resolution 60 confirming the ongoing burial assistance program initiated by the mayor’s office. Under this program, bereaved families whose gross family income does not exceed 2k/month will receive a 500php cash relief to be taken out of unappropriated available funds existing in the municipal treasury. The Metro Manila Commission approved Resolution 60. Thereafter, the municipal secretary certified a disbursement of P400,000 for the implementation of the Burial Assistance Program. R 60 was referred to the Commission on Audit for its expected allowance in audit. Based on its preliminary findings, COA disapproved R 60 and disallowed in audit the disbursement of funds for the implementation thereof. The program was stayed by COA Decision No. 1159.

Issues:1. WON R 60 is a valid exercise of police power under the general welfare

clause. YES. Police power is inherent in the state but not in municipal

corporations. Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people.

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Municipal governments exercise this power under the general welfare clause: authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein."

Sec 7 of BP 337: every LGU shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the LGU, and preserve the comfort and convenience of the inhabitants therein."

Police power: power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers; greatest and most powerful attribute of the government; elastic and must be responsive to various social conditions.

COA: there is no perceptible connection or relation between the objective sought to be attained under R 60 and the alleged public safety, general welfare. etc. of the inhabitants of Makati

Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public safety, general welfare, etc. of the inhabitants of Makati ."

Police power of a municipal corporation: broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of

comfort of the inhabitants of the corporation. Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power.

COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. OSG: "the drift is towards social welfare legislation geared towards state policies to provide adequate social services (Section 9, Art. II, Constitution), the promotion of the general welfare (Section 5, Ibid) social justice (Section 10, Ibid) as well as human dignity and respect for human rights. (Section 11, Ibid."

The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good.

There is no violation of the equal protection clause in classifying paupers as subject of legislation. Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer from the bondage of the soil, housing the urban poor, etc.

The resolution is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete. The loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life, should have more in law."

Tatel v. Municipality of ViracFacts: Based on complaints received by the residents of barrio Sta. Elena against the disturbance caused by the operation of the abaca bailing machine inside Tatel’s warehouse, Resolution 291 was enacted by the Municipal Council of Virac declaring Tatel’s warehouse a public nuisance within the purview of Article 694 of the Civil Code and directing the petitioner to remove and transfer said warehouse to a more suitable place within two months from receipt of the said resolution. The municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance 13, prohibiting the construction of warehouses near a block of houses

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either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire. Tatel contends that said ordinance is unconstitutional, contrary to the due process and equal protection clause of the Constitution and null and void for not having been passed in accordance with law.

Issue: 1. WON Ordinance No. 13 is unconstitutional. NO Ordinance 13, was passed by the Municipal Council of Virac in

the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with the police powers in order to effectively accomplish and carry out the declared objects of their creation.

Its authority emanates from the general welfare clause under the Administrative Code, which reads: The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the municipality and the inhabitants thereof, and for the protection of property therein.

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law.

These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute(2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade

(5) must be general and consistent with public policy, and (6) must not be unreasonable. Ordinance 13 meets these criteria.

In spite of its fractured syntax, what is regulated by the ordinance is the construction of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property in case of fire which is one of the primordial obligation of the government.

The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government.

Tamin v. CAFacts: The municipality of Dumingag file d a case for the ejectment of Medina and Rosellon. According to the municipality, it is the owner of a parcel of residential land located at Poblacion, Dumingag, Zamboanga del Sur with an area of 5,894 square meters more or less; that the parcel of land was reserved for public plaza under PP 365 and that the incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958, the municipality leased an Area of 1,350 square meters to M&R subject to the condition that they should vacate the place in case it is needed for public purposes; that the defendants religiously paid the rentals until 1967. M&R, however refused to pay the rentals as well as vacate the area. Hence, despite the national government’s allotment for the construction of a municipal gymnasium within the public plaza, such construction which was already started could not continue because of the presence of the buildings constructed by the defendants. According to the municipality, the appropriation for the construction of the gymnasium might be reverted back to the national government which would result to "irreparable damage, injury and prejudice" to the municipality and its people who are expected to derive benefit from the accomplishment of the project.RTC: Judge Tamin issued an order setting the preliminary hearing for the issuance of a writ of preliminary mandatory injunction and/or writ of possession, and instead of filing an answer, the respondents filed an MTD alleging the lack of jurisdiction of the TC, since the complaint is for illegal detainer which is within the original jurisdiction of the municipal court and the pendency of a cadastral case between the parties over the ownership of the same parcel of land. Tamin denied the MTD and granted the municipality's motion for a writ of possession "with the ancillary writ of demolition to place in possession the plaintiff on the land subject of this case, to the end that the public construction thereon will not be jeopardized." According to Tamin, the municipality alleges that M&R are claiming ownership over the land which was previously rented to them. This action is, therefore, an accion de reivindicacion, a real action within the jurisdiction of this court. As the complaint is for recovery of ownership of the land not to enforce the contract, the Statute of

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Fraud does not apply. The land subject of this case is covered by PD 365, withdrawing this land from sale of settlement and reserving the same for school site purposes under the administration of the Director of Public School and public plaza under the administration of the Municipality of Dumingag, therefore the Cadastral court has no jurisdiction over the land involved in this case. Tamin justified his granting the motion for a writ of possession with the ancillary writ of demolition by applying the rule an eminent domain in analogy in that under this Rule the complainant is given the right to the writ of possession in order that public construction and projects will not be delayed. According to him, the necessity of a writ of possession is greater in the instant case considering that the parcel of land is covered by a PP and the on-going construction thereon is being endangered to be left unfinished on account of the buildings standing on the parcel of land because the appropriation for the construction might be reverted back to the national treasury. M&R filed an omnibus MR with motion to set aside order and to quash writ of possession and demolition but this was denied. The municipality implemented the writ of possession and ancillary writ of demolition issued by the petitioner Judge resulting in the dispossession of the private respondents from the parcel of land and the demolition of structures and buildings thereon owned by the respondents.M&R’s answer: The parcel of land has been owned, occupied and possess by respondent Vicente Medina since 1947 when he bought the subject parcel from a Subanan native; that the other respondent Fortunata Rosellon leased from Medina a portion of the parcel of land; that the respondents were never lessees of the petitioner municipality; that Proclamation 365 issued on March 15, 1968 recognized "private rights"; and, that a case is pending before the Cadastral court between respondent Medina and petitioner municipality as regards the ownership of the subject parcel of land.Before the petitioner Judge could further act on the case, the private respondents filed a petition for certiorari with the CA questioning the orders of the petitioner Judge. Petition was given due course and a TRO was issued enjoining the petitioner Judge from proceeding with the hearing of the case and from enforcing the orders. CA: RTC committed an error when it applied by analogy the rule on eminent domain to justify the issuance of the writ of possession and writ of demolition. The appellate court pointed out that under this rule: (i) There is clear statutory authority for the taking of possession by the government and (ii) The authority is premised on the government depositing the value of the land to be taken. In the case at bar, there is neither statutory authority for the trial court's action nor bond given to compensate the petitioners for the deprivation of their possession and the destruction of their houses if it turns out that the land belongs to them. For this reason, we think the trial courts order is arbitrary and void. For the fact is that

petitioners claim ownership of the land in question and until that question is resolved either in the case pending before the respondent judge or in the cadastral proceeding, it would be unjust to deprive petitioners of its possession.

Issue: 1. WON the allegations in the complaint constitute a cause of action for

abatement of public nuisance under Article 694 of the Civil Code. Applying these criteria, we agree with the petitioners that the

complaint alleges factual circumstances of a complaint for abatement of public nuisance.

Art. 694, CC A nuisance is any act, omission, establishment, business, condition of property or anything else which: (5) Hinders or impairs the use of property.

Art. 695, CC Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. . .

Thus, the complaint states: that petitioner municipality is the owner of a parcel of land covered by Presidential Proclamation No 365 which is reserved for a public plaza; that the private respondents by virtue of a contract of lease entered into by the former mayor occupied a portion of the parcel of land constructing buildings thereon; that the private respondents refused to vacate the premises despite demands; that the municipality is constructing a municipal gymnasium in the area financed by appropriations provided by the national government; and that the appropriations are in danger of being reverted to the national treasury because the construction had to be stopped in view of the refusal of the private respondents to vacate the area.

2. WON the municipality is entitled to a writ of possession and a writ of demolition even before the trial of the case starts.

Article 699 of the Civil Code provides for the following remedies against a public nuisance:(1) A prosecution under the Penal Code or any local ordinance; or(2) A civil action; or (3) Abatement, without judicial proceedings.

The petitioner municipality had three remedies from which to select its cause of action. It chose to file a civil action for the recovery of possession of the parcel of land

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occupied by the private respondents. Obviously, petitioner municipality was aware that under the then LGC (B.P. Blg. 337) the Sangguniang Bayan has to first pass an ordinance before the municipality may summarily abate a public nuisance. (Sec. 149(z) (ee).

On the premise that the parcel of land forms part of a public plaza, the petitioners now contend that the Judge was justified in issuing the writ of possession and writ of demolition.

A public plaza is outside the commerce of man and constructions thereon can be abated summarily by the municipality, citing a case: Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869-870) where the Supreme Court declared: There is absolutely no question that the town plaza cannot be used for the construction of market stalls, specially of residences, and that such structures constitute a nuisance subject to abatement according to law. Town plazas are properties of public dominion, to be devoted to public use and to be made available to the public in general. They are outside the commerce of man and cannot be disposed of or even leased by the municipality to private parties.

Applying this well-settled doctrine, we rule that petitioners had no right in the first place to occupy the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts. They should have realized and accepted this earlier, considering that even before Civil Case No. 2040 was decided, the municipal council of San Fernando had already adopted Resolution No. 29, series of 1964, declaring this area as the parking place and public plaza of the municipality.

It is the decision in Civil Case No. 2040 and the said resolution of the municipal council of San Fernando that respondent Macalino was seeking to enforce when he ordered the demolition of the stalls constructed in the disputed area. As officer-in-charge of the office of the mayor, he had the duty to clear the area and restore it to its intended use as a parking place and public plaza of the municipality of San Fernando, conformably to the

aforementioned orders from the court and the council. It is, therefore, not correct to say that he had acted without authority or taken the law into his hands in issuing his order.

The Court observes that even without such investigatiom and recommendation, the respondent mayor was justified in ordering the area cleared on the strength alone of its status as a public plaza as declared by the judicial and legislative authorities. .

If, therefore, the allegations in the complaint are true and that the parcel of land being occupied by the private respondents is indeed a public plaza, then the writ of possession and writ of demolition would have been justified. In fact, under such circumstances, there would have been no need for a writ of possession in favor of the petitioner municipality since the private respondents' occupation over the subject parcel of land can not be recognized by any law. A writ of demolition would have been sufficient to eject the private respondents.

However, not only did the municipality avoid the use of abatement without judicial proceedings, but the status of the subject parcel of land has yet to be decided.

We have to consider the fact that Proclamation No. 365 dated March 15, 1968 recognizes private rights which may have been vested on other persons, to wit: BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO. 365 RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND PLAYGROUND PURPOSES CERTAIN PARCELS OF LAND OF THE PUBLIC DOMAIN SITUATED IN THE MUNICIPALITY OF DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLAND OF MINDANAO.

Upon recommendation of the Secretary of Agriculture and Natural Resources and pursuant to the authority vested in me by law, I FERDINAND E. MARCOS, PRESIDENT OF THE PHILIPPINES, do hereby withdraw from sale or settlement and under the administration of the Director of Public Schools administration of the Municipal Government of Dumingag, subject to private rights, if any there be, certain parcels of land of the

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public domain situated in the Municipality of Dumingag, Province of Zamboanga del Sur, Island of Mindanao,¦

It is to be noted that even before the Proclamation, the parcel of land was the subject of cadastral proceedings before another branch of the Regional Trial Court of Zamboanga del Sur. At the time of the filing of the instant case, the cadastral proceedings intended to settle the ownership over the questioned portion of the parcel of land under Proclamation No. 365 were still pending. One of the claimants in the cadastral proceedings is private respondent Vicente Medina who traced his ownership over the subject parcel of land as far back as 1947 when he allegedly bought the same from a Subanan native.

Under the cadastral system, the government through the Director of Lands initiates the proceedings by filing a petition in court after which all owners or claimants are compelled to act and present their answers otherwise they lose their right to their own property. The purpose is to serve the public interests by requiring that the titles to any lands "be settled and adjudicated." (Section 1 Cadastral Act [No. 22593] Government of the Philippine Islands v. Abural, 39 Phil. 996 [1919]. It is a proceeding in rem somewhat akin to a judicial inquiry and investigation leading to a judicial decree. (Director of Lands v. Roman Archbishop of Manila, 41 Phil. 120 [1920])

Considering therefore, the nature and purpose of the Cadastral proceedings, the outcome of said proceedings becomes a prejudicial question which must be addressed in the resolution of the instant case. We apply by analogy the ruling in the case of Quiambao v. Osorio (158 SCRA 674 [1988]), to wit: The instant controversy boils down to the sole question of whether or not the administrative case between the private parties involving the lot subject matter of the ejectment case constitutes a prejudicial question which would operate as a bar to said ejectment case.

A prejudicial question is understood in law to be that which arises in a case the resolution of which is a logical antecedent of the issue involved in said case and the cognizance of which pertains to another tribunal.

(Zapanta v. Montesa, 4 SCRA 510 [1962]; People v. Aragon, 50 O.G.. No. 10, 4863) The doctrine of prejudicial question comes as in to play generally in a situation where civil and criminal actions are pending and the issues involved in bath cases are similar or so closely-related that an issue must be pre-emptively resolved in the civil case before the criminal action can proceed. Thus, the existence it a prejudicial question in a civil case is alleged in the criminal case to cause the suspension of the latter pending final determination of the former.

The essential elements of a prejudicial question as provided under Section 5, Rule 111 of the Revised Rules of Court area: [a] the civil action involves an issue similar or intimately related to the issue in the criminal action; and [b] the resolution of such issue determines whether or not the criminal action may proceed.

The actions involved in the case at bar being respectively civil and administrative in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two [2] proceedings, stemming from the fact that the right of private respondents to eject petitioner from the disputed portion depends primarily on the resolution of the pending administrative case. For while it may be true that private respondents had prior possession of the lot in question, at the time of the institution of the ejectment case, such right of possession had been terminated, or at the very least, suspended by the cancellation by the Land Authority of the Agreement to Sell executed in their favor. Whether or not private respondents can continue to exercise their right of possession is but a necessary, logical consequence of the issue involved in the pending administrative case assailing the validity of the cancellation of the Agreement to Sell and the subsequent award of the disputed portion to petitioner. If the cancellation of the agreement, to Sell and the subsequent award to petitioner are voided, then private respondent's right of possession is lost and so would their right to eject petitioner from said portion.

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Faced with these distinct possibilities, the more prudent course for the trial court to have taken is to hold the ejectment proceedings in abeyance until after a determination of the administrative case. Indeed, logic and pragmatism, if not jurisprudence, dictate such move. To allow the parties to undergo trial notwithstanding the possibility of petitioner's right of possession being upheld in the pending administrative case is to needlessly require not only the parties but the court as well to expend time, effort in what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d tells us: The court in which an action is pending may, in the exercise of a sound discretion, upon proper application for a stay of that action, hold the action in abeyance to abide the outcome of another pending in another court, especially where the parties and the issues are the same, for there is power inherent in every court to control the disposition of causes an its dockets with economy of time and effort for itself, for counsel, and for litigants. Where the rights of parties in the record action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed.

While this rule is properly applicable to instances involving two [2] court actions, the existence in the instant case of the same considerations of identity of parties and issues, economy of time and effort for the court, the counsels and the parties as well as the need to resolve the parties' right of possession before the ejectment case may be properly determined, justifies the rule's analogous application to the case at bar.

Technically, a prejudicial question shall not rise in the instant case since the two actions involved are both civil in nature. However, we have to consider the fact that the cadastral proceedings will ultimately settle the real owner/s of the disputed parcel of land. In case respondent Vicente Medina is adjudged the real owner of the parcel of land, then the writ of possession and writ of demolition would necessarily be null and void. Not only that. The demolition of the constructions in the

parcel of land would prove truly unjust to the private respondents.

Patalinhug v. CAFacts: The Sangguniang Panlungsod of Davao City enacted Ordinance 363, series of 1982 otherwise known as the "Expanded Zoning Ordinance of Davao City," Section 8 of which states: Sec. 8. USE REGULATIONS IN C-2 DISTRICTS (Shaded light red in the Expanded Zoning Map) AC-2 District shall be dominantly for commercial and compatible industrial uses as provided hereunder: 3.1 Funeral Parlors/Memorial Homes with adequate off street parking space (see parking standards of P.D. 1096) and provided that they shall be established not less than 50 meters from any residential structures, churches and other institutional buildings. Upon prior approval and certification of zoning compliance by Zoning Administrator issued on February 10, 1987 Building Permit No. 870254 in favor of petitioner for the construction of a funeral parlor in the name and style of Metropolitan Funeral Parlor at Cabaguio Avenue, Agdao, Davao City.Thereafter, petitioner commenced the construction of his funeral parlor.Acting on the complaint of several residents of Barangay Agdao, Davao City that the construction of petitioner's funeral parlor violated Ordinance No. 363, since it was allegedly situated within a 50-meter radius from the Iglesia ni Kristo Chapel and several residential structures, the Sangguniang Panlungsod conducted an investigation and found that "the nearest residential structure, owned by Wilfred G. Tepoot is only 8 inches to the south. . . . ." Notwithstanding the findings of the Sangguniang Panlungsod, petitioner continued to construct his funeral parlor which was finished on November 3, 1987.Consequently, private respondents filed on September 6, 1988 a case for the declaration of nullity of a building permit with preliminary prohibitory and mandatory injunction and/or restraining order with the trial court.

Issue: 1. WON the CA erred in concluding that the Tepoot building adjacent to

petitioner's funeral parlor is residential simply because it was allegedly declared as such for taxation purposes, in complete disregard of Ordinance 363 declaring the subject area as dominantly for commercial and compatible industrial uses. YES.

A tax declaration is not conclusive of the nature of the property for zoning purposes. A property may have been declared by its owner as residential for real estate taxation purposes but it may well be within a commercial zone. A discrepancy may thus exist in the determination of the nature of

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property for real estate taxation purposes vis-a-vis the determination of a property for zoning purposes.

Even if we are to examine the evidentiary value of a tax declaration under the Real Property Tax Code, a tax declaration only enables the assessor to identify the same for assessment levels. In fact, a tax declaration does not bind a provincial/city assessor, for under Sec. 22 of the Real Estate Tax Code, appraisal and assessment are based on the actual use irrespective of "any previous assessment or taxpayer's valuation thereon," which is based on a taxpayer's declaration. In fact, a piece of land declared by a taxpayer as residential may be assessed by the provincial or city assessor as commercial because its actual use is commercial.

The trial court's determination that Mr. Tepoot's building is commercial and, therefore, Sec. 8 is inapplicable, is strengthened by the fact that the Sangguniang Panlungsod has declared the questioned area as commercial or C-2. Consequently, even if Tepoot's building was declared for taxation purposes as residential, once a local government has reclassified an area as commercial, that determination for zoning purposes must prevail. While the commercial character of the questioned vicinity has been declared thru the ordinance, private respondents have failed to present convincing arguments to substantiate their claim that Cabaguio Avenue, where the funeral parlor was constructed, was still a residential zone. Unquestionably, the operation of a funeral parlor constitutes a "commercial purpose," as gleaned from Ordinance 363.

The declaration of the said area as a commercial zone thru a municipal ordinance is an exercise of police power to promote the good order and general welfare of the people in the locality. Corollary thereto, 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 certain kinds of restraints and burdens in order to secure the general welfare of the state and to this fundamental aim of government, the rights of the individual may be subordinated. The ordinance which regulates the location of funeral homes has been adopted as part of comprehensive zoning plans for the orderly development of the area covered thereunder.

Greater Balanga Development Corp. v. Municipality of Balanga

Facts: This case involves a parcel of land situated in Barrio San Jose, Municipality of Balanga, Province of Bataan. It is registered in the name of petitioner Greater Balanga Development Corporation. GBDC is a domestic corporation owned and controlled by the Camacho family, which donated to the Municipality of Balanga

the present site of the Balanga Public Market. The lot in dispute lies behind the Balanga Public Market. In 1987, GBDC conducted a relocation survey of the area. It discovered that certain portions of the property had been "unlawfully usurped and invaded" by the Municipality of Balanga, which had "allowed/tolerated/abetted" the construction of shanties and market stalls while charging market fees and market entrance fees from the occupants and users of the area. GBDC then applied with the Office of the Mayor of Balanga for a business permit to engage in business in the said area. On the same day, Mayor Melanio S. Banzon, Jr. issued Mayor's Permit No. 2729, granting petitioner the privilege of a "real estate dealer/privately-owned public market operator" under the trade name of Balanga Public Market. However, the Sangguniang Bayan of Balanga passed Resolution No. 12, s-88 annulling the Mayor's permit issued to petitioner and advising the Mayor to revoke the permit "to operate a public market." Pursuant to said Resolution, Mayor Banzon, on March 7, 1988, issued Executive Order No. 1, s-88 revoking the permit insofar as it authorized the operation of a public market.GBDC filed the instant petition with a prayer for the issuance of a writ of preliminary mandatory and prohibitory injunction or restraining order aimed at the reinstatement of the Mayor's permit and the curtailment of the municipality's collection of market fees and market entrance fees. The Court did not issue the preliminary reliefs prayed for.

Issue: WON the Mayor may issue, deny or revoke municipal licenses and permits. Respondent: as the local chief executive, the Mayor may issue, deny or

revoke municipal licenses and permits. They contended that Resolution No. 12, s-88 of the Sangguniang Bayan, the basis of Executive Order No. 1, s-88, was a legitimate exercise of local legislative authority and, as such, the revocation of petitioner's permit was not tainted with any grave abuse of discretion. GBDC asserted that the executive order and the resolution in question were quasi-judicial acts and not mere exercises of police power. It questioned respondents' failure to observe due process in revoking the permit and challenged the legality of the collection of the market and entrance fees by the municipality.

The authority of the Mayor to revoke a permit he issued is premised on a violation by the grantee of any of the conditions for which the permit had been granted. Respondents claimed that petitioner had violated the provisions of Section 3A-06(b) of the Balanga Revenue Code when it failed to inform the Mayor that the lot in controversy was the subject of adverse claims for which a civil case was filed.

Section 3A-06(b) of the Balanga Revenue Code reads: (b) The application for a Mayor's permit shall state the name, residence and citizenship of (sic)

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the applicant's full description of the business, the particular place where (sic) the same shall be conducted, and such other pertinent information and date (sic) as any (sic) be required. If the applicant deliberately makes a false statement in the application form, the Municipal Mayor may revoke the permit and the applicant may be prosecuted and penalized in accordance with the pertinent provisions of penal laws.

In case a person desires to conduct the same kind or line of business in another place within the Municipality, in addition to or aside from the establishment specified in his permit, he shall secure a separate permit for each business and pay the corresponding fee imposed in this article. If a person desires to engage in more than one kind or line of business, he shall pay the fee imposed on each separate business, notwithstanding the fact that he may conduct or operate all distinct business (sic), trades or occupation in one place only

(h) Revocation of Permit. — The Municipal Mayor may revoke a permit, in effect close the establishment, upon a violation of existing ordinance regulating business establishments or any provisions of this article, in addition to the fine and imprisonment that they (sic) may be imposed by the court for violation of this article

Respondents claim that petitioner (1) deliberately made a false statement in the application form when it failed to provide the information that their place of business is the subject of adverse claims; and (2) failed to apply for two separate permits for the two lines of business it proposed to engage in.

The application for Mayor's permit in the case at bench requires the applicant to state what type of "business", profession, occupation and/or calling privileges" is being applied for. Petitioner left this entry bank in its application form (Rollo, p. 324). It is only in the Mayor's permit itself that petitioner's lines of business appear, which in this case are two separate types, one as real estate dealer and another as public market operator.

The permit should not have been issued without the required information given in the application form itself. Revoking the permit, however, because of a false statement in the application form cannot be justified under the aforementioned provision. There must be proof of willful misrepresentation and deliberate intent to make a false statement. Good faith is always presumed, and as it happened, petitioner did not make any false statement in the pertinent entry. Neither was petitioner's applying for two businesses in one permit a ground for revocation.

The question of ownership over Lot 261-B had already been settled with finality by the Supreme Court in 1983 in G.R. No. 62223. Entry of judgment

was likewise, made in the same year. When the Mayor's permit was revoked on February 19, 1988, five years had already elapsed since the case was decided. Petitioner was able to survey the land and have the survey approved on March 21, 1984 (Rollo, pp. 15-16), and on January 11, 1988, petitioner obtained in its name TCT No. 120152 "without any memorandum of encumbrance or encumbrances pertaining to any decision rendered in any civil case" Clearly, for all intents and purposes, petitioner appeared to be the true owner of Lot 261-B-6-A-3 when respondents revoked its permit to engaged in business on its own land.

Assuming arguendo that Lot 261-B-6-A-3 was actually one of those awarded to the plaintiffs in Civil Case No. 3803 and the Transfer Certificate of Title of petitioner is spurious, this still does not justify the revocation of the Mayor's permit. A close scrutiny of the records reveals that the Sangguniang Bayan did not establish or maintain any public market on the subject lot. The resolution merely mentioned the plan to acquire the lot for expansion of the public market adjacent thereto. Until expropriation proceedings are instituted in court, the landowner cannot be deprived of its right over the land.

Of course, the Sangguniang Bayan has the duty in the exercise of its police powers to regulate any business subject to municipal license fees and prescribe the conditions under which a municipal license already issued may be revoked (B.P. Blg. 337, Sec. 149 [1] [r]). But the "anxiety, uncertainty, restiveness" among the stallholders and traders cannot be a valid ground for revoking the permit of petitioner. After all, the stallholders and traders were doing business on property not belonging to the Municipal government. Indeed, the claim that the executive order and resolution were measures "designed to promote peace and order and protect the general welfare of the people of Balanga" is too amorphous and convenient an excuse to justify respondents' acts (Villacorta v. Bernardo, 143 SCRA 480 [1986]).

In view of the undisputed fact that the respondent Municipality is not the owner of Lot 261-B-6-A-3, then there is no legal basis for it to impose and collect market fees and market entrance fees. Only the owner has the right to do so.

Tano v. SocratesFacts: Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which banned the shimpment of live fisha and lobster outside Puerto Princesa City from 01 Jan 1993-1998. While the Sangguniang Panlalawigan, Provincial Government of Palawan enacted Resolution No. 33 which prohibited the catching,

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gathering, possessing, buying, selling, and shipment of love marine coral dwelling aquatic organisms for a period of 5 years in and coming from Palawan waters. Ordinance No. 2 Ordinance Prohibiting the catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms was also enacted. The respondents implemented the said ordinances, depriving all the fishermen of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers Association of Palawan and other marine merchants from performing their lawful occupation and trade. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, and Felipe Ongonion, Jr. were charged criminally on the basis of the ordinances.The petitioners filed this action claiming that first, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution. Second, Office Order No. 23 contained no regulation nor condition under which the Mayor’s permit could be granted or denied; in other words, the Mayor had the absolute authority to determine whether or not to issue permit. Third, as the Ordinance No. 2 altogether prohibited the catching, gathering, possession, buying, selling and shipping of live marine coral dwelling organisms, without any distinction whether it was caught or gathered through lawful fishing method, the Ordinance took away the right of petitioners-fishermen to earn their livelihood in lawful ways. Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon against petitioners Tano and the others have to be dismissed.Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No.2 as a valid exercise of the Provincial Government power under the general welfare clause (Section 16 of the LGC of 1991 [hereafter, LGC]), and its specific power to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such powers, the Province of Palawan had the right and responsibilty to insure that the remaining coral reefs, where fish dwells [sic], within its territory remain healthy for the future generation. The Ordinance, they further asserted, covered only live marine coral dwelling aquatic organisms which were enumerated in the ordinance and excluded other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for only five (5) years to protect and preserve the pristine coral and allow those damaged to regenerate.

They likewise maintained that there was no violation of due process and equal protection clauses of the Constitution. As to the former, public hearings were

conducted before the enactment of the Ordinance which, undoubtedly, had a lawful purpose and employed reasonable means; while as to the latter, a substantial distinction existed between a fisherman who catches live fish with the intention of selling it live, and a fisherman who catches live fish with no intention at all of selling it live, i.e., the former uses sodium cyanide while the latter does not. Further, the Ordinance applied equally to all those belonging to one class.

There are actually two sets of petitioners in this case. The primary interest of the first set of petitioners is to prevent the prosecution, trial and determination of the criminal cases until the constitutionality or legality of the Ordinances they allegedly violated shall have been resolved. The second set of petitioners merely claim that they being fishermen or marine merchants, they would be adversely affected by the ordinances. The petitioners claim that as subsistence or marginal fishermen, they are entitled to the protection of the State as enshrined in Section 2 of Article XII of the Constitution.

Issue:1. Whether petitioners are subsistence or marginal fishermen? NO.

Since the Constitution does not specifically provide a definition of the terms "subsistence" or "marginal" fishermen, they should be construed in their general and ordinary sense. A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish, while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood. Section 131(p) of the LGC (R.A. No. 7160) defines a marginal farmer or fisherman as "an individual engaged in subsistence farming or fishing which shall be limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family." It bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions.

Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress on the duty of the State to protect the nation's marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.

Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but of their protection, development and conservation. As hereafter shown, the ordinances in question are meant precisely to protect and conserve our marine resources to the end that

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their enjoyment may be guaranteed not only for the present generation, but also for the generations to come.

The so-called "preferential right" of subsistence or marginal fishermen to the use of marine resources is not at all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their "exploration, development and utilization . . . shall be under the full control and supervision of the State."

2. Whether the ordinances in question are unconstitutional? NO. Moreover, Section 5(c) of the LGC explicitly mandates that the general

welfare provisions of the LGC "shall be liberally interpreted to give more powers to the LGUs in accelerating economic development and upgrading the quality of life for the people of the community."

The LGC vests municipalities with the power to grant fishery privileges in municipal waters and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the general welfare of the municipality and its inhabitants, which shall include, inter alia, ordinances that "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance."

Finally, the centerpiece of LGC is the system of decentralization as expressly mandated by the Constitution.. Indispensable to decentralization is devolution and the LGC expressly provides that "[a]ny provision on a power of a LGU shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower LGU. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the LGU concerned." Devolution refers to the act by which the National Government confers power and authority upon the various LGUs to perform specific functions and responsibilities.

In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted therein to LGUs under Section 16 (the General Welfare Clause), and under Sections 149, 447(a) (1) (vi), 458 (a) (1)

(vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the questioned Ordinances cannot be doubted.

Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 June 1992. This statute adopts a "comprehensive framework for the sustainable development of Palawan compatible with protecting and enhancing the natural resources and endangered environment of the province".

It is clear to the Court that the Ordinances have two principal objectives or purposes: (1) to establish a "closed season" for the species of fish or aquatic animals covered therein for a period of five years; and (2) to protect the coral in the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due to illegal fishing activities.

The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the establishment of "closed seasons." The devolution of such power has been expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the Department of Agriculture and the Department of Interior and Local Government.

The realization of the second objective clearly falls within both the general welfare clause of the LGC and the express mandate to cities and provinces to protect the environment and impose appropriate penalties for acts which endanger the environment.

Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should be sought would be that of the Secretary of the Department of Agriculture. However, the requirement of approval by the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting fishing and fisheries in municipal waters has been dispensed with in view of the following reason: (1) As discussed earlier, under the general welfare clause of the LGC, LGUs have the power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. It likewise specifically vests municipalities with the power to grant fishery privileges in municipal waters, and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any violation of the provisions of applicable fishery laws. Finally, it imposes upon the sangguniang bayan,

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the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to "[p]rotect the environment and impose appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of destructive fishing . . . and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance.

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Sangalang v. IAC

Facts: Studies were made by Mayor Yabut et al, on the feasibility of opening streets in Bel-Air calculated to alleviate traffic congestion along the public streets adjacent to Bel-Air. Based on the studies, it was deemed necessary, in the interest of the general public to open to traffic Amapola, Mercedes, Zodia, Jupiter, Neptune, Orbit, and Paseo de Roxas streets. According to Bel-Air they own the streets and as such, should not be deprived of them without just compensation.

Issue: WON the mayor acted arbitrarily in opening up Jupiter and Orbit streets. NO. The opening of Jupiter was warranted by the demands of the common

good, in terms of traffic decongestion and public convenience. The same is upheld in the case of Orbit street.

There is not merit in BAVA’s claims that the demolition of the gates at Orbit and Jupiter amounts to deprivation of property without due process of law or expropriation without just compensation. There is no taking involved in this case. The act of the mayor is in the concept of police power.

PASEI v. Drilon: Police Power: state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Consists of: 1. An imposition of restraint upon liberty or property 2. In order to foster the common good The police power of the state is a power coextensive with self-protection and it is not inaptly termed the law of overwhelming necessity. It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society.

Bill of rights: even liberty itself, the greatest of all rights, is not unrestricted license to act accordingly to one’s will. It is subject to the far more overriding demands and requirements of the greater number.

However, it may not be done arbitrarily or unreasonably. Burden of showing that it is unjustified lies on aggrieved party. In the case at bar. BAVA has failed to show that the opening was unjustified or that the mayor acted unreasonably.

Art. 701: summary abatement may be carried out by the mayor himself

Cabrera v. CA

Facts: The Provincial Board of Catanduanes adopted Resolution No. 158 closing the old road leading to the new Capitol Building of this province to traffic and giving the owners of the properties traversed by the new road equal area as per survey by the Highway District Engineer's office from the old road adjacent to the respective remaining portion of their properties. Pursuant thereto, Deeds of Exchange were executed under which the Province of Catanduanes conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the Capitol Building. In 1978, part of the northern end of the old road fronting the petitioner's house was planted to vegetables in 1977 by Eulogia Alejandro. Anselmo Peña, who had bought Angeles Vargas's share, also in the same part of the road, converted it into a piggery farm. Learning about Resolution 158, the petitioner filed on December 29, 1978, a complaint with the Court of First Instance of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages."

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He alleged that the land fronting his house was a public road owned by the Province of Catanduanes in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so too was the closure of the northern portion of the said road.In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while holding that the land in question was not a declared public road but a mere "passageway" or "short-cut," nevertheless sustained the authority of the provincial board to enact Resolution No. 158 under existing law. 1 Appeal was taken to the respondent court, 2 which found that the road was a public road and not a trail but just the same also upheld Resolution 158. It declared:Pursuant to Republic Act No. 5185, municipal authorities can close, subject to the approval or direction of the Provincial Board, thoroughfares under Section 2246 of the Revised Administrative Code. Although in this case the road was not closed by the municipality of Catanduanes but by the provincial board of Catanduanes, the closure, nevertheless, is valid since it was ordered by the approving authority itself. However, while it could do so, the provincial government of Catanduanes could close the road only if the persons prejudiced thereby were indemnified, Section 2246 of the Revised Administrative Code being very explicit on this.Before us now, the petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board.The petitioner alleges that the closure of the road has especially injured him and his family as they can no longer use it in going to the national road leading to the old capitol building but must instead pass through a small passageway. For such inconvenience, he is entitled to damages in accordance with law.

Issue: WON the provincial board can order the closure of a road and use/ convey it for other purposes. YES.

The authority of the provincial board to close that road and use or convey it for other purposes is derived from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative Code: R.A. No. 5185, Section 11 (II) (a): II. The following actions by municipal officials or municipal councils, as provided for in the pertinent sections of the Revised Administrative Code shall take effect without the need of approval or direction from any official of the national government: Provided, That such actions shall be subject to approval or direction by the Provincial Board: (a) Authority to close thoroughfare under Section 2246;

Sec. 2246. Authority to close thoroughfare. — With the prior authorization of the Department Head, a municipal council may close any municipal road, street, alley, park, or square; but no such way or place aforesaid or any part thereof, shall be closed without indemnifying any person prejudiced thereby.

Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed.

Cebu Oxygen and Acetylene Co., Inc. v. Bercilles: closure of a city street is within the powers of the city council under the Revised Charter of Cebu City. It sustained the subsequent sale of the land as being in accordance not only with the charter but also with Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State."

Favis vs. City of Baguio: appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance.

While it is true that the above cases dealt with city councils and not the provincial board, there is no reason for not applying the doctrine announced therein to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province of Catanduanes for the construction of provincial roads.

The lower court found the petitioner's allegation of injury and prejudice to be without basis because he had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the CA ruled that the he "was prejudiced by the closure of the road which formerly fronted his house. He and his family were

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undoubtedly inconvenienced by the loss of access to their place of residence for which we believe they should be compensated."

Favis: The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally.

Richmond v. City of Hinton : The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door. The law will not permit him to be cut off from the public thoroughfares, but he must content himself with such route for outlet as the regularly constituted public authority may deem most compatible with the public welfare. When he acquires city property, he does so in tacit recognition of these principles. If, subsequent to his acquisition, the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is damnum absque injuria.

petitioner is not entitled to damages because the injury he has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. As the trial judge acutely observed, whatever inconvenience the petitioner has suffered "pales in significance compared to the greater convenience the new road, which is wide and concrete, straight to the veterans fountain and down to the pier, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town of Virac but also to the whole province of Catanduanes." For the enjoyment of those benefits, every individual in the province, including the petitioner, must be prepared to give his share

Dacanay v. Asistio

Facts: MMC Ordinance No. 79-02 was enacted by the Metropolitan Manila Commission, designating certain city and municipal streets, roads and open spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened up

seven (7) flea markets in that city. One of those streets was the "Heroes del '96" where the petitioner lives. Upon application of vendors, the respondents city mayor and city engineer, issued them licenses to conduct vending activities on said street. Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition of the market stalls on Heroes del '96, V. Gozon and Gonzales streets. To stop Mayor Martinez' efforts, stallowners filed an action for prohibition against the City of Caloocan, the OIC City Mayor and the City Engineer and/or their deputies, praying the court to issue a writ of preliminary injunction ordering these city officials to discontinue the demolition of their stalls during the pendency of the action.. LC: PI Granted. But petition was later dismissed. (1) Observed that MMC Ordinance No. 79-02 expressly provides that the use of certain streets as flee markets are subject to the approval of the Metropolitan Manila Commission. (2) Found that Heroes del '96, Gozon and Gonzales streets are of public dominion, hence, outside the commerce of man. This means that they cannot be alienated or leased or otherwise be the subject matter of contracts (Municipality of Cavite vs. Rojas). Such lease, if ever, is null and void. This principle was supported by City of Manila vs. Gerardo Garcia, which stated that: œThe property being a public one, the Manila Mayors did not have the authority to give permits, written or oral, to the squatters, and that the permits granted are therefore considered null and void. (3) Opined that the officials have the right to demolish the subject stalls of the plaintiffs, more so due to Section 185, par. 4 of Batas Pambansa Blg. 337, otherwise known as the LGC. However, shortly after the LC decision came out, the city administration in Caloocan City changed hands. City Mayor Asistio, Jr., as successor of Mayor Martinez, did not pursue the latter's policy of clearing and cleaning up the city streets. Invoking the trial court's decision in Civil Case No. C-12921, Dacanay wrote a letter to Mayor Asistio, Jr., calling his attention to the illegally-constructed stalls on Heroes del '96 Street and asked for their demolition. Followed up but to no avail. Hence, this case.

Issue: WON public streets or thoroughfares may be leased or licensed to market stallholders by virtue of a city ordinance or resolution of the Metro Manila Commission. NO.

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. Being outside the commerce of man, it may not be the subject of lease or other contract.

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

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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.

Macasiano v. Diokno

Facts: Paranaque 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.Issue: WON the ordinance authorizing the flea markets on public streets is valid NO.

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.

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. 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 LGC, which states:

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Sec. 10. Closure of roads. - A LGU 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.

However, the aforestated legal provision which gives authority to LGUs 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 LGU 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 LGU 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 LGC. 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.

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.

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.

The powers of a LGU 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 LGU 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.

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 Pambansa Blg. 337, known as Local Government Lode, has already been repealed by Republic Act No. 7160

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known as LGC 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 LGU 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.

Pilapil v. CA

Facts: The Colomidas own a parcel of land which has a road right of way leading to the national highway. Such road ends at the Pilapils’ land. According to the Colomidas, a camino vecinal leading to the national highway exists while the Pilapils deny such fact. The Colomidas tried to improve the camino for the public’s convenience but such was met with threats from the Pilapils. The Pilapils also threatened to fence off the camino vecinal. The Colomidas then filed a petition for injunction and damages with a prayer for a writ of PM or prohibitory injunction which sought to prevent the Pilapils from harassing them as well as fencing off the camino vecinal. The Pilapils also filed a case against the Colomidas alleging that no such camino exists on their land. In trial, the Municipal Planning and Development Coordinator of Liloan testified that according to the zoning map of Liloan, the camino does not traverse, but runs along the side of the Pilapils’ property Issue: WON the Municipality of Liloan has authority to close or abandon the camino vecinal. YES.

It is beyond dispute that the establishment, closure or abandonment of the camino vecinal is the sole prerogative of the Municipality of Liloan. No private party can interfere with such a right. Thus, even if We are to agree with both the trial court and public respondent that Longakit and Pepito were telling the truth, the decision of the Municipality of Liloan with respect to the said camino vecinal in sitio Bahak must prevail. It is thus pointless to concentrate on the testimonies of both witnesses since the same have, for all intents and purposes, become irrelevant.

The property of provinces, cities and municipalities is divided into property for public use and patrimonial property. The first consists of the provincial roads, city streets, municipal streets, squares, fountains, public waters, promenades, and public works for public service paid for by the said provinces, cities or municipalities. They are governed by the same principles as property of public dominion of the same character. 42 Under the applicable law in this case, Batas Pambansa Blg. 337 (The LGC), the Sangguniang Bayan, the legislative body of the municipality, 43 had the power to adopt zoning and subdivision ordinances or regulations subject to

the provisions of existing laws, and to provide for the construction, improvement, repair and maintenance of municipal streets, avenues, alleys, sidewalks, bridges, parks and other public places, regulate the use thereof and prohibit the construction or placing of obstacles or encroachments on them 44 Section 10, Chapter 2, Title One, Book I of said Code provided: 45 Sec. 10. Closure of roads. — A LGU 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 thereof shall be closed 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.

A camino vecinal is a municipal road. It is also property for public use. Pursuant, therefore, to the above powers of a LGU, the Municipality of Liloan had the unassailable authority to (a) prepare and adopt a land use map, (b) promulgate a zoning ordinance which may consider, among other things, the municipal roads to be constructed, maintained, improved or repaired and (c) close any municipal road.

In the instant case, the Municipality of Liloan, through the Sangguniang Bayan, approved the Urban Land Use Plan; this plan was duly signed by the Municipal Mayor (Exhibit "1"). By doing so, the said legislative body determined, among others, the location of the camino vecinal in sitio Bahak. The unrebutted testimony of Engineer Epifanio Jordan shows that the same was approved by the Sangguniang Bayan. The reluctance of the trial court and public respondent to give due weight to the testimony of Engineer Jordan stemmed from a doubt as to his authority to prepare the plan. There is also some confusion regarding the party who directed him to do so. Both courts observed that while on direct examination, he testified that the Sangguniang Bayan instructed him to prepare the zoning map, 47 during cross-examination, he stated that he prepared it upon the Mayor's oral order. 48 Such inconsistency is quite trivial and hence, did not affect the preparation and subsequent approval of the zoning map. In the first place, under the applicable law, the mayor was both a member and the presiding officer of the Sangguniang Bayan. Secondly, what invested the zoning map with legal effect was neither the authority of the person who ordered its preparation nor the authority of the person who actually prepared it, but its approval by the Sangguniang Bayan. Furthermore, with or without the order of the Mayor or Sangguniang Bayan, Engineer Jordan,

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as the then Municipal Planning and Development Coordinator, had the authority to prepare the plan and admit it to the Sangguniang Bayan for approval. Among his functions under the governing law at the time was to formulate an integrated economic, social, physical and other development objectives and policies for the consideration and approval of the sangguniang bayan and the municipal mayor, and prepare municipal comprehensive plans and other development planning document. 50 Thus, even if he had not been instructed by anyone to prepare the map, he could nevertheless, on his own initiative and by virtue of his functions, make one. The trial court and public respondent then failed to appreciate the role and function of a Municipal Planning and Development Coordinator.

As further declared by Engineer Jordan, this camino vecinal in sitio Bahak "passes the side of the land of Socrates Pilapil. This is the proposed road leading to the national highway." The Colomidas presented no rebuttal witness to show that by the approval of the zoning map by the Sangguniang Bayan, they were effectively deprived of access to the national highway from their property. Of course, they may argue that the zoning map was prepared for and approved by the Sangguniang Bayan after the filing of their petition in Civil Case No. R-20732. Be that as it may, this preparation and approval, clearly a supervening event, was relied upon, introduced in evidence without objection on the part of the Colomidas and evaluated by the trial court. In short, the latter allowed the issue raised by the supervening event to be tried. There was nothing procedurally objectionable to this; on the contrary, Section 5, Rule 10 of the Rules of Court allows it. Said section reads: Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleading, to be amended and shall do so freely when the presentation on the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Such supervening fact, duly proved to be an official act of the Municipality of Liloan, binds not only the Pilapils and the Colomidas, but also the general public. The solemn declarations of old people like Sesenando Longakit and Florentino Pepito cannot overturn the decision of the Municipality of Liloan.

MMDA v. Bel-AirFacts: BAVA is the registered owner of Neptune Street, a road inside Bel-Air Village. Neptune runs parallel to Kalayaan Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates.On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. On the same day, respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished.On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. RTC: issued TRO, after due hearing, the trial court denied issuance of a preliminary injunction. CA: MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance.

Issue: WON the MMDA has the mandate to open Neptune Street to public traffic pursuant to its regulator and police powers.

MMDA: it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court. From the premise that it has police power, it is now urged that there

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is no need for the City of Makati to enact an ordinance opening Neptune street to the public.

Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare.

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or LGUs. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body.

A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." The LGC of 1991 defines a LGU as a "body politic and corporate", one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. LGUs are the provinces, cities, municipalities and barangays. They are also the territorial and political subdivisions of the state.

Our Congress delegated police power to the LGUs in the LGC of 1991. LGUs exercise police power through their respective legislative bodies. The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is the sangguniang barangay. The LGC of 1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the [province, city municipality] provided under the Code. The same Code gives the sangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon."

Metropolitan or Metro Manila is a body composed of several LGUs - i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, , Navotas, , Pateros, San Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924 [24] in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA.

"Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual LGUs comprising Metro Manila." There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following: "(b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;"

The scope of the MMDA’s function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized "to set the policies concerning traffic" and

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"coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations.

It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the LGUs, there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority."It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature.

Contrary to petitioner’s claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA.

The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to

the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila.

It was the MMC itself that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC’s approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC.

Under the 1987 Constitution, the LGUs became primarily responsible for the governance of their respective political subdivisions. The MMA’s jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the LGUs technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly."

When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected LGUs." The character of the MMDA was clearly defined in the legislative debates enacting its charter.

Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA’s functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. It is thus beyond doubt that the MMDA is not a LGU or a public corporation endowed with legislative power. It is not even a "special

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metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in LGUs, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA.

Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA under R. A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the LGUs, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent CA did not err in so ruling.

Moday v. CA

Facts: The Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed R 43-89, "Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports Facilities." R 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the Sangguniang Panlalawigan for its approval. The Sangguniang Panlalawigan disapproved said Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still available lots in Bunawan for the establishment of the government center." Bunawan filed a petition for Eminent Domain against petitioner Percival Moday, as well as his parents before the RTC at Prosperidad, Agusan del Sur. The municipality filed a Motion to Take or Enter Upon the Possession of Subject Matter of This Case stating that it had already deposited with the municipal treasurer the necessary amount in accordance with Section 2, Rule 67 of the Revised Rules of Court and that it would be in the government's best interest for public respondent to be allowed to take possession of the property.

RTC: granted respondent municipality's motion to take possession of the land, held that the Sangguniang Panlalawigan's failure to declare the resolution invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review the ordinances and resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old LGC and that the exercise of eminent domain is not one of the two acts enumerated in Section 19 thereof requiring the approval of the Sangguniang Panlalawigan. MR: denied. CA: the public purpose for the expropriation is clear from R 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare R 43-89 invalid, expropriation of petitioners' property could proceed. MR: denied. Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of Barangay Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal Gymnasium, which is made of concrete.Pet: seeks the reversal of the decision and resolution of the CA and a declaration that R 43-89 of the Municipality of Bunawan is null and void. Court issued TRO enjoining and restraining public respondent Judge from enforcing her order and respondent municipality from using and occupying all the buildings constructed and from further constructing any building on the land subject of this petition. Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a Resolution citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to demolish the "blocktiendas" which were built in violation of the restraining order. Bustillo paid the fine and manifested that he lost in the election. The incumbent Mayor Leonardo Barrios, filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of the Temporary Restraining Order" and Memorandum on June 11, 1996 for the Municipality of Bunawan. Pet: contend that the CA erred in upholding the legality of the condemnation proceedings initiated by the municipality. According to petitioners, the expropriation was politically motivated and R 43-89 was correctly disapproved by the Sangguniang Panlalawigan, there being other municipal properties available for the purpose. Petitioners also pray that the former Mayor Bustillo be ordered to pay damages for insisting on the enforcement of a void municipal resolution.CA: declared that the Sangguniang Panlalawigan's reason for disapproving the resolution "could be baseless, because it failed to point out which and where are those available lots.'" Respondent court also concluded that since the Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid, expropriation of petitioners' property could proceed.

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Issue: WON a municipality may expropriate private property by virtue of a municipal resolution which was disapproved by the Sangguniang Panlalawigan. NO.

Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation.

The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly provided for in Batas Pambansa Blg. 337, the LGC 18 in forceat the time expropriation proceedings were initiated. Section 9 of said law states: A LGU may, through its head and acting pursuant to a resolution of its sanggunian, exercise the right of eminent domain and institute condemnation proceedings for public use or purpose.

What petitioners question is the lack of authority of themunicipality to exercise this right since the Sangguniang Panlalawigandisapproved R 43-89.

Section 153 of B.P. Blg. 337: Sangguniang Panlalawigan Review. (1) Within thirty days after receiving copies of approved ordinances,resolutions and executive orders promulgated by the municipal mayor, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial fiscal, who shall examine them promptly and inform the sangguniang panlalawigan in writing of any defect or impropriety which he may discover therein and make such comments or recommendations as shall appear to him proper. (2) If thesangguniang panlalawigan shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such ordinance, resolution or executive order invalid in whole or in part, entering its actions upon the minutes and advising the proper municipal authorities thereof. The effect of such an action shall be to annul the ordinance, resolution or executive order in question in whole or in part. The action of the sangguniang panlalawigan shall be final.

The Sangguniang Panlalawigan's disapproval of MunicipalR 43-89 is an infirm action which does not render said resolution

null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. Although pertaining to a similar provision of law but different factual milieu then obtaining, the Court's pronouncements in Velazco v. Blas, where we cited significant early jurisprudence, are applicable to the case at bar. The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the council or president making the same." Absolutely no other ground is recognized by the law. A strictly legal question is before the provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial (board's) disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative function of the municipal council or president. Such has been the consistent course of executive authority.

Sangguniang Panlalawigan was without the authority to disapprove Municipal R 43-89 for the Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property.

Accusation of political oppression: it is alleged that Percival Moday incurred the ire of then Mayor Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant seven-hectare property adjacent to petitioners' land, evidenced by a sketch plan.

The limitations on the power of eminent domain are that theuse must be public, compensation must be made and due process of law must be observed. The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking, 23 has ruled that the necessity of exercising eminent domain must be genuine and of a public character. Government may not capriciously choose what private property should be

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taken. After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations. The uncertified photocopy of the sketch plan does not conclusively prove that the municipality does own vacant land adjacent to petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent appellate court similarly held that the pleadings and documents on record have not pointed out any of respondent municipality's "other available properties available forthe same purpose." The accusations of political reprisal are likewiseunsupported by competent evidence. Consequently, the Court holds that petitioners' demand that the former municipal mayor be personally liable for damages is without basis.

Camarines Sur v. CA

Facts: The Sangguniang Panlalawigan of the Province of Camsur passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. Camsur filed expropriation cases against the San Joaquins as well as a motion for the issuance of writ of possession. The SJs failed to appear at the hearing of the motion. They moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. RTC: denied the motion to dismiss and authorized the Camsur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. Issued a writ of possession. The San Joaquins filed a motion for relief from the order and a motion to admit an amended motion to dismiss. Both motions were denied. CA: SJs asked: (a) that the Res. be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order denying the motion to dismiss and allowing Camsur to take possession of the property subject of the expropriation and the order denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of injunction. Camsur: claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of LGC (B.P. Blg. 337) and that the expropriations are for a public purpose. SG: under Section 9 of the LGC (B.P. Blg. 337), there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. Expressed the view that the Province

of Camsur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project.CA: set aside the order of the trial court, allowing the Province of Camsur to take possession of private respondents' lands and the order denying the admission of the amended motion to dismiss. It also ordered the trial court to suspend the expropriation proceedings until after Camsur shall have submitted the requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non-agricultural land.Camsur: its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law (R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the Department of Agrarian Reform before a parcel of land can be reclassified from an agricultural to a non-agricultural land. CA, following the recommendation of the Solicitor General, held that the Province of Camsur must comply with the provision of Section 65 of the Comprehensive Agrarian Reform Law and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the SJs

Issue: WON the expropriation of agricultural lands by LGUs is subject, to the prior approval of the Secretary of the Agrarian Reform, as the implementator of the agrarian reform program.

When the CA ordered the suspension of the proceedings until the Province of Camsur shall have obtained the authority of the Department of Agrarian Reform to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use.

Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SC.RA 461 [1987]).

The expropriation of the property authorized by the questioned resolution is for a public purpose. The establishment of a pilot development center would inure to the direct benefit and advantage of the people of the

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Province of Camsur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced.. The housing project also satisfies the public purpose requirement of the Constitution. As held in Sumulong v. Guerrero, 154 SCRA 461, "Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum the general welfare."

The Solicitor General denigrated the power to expropriate by the Province of Camsur by stressing the fact that LGUs exercise such power only by delegation. (Comment, pp. 14-15; Rollo, pp. 128-129)

Heirs of Juancho Ardana v. Reyes: Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest," it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8,970 square meters formed part of the resort complex. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program.

It is true that LGUs have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature. It is also true that in delegating the power to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments. While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations.

Resolution No. 129, Series of 1988, was promulgated pursuant to Section 9 of B.P. Blg. 337, the LGC, which provides: A LGU may, through its head and acting pursuant to a resolution of its sanggunian exercise the right of eminent domain and institute condemnation proceedings for public use or purpose. Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by LGUs to the control of the Department of Agrarian Reform. The

closest provision of law that the CA could cite to justify the intervention of the Department of Agrarian Reform in expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law, which reads: Sec. 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for, agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his obligation.

The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries.

Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication.

To sustain the CA would mean that the LGUs can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use.

Ordinarily, it is the legislative branch of the LGU that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use.

There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto. The Republic of the Philippines, as

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sovereign, or its political subdivisions, as holders of delegated sovereign powers, cannot be bound by provisions of law couched in general term.

Meycauayan v. IAC

Facts: The Philippine Pipes and Merchandising Corporation filed with the Office of the Municipal Mayor of Meycauayan, Bulacan, an application for a permit to fence a parcel of land. The fencing of said property was allegedly to enable the storage of the respondent's heavy equipment and various finished products such as large diameter steel pipes, pontoon pipes for ports, wharves, and harbors, bridge components, pre-stressed girders and piles, large diameter concrete pipes, and parts for low cost housing. In the same year, the Municipal Council of Meycauayan, headed by then Mayor Celso R. Legaspi, passed Resolution No. 258, Series of 1975, manifesting the intention to expropriate the respondent's parcel of land. The Special Committee recommended that the Provincial Board of Bulacan disapprove or annul the resolution in question because there was no genuine necessity for the Municipality of Meycauayan to expropriate the respondent's property for use as a public road. On the basis of this report, the Provincial Board of Bulacan passed Resolution No. 238, Series of 1976, disapproving and annulling Resolution No. 258, Series of 1975, of the Municipal Council of Meycauayan. PPMC, then, reiterated to the Office of the Mayor its petition for the approval of the permit to fence the aforesaid parcels of land. The Municipal Council of Meycauayan, now headed by Mayor Adriano D. Daez, passed Resolution No. 21, Series of 1983, for the purpose of expropriating anew the respondent's land. The Provincial Board of Bulacan approved the aforesaid resolution on January 25, 1984. Thereafter, the petitioner, on February 14, 1984, filed with the Regional Trial Court of Malolos, Bulacan, Branch VI, a special civil action for expropriation. Upon deposit of the amount of P24,025.00, which is the market value of the land, with the Philippine National Bank, the trial court on March 1, 1984 issued a writ of possession in favor of the petitioner. On August 27, 1984, the trial court issued an order declaring the taking of the property as lawful and appointing the Provincial Assessor of Bulacan as court commissioner who shall hold the hearing to ascertain the just compensation for the property. The respondent went to the Intermediate Appellate Court on petition for review. On January 10, 1985, the appellate court affirmed the trial court's decision. However, upon motion for reconsideration by the respondent, the decision was re-examined and reversed. The appellate court held that there is no genuine necessity to expropriate the land for use as a public road as there were several other roads for the same purpose and another more appropriate lot for the proposed public road. The court, taking into consideration the location and size of the land, also

opined that the land is more Ideal for use as storage area for respondent's heavy equipment and finished products. MR: denied.

Issue: WON there is a genuine necessity to expropriate this strip of land for use as a public road. NO.

The petitioner's purpose in expropriating the respondent's property is to convert the same into a public road which would provide a connecting link between Malhacan Road and Bulac Road in Valenzuela, Bulacan and thereby ease the traffic in the area of vehicles coming from MacArthur Highway.

The records, however, reveals that there are other connecting links between the aforementioned roads. The petitioner itself admits that there are four such cross roads in existence. The respondent court stated that with the proposed road, there would be seven.

The Sketch Plan clearly and conclusively shows that petitioner does not need this strip of land as a private road. The Sketch Plan clearly shows that petitioner's factory site is adjacent to Bulac Road which has a width of about seven meters, more or less. Petitioner can use Bulac Road in reaching McArthur Highway on the west or in reaching the Manila North Expressway on the east for the purpose of transporting its products. Petitioner does not need to go to Malhacan Road via this so-called private road before going to McArthur Highway or to the Manila North Expressway. Why should petitioner go first to Malhacan Road via this so called "private road" before going to McArthur Highway or to the Manila North Expressway when taking the Bulac Road in going to McArthur Highway or to the Manila North Expressway is more direct, nearer and more advantageous. Hence, it is beyond doubt that petitioner acquired this strip of land for the storage of its heavy equipments and various finished products and for growth and expansion and never to use it as a private road. This is the very reason why petitioner filed an application with the Office of the Municipal Mayor of Meycauayan, Bulacan to fence with hollow blocks this strip of land.

From the foregoing facts, it appears obvious to this Special Committee that there is no genuine necessity for the Municipality of' Meycauayan to expropriate the aforesaid property of the Philippine Pipes and Merchandising Corporation for use as a public road. Considering that in the vicinity there are other available road and vacant lot offered for sale situated similarly as the lot in question and lying Idle, unlike the lot sought to be expropriated which was found by the Committee to be badly needed by the company as a site for its heavy equipment after it is fenced together

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with the adjoining vacant lot, the justification to condemn the same does not appear to be very imperative and necessary and would only cause unjustified damage to the firm. The desire of the Municipality of Meycauayan to build a public road to decongest the volume of traffic can be fully and better attained by acquiring the other available roads in the vicinity maybe at lesser costs without causing harm to an establishment doing legitimate business therein. Or, the municipality may seek to expropriate a portion of the vacant lot also in the vicinity offered for sale for a wider public road to attain decongest (sic) of traffic because as observed by the Committee, the lot of the Corporation sought to be taken will only accommodate a one-way traffic lane and therefore, will not suffice to improve and decongest the flow of traffic and pedestrians in the Malhacan area. ...

It must be noted that this strip of land covered by Transfer Certificates of Titles Nos. 215165 and 37879 were acquired by petitioner from Dr. Villacorta. The lot for sale and lying Idle with an area of 16,071 square meter which is adjacent and on the western side of the aforesaid strip of land and extends likewise from Bulac Road to Malhacan Road belongs also to Dr. Villacorta. This lot for sale and lying Idle is most Ideal for use as a public road because it is more than three (3) times wider that the said strip of land.

Since there is another lot ready for sale and lying Idle, adjacent and on the western side of the strip of land, and extending also from Malhacan Road to Bulac Road and most Ideal for a public road because it is very much wider than the lot sought to be expropriated, it seems that it is more just, fair, and reasonable if this lot is the one to be expropriated.

The petitioner objects to the appellate court's findings contending that they were based on facts obtaining long before the present action to expropriate took place. We note, however, that there is no evidence on record which shows a change in the factual circumstances of the case. There is no showing that some of the six other available cross roads have been closed or that the private roads in the subdivision may not be used for municipal purposes. What is more likely is that these roads have already been turned over to the government. The petitioner alleges that surely the environmental progress during the span of seven years between the first and second attempts to expropriate has brought about a change in the facts of the case. This allegation does not merit consideration absent a showing of concrete evidence attesting to it.

There is no question here as to the right of the State to take private property for public use upon payment of just compensation. What is questioned is the existence of a genuine necessity therefor.

City of Manila v. Chinese Community of Manila: this Court held that the foundation of the right to exercise the power of eminent domain is genuine necessity and that necessity must be of a public character. Condemnation of private property is justified only if it is for the public good and there is a genuine necessity of a public character. Consequently, the courts have the power to inquire into the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity therfor.

De Knecht v. Bautista, this court further ruled that the government may not capriciously choose what private property should be taken. Citing the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration (supra), the Court held: With due recognition then of the power of Congress to designate the particular property to be taken and how much thereof may be condemned in the exercise of the power of expropriation, it is still a judicial question whether in the exercise of such competence, the party adversely affected is the victim of partiality and prejudice. That the equal protection clause will not allow.

There is absolutely no showing in the petition why the more appropriate lot for the proposed road which was offered for sale has not been the subject of the petitioner's attempt to expropriate assuming there is a real need for another connecting road.

Napocor v. Jocson

Facts: The NPC filed for the acquisition of a right-of-way easement over portions of the parcels of land described in the complaints for its Negros-Panay Interconnection Project, particularly the Bacolod-Tomonton Transmission Line. Provisional values were fixed on the basis of the market value and the daily opportunity profit petitioner may derive. Respondents sought a re-evaluation. Judge increased value without hearing and directing the defendants to manifest within twenty-four (24) hours whether or not they are accepting and withdrawing the amounts, representing the provisional values, deposited by the plaintiff for each of them as "final and full satisfaction of the value of their respective property (sic); " Judge declared the provisional values as the final values and directing the release of the amounts deposited, in full satisfaction thereof, to the defendants even if not all of them made the manifestation; and suspended the issuance of the writ of

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possession until after the suspending the amounts shall have been released to and received by defendants.

Issue: WON Judge Jocson committed grave abuse of discretion amounting to lack of jurisdiction. YES.

Municipality of Biñan vs. Hon. Jose Mar Garcia, et al: there are two (2) stages in every action of expropriation: The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint." An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard." The second phase of the eminent domain action is concerned with the determination by the Court of the "just compensation for the property sought to be taken." This is done by the Court with the assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. . . .

However, upon the filing of the complaint or at any time thereafter, the petitioner has the right to take or enter upon the possession of the property involved upon compliance with P.D. No. 42 which requires the petitioner, after due notice to the defendant, to deposit with the Philippine National Bank in its main office or any of its branches or agencies, "an amount equivalent to the assessed value of the property for purposes of taxation." This assessed value is that indicated in the tax declaration.

P.D. No. 42 repealed the "provisions of Rule 67 of the Rules of Court and of any other existing law contrary to or inconsistent" with it. Accordingly, it repealed Section 2 of Rule 67 insofar as the determination of the provisional value, the form of payment and the agency with which the deposit shall be made, are concerned. Said section reads in full as follows: Sec. 2. Entry of plaintiff upon depositing value with National or Provisional

Treasurer. — Upon the filing of the complaint or at any time thereafter the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionally and promptly ascertained and fixed by the court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a depository of the Republic of the Philippines payable on demand to the National or Provincial Treasurer, as the case may be, in the amount directed by the court to be deposited. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved.

It will be noted that under the aforequoted section, the court has the discretion to determine the provisional value which must be deposited by the plaintiff to enable it "to take or enter upon the possession of the property." Notice to the parties is not indispensable. In interpreting a similar provision of Act No. 1592, this Court, in the 1915 case of Manila Railroad Company, et al. vs. Paredes, et al., 45 held: The statute directs that, at the very outset, "when condemnation proceedings are brought by any railway corporation" the amount of the deposit is to be "provisionally and promptly ascertained and fixed by the court." It is very clear that it was not the intention of the legislator that before the order fixing the amount of the deposit could lawfully be entered the court should finally and definitely determine who are the true owners of the land; and after doing so, give them a hearing as to its value, and assess the true value of the land accordingly. In effect, that would amount to a denial of the right of possession of the lands involved until the conclusion of the proceedings, when there would no need for the filing of the deposit. Of course, there is nothing in the statute which denies the right of the judge to hear all persons claiming an interest in the land, and courts should ordinarily give all such persons an opportunity to be heard if that be practicable, and will cause no delay in the prompt and provisional ascertainment of the value of the land. But the scope and extent of the inquiry is left wholly in the discretion of the court, and a failure to hear the owners and claimants of the land, who may or may not be known at the time of the entry of the order, in no wise effects the validity of the order. . . .

P.D. No. 42, however, effectively removes the discretion of the court in determining the provisional value. What is to be deposited is an amount equivalent to the assessed value for taxation purpose. No hearing is

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required for that purpose. All that is needed is notice to the owner of the property sought to be condemned.

Clearly, therefore, respondent Judge either deliberately disregarded P.D. No. 42 or was totally unaware of its existence and the cases applying the same.

In any event, petitioner deposited the provisional value fixed by the court. As a matter of right, it was entitled to be placed in possession of the property involved in the complaints at once, pursuant to both Section 2 of Rule 67 and P.D. No. 42. Respondent Court had the corresponding duty to order the sheriff or any other proper officer to forthwith place the petitioner in such possession. Instead of complying with the clear mandate of the law, respondent Judge chose to ignore and overlook it. Moreover, upon separate motions for reconsideration filed by the defendants in Civil Cases Nos. 5938 and 5939, he issued a new Order increasing the provisional values of the properties involved therein. No hearing was held on the motions. As a matter of fact, as the records show, the motion for reconsideration filed by defendants Jesus Gonzaga, et al. in Civil Case No. 5938 is dated 11 July 1990 while the Order granting both motions was issued the next day, 12 July 1990. The motion for reconsideration in Civil Case No. 5938 does not even contain a notice of hearing. It is then a mere scrap of paper; it presents no question which merits the attention and consideration of the court. It is not even a mere motion for it does not comply with the rules, more particularly Sections 4 and 5, Rule 15 of the Rules of Court; the Clerk of Court then had no right to receive it. 50

There was, moreover, a much stronger reason why the respondent Court should not have issued the 12 July 1990 Order increasing the provisional values of the Gonzaga lots in Civil Cases Nos. 5938 and 5939. After having fixed these provisional values, albeit erroneously, and upon deposit by petitioner of the said amounts, respondent Judge lost, as was held in Manila Railroad Company vs. Paredes, "plenary control over the order fixing the amount of the deposit, and has no power to annul, amend or modify it in matters of substance pending the course of the condemnation proceedings." The reason for this is that a contrary ruling would defeat the very purpose of the law which is to provide a speedy and summary procedure whereby the peaceable possession of the property subject of the expropriation proceedings "may be secured without the delays incident to prolonged and vexatious litigation touching the ownership and value of such lands, which should not be permitted to delay the progress of the work."

Compounding the above error and the capriciousness with which it was committed is respondent Judge's refusal to place the petitioner in possession of the property or issue the writ of possession despite the fact that the latter had likewise deposited the additional amount called for by the 12 July 1990 Order. Instead, respondent Judge issued the 16 July 1990 Order directing the defendants to state in writing within twenty-four (24) hours whether or not they would accept and withdraw the amounts deposited by the petitioner for each of them " as final and full satisfaction of the value of their respective property (sic) affected by the expropriation" and stating at the same time that the writ will be issued after such manifestation and acceptance and receipt of the amounts. The above Order has absolutely no legal basis even as it also unjustly, oppressively and capriciously compels the petitioner to accept the respondent Judge's determination of the provisional value as the just compensation after the defendants shall have manifested their conformity thereto. He thus subordinated his own judgment to that of the defendants' because he made the latter the final authority to determine such just compensation. This Court ruled in Export Processing Zone Authority vs. Dulay, et al. 52 that the determination of just compensation in eminent domain cases is a judicial function; accordingly, We declared as unconstitutional and void, for being, inter alia, impermissible encroachment on judicial prerogatives which tends to render the Court inutile in a matter which, under the Constitution, is reserved to it for final determination, the method of ascertaining just compensation prescribed in P.D. Nos. 76 464, 794 and 1533, to wit: the market value as declared by the owner or administrator or such market value as determined by the assessor, whichever is lower in the first three (3) decrees, and the value declared by the owner or administrator or anyone having legal interest in the property or the value as determined by the assessor, pursuant to the Real Property Tax Code, whichever is lower, prior to the recommendation or decision of the appropriate Government office to acquire the property, in the last mentioned decree. If the legislature or the executive department cannot even impose upon the court how just compensation should be determined, it would be far more objectionable and impermissible for respondent Judge to grant the defendants in an eminent domain case such power and authority.

Without perhaps intending it to be so, there is not only a clear case of abdication of judicial prerogative, but also a complete disregard by respondent Judge of the provisions of Rule 67 as to the procedure to be followed after the petitioner has deposited the provisional value of the

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property. It must be recalled that three (3) sets of defendants filed motions to dismiss pursuant to Section 3, Rule 67 of the Rules of Court; Section 4 of the same rule provides that the court must rule on them and in the event that it overrules the motions or, when any party fails to present a defense as required in Section 3, it should enter an order of condemnation declaring that the petitioner has a lawful right to take the property sought to be condemned.

As may be gleaned from the 25 June 1990 Order, the respondent Judge found that the petitioner has that right and that "there will be a (sic) paramount public interest to be served by the expropriation of the defendants' properties." Accordingly, considering that the parties submitted neither a compromise agreement as to the just compensation nor a stipulation to dispense with the appointment of commissioners and to leave the determination of just compensation to the court on the basis of certain criteria, respondent Judge was duty bound to set in motion Section 5 of Rule 67; said section directs the court to appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to it regarding the just compensation for the property sought to be taken. Such commissioners shall perform their duties in the manner provided for in Section 6; upon the filing of their report, the court may, after a period of ten (10) days which it must grant to the parties in order that the latter may file their objections to such report, and after hearing pursuant to Section 8, accept and render judgment in accordance therewith or, for cause shown, recommit the same to the commissioners for further report of facts. The court may also set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the petitioner the property essential to the exercise of its right of condemnation, and to the defendant just compensation for the property so taken.

Not satisfied with the foregoing violations of law and insisting upon his own procedure, respondent Judge declared in his Order of 18 July 1990 that the provisional amounts he fixed, later increased with respect to the properties of the Gonzagas, shall be considered as the full payment of the value of the properties after the defendants in Civil Cases Nos. 5938, 5939, 5940, 5942 and 5943 shall have filed their manifestations; he also ruled that the writ of possession will be issued only after the latter shall have received the said amounts. This Order and the records before this Court do not disclose that the defendants in Civil Cases Nos. 5941 and 5944 filed any manifestation; yet, in the Order, respondent Judge whimsically and

arbitrarily considered the so-called provisional values fixed therein as the final values. By such Order, the case was in fact terminated and the writ of execution then became a mere incident of an execution of a judgment. The right of the petitioner to take or enter into possession of the property upon the filing of the complaint granted by Section 2 of Rule 67 and P.D. No. 42 was totally negated despite compliance with the deposit requirement under the latter law.

City Government of Toledo City vs. Fernandos, et al: does not apply to the instant petition because at the pre-trial conference held therein, the petitioner submitted to the discretion of the court as to the correct valuation, private respondents stated that they have no objections and are in conformity with the price of P30.00 per square meter as reasonable compensation for their land and the City Assessor informed the court of the current market and appraisal values of the properties in the area and the factors to be considered in the determination of such. The parties presented their documentary exhibits. In effect, therefore, the parties themselves agreed to submit to a judicial determination on the matter of just compensation and that judgment be rendered based thereon. In the instant case, no pre-trial was conducted; the proceedings were still at that state where the provisional value was yet to be determined; and the parties made no agreement on just compensation.

Quezon City v. Ericta

Facts: QC passed an Ordinance regulating the establishment, maintenance and operation of private memorial type cemetery or burial ground within the jurisdiction of QC. Section 9 of the Ordinance provides that at least 6% of the total area of a memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers & have been residents of QC for at least 5 years prior to their death. Seven years after the enactment of the Ordinance, the QC Council passed a resolution requesting the City Engineer to stop any further selling of memorial parks in QC where the owners have failed to donate the required 6% cemetery space. The City Engineer notified Himlayang Pilipino, Inc. that the Ordinance would be enforced, so Himlayan filed a petition with the CFI seeking to annul Sec 9 of the Ordinance. CFI declared Sec 9 null and void. MR: denied

Issue: WON the ordinance is authorized under QC Charter and a valid exercise of police power. NO.

Restatement of certain basic principles: Occupying the forefront in the bill of rights is the provision which states that 'no person shall be deprived of

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life, liberty or property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution). On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most essential insistent and illimitable Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight. Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty

or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms.

It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the LGC, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.

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As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations.

City of Manila v. Arellano College

Facts: Section 1 of Republic Act No. 267 authorizes cities and municipalities to contract loans from the Reconstruction Finance Corporation, the Philippine National Bank, and/or other entity or person at the rate of interest not exceeding eight per cent annum for the purpose of purchasing or expropriating homesites within their respective territorial jurisdiction and reselling them at cost to residents of the said cities and municipalities. The court below ruled that this provision empowers cities to purchase but not to expropriate lands for the purpose of subdivision and resale, and so dismissed the present action, which seeks to condemn, for the purpose just stated, several parcels of land having a combined area of 7,270 square meters and situated on Legarda Street, City of Manila.

Issue: WON Act 267 empowers cities to expropriate as well as to purchase lands for homesites. YES.

The word "expropriating," taken singly or with the text, is susceptible of only meaning. But this power to expropriate is necessarily subject to the limitations and conditions noted in the decisions above cited. (See below.) The National Government may not confer its instrumentalities authority which itself may not exercise.

Guido vs. Rural Progress Administration: extent of the Philippine Government's power to condemn private property for resale: It has been truly said that the assertion of the right on the part of the legislature to take the property of one citizen and transfer it to another, even for a full compensation, when the public interest is not promoted thereby, is claiming a despotic power, and one inconsistent with every just principle and fundamental maxim of a free government.

In a broad sense, expropriation of large estates, trusts in perpetuity, and land that embraces a whole town, or large section of a town or city, bears

direct relation to the public welfare. The size of the land expropriated, the large number of people benefited, and the extent of social and economic reform secured by the condemnation, clothes the expropriation with public interest and public use. The expropriation in such cases tends to abolish economic slavery, feudalistic practices, endless conflicts between landlords and tenants, and other evils inimical to community prosperity and contentment and public peace and order.

Although courts are not in agreement as to the tests to applied in determining whether the use is public or not, some go so far in the direction of a liberal construction as to hold that public use is synonymous with public benefit, public utility, or public advantage, and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interest involved are of considerable magnitude.

In some instances, slumsites have been acquired by condemnation. The highest court of New York State has ruled that slum clearance and erection of houses for low-income families were public purpose for which New York City Housing authorities could exercise the power of condemnation. and this decision was followed by similar ones in other states. The underlying reasons for these decisions are that the destruction of congested areas and unsanitary dwellings diminished the potentialities of epidemics, crime and waste, prevents the spread of crime and diseases to unaffected areas, enhances the physical and moral value of the surrounding communities, and promote the safety and welfare of the public in general.

The condemnation of a small property in behalf of 10, 20 or 50 persons and their families does not insure to the benefit of the public to a degree sufficient to give the use public character. The expropriation proceedings at bar have been instituted for the economic relief of a few families devoid of any consideration of public peace and order, or other public advantage.

No fixed line of demarcation between what taking is for public use and what is not can made; each case has to be judged according to its peculiar circumstances. It suffices to say for the purpose of this decision that the case under consideration is far wanting in those elements which make for public convenience or public use. If upheld, this case would open the gates to more oppressive expropriations. If this expropriation be constitutional, we see no reason why a 10-, 15-, or 25-hectare farm land might not be expropriated and subdivided, and sold to those who want to own a portion of it. to make the analogy closer, we find no reason why the Rural Progress Administration could not take by condemnation an urban lot containing and area of 1,000 or 2,000 square meters for subdivision into tiny lots for resale to its occupations or those who want to build thereon.

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Viewed from another angle, the case at bar is weaker for the condemnor. In the first place, the land that is the subject of the present expropriation is only one-third of the land sought to be taken in the Guido case, and about two-thirds of that involved in the Borja condemnation proceeding. In the second place, the Arellano Colleges' land is situated in a highly commercial section of the city and is occupied by persons who are not bona fide tenants. Lastly, this land was brought by the defendant for a university site to take the place of rented buildings that are unsuitable for schools of higher learning.

To authorize the condemnation of any particular land by a grantee of the power of eminent domain, a necessity must exist for the taking thereof for the proposed uses and purposes. In City of Manila vs. Manila Chinese Community, this Court, citing American decision, laid done this rule: The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the land. "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 exist a very great necessity thereof." Necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefits.

But measured even by this standard, and forgetting for a moment the private character of the intended use, necessity for the condemnation has not been shown. The land in question has cost the owner P140,000. The people for whose benefit the condemnation is being undertaken are so poor they could ill afford to meet this high price, unless they intend to borrow the money with a view to disposing of the property later for a profits. Cheaper lands not dedicated to a purpose so worthy as a school and more suited to the occupants' needs and means, if really they only want to own their own homes, are plenty elsewhere. On the other hand, the defendant not only has invested a considerable amount for its property but had the plans for construction ready and would have completed the project a long time ago had it not been stopped by the city authorities. And again, while a handful of people stand to profits by the expropriation, the development of a university that has a present enrollment of 9,000 students would be sacrificed. Any good that would accrue to the public from providing homes to a few families fades into insignificance in

comparison with the preparation of a young men and young women for useful citizenship and for service to the government and the community, a task which the government alone is not in a position to undertake. As the Rural Progress Administration, the national agency lands for resale as homesites and to which the petition to purchase the land in question on behalf of the occupants was referred by the President, turning down the occupants request after proper investigation, commented that "the necessity of the Arellano Law College to acquire a permanent site of its own is imperative not only because denial of the same would hamper the objectives of that educational institution, but it would likewise be taking a property intended already for public benefit." The Mayor of the City of Manila himself confessed that he believes the plaintiff is entitled to keep this land.

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City of Manila v. Chinese Community of Manila

Facts: The City of Manila alleged that for the purpose of constructing the extension of Rizal Avenue, Manila , it is necessary for it to acquire ownership of certain parcels of land situated in Binondo, some of which were owned and used by the Chinese Community of Manila for cemetery purposes. The Chinese Community of Manila denied that it was necessary or expedient that the said parcels be expropriated for street purposes; that if the construction of the street or road should be considered a public necessity, other routes were available, which would fully satisfy the plaintiff's purposes, at much less expense and without disturbing the resting places of the dead; that it had a Torrens title for the lands in question; that the lands in question had been used by the defendant for cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said expropriation be carried into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of money in the transfer or removal of the bodies to some other place or site and in the purchase of such new sites, would involve the destruction of existing monuments and the erection of new monuments in their stead, and would create irreparable loss and injury to the defendant and to all those persons owning and interested in the graves and monuments which would have to be destroyed; that the plaintiff was without right or authority to expropriate said cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a public improvement.The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that the courts are mere appraisers of the land involved in expropriation proceedings, and, when the value of the land is fixed by the method adopted by the law, to render a judgment in favor of the defendant for its value.

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Issue: WON the courts may inquire into, and hear proof upon, the necessity of the expropriation? YES.

It cannot be denied, if the legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation. If, upon the other hand, however, the legislature should grant general authority to a municipal corporation to expropriate private land for public purposes, the courts have ample authority in this jurisdiction, under the provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or not the lands were private and whether the purpose was, in fact, public.

The right of expropriation is not an inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the power upon it. When the courts come to determine the question, they must not only find (a) that a law or authority exists for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance with the law. In the present case there are two conditions imposed upon the authority conceded to the City of Manila : First, the land must be private; and, second, the purpose must be public.

The legislative department of the government was rarely undertakes to designate the precise property which should be taken for public use. It has generally, like in the present case, merely conferred general authority to take land for public use when a necessity exists therefor. We believe that it can be confidently asserted that, under such statute, the allegation of the necessity for the appropriation is an issuable allegation which it is competent for the courts to decide.

"It is erroneous to suppose that the legislature is beyond the control of the courts in exercising the power of eminent domain, either as to the nature of the use or the necessity to the use of any particular property. For if the use be not public or no necessity for the taking exists, the legislature cannot authorize the taking of private property against the will of the owner, notwithstanding compensation may be required."

But, as long as there is a constitutional or statutory provision denying the right to take land for any use other than a public use, it occurs to us that the question whether any particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is true, in effect declare certain uses to be public, and, under the operation of the well-known rule that a statute will not be declared to be unconstitutional except in a case

free, or comparatively free, from doubt, the courts will certainly sustain the action of the legislature unless it appears that the particular use is clearly not of a public nature.

Article 349 of the Civil Code provides that: "No one may be deprived of his property unless it be by competent authority, for some purpose of proven public utility, and after payment of the proper compensation. Unless this requisite (proven public utility and payment) has been complied with, it shall be the duty of the courts to protect the owner of such property in its possession or to restore its possession to him, as the case may be."

The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the land.

The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority, is a question which the courts have the right to inquire into.

The City of Manila can only expropriate private property. It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general community, or neighborhood, or church, while the latter is used only by a family, or a small portion of the community or neighborhood. Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses under a general authority. The cemetery in question seems to have been established under governmental authority by the Spanish Governor-General. The cemetery in question may be used by the general community of Chinese, which fact, in the general acceptation of the definition of a public cemetery, would make the cemetery in question public property. If that is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila has no authority or right under the law to expropriate public property.

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

Camarines Sur v. CA (supra, see p. 51)

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Municipality of Paranaque v. V.M. Realty Corporation

Facts: Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, the Municipality of Parañaque filed a Complaint for expropriation against V.M. Realty Corporation over two parcels of land. Allegedly, the complaint was filed "for the purpose of alleviating the living conditions of the underprivileged by providing homes for the homeless through a socialized housing project." Parenthetically, it was also for this stated purpose that petitioner, pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, previously made an offer to enter into a negotiated sale of the property with private respondent, which the latter did not accept.RTC: gave due course to petition and authorized petitioner to take possession of the subject property upon deposit with its clerk of court of an amount equivalent to 15 percent of its fair market value based on its current tax declaration. VM alleged that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as required by the LGC and (b) the cause of action, if any, was barred by a prior judgment or res judicata. Case dismissed, MR denied.CA: affirmed.

Issues: 1. WON a resolution duly approved by the municipal council has the same force and effect of an ordinance. NO

Pque: a resolution approved by the municipal council for the purpose of initiating an expropriation case "substantially complies with the requirements of the law" because the terms "ordinance" and "resolution" are synonymous for "the purpose of bestowing authority [on] the LGU through its chief executive to initiate the expropriation proceedings in court in the exercise of the power of eminent domain." Article 36, Rule VI of the Rules and Regulations Implementing the LGC: "If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU may expropriate said property through a resolution of the Sanggunian authorizing its chief executive to initiate expropriation proceedings."

The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter's control and restraints, imposed "through the law conferring the power or in other legislations." In this

case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. It provides as follows: Sec. 19. Eminent Domain. A LGU may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the LGU may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

Essential requisites for the exercise the power of eminent domain: (1) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. (2) The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. (3) There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. (4) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. Pque cites Camarines Sur vs. CA to show that a resolution may suffice to support the exercise of eminent domain by an LGU. This case, however, is not in point because the applicable law at that time was BP 337, the previous LGC, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160, 31 the present LGC which was already in force when the Complaint for expropriation was filed, explicitly required an ordinance for this purpose.

A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a

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lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently — a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

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

Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people. Accordingly, the manifest change in the legislative language — from "resolution" under BP 337 to "ordinance" under RA 7160 — demands a strict construction. "No species of property is held by individuals with greater tenacity, and is guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtful interpretation."

Pque relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said rule which merely seeks to implement it. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Besides, what the discrepancy seems to indicate is a mere oversight in the wording of the implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent domain, the chief executive of the LGU act pursuant to an ordinance.

In this ruling, the Court does not diminish the policy embodied in Section 2, Article X of the Constitution, which provides that "territorial and political subdivisions shall enjoy local autonomy." It merely upholds the law as

worded in RA 7160. We stress that an LGU is created by law and all its powers and rights are sourced therefrom. It has therefore no power to amend or act beyond the authority given and the limitations imposed on it by law. Strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior" domain, since it must conform to the limits imposed by the delegation, and thus partakes only of a share in eminent domain. 38 Indeed, "the national legislature is still the principal of the LGUs, which cannot defy its will or modify or violate it."

2. WON the complaint states a cause of action. NO. In its Brief filed before Respondent Court, petitioner argues that its

Sangguniang Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation.

This argument is bereft of merit. In the first place, petitioner merely alleged the existence of such an ordinance, but it did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was mentioned by private respondent, and only in passing. In any event, this allegation does not cure the inherent defect of petitioner's Complaint for expropriation filed on September 23, 1993. It is hornbook doctrine that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted before the court for determination is the sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is beside the point, for their truth is hypothetically admitted by the motion. The issue rather is: admitting them to be true, may the court render a valid judgment in accordance with the prayer of the complaint?

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

3. WON the principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily involved. YES.

Eminent Domain Not Barred by Res Judicata. As correctly found by the Court of Appeals and the trial court, all the requisites for the application of res judicata are present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it.

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However, RJ which finds application in generally all cases and proceedings, cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can "reach every form of property which the State might need for public use." "All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it." Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal requirement.

While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. By the same token, our ruling that petitioner cannot exercise its delegated power of eminent domain through a mere resolution will not bar it from reinstituting similar proceedings, once the said legal requirement and, for that matter, all others are properly complied with. Parenthetically and by parity of reasoning, the same is also true of the principle of "law of the case." In Republic vs. De Knecht, the Court ruled that the power of the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the property to be expropriated has become the law of the case as to the parties. The State or its authorized agent may still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule otherwise will not only improperly diminish the power of eminent domain, but also clearly defeat social justice.

City of Cebu v. Spouses Dedamo

Facts: The City of Cebu filed in Civil Case No. CEB-14632 a complaint for eminent domain against respondents spouses Apolonio and Blasa Dedamo for a public purpose, i.e., for the construction of a public road which shall serve as an access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the back of Magellan International Hotel Roads in Cebu City. The lots are the most suitable site for the purpose. The total area sought to be expropriated is 1,624 square meters with an assessed value of P1,786.400. Petitioner deposited with the Philippine National Bank the amount of P51,156 representing 15% of the fair market value of the property to enable the petitioner to take immediate possession of the property pursuant to Section 19 of R.A. No. 7160. The Dedamos filed a motion to dismiss the complaint because the purpose for which their property was to be expropriated was not for a public purpose but for benefit of a single private entity, the Cebu Holdings, Inc. Cebu could simply buy directly from them the property at its fair market value if it wanted to, just like what it did with the neighboring lots. Besides, the price offered was very low in light of the consideration of P20,000 per square meter, more or less, which petitioner paid to the neighboring lots. Finally, the Dedamos alleged that they have no other land in Cebu City. Cebu filed a motion for the issuance of a writ of possession pursuant to Section 19 of R.A. No. 7160. The motion was granted by the trial court.The parties executed and submitted to the trial court an Agreement wherein they declared that they have partially settled the case and in consideration thereof they agreed: 1. That the SECOND PARTY hereby conforms to the intention to [sic] the FIRST PARTY in expropriating their parcels of land in the above-cited case as for public purpose and for the benefit of the general public;

2. That the SECOND PARTY agrees to part with the ownership of the subject parcels of land in favor of the FIRST PARTY provided the latter will pay just compensation for the same in the amount determined by the court after due notice and hearing;

3. That in the meantime the SECOND PARTY agrees to receive the amount of ONE MILLION SEVEN HUNDRED EIGHTY SIX THOUSAND FOUR HUNDRED PESOS (1,786,400.00) as provisional payment for the subject parcels of land, without prejudice to the final valuation as maybe determined by the court;

4. That the FIRST PARTY in the light of the issuance of the Writ of Possession Order dated September 21, 1994 issued by the Honorable Court, agreed to take possession over that portion of the lot sought to be expropriated where the house of the SECOND PARTY was located only after fifteen (15) days upon the receipt of the SECOND PARTY of the amount of P1,786,400.00;

5. That the SECOND PARTY upon receipt of the aforesaid provisional amount, shall turn over to the FIRST PARTY the title of the lot and within the lapse

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of the fifteen (15) days grace period will voluntarily demolish their house and the other structure that may be located thereon at their own expense;

6. That the FIRST PARTY and the SECOND PARTY jointly petition the Honorable Court to render judgment in said Civil Case No. CEB-14632 in accordance with this AGREEMENT;

7. That the judgment sought to be rendered under this agreement shall be followed by a supplemental judgment fixing the just compensation for the property of the SECOND PARTY after the Commissioners appointed by this Honorable Court to determine the same shall have rendered their report and approved by the court.Pursuant to said agreement, the trial court appointed three commissioners to determine the just compensation of the lots sought to be expropriated. The commissioners were Palermo M. Lugo, who was nominated by petitioner and who was designated as Chairman; Alfredo Cisneros, who was nominated by respondents; and Herbert E. Buot, who was designated by the trial court. The parties agreed to their appointment. Thereafter, the commissioners submitted their report, which contained their respective assessments of and recommendation as to the valuation of the property.On the basis of the commissioners' report and after due deliberation thereon, the trial court rendered its decision ordering Cebu to pay the Dedamos P24,865.930.00 representing the compensation mentioned in the Complaint. Petitioner filed a motion for reconsideration on the ground that the commissioners' report was inaccurate since it included an area which was not subject to expropriation. More specifically, it contended that Lot No. 1528 contains 793 square meters but the actual area to be expropriated is only 478 square meters. The remaining 315 square meters is the subject of a separate expropriation proceeding in Civil Case No. CEB-8348, then pending before Branch 9 of the Regional Trial Court of Cebu City. The commissioners submitted an amended assessment for the 478 square meters of Lot No. 1528 and fixed it at P12,824.10 per square meter, or in the amount of P20,826,339.50. The assessment was approved as the just compensation thereof by the trial court in its Order of 27 December 1996. Accordingly, the dispositive portion of the decision was amended to reflect the new valuation.Petitioner elevated the case to the Court of Appeals, which docketed the case as CA-G.R. CV No. 59204. Petitioner alleged that the lower court erred in fixing the amount of just compensation at P20,826,339.50. The just compensation should be based on the prevailing market price of the property at the commencement of the expropriation proceedings. CA Affirmed RTC.

Issue: WON just compensation should be determined as of the date of the filing of the complaint. It asserts that it should be, which in this case should be 17

September 1993 and not at the time the property was actually taken in 1994, pursuant to the decision in NPC vs. CA

Dedamos: Court of Appeals did not err in affirming the decision of the trial court because (1) the trial court decided the case on the basis of the agreement of the parties that just compensation shall be fixed by commissioners appointed by the court; (2) petitioner did not interpose any serious objection to the commissioners' report of 12 August 1996 fixing the just compensation of the 1,624-square meter lot at P20,826,339.50; hence, it was estopped from attacking the report on which the decision was based; and (3) the determined just compensation fixed is even lower than the actual value of the property at the time of the actual taking in 1994.

Eminent domain is a fundamental State power that is inseparable from sovereignty. It is the Government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose.9 However, the Government must pay the owner thereof just compensation as consideration therefor. In the case at bar, the applicable law as to the point of reckoning for the determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that just compensation shall be determined as of the time of actual taking. The Section reads as follows: SECTION 19. Eminent Domain. – A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

NPC Ruling misread! We did not categorically rule in that case that just compensation should be determined as of the filing of the complaint. We explicitly stated therein that although the general rule in determining just compensation in eminent domain is the value of the property as of the date of the filing of the complaint, the rule "admits of an exception: where this Court fixed the value of the property as of the date it was taken and

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not at the date of the commencement of the expropriation proceedings." Also, the trial court followed the then governing procedural law on the matter, which was Section 5 of Rule 67 of the Rules of Court, which provided as follows: SEC. 5. Ascertainment of compensation. – Upon the entry of the order of condemnation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report is to be filed with the court.

More than anything else, the parties, by a solemn document freely and voluntarily agreed upon by them, agreed to be bound by the report of the commission and approved by the trial court. The agreement is a contract between the parties. It has the force of law between them and should be complied with in good faith. Article 1159 and 1315 of the Civil Code explicitly provides: Art. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Art. 1315. Contracts are perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law.

Furthermore, during the hearing on 22 November 1996, petitioner did not interpose a serious objection. It is therefore too late for petitioner to question the valuation now without violating the principle of equitable estoppel. Estoppel in pais arises when one, by his acts, representations or admissions, or by his own silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. Records show that petitioner consented to conform with the valuation recommended by the commissioners. It cannot detract from its agreement now and assail correctness of the commissioners' assessment.

Finally, while Section 4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation, such law cannot prevail over R.A. 7160, which is a substantive law.

Hagonoy Market Vendors Ass’n v. Municipality of Hagonoy

Facts: On October 1, 1996, the Sangguniang Bayan of Hagonoy, Bulacan, enacted an ordinance, Kautusan Blg. 28, which increased the stall rentals of the market vendors in Hagonoy. Article 3 provided that it shall take effect upon approval. The subject ordinance was posted from November 4-25, 1996. In the last week of November, 1997, the petitioner’s members were personally given copies of the approved Ordinance and were informed that it shall be enforced in January, 1998. On December 8, 1997, the petitioner’s President filed an appeal with the Secretary of Justice assailing the constitutionality of the tax ordinance. Petitioner claimed it was unaware of the posting of the ordinance. Respondent opposed the appeal. It contended that the ordinance took effect on October 6, 1996 and that the ordinance, as approved, was posted as required by law. Hence, it was pointed out that petitioner’s appeal, made over a year later, was already time-barred.The Secretary of Justice dismissed the appeal on the ground that it was filed out of time, i.e., beyond 30 days from the effectivity of the Ordinance on October 1, 1996, as prescribed under Section 187 of the 1991 LGC. Citing the case of Tañada vs. Tuvera, the Secretary of Justice held that the date of effectivity of the subject ordinance retroacted to the date of its approval in October 1996, after the required publication or posting has been complied with, pursuant to Section 3 of said ordinance. After its motion for reconsideration was denied, petitioner appealed to the Court of Appeals. Petitioner did not assail the finding of the Secretary of Justice that their appeal was filed beyond the reglementary period. Instead, it urged that the Secretary of Justice should have overlooked this “mere technicality” and ruled on its petition on the merits. Unfortunately, its petition for review was dismissed by the Court of Appeals for being formally deficient as it was not accompanied by certified true copies of the assailed Resolutions of the Secretary of Justice.Undaunted, the petitioner moved for reconsideration but it was denied.

Issues: 1. WON the CA was correct in dismissing the petition for review for petitioner’s failure to attach certified true copies of the assailed Resolutions of the Secretary of Justice. YES.

In its Motion for Reconsideration before the Court of Appeals, the petitioner satisfactorily explained the circumstances relative to its failure to attach to its appeal certified true copies of the assailed Resolutions of the Secretary of Justice, thus: during the preparation of the petition on October 21, 1998, it was raining very hard due to (t)yphoon “Loleng.” When the petition was completed, copy was served on the Department of Justice at about (sic) past 4:00 p.m. of October 21, 1998, with (the) instruction to have the Resolutions of the Department of Justice be stamped as “certified true copies. However, due to bad weather, the

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person in charge (at the Department of Justice) was no longer available to certify to (sic) the Resolutions. “The following day, October 22, 1998, was declared a non-working holiday because of (t)yphoon “Loleng.” Thus, petitioner was again unable to have the Resolutions of the Department of Justice stamped “certified true copies.” In the morning of October 23, 1998, due to time constraint(s) , herein counsel served a copy by personal service on (r)espondent’s lawyer at (sic) Malolos, Bulacan, despite the flooded roads and heavy rains. However, as the herein counsel went back to Manila, (official business in) government offices were suspended in the afternoon and the personnel of the Department of Justice tasked with issuing or stamping “certified true copies” of their Resolutions were no longer available. “To avoid being time-barred in the filing of the (p)etition, the same was filed with the Court of Appeals “as is.”

CA erred in dismissing petitioner’s appeal on the ground that it was formally deficient. It is clear from the records that the petitioner exerted due diligence to get the copies of its appealed Resolutions certified by the Department of Justice, but failed to do so on account of typhoon “Loleng.” Under the circumstances, respondent appellate court should have tempered its strict application of procedural rules in view of the fortuitous event considering that litigation is not a game of technicalities

2. WON the appeal was time-barred. YES. The applicable law is Section 187 of the 1991 LGC which

provides: “SEC. 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory Public Hearings. - The procedure for the approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and accrual and payment of the tax, fee or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings.

The aforecited law requires that an appeal of a tax ordinance or revenue measure should be made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even during its pendency, the effectivity of the assailed ordinance shall not be suspended. In the case at bar, Municipal Ordinance No. 28 took effect in October 1996. Petitioner filed its appeal only in December 1997, more than a year after the effectivity of the ordinance in 1996. Clearly, the Secretary of Justice correctly dismissed it for being time-barred. At this point, it is apropos to state that the timeframe fixed by law for parties to avail of their legal remedies before competent courts is not a “mere technicality” that can be easily brushed aside. The periods stated in Section 187 of the LGC are mandatory. Ordinance No. 28 is a revenue measure adopted by the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood, collection of revenues by the government is of paramount importance. The funds for the operation of its agencies and provision of basic services to its inhabitants are largely derived from its revenues and collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable length of time. Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue measures and tax ordinances.

4. WON the period to appeal should be counted not from the time the ordinance took effect in 1996 but from the time its members were personally given copies of the approved ordinance in November 1997. NO

Petitioner insists that it was unaware of the approval and effectivity of the subject ordinance in 1996 on two (2) grounds: first, no public hearing was conducted prior to the passage of the ordinance and, second, the approved ordinance was not posted.

Petitioner’s bold assertion that there was no public hearing conducted prior to the passage of Kautusan Blg. 28 is belied by its own evidence. In petitioner’s two (2) communications with the Secretary of Justice, it enumerated the various objections raised by its members before the passage of the ordinance in several meetings called by the Sanggunian for the purpose. These show beyond doubt that petitioner was aware of the proposed increase and in fact participated in the public hearings therefor. The respondent municipality likewise submitted the Minutes and Report of the public hearings conducted by the

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Sangguniang Bayan’s Committee on Appropriations and Market on February 6, July 15 and August 19, all in 1996, for the proposed increase in the stall rentals.

Petitioner cannot gripe that there was practically no public hearing conducted as its objections to the proposed measure were not considered by the Sangguniang Bayan. To be sure, public hearings are conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or ordinance. These views, however, are not binding on the legislative body and it is not compelled by law to adopt the same. Sanggunian members are elected by the people to make laws that will promote the general interest of their constituents. They are mandated to use their discretion and best judgment in serving the people. Parties who participate in public hearings to give their opinions on a proposed ordinance should not expect that their views would be patronized by their lawmakers.

On the issue of publication or posting, Section 188 of the LGC provides: “Section 188. Publication of Tax Ordinance and Revenue Measures. Within ten (10) days after their approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue measures shall be published in full for three (3) consecutive days in a newspaper of local circulation; Provided, however, That in provinces, cities and municipalities where there are no newspapers of local circulation, the same may be posted in at least two (2) conspicuous and publicly accessible places.”

Sangguniang Bayan of the Municipality of Hagonoy, Bulacan, presented evidence which clearly shows that the procedure for the enactment of the assailed ordinance was complied with. Municipal Ordinance No. 28 was enacted by the Sangguniang Bayan of Hagonoy on October 1, 1996. Then Acting Municipal Mayor Maria Garcia Santos approved the Ordinance on October 7, 1996. After its approval, copies of the Ordinance were given to the Municipal Treasurer on the same day. On November 9, 1996, the Ordinance was approved by the Sangguniang Panlalawigan. The Ordinance was posted during the period from November 4 - 25, 1996 in three (3) public places, viz: in front of the municipal building, at the bulletin board of the Sta. Ana Parish Church and on the front door of the Office of the Market Master in the public market. Posting was validly made in lieu of

publication as there was no newspaper of local circulation in the municipality of Hagonoy. This fact was known to and admitted by petitioner. Thus, petitioner’s ambiguous and unsupported claim that it was only “sometime in November 1997” that the Provincial Board approved Municipal Ordinance No. 28 and so the posting could not have been made in November 1996 was sufficiently disproved by the positive evidence of respondent municipality. Given the foregoing circumstances, petitioner cannot validly claim lack of knowledge of the approved ordinance. The filing of its appeal a year after the effectivity of the subject ordinance is fatal to its cause.

**Even on the substantive points raised, the petition must fail. Section 6c.04 of the 1993 Municipal Revenue Code and Section 191 of the LGC limiting the percentage of increase that can be imposed apply to tax rates, not rentals. Neither can it be said that the rates were not uniformly imposed or that the public markets included in the Ordinance were unreasonably determined or classified. To be sure, the Ordinance covered the three (3) concrete public markets: the two-storey Bagong Palengke, the burnt but reconstructed Lumang Palengke and the more recent Lumang Palengke with wet market. However, the Palengkeng Bagong Munisipyo or Gabaldon was excluded from the increase in rentals as it is only a makeshift, dilapidated place, with no doors or protection for security, intended for transient peddlers who used to sell their goods along the sidewalk.

Republic v. CA

Facts: Petitioner instituted expropriation proceedings covering contiguous land situated along MacArthur Highway, Malolos, Bulacan, to be utilized for the continued broadcast operation and use of radio transmitter facilities for the “Voice of the Philippines” project. Petitioner, through the Philippine Information Agency, took over the premises after the previous lessee, the “Voice of America,” had ceased its operations thereat. The national government failed to pay to herein respondents the compensation pursuant to the foregoing decision, such that a little over five years later, respondents filed a manifestation with a motion seeking payment for the expropriated property. In the meantime, President Estrada issued Proclamation No. 22, transferring 20 hectares of the expropriated property to the Bulacan State University for the expansion of its facilities and another 5 hectares to be used exclusively for the propagation of the Philippine carabao. The remaining portion was retained by the PIA. The Santos heirs remained unpaid, and no action was taken on their case until petitioner filed its manifestation and motion to permit the deposit in court of the amount of P4,664,000.00 by way of just compensation

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for the expropriated property of the late Luis Santos subject to such final computation as might be approved by the court. This time, the Santos heirs, opposing the manifestation and motion, submitted a counter-motion to adjust the compensation from P6.00 per square meter previously fixed in the 1979 decision to its current zonal valuation pegged at P5,000.00 per square meter or, in the alternative, to cause the return to them of the expropriated property. Assailing the finding of prescription by the trial court, petitioner here posited that a motion which respondents had filed on 17 February 1984, followed up by other motions subsequent thereto, was made within the reglementary period that thereby interrupted the 5-year prescriptive period within which to enforce the 1979 judgment. Furthermore, petitioner claimed, the receipt by respondents of partial compensation in the sum of P72,683.55 on 23 July 1984 constituted partial compliance on the part of petitioners and effectively estopped respondents from invoking prescription expressed in Section 6, Rule 39, of the Rules of Court.In opposing the petition, respondents advanced the view that pursuant to Section 6, Rule 39, of the Rules of Court, the failure of petitioner to execute the judgment, dated 26 February 1979, within five years after it had become final and executory, rendered it unenforceable by mere motion. The motion for payment, dated 09 May 1984, as well as the subsequent disbursement to them of the sum of P72,683.55 by the provincial treasurer of Bulacan, could not be considered as having interrupted the five-year period, since a motion, to be considered otherwise, should instead be made by the prevailing party, in this case by petitioner. Respondents maintained that the P72,683.55 paid to them by the provincial treasurer of Bulacan pursuant to the 1984 order of the trial court was part of the initial deposit made by petitioner when it first entered possession of the property in 1969 and should not be so regarded as a partial payment. Respondents further questioned the right of PIA to transfer ownership of a portion of the property to the Bulacan State University even while the just compensation due the heirs had yet to be finally settled.

Issue: WON the expropriated property may be returned. NO. The right of eminent domain is usually understood to be an

ultimate right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose. Fundamental to the independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. In the hands of the legislature, the power is inherent, its scope matching that of taxation, even that of police power itself, in many respects. It reaches to every form of property the State

needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property whenever the public interest so requires it.

The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings. Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking.

Obviously, however, the power is not without its limits: first, the taking must be for public use, and second, that just compensation must be given to the private owner of the property. These twin proscriptions have their origin in the recognition of the necessity for achieving balance between the State interests, on the one hand, and private rights, upon the other hand, by effectively restraining the former and affording protection to the latter. In determining “public use,” two approaches are utilized - the first is public employment or the actual use by the public, and the second is public advantage or benefit. It is also useful to view the matter as being subject to constant growth, which is to say that as society advances, its demands upon the individual so increases, and each demand is a new use to which the resources of the individual may be devoted.

The expropriated property has been shown to be for the continued utilization by the PIA, a significant portion thereof being ceded for the expansion of the facilities of the Bulacan State University and for the propagation of the Philippine carabao, themselves in line with the requirements of public purpose. Respondents question the public nature of the utilization by petitioner of the condemned property, pointing out that its present use differs from the purpose originally contemplated in the 1969 expropriation proceedings. The argument is of no moment. The property has assumed a public character upon its expropriation. Surely, petitioner, as the

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condemnor and as the owner of the property, is well within its rights to alter and decide the use of that property, the only limitation being that it be for public use, which, decidedly, it is.

In insisting on the return of the expropriated property, respondents would exhort on the pronouncement in Provincial Government of Sorsogon vs. Vda. de Villaroya where the unpaid landowners were allowed the alternative remedy of recovery of the property there in question. It might be borne in mind that the case involved the municipal government of Sorsogon, to which the power of eminent domain is not inherent, but merely delegated and of limited application. The grant of the power of eminent domain to local governments under Republic Act No. 7160 cannot be understood as being the pervasive and all-encompassing power vested in the legislative branch of government. For local governments to be able to wield the power, it must, by enabling law, be delegated to it by the national legislature, but even then, this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as the real authority would want it to be.

The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.

Private respondents, although not entitled to the return of the expropriated property, deserve to be paid promptly on the yet unpaid award of just compensation already fixed by final judgment of the Bulacan RTC on 26 February 1979 at P6.00 per square meter, with legal interest thereon at 12% per annum computed from the date of "taking" of the property, i.e., 19

September 1969 (institution of condemnation proceedings) , until the due amount shall have been fully paid.

Estanislao v. Costales

Facts: The Sangguniang Panglunsod of Zamboanga City passed Ordinance No. 44 which imposes a P0.01 tax per liter of softdrinks produced, manufactured, and/or bottled within the city. The Minister of Finance sent a letter to the Sanggunian suspending the effectivity of the Ordinance on the ground that it contravenes Sec 19 (a) of the Local Tax Code. Zamboanga appealed the suspension in the RTC.RTC: the tax imposed by the Ordinance is not among those that the Sanggunian may impose under the Local Tax Code, but upheld its validity saying that the Finance Minister did not act on it w/in 120 days from receipt of the petition. Finance Secretary appealed.

Issue: WON Ordinance 44 is valid. NO. A city, like Zamboanga, may impose, in lieu of the graduated

fixed tax prescribed under Section 19 of the Local Tax Code, a percentage tax on the gross sales for the preceding calendar year of non-essential commodities at the rate of not exceeding two per cent and on the gross sales of essential commodities at the rate of not exceeding one per cent.

The Ordinance is ultra vires as it is not within the authority of the City to impose said tax. The authority of the City is limited to the imposition of a percentage tax on the gross sales or receipts of said product which, being non-essential, shall be at the rate of not exceeding 2% of the gross sales or receipts of the softdrinks for the preceding calendar year. The tax being imposed under said Ordinance is based on the output or production and not on the gross sales or receipts as authorized under the Local Tax Code.

Even if the Secretary of Finance failed to review or act on the Ordinance within the prescribed period of 120 days it does not

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follow as a legal consequence thereof that an otherwise invalid ordinance is thereby validated.

Much less can it be interpreted to mean that the Secretary of Finance can no longer act by suspending and/or revoking an invalid ordinance even after the lapse of the 120-day period. All that the law says is that after said period, the tax ordinance shall remain in force. The prescribed period for review is only directory and the Secretary of Finance may still review the ordinance and act accordingly even after the lapse of the said period provided he acts within a reasonable time.

Consequently even after the prescribed period has lapsed, should the Secretary of Finance, upon review, find that the tax or fee levied or imposed is unjust, excessive, oppressive, confiscatory, or not among those that the particular local government may impose in the exercise of its power in accordance with this Code; or when the tax ordinance is, in whole or in part, contrary to the declared national economic policy; or when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade, the Secretary of Finance may certainly suspend the effectivity of such ordinance and revoke the same, without prejudice to the right to appeal to the courts within 30 days after receipt of the notice of suspension. The same rule should apply to the provincial and city treasurers, as the case may be, under Section 44 of the Local Tax Code.

Ordinance No. 44: null and void. Any taxes paid under protest thereunder should be accordingly refunded to the taxpayers concerned.

Philippine Petroleum Corporation v. Municipality of Pililia

Facts: PPC is engaged in the manufacture of lubricated oil basestock which is a petroleum product with its refinery plant in Malaya, Pililia, Rizal. Sec. 142 (NIRC of 1939): Manufactured oils and other fuels are subject to specific tax. PD 231: Local Tax Code: Municipality may impose taxes on business, except those for which fixed taxes are provided on manufacturers, importers or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, and compounders of liquors, distilled spirits, and/ or wines. Finance Secretary issued Provincial Circular No. 26-73 which directed all LGU treasurers to refrain from collecting any local tax imposed in old or new ordinances in the business of

manufacturing, wholesaling, retailing or dealing in petroleum products subject to specific tax under the NIRC; and Provincial Circular No. 26 A-73: Instructed treasurers to stop collecting any local tax imposed on the businesses of manufacturing, wholesaling, retailing, or dealing in, petroleum products subject to the specific tax under the NIRC pursuant to ordinances enacted before or after the effectivity of the Local Tax Code on 1 July 1973. Municipality of Pililia imposed Municipal Tax Ordinance No. 1 (Pililia Tax Code) Sec 9&10 imposed a tax on business, except for those which fixed taxes are provided in the LTC on manufacturers, importers or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, and compounders of liquors, distilled spirits, and/ or wines as well as mayor’s permit, sanitary inspection fee and storage permit fee for flammable, combustible, or explosive substances On April 13, 1974, P.D. 436 was promulgated increasing the specific tax on lubricating oils, gasoline, bunker fuel oil, diesel fuel oil and other similar petroleum products levied under Sections 142, 144 and 145 of the NIRC, as amended, and granting provinces, cities and municipalities certain shares in the specific tax on such products in lieu of local taxes imposed on petroleum products.The questioned Municipal Tax Ordinance No. 1 was reviewed and approved by the Provincial Treasurer of Rizal on January 13, 1975 (Rollo, p. 143), but was not implemented and/or enforced by the Municipality of Pililla because of its having been suspended up to now in view of Provincial Circular Nos. 26-73 and 26 A-73.Provincial Circular No. 6-77 dated March 13, 1977 was also issued directing all city and municipal treasurers to refrain from collecting the so-called storage fee on flammable or combustible materials imposed under the local tax ordinance of their respective locality, said fee partaking of the nature of a strictly revenue measure or service charge. On June 3, 1977, P.D. 1158 otherwise known as the NIRC of 1977 was enacted, Section 153 of which specifically imposes specific tax on refined and manufactured mineral oils and motor fuels.Enforcing the provisions of the above-mentioned ordinance, the respondent filed a complaint against PPC for the collection of the business tax from 1979 to 1986; storage permit fees from 1975 to 1986; mayor's permit and sanitary inspection fees from 1975 to 1984. PPC, however, have already paid the last-named fees starting 1985. RTC: PPC to pay business tax, storage permit fee, mayor’s permit fee, sanitary inspection fee, as well as costs of suit. MR denied.

Issue: WON PPC whose oil products are subject to specific tax under the NIRC, is still liable to pay tax on business and storage fees, and mayor's permit and sanitary inspection fee unto Pililla based on Municipal Ordinance No. 1.

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PPC: (a) Provincial Circular No. 2673 declared as contrary to national economic policy the imposition of local taxes on the manufacture of petroleum products as they are already subject to specific tax under the NIRC; (b) the above declaration covers not only old tax ordinances but new ones, as well as those which may be enacted in the future; (c) both Provincial Circulars (PC) 26-73 and 26 A-73 are still effective, hence, unless and until revoked, any effort on the part of the respondent to collect the suspended tax on business from the petitioner would be illegal and unauthorized; and (d) Section 2 of P.D. 436 prohibits the imposition of local taxes on petroleum products. PC No. 26-73 and PC No. 26 A-73 suspended the effectivity of local tax ordinances imposing a tax on business under Section 19 (a) of the Local Tax Code (P.D. No. 231), with regard to manufacturers, retailers, wholesalers or dealers in petroleum products subject to the specific tax under the NIRC NIRC, in view of Section 22 (b) of the Code regarding non-imposition by municipalities of taxes on articles, subject to specific tax under the provisions of the NIRC.

There is no question that Pililla's Municipal Tax Ordinance No. 1 imposing the assailed taxes, fees and charges is valid especially Section 9 (A) which according to the trial court "was lifted in toto and/or is a literal reproduction of Section 19 (a) of the Local Tax Code as amended by P.D. No. 426." It conforms with the mandate of said law. But P.D. No. 426 amending the Local Tax Code is deemed to have repealed Provincial Circular Nos. 26-73 and 26 A-73 issued by the Secretary of Finance when Sections 19 and 19 (a), were carried over into P.D. No. 426 and no exemptions were given to manufacturers, wholesalers, retailers, or dealers in petroleum products.

Well-settled is the rule that administrative regulations must be in harmony with the provisions of the law. In case of discrepancy between the basic law and an implementing rule or regulation, the former prevails. As aptly held by the court a quo: Necessarily, there could not be any other logical conclusion than that the framers of P.D. No. 426 really and actually intended to terminate the effectivity and/or enforceability of Provincial Circulars Nos. 26-73 and 26 A-73 inasmuch as clearly these circulars are in contravention with Sec. 19 (a) of P.D. 426-the amendatory law to P.D. No. 231. That intention to terminate is very apparent and in

fact it is expressed in clear and unequivocal terms in the effectivity and repealing clause of P.D. 426

Furthermore, while Section 2 of P.D. 436 prohibits the imposition of local taxes on petroleum products, said decree did not amend Sections 19 and 19 (a) of P.D. 231 as amended by P.D. 426, wherein the municipality is granted the right to levy taxes on business of manufacturers, importers, producers of any article of commerce of whatever kind or nature. A tax on business is distinct from a tax on the article itself. Thus, if the imposition of tax on business of manufacturers, etc. in petroleum products contravenets a declared national policy, it should have been expressly stated in P.D. No. 436.

The exercise by local governments of the power to tax is ordained by the present Constitution. To allow the continuous effectivity of the prohibition set forth in PC No. 26-73 (1) would be tantamount to restricting their power to tax by mere administrative issuances. Under Section 5, Article X of the 1987 Constitution, only guidelines and limitations that may be established by Congress can define and limit such power of local governments. Thus:

Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy . . .

Provincial Circular No. 6-77 enjoining all city and municipal treasurers to refrain from collecting the so-called storage fee on flammable or combustible materials imposed in the local tax ordinance of their respective locality frees petitioner PPC from the payment of storage permit fee.

The storage permit fee being imposed by Pililla's tax ordinance is a fee for the installation and keeping in storage of any flammable, combustible or explosive substances. Inasmuch as said storage makes use of tanks owned not by the municipality of Pililla, but by petitioner PPC, same is obviously not a charge for any service rendered by the municipality as what is envisioned in Section 37 of the same Code.

Section 10 (z) (13) of Pililla's Municipal Tax Ordinance No. 1 prescribing a permit fee is a permit fee allowed under Section 36 of the amended Code.

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As to the authority of the mayor to waive payment of the mayor's permit and sanitary inspection fees, the trial court did not err in holding that "since the power to tax includes the power to exempt thereof which is essentially a legislative prerogative, it follows that a municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax." The waiver partakes of the nature of an exemption. It is an ancient rule that exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority. Tax exemptions are looked upon with disfavor. Thus, in the absence of a clear and express exemption from the payment of said fees, the waiver cannot be recognized. As already stated, it is the law-making body, and not an executive like the mayor, who can make an exemption. Under Section 36 of the Code, a permit fee like the mayor's permit, shall be required before any individual or juridical entity shall engage in any business or occupation under the provisions of the Code.

However, since the Local Tax Code does not provide the prescriptive period for collection of local taxes, Article 1143 of the Civil Code applies. Said law provides that an action upon an obligation created by law prescribes within ten (10) years from the time the right of action accrues. The Municipality of Pililla can therefore enforce the collection of the tax on business of petitioner PPC due from 1976 to 1986, and NOT the tax that had accrued prior to 1976.

PREMISES CONSIDERED, with the MODIFICATION that business taxes accruing PRIOR to 1976 are not to be paid by PPC (because the same have prescribed) and that storage fees are not also to be paid by PPC (for the storage tanks are owned by PPC and not by the municipality, and therefore cannot be a charge for service by the municipality), the assailed DECISION is hereby AFFIRMED.

Floro Cement Corp. v. Gorospe

Facts: Municipality of Lugait, Misamis Oriental filed a complaint for collection of manufacturer’s and exporter’s taxes plus surcharges against Floro Cement Corporation. Lugait based it on Municipal Ordinance No. 5 (Municipal Revenue Code), passed pursuant to PD 231; and Ordinance No. 10.

Floro’s defense: not liable since the plaintiff’s power to levy fees on “Mines, Mining Corporations and Mineral Products” was limited by Sec. 52 of PD 463, and that it was granted by the Secretary of Agriculture and Natural Resources a certificate of tax exemption for a period of 5 years, which covers all taxes except income tax.

Issues: 1. WON cement is a mineral product. NO. this Court has consistently held that it is not a mineral product

but rather a manufactured product. While cement is composed of 80% minerals, it is not merely an admixture or blending of raw materials, as lime, silica, shale and others. It is the result of a definite process-the crushing of minerals, grinding, mixing, calcining adding of retarder or raw gypsum In short, before cement reaches its saleable form, the minerals had already undergone a chemical change through manufacturing process.

2. WON PPC may claim exemption from paying manufacturer’s and exporter’s taxes. NO.

the power of taxation is a high prerogative of sovereignty, the relinquishment is never presumed and any reduction or diminution thereof with respect to its mode or its rate, must be strictly construed, and the same must be coached in clear and unmistakable terms in order that it may be applied. More specifically stated, the general rule is that any claim for exemption from the tax statute should be strictly construed against the taxpayer. He who claims an exemption must be able to point out some provision of law creating the right; it cannot be allowed to exist upon a mere vague implication or inference. It must be shown indubitably to exist, for every presumption is against it, and a well-founded doubt is fatal to the claim. The petitioner failed to meet this requirement.

As held by the lower court, the exemption mentioned in Sec. 52 of P.D. No. 463 refers only to machineries, equipment, tools for production, etc., as provided in Sec. 53 of the same decree. The manufacture and the export of cement does not fall under the said provision for it is not a mineral product. It is not cement that is mined only the mineral products composing the finished product.

Furthermore, by the parties' own stipulation of facts submitted before the court a quo, it is admitted that Floro Cement Corporation is engaged in the manufacturing and selling, including exporting of cement. As such, and since the taxes

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sought to be collected were levied on these activities pursuant to Sec. 19 of P.D. No. 231, Ordinances Nos. 5 and 10, which were enacted pursuant to P.D. No. 231 and P.D. No. 426, respectively, properly apply to petitioner Floro Cement Corporation.

Tuzon and Mapagu v. CA

Facts: The Sangguniang Bayan of Camalaniugan, Cagayan adopted Resolution No. 9 which solicits a 1% donation from thresher operators who apply for a “permit to thresh” within the municipality’s jurisdiction to help finance the construction of the municipality’s Sports and Nutrition Center. Such 1% shall come from the value of the palay threshed by them in the area. To implement the resolution, Municipal Treasurer Mapagu prepared an agreement to donate for signature of all thresher/owner/ operators applying for a mayor’s permit. Jurado sent his agent to the Treasurer’s office to pay the license fee for thresher operators. Mapagu refused to accept payment and required Jurado to first secure a mayor’s permit. Mayor Tuzon said that Jurado should first comply with Res 9 and sign the agreement before the permit could be issued. Jurado ignored the requirement and sent his license fee payment through postal money order. His payment was returned on the ground that he failed to comply with Res 9. Jurado filed a special civil action for mandamus w/ damages to compel the issuance of the mayor’s permit and license and a petition for declaratory judgment against Res 9 and the implementing agreement for being illegal either as a donation/tax measure RTC: Upheld Res 9 and implementing agreement, and dismissed claims for damages CA: Affirmed validity of Res 9 and implementing agreement, but found Mayor Tuzon and Treasurer Mapagu to have acted maliciously and in bad faith when they denied Jurado’s application.

Issue: WON the tax measure contravenes the limitations on the taxing powers of LGUs under Sec 5 of the LGC.

SC will not rule on validity of Res 9 and the implementing agreement because the issue has not been raised as an assigned error.

However, it observes that that CA said no more than Res 9 was passed by the Sangguniang Bayan in the lawful exercise of its legislative powers in pursuance to (1) Art. XI, Sec. 5 1973 Consti “subject to such limitation as may be provided by law” and (2) Art. 4, Sec. 29 of PD 231 “…the barrio council may solicit monies, materials, and other contributions from … private agencies and individuals”. The SC said that this was an oversimplification. The

CA failed to offer any explanation for its conclusion nor does it discuss its own concept of the nature of the resolution.

If Res. 9 is claimed to be a “solicitation”: Implementing agreement makes the “donation”obligatory and a condition precedent to the issuance of a mayor’s permit. Therefore, it goes against the nature of a donation.

If it is to be considered as a tax ordinance, it must be shown to have been enacted in accordance with the requirements of the Local Tax Code. It would include the holding of a public hearing on the measure, its subsequent approval by the Secretary of Finance, in addition to the requisites for publication of ordinances in general

Drilon v. Lim

Facts: Pursuant to Sec 187, LGC1, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. In Manila’s petition for certiorari, the Manila RTC sustained the ordinance. It also declared Section 187 of the LGC as unconstitutional since it vests in the Justice Secretary the power of control over LGUs in violation of the policy of local autonomy mandated in the Constitution. Justice Secretary: It is constitutional and the procedural requirements for the enactment of tax ordinances as specified in the LGC had indeed not been observed.

Issue: WON Sec 187 of the LGC is constitutional. YES. Section 187 authorizes the Secretary of Justice to review only the

constitutionality or legality of the tax ordinance and, if

1 Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. — The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

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warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the LGC. As we see it, that was an act not of control but of mere supervision.

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision.

Taule v. Santos cited in the decision has no application here because the jurisdiction claimed by the Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay was held to belong to the Commission on Elections by constitutional provision. The conflict was over jurisdiction, not supervision or control.

Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as follows: A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the Secretary of Finance shall have authority to

suspend the effectivity of any ordinance within one hundred and twenty days after receipt by him of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a whole, for a period of thirty days within which period the local legislative body may either modify the tax ordinance to meet the objections thereto, or file an appeal with a court of competent jurisdiction; otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time as the grounds for the suspension thereof shall have ceased to exist.

That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure.

The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter. In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the Implementing Rules of the LGC nor were copies

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of the proposed ordinance published in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in accordance with Sec. 511(a) of the LGC. Finally, the Manila Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people for their information and guidance, conformably to Sec. 59(b) of the Code.

Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court.

To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation to it of the said exhibits. We have carefully examined every one of these exhibits and agree with the trial court that the procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and Q-3.

The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and not to tax ordinances.

Mactan Cebu International Airport Authority v. Marcos

Facts: MCIAA was created by RA 6958 which provided that it be exempted from payment of realty taxes. The Office of the Treasurer of Cebu City demanded payment for realty taxes on several parcels of land belonging to MCIAA. MCIAA objected, claiming that it is exempt from payment of reality taxes. It also said that as it is an instrumentality of the government performing governmental functions, it is exempted as provided for by Sec. 133 of the LGC. The City insisted that MCIAA is not tax exempt as its exemption had been withdrawn by Sections 193 and 234 of the same code. MCIAA paid the tax account under protest but it filed a petition for declaratory relief saying that the powers of LGUs do not extend to the levy of taxes or fees of any kind on an instrumentality of the national government. TC: dismissed the petition for declaratory relief. MR denied.MCIAA: It is a GOCC mandated to perform functions in the same category as an instrumentality of the government and it is an attached agency of the DOTC. Thus, it may stand in the same footing as an agency or instrumentality of the national government. Hence, its tax exemption privilege under its charter cannot be

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considered as withdrawn with the passage of the LGC because Sec 133 specifically states that the taxing powers of LGUs shall not extend to the levy of taxes or fees or charges of any kind on the national government, its agencies or instrumentalities. Cebu has no power nor authority to impose realty taxes upon it based on Sec 133 of the LGC, cites Basco v. PAGCOR. In relation to Section 234, of the LGC that the legislature meant to exclude instrumentalities of the national government from the taxing power of the local government units.Cebu: as local a government unit and a political subdivision, it has the power to impose, levy, assess, and collect taxes within its jurisdiction. Such power is guaranteed by the Constitution and enhanced further by the LGC. While it may be true that under its Charter MCIAA was exempt from the payment of reality taxes, this exemption was withdrawn by Sec. 234 of the LGC. Sec. 234 does not distinguish between GOCCs performing governmental and purely proprietary functions.

Issue 1. WON MCIAA is exempt from paying taxes. NO. As a general rule, the power to tax is an incident of sovereignty

and is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency who are to pay it. Nevertheless, effective limitations thereon may be imposed by the people through their Constitutions. Our Constitution, for instance, provides that the rule of taxation shall be uniform and equitable and Congress shall evolve a progressive system of taxation. So potent indeed is the power that it was once opined that "the power to tax involves the power to destroy." Verily, taxation is a destructive power which interferes with the personal and property for the support of the government. Accordingly, tax statutes must be construed strictly against the government and liberally in favor of the taxpayer. But since taxes are what we pay for civilized society, or are the lifeblood of the nation, the law frowns against exemptions from taxation and statutes granting tax exemptions are thus construed strictissimi juris against the taxpayers and liberally in favor of the taxing authority. A claim of exemption from tax payment must be clearly shown and based on language in the law too plain to be mistaken. Elsewise stated, taxation is the rule, exemption therefrom is the exception. However, if the grantee of the exemption is a political subdivision or instrumentality, the rigid rule of construction does not apply

because the practical effect of the exemption is merely to reduce the amount of money that has to be handled by the government in the course of its operations.

The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy.

There can be no question that under Section 14 of R.A. No. 6958 the petitioner is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies, and instrumentalities. Nevertheless, since taxation is the rule and exemption therefrom the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The only exception to this rule is where the exemption was granted to private parties based on material consideration of a mutual nature, which then becomes contractual and is thus covered by the non-impairment clause of the Constitution.

The LGC, enacted pursuant to Section 3, Article X of the constitution provides for the exercise by local government units of their power to tax, the scope thereof or its limitations, and the exemption from taxation.

Section 133 of the LGC prescribes the common limitations on the taxing powers of local government units. The "taxes, fees or charges" referred to are "of any kind", hence they include all of these, unless otherwise provided by the LGC. The term "taxes" is well understood so as to need no further elaboration, especially in the light of the above enumeration. The term "fees" means charges fixed by law or Ordinance for the regulation or inspection of business activity, while "charges" are pecuniary liabilities such as rents or fees against person or property.

Among the "taxes" enumerated in the LGC is real property tax, which is governed by Section 232. Section 234 of LGC provides for the exemptions from payment of real property taxes and withdraws previous exemptions therefrom granted to natural and juridical persons, including government owned and controlled corporations, except as provided therein. These

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exemptions are based on the ownership, character, and use of the property. Thus; (a) Ownership Exemptions. Exemptions from real property taxes on the basis of ownership are real properties owned by: (i) the Republic, (ii) a province, (iii) a city, (iv) a municipality, (v) a barangay, and (vi) registered cooperatives. (b) Character Exemptions. Exempted from real property taxes on the basis of their character are: (i) charitable institutions, (ii) houses and temples of prayer, and (iii) non profit or religious cemeteries. (c) Usage exemptions. Exempted from real property taxes on the basis of the actual, direct and exclusive use to which they are devoted are: (i) all lands buildings and improvements which are actually, directed and exclusively used for religious, charitable or educational purpose; (ii) all machineries and equipment actually, directly and exclusively used or by local water districts or by government-owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; and (iii) all machinery and equipment used for pollution control and environmental protection.

Section 193 of the LGC is the general provision on withdrawal of tax exemption privileges. On the other hand, the LGC authorizes local government units to grant tax exemption privileges.

Reading together Section 133, 232 and 234 of the LGC, we conclude that as a general rule, as laid down in Section 133 the taxing powers of local government units cannot extend to the levy of inter alia, "taxes, fees, and charges of any kind of the National Government, its agencies and instrumentalties, and local government units"; however, pursuant to Section 232, provinces, cities, municipalities in the Metropolitan Manila Area may impose the real property tax except on, inter alia, "real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial used thereof has been granted, for consideration or otherwise, to a taxable person", as provided in item (a) of the first paragraph of Section 234.

As to tax exemptions or incentives granted to or presently enjoyed by natural or juridical persons, including government-owned and controlled corporations, Section 193 of the LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC, except upon the effectivity of the LGC,

except those granted to local water districts, cooperatives duly registered under R.A. No. 6938, non stock and non-profit hospitals and educational institutions, and unless otherwise provided in the LGC. The latter proviso could refer to Section 234, which enumerates the properties exempt from real property tax. But the last paragraph of Section 234 further qualifies the retention of the exemption in so far as the real property taxes are concerned by limiting the retention only to those enumerated there-in; all others not included in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as the real property is owned by the Republic of the Philippines, or any of its political subdivisions covered by item (a) of the first paragraph of Section 234, the exemption is withdrawn if the beneficial use of such property has been granted to taxable person for consideration or otherwise. Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC, exemptions from real property taxes granted to natural or juridical persons, including government-owned or controlled corporations, except as provided in the said section, and the petitioner is, undoubtedly, a government-owned corporation, it necessarily follows that its exemption from such tax granted it in Section 14 of its charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the petitioner can seek refuge under any of the exceptions provided in Section 234, but not under Section 133, as it now asserts, since, as shown above, the said section is qualified by Section 232 and 234. In short, the petitioner can no longer invoke the general rule in Section 133 that the taxing powers of the local government units cannot extend to the levy of: (o) taxes, fees, or charges of any kind on the National Government, its agencies, or instrumentalities, and local government units.

In light of the petitioner's theory that it is an "instrumentality of the Government", it could only be within be first item of the first paragraph of the section by expanding the scope of the terms Republic of the Philippines" to embrace . . . . . . "instrumentalities" and "agencies" or expediency we quote: (a) real property owned by the Republic of the Philippines, or any of the Philippines, or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person. This view does not persuade us.

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In the first place, the petitioner's claim that it is an instrumentality of the Government is based on Section 133(o), which expressly mentions the word "instrumentalities"; and in the second place it fails to consider the fact that the legislature used the phrase "National Government, its agencies and instrumentalities" "in Section 133(o),but only the phrase "Republic of the Philippines or any of its political subdivision "in Section 234(a).

The terms "Republic of the Philippines" and "National Government" are not interchangeable. The former is boarder and synonymous with "Government of the Republic of the Philippines" which the Administrative Code of the 1987 defines as the "corporate governmental entity though which the functions of the government are exercised through at the Philippines, including, saves as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous reason, the provincial, city, municipal or barangay subdivision or other forms of local government." These autonomous regions, provincial, city, municipal or barangay subdivisions" are the political subdivision.

On the other hand, "National Government" refers "to the entire machinery of the central government, as distinguished from the different forms of local Governments." The National Government then is composed of the three great departments the executive, the legislative and the judicial.

An "agency" of the Government refers to "any of the various units of the Government, including a department, bureau, office instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein;" while an "instrumentality" refers to "any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy; usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned and controlled corporations".

If Section 234(a) intended to extend the exception therein to the withdrawal of the exemption from payment of real property

taxes under the last sentence of the said section to the agencies and instrumentalities of the National Government mentioned in Section 133(o), then it should have restated the wording of the latter. Yet, it did not Moreover, that Congress did not wish to expand the scope of the exemption in Section 234(a) to include real property owned by other instrumentalities or agencies of the government including government-owned and controlled corporations is further borne out by the fact that the source of this exemption is Section 40(a) of P.D. No. 646, otherwise known as the Real Property Tax Code, which reads:

Sec 40. Exemption from Real Property Tax. — The exemption shall be as follows: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions and any government-owned or controlled corporations so exempt by is charter: Provided, however, that this exemption shall not apply to real property of the above mentioned entities the beneficial use of which has been granted, for consideration or otherwise, to a taxable person.

Note that as a reproduced in Section 234(a), the phrase "and any government-owned or controlled corporation so exempt by its charter" was excluded. The justification for this restricted exemption in Section 234(a) seems obvious: to limit further tax exemption privileges, especially in light of the general provision on withdrawal of exemption from payment of real property taxes in the last paragraph of property taxes in the last paragraph of Section 234. These policy considerations are consistent with the State policy to ensure autonomy to local governments 33 and the objective of the LGC that they enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them effective partners in the attainment of national goals. The power to tax is the most effective instrument to raise needed revenues to finance and support myriad activities of local government units for the delivery of basic services essential to the promotion of the general welfare and the enhancement of peace, progress, and prosperity of the people. It may also be relevant to recall that the original reasons for the withdrawal of tax exemption privileges granted to government-owned and controlled corporations and all other units of government were that such privilege resulted in serious tax base erosion and distortions in

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the tax treatment of similarly situated enterprises, and there was a need for this entities to share in the requirements of the development, fiscal or otherwise, by paying the taxes and other charges due from them.

Secretary of Finance v. Ilarde

Facts: Cabaluna failed to pay land taxes. A breakdown of the computation of the delinquent taxes and penalties on his lots and residential house as reflected in the various receipts issued by the City Treasurer's Office of Iloilo City, shows that more than twenty-four percent (24%) of the delinquent taxes were charged and collected by way of penalties. Cabaluna paid his land taxes and the corresponding receipts were issued to him by the City Treasurer's Office with the notation "paid under protest." Cabaluna filed a formal letter of protest with the City Treasurer of Iloilo City wherein he contends that the City Treasurer's computation of penalties was erroneous since the rate of penalty applied exceeded twenty-four percent (24%) in contravention of Section 66 of P.D. No. 464, otherwise known as the Real Property Tax Code, as amended. In response, however, Assistant City Treasurer Tulio, for and in behalf of the City Treasurer of Iloilo, turned down private respondent's protest, citing Sec. 4(c) of Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 of the then Ministry (now Department) of Finance. which reads: Sec. 4. Computation of Penalties on Delinquent Real Property Taxes. – (a) Unless condoned, wholly or partially, in a duly approved resolution of the Local Sanggunian, delinquent real property taxes shall be subject to penalty at the rate of two per cent (2%) for every month of delinquency, provided that the total penalty for one tax year shall not exceed twenty-four percent (24%). (b) Failure to pay on time at least the first quarter installment of the real property tax shall constitute a waiver on the part of the property owner or administrator to avail of the privilege granted by law for him to pay without penalty his annual realty tax obligation in four (4) equal installment on or before the end of every quarter of the tax year. Accordingly, if the portion of the real property tax due for the first quarter of tax year is not paid on or before the thirty-first day of March of the same year, the penalty shall be reckoned from the first day of January at the rate of two per cent (2%) for every month of delinquency on the basis of the total amount due for the entire year and not only on the amount due for the said first quarter of the tax year. (c) The penalty of two percent (2%) per month of delinquency, or twenty-four percent (24%) per annum, as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that it is paid for in full.

Cabaluna filed a Petition for Declaratory Relief with Damages on 06 July 1993 before the sala of respondent Judge, assailing Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 which, according to him, flouted Section 66 of P.D. No. 464 which fixed the maximum penalty for delinquency in the payment of real estate taxes at 24% of the delinquent tax.RTC: Section 4(c) of Joint Assessment Regulation No. 1-85 and Local Treasury Regulation No. 2-85 null and void. Penalty that should be imposed for delinquency in the payment of real property taxes should be two per centum on the amount of the delinquent tax for each month of delinquency or fraction thereof, until the delinquent tax is fully paid but in no case shall the total penalty exceed twenty-four per centum of the delinquent tax as provided for in Section 66 of P.D. 464 otherwise known as the Real Property Tax Code. Issue: WON Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 are valid. NO.

The subject Regulations must be struck down for being repugnant to Section 66 of P.D. No. 464 or the Real Property Tax Code, which provides: “That in no case shall the total penalty exceed twenty-four per centum of the delinquent tax. The rate of penalty for tax delinquency fixed herein shall be uniformly applied in all provinces and cities.”

Upon the other hand, Section 4(c) of the challenged Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 issued by respondent Secretary (formerly Minister) of Finance provides that "the penalty of two percent (2%) per month of delinquency or twenty-four percent (24%) per annum as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that the delinquency is paid for in full." As adeptly observed by the trial court, the penalty imposed under the assailed Regulations has no limit inasmuch as the 24% penalty per annum shall be continuously imposed on the unpaid tax until it is paid for in full unlike that imposed under Section 66 of the Real Property Tax Code where the total penalty is limited only to twenty-four percent of the delinquent tax.

* The secretary anchors his claim on EO73 "The Minister of Finance shall promulgate the necessary rules and regulations to implement this Executive Order." E.O. No. 73 did not touch at all on the topic of amendment of rates of delinquent taxes or the amendment of rates of penalty on delinquent taxes. Neither did E.O. No. 1019 directly or indirectly vest upon the Department of Finance the right to

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fiddle with the rates of penalty to be assessed on delinquency taxes as contained in the Real Property Tax Code. Despite the promulgation of E.O. No. 73, P.D. No. 464 in general and Section 66 in particular, remained to be good law. NO repeal by implication itcab! Assuming argumenti that E.O. No. 73 has authorized the petitioner to issue the objected Regulations, such conferment of powers is void for being repugnant to the well-encrusted doctrine in political law that the power of taxation is generally vested with the legislature. The power delegated to the executive branch, in this case the Ministry of Finance, to lay down implementing rules must, nevertheless, be germane to the general law it seeks to apply. The implementing rules cannot add to or detract from the provisions of the law it is designed to implement. * the fact that private respondent Cabaluna was responsible for the issuance and implementation of Regional Office Memorandum Circular No. 04-89 which implemented Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 does not put him in estoppel from seeking the nullification of said Regulations at this point.

Benguet Corporation v. Central Board of Assessment Appeals

Facts: BC seeks to annul and set aside the Decision of the CBAA of May 28, 1991, as well as the Resolution of July 1, 1991, denying its motion for reconsideration, which affirmed the decision of respondent Local Board of Assessment Appeals of the Province of Benguet declaring as valid the tax assessments made by the Municipal Assessor of Itogon, Benguet, on the bunkhouses of petitioner occupied as dwelling by its rank and file employees based on Tax Declarations Nos. 8471 and 10454. The Provincial Assessor of Benguet, through the Municipal Assessor of Itogon, assessed real property tax on the bunkhouses of petitioner Benguet Corporation occupied for residential purposes by its rank and file employees under Tax Declarations Nos. 8471 (effective 1985) and 10454 (effective 1986). According to the Provincial Assessor, the tax exemption of bunkhouses under Sec. 3 (a), P.D. 7452 (Liberalizing the Financing and Credit Terms for Low Cost Housing Projects of Domestic Corporations and Partnerships) , was withdrawn by P.D. 19553 (Withdrawing,

2 "Section 3. Pursuant to the above incentive, such domestic corporations and partnerships shall enjoy tax exemption on: (a) real estate taxes on the improvements which will be used exclusively for housing their employees and workers . . ."

3 "Section 1. The provisions of any special or general law to the contrary notwithstanding, all exemptions from or any preferential treatment in the payment of duties, taxes, fees, imposts and other charges

Subject to Certain Conditions, the Duty and Tax Privileges Granted to Private Business Enterprises and/or Persons Engaged in Any Economic Activity, and Other Purposes). Petitioner appealed the assessment on Tax Declarations Nos. 8471 and 10454 to the Local Board of Assessment Appeals (LBAA) of the Province of Benguet, docketed as LBAA Cases Nos. 42 and 43, respectively. Both were heard jointly. Meanwhile, the parties agreed to suspend hearings in LBAA Cases Nos. 42 and 43 to await the outcome of another case, LBAA Case No. 41, covering Tax Declaration No. 3534 (effective 1984), which involved the same parties and issue until the appeal was decided by the Central Board of Assessment Appeals (CBAA). On July 15, 1986, CBAA handed down its decision in LBAA Case No. 41 holding that the buildings of petitioner used as dwellings by its rank and file employees were exempt from real property tax pursuant to P.D. 745. Thereafter, the proceedings in LBAA Cases Nos. 42 and 43 proceeded after which a decision was rendered affirming the taxability of subject property of petitioner. On appeal, CBAA sustained the decision holding that the realty tax exemption under P.D. 745 was withdrawn by P.D. 1955 and E.O. 93, so that petitioner should have applied for restoration of the exemption with the Fiscal Incentives Review Board (FIRB) The decision of CBAA clarified that Case No. 41 was different because it was effective prior to 1985, hence, was not covered by P.D. 1955 nor by E.O. 93. Petitioner moved for reconsideration but was denied with CBAA holding that petitioner's "classification" of P.D. 745 is unavailing because P.D. 1955 and E.O. 93 do not discriminate against the so-called "social statutes". Hence, this petition.SC: should be read in connection with Ministry Order No. 39-84, Sec. 1 (d), of the then Ministry of Finance, which took effect October 15, 1984, states: "Section 1. The withdrawal of exemptions from, or any preferential treatment in, the payment of duties, taxes, fees, imposts and other charges as provided for under Presidential Decree No. 1955, does not apply to exemptions or preferential treatment embodied in the following laws: . . . (d) The Real Property Tax Code . . ."Executive Order No. 93, promulgated December 17, 1986, is also to the same effect. Both P.D. 1955 and F.O. 93 operate as wholesale withdrawal of tax incentives granted to private entities so that the government may re-examine existing tax exemptions and restore through the "review mechanism" of the Fiscal Incentives Review Board only those that are consistent with declared economic policy. Thus wise, the chief revenue source of the government will not be greatly, if not

heretofore granted to private business enterprises and/or persons engaged in any economic activity are hereby withdrawn, except those enjoyed by the following: . . . (e) Those that will be approved by the President of the Philippines upon the recommendation of the Minister of Finance,"

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unnecessarily, eroded since tax exemptions that were granted on piecemeal basis, and which have lost relevance to existing programs, are eliminated.

Issues: 1. WON respondent Assessors may validly assess real property tax on the properties of petitioner considering the proscription in The Local Tax Code (P.D 231) and the Mineral Resources Development Decree of 1974 (P.D. 463) against imposition of taxes on mines by local governments. YES.

On the first issue, petitioner contends that local government units are without any authority to levy realty taxes on mines pursuant to Sec. 52 of P.D. 463, which states: Sec. 52. Power to Levy Taxes on Mines Mining Operations and Mineral Products. Any law to the contrary notwithstanding, no province, city, municipality, barrio or municipal district shall levy and collect taxes, fees, rentals, royalties or charges of any kind whatsoever on mines, mining claims, mineral products, or any operation, process or activity connected, therewith, and Sec. 5 (m) of The Local Tax Code, as amended by P.D. 426 (reiterated in Secs. 17 [d] and 22 [c], same Code), which provides: Sec. 5. Common limitations on the taxing powers of local governments. The exercise of the taxing powers of provinces, cities, municipalities and barrios shall not extend to the imposition of the following: . . . (m) Taxes on mines, mining operations; and minerals, mineral products, and their by-products when sold domestically by the operator.

The Solicitor General observes that the petitioner is estopped from raising the question of lack of authority to issue the challenged assessments inasmuch as it was never raised before, hence, not passed upon by, the municipal and provincial assessors, LBAA and CBAA. This observation is well taken. The rule that the issue of jurisdiction over subject matter may be raised anytime, even during appeal, has been qualified where its application results in mockery of the tenets of fair play, as in this case when the issue could have been disposed of earlier and more authoritatively by any of the respondents who are supposed to be experts in the field of realty tax assessment. As We held in Suarez v. Court of Appeals: . . . It is settled that any decision rendered. without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this Court. The only exception is where the party raising the issue is barred by estoppel.

Tijam v. Sibonghanoy: While petitioner could have prevented the trial court from exercising jurisdiction over the case by seasonably taking exception thereto, they instead involved the very same jurisdiction by filing an answer and seeking affirmative relief from it. What is more, they participated in the trial of the case by cross-examining respondent. Upon the premises, petitioner cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the court to which they had submitted themselves voluntarily

Aguinaldo Industries Corporation v. Commissioner of Internal Revenue and the Court of Tax Appeals:"To allow a litigant to assume a different posture when he comes before the court and challenge the position he had accepted at the administrative level, would be to sanction a procedure whereby the court which is supposed to review administrative determinations would not review, but determine and decide for the first time, a question not raised at the administrative forum. This cannot be permitted, for the same reason that underlies the requirement of prior exhaustion of administrative remedies to give administrative authorities the prior opportunity to decide controversies within its competence, and in much the same way that, on the judicial level, issues not raised in the lower court cannot be raised for the first time on appeal."

Besides, the special civil action of certiorari is available to pass upon the determinations of administrative bodies where patent denial of due process is alleged as a consequence of grave abuse of discretion or lack of jurisdiction, or question of law is raised and no appeal is available. In this case, petitioner may not complain of denial of due process since it had enough opportunity, but opted not, to raise the issue of jurisdiction in any of the administrative bodies to which the case may have been brought.

BC: realty taxes are local taxes because they are levied by local government units; citing Sec. 39 of P.D. 464, which provides: Sec. 39. Rates of Levy. The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities . . .

While local government units are charged with fixing the rate of real property taxes, it does not necessarily follow from that authority the determination of whether or not to impose the tax.

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In fact, local governments have no alternative but to collect taxes as mandated in Sec. 38 of the Real Property Tax Code, which states: Sec. 38. Incidence of Real Property Tax. There shall be levied, assessed and collected in all provinces, cities and municipalities an annual ad valorem tax on real property, such as land, buildings, machinery and other improvements affixed or attached to real property not hereinafter specifically exempted."

It is thus clear from the foregoing that it is the national government, expressing itself through the legislative branch, that levies the real property tax. Consequently, when local governments are required to fix the rates, they are merely constituted as agents of the national government in the enforcement of the Real Property Tax Code. The delegation of taxing power is not even involved here because the national government has already imposed realty tax in Sec. 38 above-quoted, leaving only the enforcement to be done by local governments.

The challenge of petitioner against the applicability of Meralco Securities Industrial Corporation v. Central Board of Assessment Appeals, et al., 3 is unavailing, absent any cogent reason to overturn the same. Thus "Meralco Securities argues that the realty tax is a local tax or levy and not a tax of general application. This argument is untenable because the realty tax has always been imposed by the lawmaking body and later by the President of the Philippines in the exercise of his lawmaking powers, as shown in Sections 342 et seq. of the Revised Administrative Code, Act No. 3995, Commonwealth Act No 470 and Presidential Decree No. 464. "The realty tax is enforced throughout the Philippines and not merely in a particular municipality or city but the proceeds of the tax accrue to the province, city, municipality and barrio where the realty taxed is situated (Sec. 86, P.D. No. 464). In contrast, a local tax is imposed by the municipal or city council by virtue of the Local Tax Code, Presidential Decree No. 231, which took effect on July 1, 1973 (69 O.G. 6197)."

Consequently, the provisions of Sec. 52 of the Mineral Resources Development Decree of 1974 (P.D. 463), and Secs. 5 (m), 17 (d) and 22 (c) of The Local Tax Code (P.D. 231) cited by petitioner are mere limitations on the taxing power of local government units, they are not pertinent to the issue before Us and, therefore,

cannot and should not affect the imposition of real property tax by the national government.

2. WON the real tax exemption granted under P.D. 745 (promulgated July 15, 1975) was withdrawn by P.D. 1955 (took effect October 15, 1984) and E.O. 93. YES.

Court held that it has no recourse but to apply the express provision of P.D. No. 1955 and rule in favor of the withdrawal of the real property tax exemption provided under P.D. No. 745.

As regards the second issue, petitioner, which claims that E.O. 93 does not repeal social statutes like P.D. 745, in the same breath takes refuge in Sec. 1 (e) of the same E.O. 93, to wit: Section 1. The provisions of any general or special law to the contrary notwithstanding, all tax and duty incentives granted to government and private entities are hereby withdrawn except: . . . (e) those conferred under the four basic codes, namely: . . . (iv) the Real Property Tax Code, as amended . . . in relation to Sec. 40 of the Real Property Tax Code, which provides: Sec. 40. Exemptions from Real Property Tax. The exemption shall be as follows: . . . (g) Real property exempt under other laws, and concluding that P.D. 745 is one of the "other laws" referred to.

We do not agree. If We are to sanction this interpretation, then necessarily all real properties exempt by any law would be covered, and there would be no need for the legislature to specify "Real Property Tax Code, as amended", instead of stating clearly "realty tax exemption laws". Indubitably, the intention is to limit the application of the "exception clause" only to those conferred by the Real Property Tax Code. This is not only a logical construction of the provisions but more so in keeping with the principle of statutory construction that tax exemptions are construed strictly against taxpayers, hence, they cannot be created by mere implication but must be clearly provided by law. Non-exemption, in case of doubt, is favored.

Quite obviously, the exception in Sec. 1 (e), (iv), of E.O. 93, refers to "those conferred under . . . Real Property Tax Code, as amended", and that the exemption claimed by petitioner is granted not by the Real Property Tax Code but by P.D. 745. When Sec. 40 (g) of the Property Tax Code provides that "[T]he exemption shall be as follows: . . . Real Property exempt under other laws". the Code merely recognizes realty tax exemptions

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provided by other laws, otherwise, it may unwittingly repeal those "other laws".

The argument of petitioner that P.D. 745 is a social statute to give flesh to the Constitutional provisions on housing, hence, not covered by P.D. 1955, was squarely met by respondent CBAA in its Resolution of July 1, 1991, to which We fully agree "The phrase 'any special or general law' explicitly indicates that P.D. No. 1955 did not distinguish between a social statute and an economic or tax legislation. Hence, where the law does not distinguish, we cannot distinguish.

In view thereof, we have no recourse but to apply the express provision of P.D. No. 1955 and rule in favor of the withdrawal of the real property tax exemption provided under P.D. No. 745. We also find without merit the contention of Petitioner-Appellan t that B.P. No. 391 (Investment Incentives Policy Act of 1983) is the source and reason for the existence of P.D. No. 1955; therefore, the scope of P.D. No. 1955 is limited to investment incentives. Although Section 20 of said B.P. which authorizes the President to restructure investment incentives systems/legislation s to align them with the overall economic development objectives is one of the declared policies of P.D. No. 1955, its primary aim is the formulation of national recovery program to meet and overcome the grave emergency arising from the current economic crisis. Hence, it cannot be maintained that its provisions apply only to investment incentives. Besides, even granting that its scope is limited, it is noted that P.D. No. 745 also speaks of investment incentives in Sections 2 and 3 thereof . . ."

National Development Co. v. Cebu City

Facts: Proclamation No. 430 was issued by the President which reserved Block no. 4, Reclamation Area No. 4, of Cebu City, consisting of 4,599 square meters, for warehousing purposes under the administration of National Warehousing Corporation. Subsequently, a warehouse with a floor area of 1,940 square meters more or less, was constructed thereon. NWC dissolved, NDC took over. Commencing 1948, Cebu assessed and collected from NDC real estate taxes on the land and the warehouse thereon. By the first quarter of 1970, a total of P100,316.31 was paid by NDC of which only P3,895.06 was under protest. On 20 March 1970, NDC wrote the City Assessor demanding full refund of the real estate

taxes paid claiming that the land and the warehouse standing thereon belonged to the Republic and therefore exempt from taxation. Cebu did not acquiesce in the demand, hence, the present suit filed 25 October 1972 in the Court of First Instance of Manila.CFI: Cebu to refund the real estate taxes paid by NDC for the parcel of land covered by Presidential Proclamation No. 430 of August 10, 1939, and the warehouse erected thereon from and after October 25, 1966

CA: certified the case to SC as one involving pure questions of law, pursuant to Sec. 17, R.A. 296.

Issue: WON NDC is exempted from payment of the real estate taxes on the land reserved by the President for warehousing purposes as well as the warehouse constructed thereon, and in the affirmative, whether NDC may recover in refund unprotested real estate taxes it paid from 1948 to 1970.

Section, 3 par. (a), of the Assessment Law, on which NDC claims real estate tax exemption, provides —Section 3. Property exempt from tax. — The exemptions shall be as follows: (a) Property owned by the United States of America, the Commonwealth of the Philippines, any province, city, municipality at municipal district . . .

The same opinion of NDC was passed upon in National Development Co. v. Province of Nueva Ecija where We held that its properties were not comprehended in Sec. 3, par (a), of the Assessment Law. In part, We stated: 1. Commonwealth Act No. 182 which created NDC contains no provision exempting it from the payment of real estate tax on properties it may acquire . . . There is justification in the contention of plaintiff-appellee that . . . [I]t is undeniable that to any municipality the principal source of revenue with which it would defray its operation will came from real property taxes. If the National Development Company would be exempt from paying real property taxes over these properties, the town of Gabaldon will be deprived of much needed revenues with which it will maintain itself and finance the compelling needs of its inhabitants 2. Defendant-appellant NDC does not come under classification of municipal or public corporation in the sense that it may sue and be sued in the same manner as any other private corporations, and in this sense, it is an entity different from the government, defendant corporation may be sued without its consent, and is subject to taxation. In

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the case NDC vs. Jose Yulo Tobias, 7 SCRA 692, it was held that . . . plaintiff is neither the Government of the Republic nor a branch or subdivision thereof, but a government owned and controlled corporation which cannot be said to exercise a sovereign function. it is a business corporation, and as such, its causes of action are subject to the statute of limitations. . . . That plaintiff herein does not exercise sovereign powers — and, hence, cannot invoke the exemptions thereof –– but is an agency for the performance of purely corporate, proprietary or business functions, is apparent from its Organic Act (Commonwealth Act 182, as amended by Commonwealth Act 311) pursuant to Section 3 of which it "shall be subject to the provisions of the Corporation Law insofar as they are not inconsistent" with the provisions of said Commonwealth Act, "and shall have the general powers mentioned in said" Corporation Law, and, hence, "may engage in commercial, industrial, mining, agricultural, and other enterprises which may be necessary or contributory to the economic development of the country, or important in the public interest," as well as "acquire, hold, mortgage and alienate personal and real property in the Philippines or elsewhere; . . . make contracts of any kind and description" , and "perform any and all acts which a corporation or natural persons is authorized to perform under the laws now existing or which may be enacted hereafter."

We find no compelling reason why the foregoing ruling, although referring to lands which would eventually be transferred to private individuals, should not apply equally to this case.

NDC cites Board of Assessment Appeals, Province of Laguna v. Court of Tax Appeal and National Waterworks and Sewerage Authority (NWSA). In that case, We held that properties of NWSA, a GOCC, were exempt from real estate tax because Sec. 3, par (c), of R.A. 470 did not distinguish between those possessed by the government in sovereign/governmen tal/political capacity and those in private/proprietary /patrimonial character.

The conflict between NDC v. Nueva Ecija, supra, and BAA v. CTA and NWSA, supra, is more superficial than real. The NDC decision speaks of properties owned by NDC, while the BAA ruling concerns properties belonging to the Republic. The latter case appears to be exceptional because the parties therein stipulated

1. That the petitioner National Waterworks and Sewerage Authority (NAWASA) is a public corporation created by virtue of Republic Act. No. 1383, and that it is owned by the Government of the Philippines as well as all property comprising waterworks and sewerage systems placed under it (Emphasis supplied). There, the Court observed: "It is conceded, in the stipulation of facts, that the property involved in this case "is owned by the Government of the Philippines. " Hence, it belongs to the Republic of the Philippines and falls squarely within letter of the above provision."

In the case at bar, no similar statement appears in the stipulation of facts, hence, ownership of subject properties should first be established. For, while it may be stated that the Republic owns NDC, it does not necessary follow that properties owned by NDC, are also owned by Republic — in the same way that stockholders are not ipso factoowners of the properties of their corporation.

The Republic, like any individual, may form a corporation with personality and existence distinct from its own. The separate personality allows a GOCC to hold and possess properties in its own name and, thus, permit greater independence and flexibility in its operations. It may, therefore, be stated that tax exemption of property owned by the Republic of the Philippines "refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities).

The foregoing discussion does not mean that because NDC, like most GOCC's engages in commercial enterprises all properties of the government and its unincorporated agencies possessed in propriety character are taxable. Similarly, in the case at bar, NDC proceeded on the premise that the BAA ruling declared all properties owed by GOCC's as properties in the name of the Republic, hence, exempt under Sec. 3 of the Assessment Law.

To come within the ambit of the exemption provided in Art. 3, par. (a), of the Assessment Law, it is important to establish that the property is owned by the government or its unincorporated agency, and once government ownership is determined, the nature of the use of the property, whether for proprietary or sovereign purposes, becomes immaterial. What appears to have been ceded to NWC (later transferred to NDC), in the case before Us, is merely the administration of the property while the

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government retains ownership of what has been declared reserved for warehousing purposes under Proclamation No. 430.

Incidentally, the parties never raised the issued the issue of ownership from the court a quo to this Court. A reserved land is defined as a "[p]ublic land that has been withheld or kept back from sale or disposition. " The land remains "absolute property of the government." The government "does not part with its title by reserving them (lands), but simply gives notice to all the world that it desires them for a certain purpose." Absolute disposition of land is not implied from reservation; it merely means "a withdrawal of a specified portion of the public domain from disposal under the land laws and the appropriation thereof, for the time being, to some particular use or purpose of the general government." As its title remains with the Republic, the reserved land is clearly recovered by the tax exemption provision.

Cebu: reservation of the property in favor of NWC or NDC is a form of disposition of public land which, subjects the recipient (NDC ) to real estate taxation under Sec. 115 of the Public Land Act. as amended by R.A. 436.

As We view it, the effect of reservation under Sec. 83 is to segregate a piece of public land and transform it into non-alienable or non-disposable under the Public Land Act. Section 115, on the other hand, applies to disposable public lands. Clearly, therefore, Sec. 115 does not apply to lands reserved under Sec. 83. Consequently, the subject reserved public land remains tax exempt.

As regards the warehouse constructed on a public reservation, a different rule should apply because "[t]he exemption of public property from taxation does not extend to improvements on the public lands made by pre-emptioners, homesteaders and other claimants, or occupants, at their own expense, and these are taxable by the state . . ." Consequently, the warehouse constructed on the reserved land by NWC (now under administration by NDC), indeed, should properly be assessed real estate tax as such improvement does not appear to belong to the Republic.

Since the reservation is exempt from realty tax, the erroneous tax payments collected by Cebu should be refunded to NDC. This is in consonance with Sec. 40, par. (a) of the former Real

Property Tax Code which exempted from taxation real property owned by the Republic of the Philippines or any of its political subdivisions, as well as any GOCC so exempt by its charter.

As regards the requirement of paying under protest before judicial recourse, CEBU argues that in any case NDC is not entitled to refund because Sec. 75 of R.A. 3857, the Revised Charter of the City of Cebu, requires paymentunder protest before resorting to judicial action for tax refund; that it could not have acted on the first demand letter of NDC of 20 May 1970 because it was sent to the City Assessor and not to the City Treasurer; that, consequently, there having been no appropriate prior demand, resort to judicial remedy is premature; and, that even on the premise that there was proper demand, NDC has yet to exhaust administrative remedies by way of appeal to the Department of Finance and/or Auditor General before taking judicial action.

NDC exempt from real estate tax on the reserved land but liable for the warehouse erected thereon.

Province of Tarlac v. Judge Alcantara

Facts: Tarlac Enterprises is the owner of a parcel of land, an ice drop factory, a machinery shed all located at Mabini, Tarlac, Tarlac, machinery of Diesel Elect.. Sets. Real estate taxes of the aforesaid properties from 1974 to December 31, 1982, in the total amount of P532,435.55 including principals and penalties has not been paid. Tarlac now prays for payment as well as damages and costs of suit. TE moved to dismiss. LC denied. MR denied. Thereafter, Tarlac set the auction sale of TE's properties to satisfy the real estate taxes due. This prompted TE to file a motion praying that petitioner be directed to desist from proceeding with the public auction sale. LC: issued an order granting said motion to prevent mootness of the case considering that the properties to be sold were the, subjects of the complaint. TE’s answer: demands for the payment of, real property taxes had been made but it refused to pay the same for the reason that under Sec. 40, paragraph (g) of PD 464 in relation to P.D. No.. 551, as amended, it was exempt from paying said tax. It also raised as affirmative defenses that the complaint stated no cause of action and that the claims had been waived, abandoned or otherwise extinguished or barred by the statute of limitations. LC: dismissed the complaint. It ruled that P.D. No. 551 expressly exempts private respondent from paying the real property taxes demanded, it being a grantee of a franchise to generate, distribute and sell electric current for light. The court held

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that in lieu of said taxes, private respondent had been required to pay two percent (2%) franchise tax in line with the intent of the law to give assistance to operators such as the private respondent to enable the consumers to enjoy cheaper rates. Butuan Sawmill, Inc. v. City of Butuan: the court ruled that local-governments are without power to tax the electric companies already subject to franchise tax unless their franchise allows the imposition of additional tax. MR: denied.

ISSUE: WON TE is exempt from the payment of real property tax under Sec. 40 (g) of P.D. No. 464 in relation to P.D. No. 551, as amended. NO.

Sec. 40(g) of P.D. No. 464, the Real Property Tax Code: SEC. 40. Exemptions from Real Property Tax. - The exemption shall be as follows:(g) Real property exempt under other laws. TE contends that the "other laws" referred to in this Section is P.D. No. 551 (Lowering the Cost to Consumers of Electricity by Reducing the Franchise Tax Payable by Electric Franchise Holders and the Tariff on Fuel Oils for the Generation of Electric Power by Public Utilities). Its pertinent provisions state: SECTION 1. Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax payable by all grantees of franchises to generate, distribute and sell electric current for light, heat and power shall be two (2%) of their gross receipts received from the sale of electric current and from transactions incident to the generation, distribution and sale of electric current.

Such franchise tax shall be payable to the Commissioner of Internal Revenue or his duly authorized representative on or before the twentieth day of the month following the end of each calendar quarter or month as may be provided in the respective franchise or pertinent municipal regulation and shall, any provision of the Local Tax Code or any other law to the contrary notwithstanding, be in lieu of all taxes assessments of whatever nature imposed by any national or authority on earnings, receipts, income and privilege of generation, distribution and sale of electric current."

P.D. No. 551 was amended on December 19. 1975 by P.D. No. 852 10 with the insertion of the phrase "and for the manufacture, distribution and sale of city gas" between the phrases ". . . light, heat and power" and "shall be two (2%) . . . ."

We do not agree with the lower court that the phrase "in lieu of all taxes and assessments of whatever nature" in the second paragraph of Sec. 1 of P.D. No. 551 expressly exempts private

respondent from paying real property taxes. As correctly observed by the petitioner, said proviso is modified and delimited by the phrase "on earnings, receipts. income and privilege of generation, distribution and sale" which specifies the kinds of taxes and assessments which shall not be collected in view of the imposition of the franchise tax. Said enumerated items upon which taxes shall not be imposed, have no relation at all to, and are entirely different from. real properties subject to tax.

If the intention of the law is to exempt electric franchise grantees from paying real property tax and to make the two (2%) percent franchise tax the only imposable tax, then said enumerated items would not have been added when P.D. No. 852 was enacted to amend P.D. No. 551. The legislative authority would have simply stopped after the phrase "national or local authority" by putting therein a period. On the contrary, it went on to enumerate what should not be subject to tax thereby delimiting the extent of the exemption.

We likewise do not find merit in private respondent's contention that the real properties being taxed, viz., the machinery for the generation and distribution of electric power, the building housing said machinery, and the land on which said building is constructed, are necessary for the operation of its business of generation, distribution and sale of electric current and, therefore, they should be exempted from taxation. Private respondent apparently does not quite comprehend the distinction among the subject matters or objects of the taxes involved. It bears emphasis that P.D. No. 551 as amended by P.D. No. 852 deals with franchise tax and tariff on fuel oils and the "earnings, receipts, income and privilege of generation, distribution and sale of electric current" are the items exempted from taxation by the imposition of said tax or tariff duty. On the other hand, the collection complaint filed by petitioner specified only taxes due on real properties. While P.D. No. 551 was intended to give "assistance to the franchise holders by reducing some of their tax and tariff obligations, " to construe said decree as having granted such franchise holders exemption from payment of real property tax would unduly extend the ambit of exemptions beyond the purview of the law.

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The annexes attached to private respondent's comment on the petition to prove by contemporaneous interpretation its claimed tax exemption are not of much help to it. Department Order No. 35-74 dated September 16, 1974 regulating the implementation of P.D. No. 551 merely reiterates the "in lieu of all taxes" proviso. Local Tax Regulations 3-75 12 issued by then Secretary of Finance Cesar Virata and addressed to all Provincial and City Treasurers enjoins strict compliance with the directive that "the franchise tax imposed under Local Tax Ordinances pursuant to Section 19 of the Local Tax Code, as amended, shall be collected from business holding franchises but not from establishments whose franchise contains the in lieu of all taxes' proviso," thereby clearly indicating that said proviso exempts taxpayers like private respondent from paying the franchise tax collected by the provinces under the Local Tax Code. Lastly, the letter of the then BIR Acting Commissioner addressed to the Matic Law Office granting exemption to the latter's client from paying the "privilege tax which is an excise tax on the privilege of engaging in business" clearly excludes realty tax from such exemption.

We also find misplaced the lower court's and the private respondent's reliance on Butuan Sawmill. v. City of Butuan. In that case, the questioned tax is a tax on the gross sales or receipts of said sawmill while the tax involved herein is a real property tax. The City of Butuan is categorically prohibited therein by Sec. 2(j) of the Local Autonomy Act from imposing "taxes of any kind…on person paying franchise tax." On the other hand, P.D. No. 551 is not as all-encompassing as said provision of the Local Autonomy Act for it enumerates the items which are not taxable by virtue of the payment of franchise tax.

It has always been the rule that "exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority" primarily because "taxes are the lifeblood of government and their prompt and certain availability is an imperious need." Thus, to be exempted from payment of taxes, it is the taxpayer's duty to justify the exemption "by words too plain to be mistaken and too categorical to be misinterpreted. Private respondent has utterly failed to discharge this duty.

Lower court erred in exempting TE from paying real property tax on its properties which are enumerated in the complaint.

However, in its decision, the lower court found that private respondent owns only three real properties consisting of the parcel of land, machinery shed and machinery, noticeably omitting the ice drop factory mentioned in its complaint by the petitioner. In view, however, of the petitioner's failure to assign such omission as an error, the same should be considered waived.

Casiño v. CA

Facts: The Sangguniang Panglungsod of Gingoog passed Resolution 49 which classified certain areas, including Casiño’s coliseum which was licensed as a cockpit. The classification led to the cancellation of Casiño’s license to operate such cockpit.The ordinance provides that changes in the zoning ordinance as a result of the review by the Local Review Committee shall be treated as an amendment provided that such is carried out through a resolution of three fourths vote of the SP. Said amendments shall take effect only after approval and authentication by the HSRC. On August 13, 1985, Resolution No. 378, Code Ordinance, Series of 1985, reclassified Block 125 as within the recreational zone, thus allegedly amending

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Resolution No. 49. Nine (9) members of the said SP, participated, with four (4) members voting for the amendment, while four (4) voted against, and with one (1) abstention. The vice-mayor, as presiding officer, broke the deadlock by voting for the amendment. When Resolution No. 378 was transmitted to then City Mayor Miguel Paderanga for approval, he returned the same to the SP within ten days, without any action, stating that his approval thereof was not necessary since it did not involve a disposition of city government funds, as provided by Section 180 of the LGC and Section 14 of the charter of Gingoog City. By virtue of said Resolution No. 378, Mayor Lugod, issued to petitioner the aforestated permit to operate a cockpit dated April 2, 1986, which was renewed by another permit issued on January 5, 1987. Gingoog Gallera protested the operation of Coliseum before the Philippine Gamefowl Commission. The protest was founded on the fact that no certificate of registration had as yet been issued by the PGC, although city mayor's permits were issued to petitioner. On April 11, 1986, the PGC, through OIC Orog sent a telegram to the Station Commander of Gingoog City to suspend in the meantime the operation of the cockpit. On April 24, 1986, the PGC eventually sent a telegram to the city mayor to stop any cockfight in the Coliseum in view of its failure to register with the PGC. Thereafter, an action for prohibition and mandamus with preliminary injunction was filed by Gallera before the RTC against petitioner, on the ground that Resolution No. 378, purportedly amending zoning Ordinance No. 49, is invalid. It asserted that the classification of Coliseum's site as still within the residential zone of Gingoog City was accordingly maintained and unchanged, thereby rendering the mayor's permits issued to the latter null and void for being in violation of Section 6 of the Rules and Regulations of the PGC. On April 25, 1986, the trial court issued a writ of preliminary injunction enjoining petitioner to desist from operating the Coliseum until the PGC shall have finally decided the controversy between petitioner and private respondent Gallera. RTC: declared the aforesaid mayor's permits null and void and ordered Casiño and all persons representing him or acting in his behalf from further operating the cockpit in question.MR denied.

Issues: 1. WON the PGC controls the operations of the Don Romulo Rodriguez Coliseum with respect to the local/ordinary cockfights during Sundays, holidays and fiestas in Gingoog City, despite the fact that the Mayor of Gingoog City issued a mayor's permit for 1986 and 1987 with the concurrence of the sangguniang panlungsod. YES.

PGC has the power not of control but only of review and supervision. This power was validly exercised by said commission over Coliseum when it sought to stop the former's operations

through the local officials. It did not whimsically order the suspension and the consequent stoppage of Coliseum's operations. Rather, PGC only exercised its power of review over the acts performed by the local authorities in relation to or which affect the exercise of its functions.

The power of review is exercised to determine whether it is necessary to correct the acts of the subordinate and to see to it that he performs his duties in accordance with law. This the PGC did by bringing to the attention of the local authorities the non-compliance by petitioner with the rules involved in this case which we find reasonable and necessary in the discharge of the regulatory functions of PGC. PGC may, for that purpose and as it did here, indicate its disapproval of the acts of the local officials concerned to stress and perform its role with respect to the regulation of cockpits.

The decision of the First Division of this Court in Gingoog Gallera, Inc. vs. PGC is not "diametrically opposed to" the decision rendered in this case in regard to the primacy of the power/authority between the local officials of the City of Gingoog and the PGC. Both decisions are in accord with one another. The decision of the First Division that it is the Municipal/City Mayor with the authorization of the Sangguniang Bayan that has the primary power to issue licenses for the operation of ordinary cockpits is of the same tenor and effect as the decision of this case as can be seen in the following wordings: The task of granting licenses to operate cockpits is lodged with City and Municipal Mayor with the concurrence of their respective Sanggunians. This is specifically granted to them by Section 4 of Presidential Decree No. 1802 as amended by Presidential Decree No. 1802-A which states: Sec. 4. City and Municipal Mayors with the concurrence of their respective Sanggunians shall have the authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated by the Commission and subject to its review and supervision.

While this Court agrees with the movant that a mayor's permit/ license is a condition precedent to the issuance of the PGC Registration Certificate, in the case at bar, the city mayor's permits issued to movant were null and void as they were granted pursuant to Resolution No. 578 which never took effect

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because of non-compliance with the procedure prescribed in Resolution No. 49. And because of the nullity of the Mayor's permit, the Registration Certificate No. C-86816 issued to movant is likewise null and void. The spring cannot rise higher than its source

2. WON the mayor's permits issued by the Mayor of Gingoog City for the years 1986 and 1987 are null and void because Resolution 378 did not amend Section 6.44 of Resolution 49, Code Ordinance of 1984, the three-fourths (3/4) votes not having been obtained in passing said Resolution 378. YES.

Petitioner: legal because the same was passed by the sanggunian by a majority of five affirmative votes as against four negative votes. He contends that the three-fourths vote requirement under Section 6.44, Resolution No. 49, aside from its being merely a formal requirement, is an enactment of the sanggunian which is ultra vires.

SC: Resolution No. 378 was declared invalid by the Court of Appeals for failure to comply with the required votes necessary for its validity. Although the charter of the City of Gingoog and the LGC require only a majority for the enactment of an ordinance, Resolution No. 49 cannot be validly amended by the resolution in question without complying with the categorical requirement of a three-fourths vote incorporated in the very same ordinance sought to be amended. The pertinent provisions in the aforesaid city charter and the LGC obviously are of general application and embrace a wider scope or subject matter. In the enactment of ordinances in general, the application of the aforementioned laws cannot be disputed. Undeniably, however, Section 6.44 of said ordinance regarding amendments thereto is a specific and particular provision for said ordinance and explicitly provides for a different number of votes. Where there is in the same statute a particular enactment and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general statement must be taken to affect only such cases within its language as are not within the provisions of the particular enactment.

In the instant case, although the general law on the matter requires a mere majority, the higher requisite vote in Resolution No. 49 shall govern since municipal authorities are in a better

position to determine the evils sought to be prevented by the inclusion or incorporation of particular provisions in enacting a particular statute and, therefore, to pass the appropriate ordinance to attain the main object of the law. This more stringent requirement on the necessary votes for amendments to Resolution No. 49 apparently forestalled the apprehended contingency for, to borrow the words of respondent court, "in an apparent attempt to get rid of this legal stumbling block (the prohibition against a cockpit in a residential zone under Proclamation 49), the Sangguniang Panglunsod of Gingoog City passed Resolution No. 378, Code Ordinance, series of 1985," . . . "thereby reclassifying Block 125 into a recreational zone." Withal, it is legally permissible, as exceptions to the general provisions on measures covered by city charters and the LGC, that the vote requirement in certain ordinances may be specially provided for, as in the case of Section 6.44 of Resolution No. 49, instead of the usual majority Vote.

Block 125 where Coliseum is located remains classified as a residential area, hence the operation of a cockpit therein is prohibited. This weighty consideration, which should actually be the principal basis for the nullification by respondent court of the two mayor's permits issued.

In the case at bar, there was no registration certificate issued, much less authorization to operate given by the PGC to the private respondent-appellant, a condition precedent before a grant of mayors permit or license to conduct cockfighting. Therefore, the mayor's permits issued to private respondent are null and void. Obviously, the PGC did not grant the private respondent-appellant the proper registration certificate to operate his cockpit because the same was not constructed within the appropriate areas as prescribed in zoning laws or ordinances of Gingoog City pursuant to Section 6 of Rules and Regulation of the PGC.

Gamboa v. Aguirre

Facts: In the 1995 elections, Coscolluela, Gamboa, Jr. and Aguirre, Jr., and Araneta were elected Negros Occidental Governor, Vice-Governor and SP members, respectively. Sometime in August of 1995, the governor designated Gamboa as Acting Governor for the duration of the former's official trip abroad until his return.

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When the SP held its regular session on September 6, 1995, Aguirre and Araneta questioned the authority of petitioner to preside therein in view of his designation as Acting Governor and asked him to vacate the Chair. Gamboa, however, refused to do so. In another session, seven (7) members of the SP voted to allow petitioner to continue presiding while four (4) others voted against with one (1) abstention. On September 22, 1995, A&A filed before the lower court a petition for declatory relief and prohibition. In the meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and declared petitioner as "temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the Acting Governor." Aggrieved, Gamboa filed a petition for review raising the issue earlier mentioned.

Issue: WON an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan.

Sec. 49(a) and 466(a) (1) of the LGC provide that the Vice-Governor shall be the presiding officer of the SP. In addition to such function, he "become(s)" the Governor and "assume(s)" the higher office for the unexpired term of his predecessor, in case of "permanent vacancy" therein. When the vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise the powers (subject to certain limitations) and perform the duties and functions" of the Governor. It may be noted that the code provides only for modes of succession in case of permanent vacancy in the office of the Governor and the Vice-Governor (whether single or simultaneously) as well as in case of a temporary vacancy in the office of the Governor. But, no such contingency is provided in case of temporary vacancy in the office of the Vice-Governor, just like the 1983 LGC.

It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of the Governor, he does not assume the latter office. He only "acts" as the Governor but does not "become" the Governor. His assumption of the powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title as Vice-Governor by merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of the higher officer. But the problem is, while in such capacity, does he temporarily relinquish the powers, functions, duties and responsibilities of the Vice-Governor,

including the power to preside over the sessions of the SP? LGC silent, but YES. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board perform functions partaking of a legislative character. This is because the authority vested by law in the provincial boards involves primarily a delegation of some legislative powers of Congress. Unlike under the old Code, where the Governor is not only the provincial Chief Executive, but also the presiding officer of the local legislative body, the new Code delineated the union of the executive-legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is no longer considered a member thereof. This is clear from the law, when it provides that "local legislative power shall be vested in the SP," which is "the legislative body of the province," and enumerates therein membership consisting of the: Vice-Governor, as presiding officer, regular elective SP members, three elective sectoral representatives, and those ex-officio members, namely president of the provincial chapter of the liga ng mga barangay, president of the panlalawigang pederasyon ng mga sangguniang kabataan, president of the provincial federation of sangguniang members of municipalities and component cities. None being included in the enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province is vested alone in the Governor. 13 Consequently, the union of legislative-executive powers in the office of the local chief executive under the former Code has been disbanded, so that either department now comprises different and non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two.

It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the Vice-Mayor should discharge the duties of the mayor during the latter's absence. This doctrine

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should equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably construed to mean "effective" absence, that is, one that renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. By virtue of the foregoing definition, it can be said that the designation, appointment or assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during such contingency. Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy occurring in the same office. This is so because in the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.

Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the provincial Governor call for a full-time occupant to discharge them. Such is not only consistent with but also appears to be the clear rationale of the new Code wherein the policy of performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding temporary vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an "inability" on the part of the regular presiding officer (Vice Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the LGC — concerning the election of a temporary presiding officer. The continuity of the Acting Governor's (Vice Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), "(i)n the event of the inability of the regular presiding officer to preside at the sanggunian session, the members

present and constituting a quorum shall elect from among themselves a temporary presiding officer."

Garcia v. COMELEC

Facts: In its Pambayang Kapasyahan Blg. 10, Serye 1993, the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accord with RA 7227. On May 24, 1993, petitioners filed a petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993 and sought to allow the inclusion of Morong subject to certain conditions. The municipality of Morong did not take any action on the petition within 30 days after its submission. Petitioners then resorted to their power of initiative under the LGC. They started to solicit the required number of signatures to cause the repeal of said resolution. Unknown to the petitioners, however, the Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993 to the Executive Director of COMELEC requesting the denial of the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productivity and futility. In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground that its subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." On July 13, 1993, the COMELEC en banc further resolved to direct Provincial Election Supervisor to hold action on the authentication of signatures being gathered by petitioners. COMELEC opposed the petition. Through the Solicitor General, it contends that under the LGC, a resolution cannot be the subject of a local initiative. The same stance is assumed by the Sangguniang Bayan of Morong.

Issue: WON Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative.Resp: under the LGC, only an ordinance can be the subject of initiative. section 120, Chapter 2, Title XI, Book I: Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance.SC: The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of Article VI: "The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution. Black: defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature,

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including not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . . ." It is basic that a law should be construed in harmony with and not in violation of the constitution.

In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used."

The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of initiatives on local legislations, viz: Sec. 3. Definition of Terms: For purposes of this Act, the following terms shall mean; (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose.

There are three (3) systems of initiative, namely: a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution. a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution, or ordinance.

Section 16: "Limitations Upon Local Legislative Bodies ” Any proposition on ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom.

On January 16, 1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on National and Local Laws." It likewise recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules states: "Scope of power of initiative” The power of initiative may be exercised to amend the Constitution, or to enact a national legislation, a regional,

provincial, city, municipal or barangay law, resolution or ordinance.."

There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper subjects of local initiatives. Respondents do not give any reason why resolutions should not be the subject of a local initiative.

Distinction between a resolution and an ordinance: a resolution is used whenever the legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is intended to permanently direct and control matters applying to persons or things in general. Thus, resolutions are not normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business affairs of a city.

In the case at bench, however, it cannot be argued that the subject matter of the resolution of the municipality of Morong merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose, Providing Funds Therefor and For Other Purposes."

Considering the lasting changes that will be wrought in the social, political, and economic existence of the people of Morong by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not material that the decision of the municipality of Morong for the inclusion came in the form of a resolution for what matters is its enduring effect on the welfare of the people of Morong.

Through an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. Article VI: Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives except to the extent reserved to the people by the provisions on initiative and referendum. Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the

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exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereto.

Subic Bay Metropolitan Authority v. COMELEC

Facts: On March 13, 1992, Congress enacted the BCDA (RA 7227) which provided for the creation of the Subic Economic Zone. In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence, as required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone. On September 5, 1993, the Sangguniang Bayan of Morong submitted Pambayang Kapasyahan Bilang 10, Serye 1993 to the Office of the President. On May 24, 1993, respondents Garcia, Calimbas and their companions filed a petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia, Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines so amend certain provisions of RA 7227. Not satisfied, and within 30 days from submission of their petition, herein respondents resorted to their power initiative under the LGC Sec. 122 paragraph (b) which provides that if no favorable action thereon is taken by the sanggunian concerned, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sangguniang concerned. On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-1623 denied the petition for local initiative by herein private respondents on the ground that the subject thereof was merely a resolution (pambayang kapasyahan) and not an ordinance. On July 13, 1993, public respondent Comelec En Banc (thru Comelec Resolution no. 93-1676) further directed its Provincial Election Supervisor to hold action on the authentication of signatures being solicited by private respondents. On August 15, 1993, private respondents instituted a petition for certiorari and mandamus before this Court against the Commission on Elections and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec Resolution No. 93-1623 insofar as it disallowed the conduct of a local initiative to annul Pambayang Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No. 93-1676 insofar as it prevented the Provincial Election Supervisor of Bataan from proceeding with the authentication of the required number of signatures in support of the initiative and the gathering of

signatures. On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the Philippines issued Proclamation No. 532 defining the metes and bounds of the SSEZ. Said proclamation included in the SSEZ all the lands within the former Subic Naval Base, including Grande Island and that portion of the former naval base within the territorial jurisdiction of the Municipality of Morong. On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting therein a "Calendar of Activities for local referendum on certain municipal ordinance passed by the Sangguniang Bayan of Morong, Bataan", and which indicated, among others, the scheduled Referendum Day (July 27, 1996, Saturday). On June 27, 1996, the Comelec promulgated the assailed Resolution No. 2848 providing for "the rules and guidelines to govern the conduct of the referendum proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan". On July 10, 1996, petitioner instituted the present petition for certiorari and prohibition contesting the validity of Resolution No. 2848 and alleging, inter alia, that public respondent "is intent on proceeding with a local initiative that proposes an amendment of a national law. . . . Issues: 1. WON a bar by final judgment exists.

Garcia contends that this Court had already ruled with finality in Enrique T. Garcia, et al. vs. Commission on Elections, et al. on "the very issue raised in (the) petition: whether or not there can be an initiative by the people of Morong, Bataan on the subject proposition ” the very same proposition, it bears emphasizing, the submission of which to the people of Morong, Bataan is now sought to be enjoined by petitioner.

SC: The only issue resolved in the earlier Garcia case is whether a municipal resolution as contra-distinguished from an ordinance may be the proper subject of an initiative and/or referendum. The sole issue presented by the pleadings was the question of "whether or not a Sangguniang Bayan Resolution can be the subject of a valid initiative or referendum"

In the present case, petitioner is not contesting the propriety of a municipal resolution as the form by which these two new constitutional prerogatives of the people may be validly exercised. What is at issue here is whether Pambayang Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and substance for submission to the people for their approval; in fine, whether the Comelec acted properly and juridically in promulgating and implementing Resolution No. 2848.

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WON the COMELEC committed a grave abuse of discretion in promulgating and implementing Resolution No. 2848. YES.

To begin with, the process started by private respondents was an INITIATIVE but Comelec made preparations for a REFERENDUM only. In fact, in the body of the Resolution 11 as reproduced in the footnote below, the word "referendum" is repeated at least 27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a "Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the documents were called "referendum returns"; the canvassers, "Referendum Board of Canvassers" and the ballots themselves bore the description "referendum". To repeat, not once was the word "initiative" used in said body of Resolution No. 2848. And yet, this exercise is unquestionably an INITIATIVE.

"Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. 3 systems: 1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; 2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and 3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance.

"Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action.

"Referendum" is the power of the electorate to approve or reject a legislation through an election called for the purpose. It may be of two classes, namely: 1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and 2. Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies.

Cruz: Initiative - "power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly." referendum - "is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become a law."

LGC: Local initiative is the legal process whereby the registered voters of local government unit may directly propose, enact, or amend any ordinance. Local referendum is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the control and direction of the Comelec within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of baranggays. The Comelec shall certify and proclaim the results of the said referendum.

SC: initiative is resorted to (or initiated) by the people directly either because the law-making body fails or refuses to enact the law, ordinance, resolution or act that they desire or because they want to amend or modify one already existing. Under Sec. 13 of R.A. 6735, the local legislative body is given the opportunity to enact the proposal. If it refuses/neglects to do so within thirty (30) days from its presentation, the proponents through their duly-authorized and registered representatives may invoke their power of initiative, giving notice thereof to the local legislative body concerned. Should the proponents be able to collect the number of signed conformities within the period granted by said statute, the Commission on Elections "shall then set a date for the initiative (not referendum) at which the proposition shall be submitted to the registered voters in the local government unit concerned .

On the other hand, in a local referendum, the law-making body submits to the registered voters of its territorial jurisdiction, for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law-making authority. Said referendum shall be conducted also under the control and direction of the Commission on Elections.

While initiative is entirely the work of the electorate, referendum is begun and consented to by the law-making body. Initiative is a process of law-making by the people themselves without the participation and against the wishes of their elected representatives, while referendum consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body. Hence, the process and the voting in an initiative are understandably more complex than in a

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referendum where expectedly the voters will simply write either "Yes" of "No" in the ballot.

From the above differentiation, it follows that there is need for the Comelec to supervise an initiative more closely, its authority thereon extending not only to the counting and canvassing of votes but also to seeing to it that the matter or act submitted to the people is in the proper form and language so it may be easily understood and voted upon by the electorate. This is especially true where the proposed legislation is lengthy and complicated, and should thus be broken down into several autonomous parts, each such part to be voted upon separately. Care must also be exercised that "(n)o petition embracing more than one subject shall be submitted to the electorate," although "two or more propositions may be submitted in an initiative".

In initiative and referendum, the Comelec exercises administration and supervision of the process itself, akin to its powers over the conduct of elections. These law-making powers belong to the people, hence the respondent Commission cannot control or change the substance or the content of legislation. In the exercise of its authority, it may (in fact it should have done so already) issue relevant and adequate guidelines and rules for the orderly exercise of these "people-power" features of our Constitution.

WON Withdrawal of Adherence and Imposition of Conditionalities are Ultra Vires.

SC: premature! The municipal resolution is still in the proposal stage. It is not yet an approved law. Should the people reject it, then there would be nothing to contest and to adjudicate. It is only when the people have voted for it and it has become an approved ordinance or resolution that rights and obligations can be enforced or implemented thereunder. At this point, it is merely a proposal and the writ or prohibition cannot issue upon a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual controversies, not hypothetical questions or cases.

Ortiz v. Posadas

Facts: Seven of the thirteen members present, including the president, of the municipal council of Tabaco, Albay, voted in favor of Ordinance No. 25, concerning cockpits, and six members voted against the ordinance, with three members absent.

ISSUE: WON the ordinance is valid. NO. Section 224 of the Administrative Code reads as follows: Journal

of Proceedings ” Majorities necessary for transaction of business. ” The council shall keep a journal of its own proceedings. The ayes and noes shall be taken upon the passage of all ordinances, upon all propositions to create any liability against the municipality, and upon any other proposition, upon the request of any member, and they shall be entered upon the journal. The affirmative vote of a majority of all the members of the municipal council shall be necessary to the passage of any ordinance or of any proposition creating indebtedness; but other measures, except as otherwise specially provided, shall prevail upon the majority vote of the members present at any meeting duly called and held.

The law is clear. It needs only application, not interpretation. While the Spanish text may be ambiguous, the English text which governs is not. The law is entirely consistent in context. The ayes and noes are taken upon (1) the passage of all ordinances, (2) all propositions to create any liability against the municipality, and (3) any other proposition, upon the request of any member. The same idea is carried into the succeeding sentence. For the passage of (1) any ordinance or (2) any proposition creating indebtedness , the affirmative vote of a majority of all the members of the municipal council shall be necessary. Other measures prevail upon the majority vote of the members present "Creating indebtedness" refers to "proposition" and not to "ordinance." The contention that only ordinances creating indebtedness require the approval of a majority of all the members of the municipal council, is devoid of merit.

Corroborative authority is really superfluous. Nevertheless we would invite attention to the case of McLean vs. City of East St. Louis ([1906], 222 Ill., 510). Section 13 of the Act for the incorporation of cities and villages in the State of Illinois provided: "The yeas and nays shall be taken upon the passage of all ordinances and on all propositions to create any liability

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against the city, or for the expenditure or appropriation of its money, and in all other cases at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: Provided, it shall require two-thirds of all the aldermen elect to sell any city or school property" Commenting on this provision of law, the Supreme Court of Illinois, through Justice Cartwright, observed: Some of the counsel for appellee argue that section 13 relates only to ordinances and propositions creating a liability against a city or providing for the expenditure or appropriation of its money, and that all other ordinances may be passed by a majority of a quorum. They say that it is not unusual for courts, in the construction of statutes, to substitute one word for another where the plain meaning of the statute will justify it, and that by eliminating some words and substituting others this section will express what they think was the intention of the legislature. It is the rule that where the intention of the legislature is ascertained with reasonable certainty and it appears that words have been used inconsistent with such intention, a word erroneously used for another may be eliminated and the proper word substituted. Where the context affords the means of correcting a mistake in the use of language, the correction may be made for the purpose of giving effect to the intention plainly manifested in the act as a whole. But we do not agree with the theory that the legislature, in this instance, intended to limit the requirement of a majority vote to ordinances creating a liability or appropriating money. In our opinion, to make the changes suggested would be merely juggling with the words of the statute to give it a different meaning from that which was intended. The law requires that the yeas and nays shall be taken upon the passage of all ordinances, and the concurrence of a majority of the legislative body is necessary to their passage. We recognized that construction of the statute in Hibbard & Co. vs. City of Chicago, 173 Ill., 91. If a proposition not in the form of an ordinance creates any liability or provides for the expenditure or appropriation of money, the requirement is the same, while as to other propositions, whether the yeas and nays are entered upon the journal or not, the majority of a quorum is sufficient.

The basic idea of the legislative body to make impossible the approval of ordinances or of propositions creating indebtedness by minority votes of municipal councils, at meetings hastily called is wise. Legislative intention should be effectuated.

Section 2224 of the Administrative Code, requiring in mandatory language the affirmative vote of a majority of all the members of the municipal council for the passage of any ordinance, whether or not an ordinance creating indebtedness, an ordinance passed by less than that majority is invalid. Ordinance No. 25 of Tabaco, Albay, is void.

City of Manila v. Laguio

Facts: The Malate Tourist Development Corporation (MTDC) built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the DOTC as a hotel. MTDC filed a petition for declaratory relief against the City of Manila, Lim (mayor), Atienza (vice-mayor), and the members of the city council of Manila, praying that the Ordinance they enacted which prohibited motels and inns be declared unconstitutional. The Ordinance prohibited the establishment or operation of businesses providing amusement, services, or entertainment where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community in the Ermita-Malate area. Such businesses include sauna parlors, massage parlors, karaoke bars, clubs, dance halls, motels and inns. MTDC: Motels and inns should not have been prohibited as they are not establishments for amusement or entertainment; neither were they services or facilities for entertainment and did not use women as tools, etc. Also, the Ordinance was unconstitutional and void because (1) The City Council has no power to prohibit the operation of motels as the LGC granted only the power to regulate the establishment, operation and maintenance of motels, etc. (2) It is violative of PD 499 which declared portions of the Ermita-Malate area as a commercial zone, with restrictions (3) It is not a proper exercise of police power as there is no relation to legitimate municipal interests sought to be protected, (4) It is an ex post facto law, and (5) It violates MTDC’s constitutional rights, confiscatory and is an invasion of property rights, also violates the equal protection clause.Manila: The City Council had the power to prohibit certain forms of entertainment in order to protect the social and moral welfare of the community, as provided in Sec. 458 (a) 4 (vii) of the LGC. Kwong Sing vs. City of Manila: power of regulation includes the power to control, govern, and restrain places of exhibition and amusement. This is also in conjunction with its police power as found in Revised Charter of Manila.

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Judge Laguio issued an ex-parte TRO against the enforcement of the Ordinance. After trial, he rendered a decision enjoining the City of Manila from implementing the Ordinance. The City of Manila then filed a petition assailing the Decision rendered by Laguio.

Issue: WON the Ordinance is unconstitutional. YES. To be valid, an ordinance must conform to the following

substantive requirements: (1) It must not contravene the Constitution or any statute; (2) Must not be unfair or oppressive; (3) Must not be partial or discriminatory; (4) Must not prohibit but may regulate trade; (5) Must be general and consistent with public policy; (5) Must not be unreasonable.

As regards the first criterion, there are 2 requirements: It must pass muster under the test of constitutionality and the test of consistency with prevailing laws. LGUs are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from Congress. The delegate cannot be superior to the principal.

The means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property. Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate be it stressed that their sexual conduct within the motel's premises consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.

Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone it is the most comprehensive of rights and is the beginning of all freedom and the right most valued by civilized men. The right to privacy is a constitutional right, the invasion of which should be justified by a compelling state interest.

The Ordinance was passed by the City Council in the exercise of its police power as found in Sec. 16 of the LGC. This police power, while far-reaching, is subordinate to constitutional limitations the exercise must be reasonable and for the public good. The Ordinance violates the 1987 Constitution, the relevant provisions of which are Art. II, Secs. 5 and 14, and Art. III, Secs. 1 and 9.

To be constitutional, the exercise of police power, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment. In this case, the means employed is oppressive and unreasonable.

The Ordinance was enacted to address and arrest the social ills purportedly spawn as it substantially divests the respondent of the beneficial use of its property. The Ordinance in Section 1 forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it cannot be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation. It is intrusive and violative of the private property rights of individuals.

The City of Manila cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a "wholesome" property to a use which cannot reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious or intended for noxious purposes may not, by zoning, be destroyed without compensation.

Distinction should be made between destruction from necessity and eminent domain. Property taken in the exercise of police power is destroyed because it is noxious or intended for a

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noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore "wholesome." If it be of public benefit that a wholesome property remains unused or relegated to a particular purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private property for public used by the establishments in the Ermita-Malate area.

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy.

Due process furnishes a standard to which governmental action should conform in order that deprivation of life, liberty, or property is valid.

The Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments.

Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions. Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." There are no comprehensible standards to guide the law enforcers in carrying out its provisions.

Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. Legislative bodies are

allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class.

According to the SC: (1) No substantial distinctions between motels, inns, pension houses, hotels, lodging houses, and other similar establishments. All are commercial establishments providing lodging. The classification is thus invalid (similar subjects are not similarly treated) and arbitrary (it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance) (2) No logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. (3) The standard "where women are used as tools for one of the hinted entertainment" is also discriminatory as prostitution ills the Ordinance is not a profession exclusive aims to banish to women. Both men and women have an equal propensity to engage in prostitution. This discrimination based on gender violates equal protection as it is not substantially related to important government objectives.

As to consistency with prevailing laws: (1) The Ordinance contravenes the LGC. Under the LGC, LGUs are empowered to regulate, and not prohibit the establishments enumerated in Sec. 1 of the Ordinance. The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv), while its power to regulate the establishment, operation and maintenance of any entertainment or amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii). Clearly, then, the only power of the City Council to legislate relative to these establishments is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. The word regulate includes the power to control, govern, and restrain, but

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it should not be construed as synonymous with suppress or prohibit. As a general rule when a municipal corporation is specifically given authority or power to regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.

Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other events or activities for amusement or entertainment, particularly those which tend to disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City Council may suspend, suppress or prohibit.

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council. Moreover, it is a general rule in statutory construction that the express mention of one person, thing, or consequence is tantamount to an express exclusion of all others.

Also, the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will. In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed

by the Code as it is at variance with the latter's provisions granting the City Council mere regulatory powers.

Manila also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It cannot be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention.

The City Council was conferred powers to prevent and prohibit certain activities and establishments in Section 458 (1) (v). If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only be regulated in their establishment, operation and maintenance.

It is important to distinguish the punishable activities from the establishments themselves. That these establishments are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or performances." Thus, it can be inferred that the Code considers

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these establishments as legitimate enterprises and activities. (2) The Ordinance also contravenes the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law.

Perez v. de la Cruz

Facts: In 1968 during a private conference held at the office of the petitioner Naga vice-mayor Perez with 7 councilors , the matter of selecting the secretary of the municipal board of the city as well as the chairmen of the various standing committees came up for discussion. At the indication by the 4 Nacionalista Party councilors of their desire to vote for a particular person as secretary of the board and to hold the chairmanship of the committee on markets for one of them, Perez expressed her intention to vote, in the deliberation of such matters, to create a tie vote and to then exercise her power to break such deadlock. The four aforesaid councilors filed with the Court of First Instance of Camarines Sur a petition for prohibition with writ of preliminary injunction to prevent Perez from casting her vote in the selection of the secretary of the municipal board and in the choice of chairmen and members of the different standing committees, except in the event of a tie vote, and from voting on any legislative proposal or measure or in any proceeding of the said board except when the members thereof are equally divided. Respondents alleged that the vice-mayor of Naga City is not a member of the municipal board but only its presiding officer. A writ was issued hence vice-mayor Perez assailed the issuance of the writ as undue interference in matters purely legislative in character, at the same time that she denied the existence of a threatened invasion of the rights of the four councilors. Subsequently, Liberal councilors passed an amendment to the Rules of Procedure of the Naga municipal board granting the chairman thereof the right to vote as a member, and as presiding officer the right to vote again in case of a tie.

Issues: 1. WON the vice-mayor of Naga city, besides being the presiding officer of the municipal board, also a member thereof? NO.

upon approval of Republic Act 2259 3 making elective the offices of mayor, vice-mayor and councilors in chartered cities, the position of vice-mayor, among others was created. Thus section 3 of said law provides: The position of Vice-Mayor is hereby created in chartered cities which at present have no position for Vice-Mayor by provision of their corporate charters: Provided, That the Vice-Mayor shall be the presiding officer of the City Council or Municipal Board in all chartered cities.

Perez now contends that since under the Naga City charter the mayor was the presiding officer of the municipal board, and since under Republic Act 2259 creating the position of vice-mayor who was made the presiding officer, the vice-mayor simply replaced the mayor as "presiding officer" of the municipal board, the vice-mayor acquired all the rights and prerogatives of the presiding officer under the charter, one of which is "membership in the municipal board."

Quiem v. Seriña: the silence of Rep. Act 2259 on whether the vice-mayor, the presiding officer, is a member of the board, was not enough ground for excluding the vice-mayor from membership in the board. But the legal setting and premises in Quiem are widely disparate from those in the case at bar. In the first place, in Quiem we found that "by express legal mandate, the vice-mayor of Cagayan de Oro City is a member of the board" because "that city's original charters calls for an appointive Vice-Mayor who 'shall be a member of the Municipal Board'." In the case at bar, however, in contrast with sec. 11 of Republic Act 521 creating the city of Cagayan de Oro which explicitly made the vice-mayor a member of the municipal board, section 11 of Republic Act 305 creating the City of Naga failed to provide even for the position of vice-mayor. In the second place, Republic Act 1325, 10 particularly section 1 thereof, amending the Cagayan de Oro charter, expressly reiterated that the vice-mayor "shall be a member of the Municipal Board;" as such similar statutory basis can be cogently invoked for the petitioner Perez.

Bagasao, et al. vs. Tumangan: the vice-mayor "as the presiding officer of the Municipal Board of the City of Cabanatuan is a member thereof" and "he may exercise his right to vote as a member on any proposed ordinance, resolution or motion." But we so held because "both the unamended and amended provisions of section 11 of the Charter of the City of Cabanatuan

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provide that the presiding officer of the Municipal Board is a member thereof. And as we have re repeatedly stated, there is no provision whatever in Republic Act 305 creating the City of Naga that provides for the position of vice-mayor; and the amendatory provisions of Republic Act 2259 making the vice-mayor the presiding officer of the municipal board does not make him a constituent member thereof.

Paragraph (g) of Rule III of the Rules of Procedure adopted by the municipal board of Naga City, which recites: (g) The chairman cannot vote, except in case of a tie. However, a member of the Board acting as chairman may vote as a member and as chairman to break a tie.

The petitioner insists, however, that the above provision was amended by the 6th municipal board, headed by her, to read as follows: (g) The Chairman, as member of the Board can vote and as a Presiding Officer may vote again in case of a tie. In the same manner, a member of the Board acting as chairman, may vote as a member and as Chairman, to break the tie. Such insistence is a sheer exercise in futility because (1) the amended rule presupposes that the chairman is a "member of the Board" — an assumption that is without legal basis; (2) the said amendatory rule was passed on March 5, 1968, almost two months after the filing on January 15, 1968, by the private respondents of their petition in civil case 6504, that is, pendente lite; and (3) although on the date the said amendment was passed, that restraining order dated February 20, 1968 of the Court of Appeals was in force, there was no quorum in the board, as the four respondents councilors had walked out of the session hall, leaving only the three Liberal Party councilors and the petitioner. The proposed amendment was, therefore, a complete nullity.

Petitioner’s theory that since the mayor of Naga City, who was a member of the municipal board under Rep. Act 305, was replaced by the vice-mayor as presiding officer thereof, the vice-mayor must, perforce, be deemed a member of the municipal board. Pressing her bid, she asserts that Republic Act 2259 effected a mere change in the officer who will preside the meetings of the board, and since the vice-mayor replaced the mayor as "presiding officer" thereof, the vice-mayor acquired all the rights and prerogatives of the presiding officer, one of which is membership in the board. This contention finds no support

either in law or logic. For, section 3 of Rep. Act 2259 simply installs the vice-mayor as the presiding officer of the board in all chartered cities. It does not install the vice-mayor as a member thereof. This is especially true in the case of Naga where the position of vice-mayor (whether appointive or elective) was originally not even provided for in its charter — the official next-in-rank to the mayor being the city treasurer.

2. WON she can vote twice: to create a deadlock and then to break it. NO. The petitioner now argues that as vice-mayor she merely stepped into the

shoes of the mayor as presiding officer of the board, and since the mayor was considered a member thereof, she too became a member entitled to the same rights, powers and prerogatives of voting as the mayor. There is no gainsaying the fact that prior, to the approval of Rep. Act 2259, the mayor of a municipality was a member of the municipal council, 25 besides being the presiding officer thereof, but his right to vote could be exercised only in "case of a tie." 26 Certainly, the vice-mayor who merely stepped into the shoes of the mayor could have no greater power than that possessed by the mayor who could not create a tie vote and then break it.

3. WON the judge has jurisdiction to issue the writ of prohibitory injunction against Perez. YES.

The petitioner's final contention is that as a legislative official, performing legislative functions, she is not subject to any prohibitory process by the courts. She invokes Vera, et al. vs. Avelino, et al. (77 Phil. 192) where we held: Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to proceedings of any tribunal, corporation, board or person exercising functions, judicial or ministerial. As respondents do not exercise such kind of functions, theirs being legislative, it is clear that the dispute falls beyond the scope of such special remedy.

Invocation of this ruling is completely inapposite. The doctrine therein laid down is based on the principle of separation of powers and cheeks and balances and is not applicable to local governments. Moreover, executives at the local or municipal level are vested with both legislative and sometimes judicial functions, in addition to their purely executive duties. By explicit statutory command, courts are given authority to determine the validity of municipal proceedings. It is not disputed that the present proceeding for prohibition has for its objective to prevent the petitioner from "participating in the election of Secretary of the Board, chairmanship of different committees and in voting in other legislative matters,

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proposals and proceedings, other than to break a tie." It is our view that the petitioner, in insisting to exercise the right to vote twice in the municipal board, acted without jurisdiction and power to do so, and may be validly prevented and restrained by a writ of prohibition.

In reply to the petitioner's assertion that the acts sought to be restrained are mere "probable individual actuations" beyond the reach of a prohibitory writ, suffice it to state that prohibition is essentially a "preventive remedy" and is "not intended to provide for a remedy for acts already accomplished." Withal, petitioner's threat of voting twice in the municipal board was not an empty or meaningless gesture, for the record shows that on March 5, 1968, soon after the writ complained of was lifted by the Court of Appeals through the latter's restraining order of February 20, 1968, the petitioner proceeded to act by voting twice for the approval of an alleged amendment to the rules of procedure of the municipal board.

Homeowners Association of the Philippines v. Municipal Board of Manila

Facts: The City of Manila passed Municipal Ordinance No. 4841 which regulates rentals of lots and buildings for residential purposes. The Homeowners' Association of the Philippines, Inc. and its President sought to nullify the ordinance. CFI: ordinance is ultra vires, unconstitutional, illegal and void ab initio. LC: struck down the questioned ordinance upon the ground that the power to "declare a state of emergency ... exclusively pertains to Congress"; that "there is no longer any state of emergency" which may justify the regulation of house rentals; that said ordinance constitutes an unreasonable and unjustified limitation on the use of private properties and arbitrarily encroaches on the constitutional rights of property owners"; that the power of the City of Manila to "regulate the business of ... letting or subletting of lands and buildings" does not include the authority to prohibit what is forbidden in said ordinance; and that the same cannot be deemed sanctioned by the general welfare clause in the City Charter.

Issue: WON the Ordinance is valid. NO. The authority of municipal corporations to regulate is essentially

police power. Inasmuch as the same generally entails a curtailment of the liberty, the rights and/or the property of persons, which are protected and even guaranteed by the Constitution, the exercise of police power is necessarily subject to a qualification, limitation or restriction demanded by the regard, the respect and the obedience due to the prescriptions of the fundamental law, particularly those forming part of the

Constitution of Liberty, otherwise known as the Bill of Rights — the police power measure must be "reasonable". In other words, individual rights may be adversely affected by the exercise of police power to the extent only — and only to the extent — that may fairly be required by the legitimate demands of public interest or public welfare. If such demands are brought about by a state of emergency, the interference upon individual rights, resulting from the regulations adopted to meet the situation, must be, by and large, co-extensive, co-equal or co-terminous with the existence thereof. And, since an emergency is by nature temporary in character, so must the regulations promulgated therefor be. In the language of Justice Holmes,"circumstances may so change in time or differ in space as to clothe with such an interest what at other times or in other places would be a matter of purely private concern."

As a consequence a law or ordinance affecting the rights of individuals, as a means to tide over a critical condition, to be valid and legal, must be for a "definite" period of time, the length of which must be "reasonable", in relation to the nature and duration of the crisis it seeks to overcome or surmount.

The practical reason for the requirement that a statute passed to meet a given emergency, should limit the period of its effectivity, is that, otherwise, a new and different law would be necessary to repeal it, and said period would, accordingly, be "unlimited, indefinite, negative and uncertain", so that "that which was intended to meet a temporary emergency may become a permanent law", because "Congress might not enact the repeal, and, even if it would, the repeal might not meet with the approval of the President, and the Congress might not be able to override the veto". In line with the basic philosophy underlying the authority to affect individual rights, this Court felt that Commonwealth Act No. 671, otherwise known as the Emergency Powers Act, was meant to be and "became inoperative when Congress met in regular session on May 25, 1946," and that Executive Orders Nos. 62, 192, 225 and 226 — promulgated subsequently thereto — "were issued without authority of law", because, otherwise, said emergency regulations would purport to be in force for an indefinite and unlimited period of time, and, hence, would be unconstitutional.

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The same considerations impelled the Court to invalidate Executive Order Nos. 545 and 546, issued on November 10, 1952. Indeed, otherwise "the result would be obvious unconstitutionality", by making permanent a law intended to afford a relief for a temporary emergency, the length of which should be "fixed in the law itself and not dependent upon the arbitrary or elastic will of either Congress or the President".

The powers of municipal corporations delegated thereto by the National Government cannot escape the inherent limitations to which the latter — as the source of said powers — is subject. Then, again, since our law on municipal corporations is, in principle, patterned after that of the United States, the rule therein, to the effect that "in a proper case, emergency legislation, limited in time, may be enacted under the police power" of a municipal corporation, should be considered a part of our legal system.

Appellant assails the validity of the proceedings in the lower court upon the round that, although petitioners herein had assailed Municipal Ordinance No. 4841, not merely as ultra vires, but, also, as unconstitutional, the Solicitor General had been neither heard nor notified in connection therewith, in violation of Section 4 of Rule 64 of the Rules of Court.

It should be noted, however, that appellant did not raise this question or invoke said Section 4, either in his answer or in a motion to dismiss in the lower court. Upon the other hand, the City Fiscal of Manila was notified therein. In fact, he filed a memorandum, apart from the memorandum submitted by counsel for appellant herein. Neither did his motion for reconsideration of the appealed decision touch upon said question, which was raised, for the first time, in a "supplement" to said motion for reconsideration.

At any rate, the determination of the question whether or not the Solicitor General should be required to appear "in any action involving the validity of any treaty, law, ordinance or executive order, rules or regulation" is a matter left to the "discretion" of the Court, pursuant to Section 23 of Rule 3 of the Rules of Court. Inasmuch as said requirement is not mandatory, but discretionary, non-compliance therewith and with Section 4 of Rule 64 — the interpretation of which should be harmonized with said Section 23 of Rule 3 — affected neither the jurisdiction

of the trial court nor the validity of the proceedings therein, in connection with the present case. Thus, in San Buenaventura vs. Municipality of San Jose, we held: that the requirement regarding notification to the Provincial Fiscal of the pendency of an action involving the validity of a municipal ordinance, as provided in Sec. 5, Rule 66 of the Rules of Court (now See. 4, Rule 64 of the Revised Rules of Court), is not jurisdictional; and failure on the part of petitioner to notify the Provincial Fiscal will not be a sufficient ground to throw the case out of court. We believe the purpose of the above-quoted rule is simply to give the Provincial Fiscal, who is the legal officer of the local governments, a chance to participate in the deliberation to determine the validity of a questioned municipal ordinance before the competent court. If it appears, however, that the ordinance in question is patently illegal, as in the present case, and the matter had already been passed upon by a competent court, the requirements of Sec. 5 of Rule 66 of the Rules of Court (now See. 4 of Rule 64 of the Revised Rules of Court) may be dispensed with.

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Morata v. Go

Facts: Victor and Flora Go filed a complaint with the CFI against Julius and Ma. Luisa Morata for recovery of a sum of money plus damages. The parties are all residents of Cebu City. The Moratas filed a motion to dismiss, citing as grounds the failure of the complaint to allege prior availment by the Gos of the barangay conciliation process required by P.D. 1508, as well as the absence of a certification by the Lupon or Pangkat Secretary that no conciliation or settlement had been reached by the parties. The motion was opposed. MTD denied. MR denied. Issue: WON the Katarungang Pambarangay law apply to cases heard by the Regional Trial Courts. YES.

SECTION 6. No complaint, petition, action for proceeding involving any matter within the authority of the Lupon as provided in Section 2 hereof shall be filed or instituted in court or any other government office for adjudication unless there has been a confrontation of the parties before the Lupon Chairman or the Pangkat and no conciliation or settlement has been reached as certified by the Lupon Secretary or the Pangkat Secretary attested by the Lupon or Pangkat Chairman, or unless the settlement has been repudiated. However, the parties may go directly to court in the

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following cases: [1] Where the accused is under detention; [2] Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; [3] Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support pendente lite; and [4] Where the action may otherwise be barred by the Statute of Limitations

Section 2 of the law defines the scope of authority of the Lupon thus: Subject matters for amicable settlement.—The Lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except: [1] Where one party is the government ,or any subdivision or instrumentality thereof; [2] Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; [3] Offenses punishable by imprisonment exceeding 30 days, or a fine exceeding P200.00; [4] Offenses where there is no private offended party; [5] Such other classes of disputes which the Prime Minister may in the interest of justice determine upon recommendation of the Minister of Justice and the Minister of Local Government.

Thus, except in the instances enumerated in sections 2 and 6 of the law, the Lupon has the authority to settle amicably all types of disputes involving parties who actually reside in the same city or municipality. The law, as written, makes no distinction whatsoever with respect to the classes of civil disputes that should be compromised at the barangay level, in contradistinction to the limitation imposed upon the Lupon by paragraph (3), section 2 thereof as regards its authority over criminal cases. In fact, in defining the Lupon's authority, Section 2 of said law employed the universal and comprehensive term "all", to which usage We should neither add nor subtract in consonance with the rudimentary precept in statutory construction that "where the law does not distinguish, We should not distinguish.

By compelling the disputants to settle their differences through the intervention of the barangay leader and other respected members of the barangay, the animosity generated by protracted court litigations between members of the same political unit, a disruptive factor toward unity and cooperation, is avoided. It must be borne in mind that the conciliation process at the barangay level is likewise designed to discourage indiscriminate filing of cases in court in order to decongest its clogged dockets and, in the process, enhance the quality of justice dispensed by it. Thus, to say that the authority of the Lupon is limited to cases exclusively cognizable by the inferior courts is to lose sight of this objective. Worse, it

would make the law a self-defeating one. For what would stop a party, say in an action for a sum of money or damages, as in the instant case, from bloating up his claim in order to place his case beyond the jurisdiction of the inferior court and thereby avoid the mandatory requirement of P.D. 1508? And why, indeed, should the law seek to ease the congestion of dockets only in inferior courts and not in the regional trial courts where the log-jam of cases is much more serious? Indeed, the lawmakers could not have intended such half-measure and self-defeating legislation.

There can be no question that when the law conferred upon the Lupon "the authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes, ... ," its obvious intendment was to grant to the Lupon as broad and comprehensive an authority as possible as would bring about the optimum realization of the aforesaid objectives. These objectives would only be half-met and easily thwarted if the Lupon's authority is exercised only in cases falling within the exclusive jurisdiction of inferior courts.

Moreover, if it is the intention of the law to restrict its coverage only to cases cognizable by the inferior courts, then it would not have provided in Section 3 thereof the following rule on Venue, to wit: However, all disputes which involve real property or any interest therein shall be brought in the Barangay where the real property or and part thereof is situated.

The authority of the Lupon is clearly established in Section 2 of the law; whereas Sections 11, 12 and 14, relied upon by respondent judge, deal with the nullification or execution of the settlement or arbitration awards obtained at the barangay level. These sections conferred upon the city and municipal courts the jurisdiction to pass upon and resolve petitions or actions for nullification or enforcement of settlement/arbitration awards issued by the Lupon, regardless of the amount involved or the nature of the original dispute. But there is nothing in the context of said sections to justify the thesis that the mandated conciliation process in other types of cases applies exclusively to said inferior courts.

Any doubt on the issue before Us should be dispelled by Circular No. 22 issued by Chief Justice Enrique M. Fernando: “Effective upon your receipt of the certification by the Minister of Local Government and Community Development that all the barangays within your respective jurisdictions have organized their Lupons provided for in Presidential Decree No. 1508, otherwise known as the Katarungang Pambarangay Law, in implementation of the barangay system of settlement of disputes, you are hereby directed to desist from receiving complaints, petitions, actions or proceedings in cases falling within the authority of said Lupons.

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It is significant that the above-quoted circular embodying the directive "to desist from receiving complaints, petitions, actions and proceedings in cases falling within the authority of said Lupons," has been addressed not only to judges of city and municipal courts, but also to all the judges of the courts of first instance, circuit criminal courts, juvenile and domestic courts and courts of agrarian relations, now known as regional trial courts under B.P. No. 129. The said circular was noted by president Ferdinand E. Marcos in a Letter of Implementation, dated November 12, 1979, the first paragraph of which reads as follows: "with the view to easing up the log-jam of cases and solving the backlogs in the case of dockets of all government offices involved in the investigation, trial and adjudication of cases, it is hereby ordered that immediate implementation be made by all government officials and offices concerned of the system of amicably settling disputes at the barangay level as provided for in the Katarungang Pambarangay Law [Presidential Decree No. 1508]."

The conciliation process at the barangay level, prescribed by P.D. 1508 as a pre-condition for filing a complaint in court, is compulsory not only for cases falling under the exclusive competence of the metropolitan and municipal trial courts, but for actions cognizable by the regional trial courts as well.

Uy v. Contreras

Facts: Uy subleased from Atayde the other half of the second floor of a building located at corner Reposo and Oliman Streets, Makati. She operated and maintained therein a beauty parlor. The sublease contract expired. However, the Uy was not able to remove all her movable properties. An argument arose between the Uy and Atayde when the former sought to withdraw from the subleased premises her remaining movable properties such as cabinets, shelves, frames, a mirror, a shampoo bowl, and an airconditioning casing. The argument degenerated into a scuffle between the petitioner, on the one hand, and Atayde and several of Atayde's employees, including private respondent Javier on the other. The private respondent had themselves medically examined for the alleged injuries inflicted on them by Uy. They then filed a complaint with the barangay captain of Valenzuela, Makati. The confrontation of the parties was scheduled by the barangay captain, but only Uy appeared. The confrontation was reset. The Office of the Provincial Prosecutor of Rizal filed two informations for slight physical injuries against Uy. Judge Contreras ordered the petitioner to submit her counter-affidavit and those of her witnesses. Uy submitted the required counter-affidavits where she specifically alleged the prematurity of the filing of the criminal cases for failure to undergo

conciliation proceedings as she and the private respondents are residents of Manila. She also attached to it a certification by the barangay captain of Valenzuela, Makati, that there was an ongoing conciliation between the parties. Uy then filed an MTD for non-compliance with the requirement of P.D. No. 1508 on prior referral to the Lupong Tagapamayapa and pursuant to Section 18 of the 1991 Revised Rule on Summary Procedure. MTD denied, MR denied. Issue:WON it is mandatory for the parties herein to submit to the mediation of the katarungang pambarangay before a case in court. YES.

The law on the katarungang pambarangay was originally governed by P.D. No. 1508, now repealed by LGC. Three new features: (1) It increased the authority of the lupon in criminal offenses from those punishable by imprisonment not exceeding thirty days or a fine not exceeding P200.00 in P.D. No. 1508 to those offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000.00. (2) As to venue, it provides that disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. (3) It provides for the suspension of the prescriptive periods of offenses during the pendency of the mediation, conciliation, or arbitration process.

Paragraph (c) of Section 410 of the law, however, suffers from some ambiguity when it provides that the prescriptive periods "shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary." What is referred to as receipt by the complainant of the complaint is unclear; obviously, it could have been a drafting oversight. Accordingly, in the above quoted Section 11 of the Rules and Regulations issued by the Secretary of Justice, the phrase "the complaint or" is not found, such that the resumption of the running of the prescriptive period shall, properly, be from receipt by the complainant of the certificate of repudiation or the certification to file action issued by the lupon or the pangkat secretary. Such suspension, however, shall not exceed sixty days.

The first feature has necessarily broadened the jurisdiction of the lupon and if the mediation and conciliation process at that level would be effectively pursued, few cases would reach the regular courts, justice would be achieved at less expense to the litigants, cordial relationships among protagonists in a small community would be restored, and peace and order therein enhanced.

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The second feature, which is covered by paragraph (d), Section 409 of the LGC, also broadens the authority of the lupon in the sense that appropriate civil and criminal cases arising from incidents occurring in workplaces or institutions of learning shall be brought in the barangay where such workplace or institution is located. That barangay may not be the appropriate venue in either paragraph (a) or paragraph (b) of the said section. This rule provides convenience to the parties. Procedural rules including those relating to venue are designed to insure a fair and convenient hearing to the parties with complete justice between them as a result. Elsewise stated, convenience is the raison d'etre of the rule on venue.

The third feature is aimed at maximizing the effectiveness of the mediation, conciliation, or arbitration process. It discourages any intentional delay of the referral to a date close to the expiration of the prescriptive period and then invoking the proximity of such expiration as the reason for immediate recourse to the courts. It also affords the parties sufficient time to cool off and face each other with less emotionalism and more objectivity which are essential ingredients in the resolution of their dispute. The sixty-day suspension of the prescriptive period could spell the difference between peace and a full-blown, wearisome, and expensive litigation between the parties.

While P.D. No. 1508 has been repealed by the LGC of 1991, the jurisprudence built thereon regarding prior referral to the lupon as a pre-condition to the filing of an action in court remains applicable because its provisions on prior referral were substantially reproduced in the Code.

Peregrina vs. Panis: Thus, Morata vs. Go, 125 SCRA 444 (1983), and Vda. de Borromeo vs. Pogoy, 126 SCRA 217 (1983) have held that P.D. No. 1508 makes the conciliation process at the Barangay level a condition precedent for the filing of a complaint in Court. Non-compliance with that condition precedent could affect the sufficiency of the plaintiff's cause of action and make his complaint vulnerable to dismissal on the ground of lack of cause of action or prematurity. The condition is analogous to exhaustion of administrative remedies, or the lack of earnest efforts to compromise suits between family members, lacking which the case can be dismissed. The parties herein fall squarely within the ambit of P.D. No. 1508. They are actual residents in the same barangay and their disputes does not fall under any of the excepted cases."

Such non-compliance is not, however, jurisdictional. This Court said so in Garces vs. Court of Appeals: prior recourse to the conciliation procedure required under P.D. 1508 is not a jurisdictional requirement, non-

compliance with which would deprive a court of its jurisdiction either over the subject matter or over the person of the defendant. Where, however, the fact of non-compliance with and non-observance of such procedure has been seasonably raised as an issue before the court first taking cognizance of the complaint, dismissal of the action is proper. The precise technical effect of failure to comply with the requirement of P.D. 1508 where applicable is much the same effect produced by non-exhaustion of administrative remedies; the complaint becomes afflicted with the vice of pre-maturity; the controversy there alleged is not ripe for judicial determination. The complaint becomes vulnerable to a motion to dismiss.

There were, of course, cases where this Court ruled that the failure of the defendant to seasonably invoke non-referral to the appropriate lupon operated as a waiver thereof. Furthermore, when such defect was initially present when the case was first filed in the trial court, the subsequent issuance of the certification to file action by the barangay, which constituted substantial compliance with the said requirement, cured the defect.

Revised Rule on Summary Procedure: Sec. 18 Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant.

In the proceeding before the court a quo, the petitioner and the respondent had in mind only P.D. No. 1508. The petitioner further invoked the aforequoted Section 18. None knew of the repeal of the decree by the LGC of 1991. Even in her instant petition, the petitioner invokes the decree and Section 18 of the Revised Rule on Summary Procedure. However, the private respondents, realizing the weakness of their position under P.D. No. 1508 since they did refer their grievances to what might be a wrong forum under the decree, changed tack. In their Comment, they assert that on 20 April 1993 Atayde "filed a complaint against petitioner before the barangay council of Barangay Valenzuela, Makati, in compliance with the requirement of the Katarungang Pambarangay Law under the LGC." Yet, in a deliberate effort to be cunning or shrewd, which is condemnable for it disregards the virtue of candor, they assert that the said law is not applicable to their cases before the court a quo because (a) the petitioner and respondent Atayde are not residents of barangays in the same city or municipality; (b) the law does not apply when the action, as in the said cases, may otherwise be barred by the statute of limitations; and (c) even

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assuming that the law applies insofar as Atayde is concerned, she has substantially complied with it.

The Office of the Provincial Prosecutor of Rizal should have exerted enough diligence to inquire from the private respondents if prior referral to the lupon was necessary before filing the informations.

Respondent judge did not do any better. His total unawareness of the LGC of 1991, more specifically on the provisions on the Katarungang pambarangay, is distressing. He should have taken judicial notice thereof, ever mindful that under Section 1, Rule 129 of the Rules of Court, courts are mandatorily required to take judicial notice of "the official acts of the legislative, executive and judicial departments of the Philippines." We have ruled that a judge is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. 21 He should have applied the revised katarungang pambarangay law under the LGC. Had he done so, this petition would not have reached us and taken valuable attention and time which could have been devoted to more important cases.

In view of the private respondents' failure to appear at the first scheduled mediation on 28 April 1993 for which the mediation was reset to 26 May 1993, no complaint for slight physical injuries could be validly filed with the MTC of Makati at any time before such date. The filing then of Criminal Cases Nos. 145233 and 145234 with the said court on 11 May 1993 was premature and, pursuant to paragraph (a), Section 412 of the LGC, respondent Judge Contreras should have granted the motion to dismiss the criminal cases. He cannot justify its denial by taking refuge under Section 6 of P.D. No. 1508 (more properly, Section 412(b)(4) of the LGC) which states that the parties may go directly to court where the action is about to prescribe. This is because, as earlier stated, pursuant to paragraph (c), Section 410 of the Code, the prescriptive period was automatically suspended for a maximum period of sixty days from 23 April 1993 when the private respondents filed their complaints with the lupon of Valenzuela Makati.

Moreover, having brought the dispute before the lupon of barangay Valenzuela, Makati, the private respondents are estopped from disavowing the authority of the body which they themselves had sought. Their act of trifling with the authority of the lupon by unjustifiably failing to attend the scheduled mediation hearings and instead filing the complaint right away with the trial court cannot be countenanced for to do so would wreak havoc on the barangay conciliation system.

Granting arguendo that the petitioner did inflict the alleged physical injuries, the offense for which she may be liable would only be slight physical injuries under paragraph (2), Article 266 of the Revised Penal Code, considering that per the medical certificates 22 the injuries sustained by the private respondents would "heal" in nine days "in the absence of complication" and there is no showing that the said injuries incapacitated them for labor or would require medical attendance for such period. The penalty therefor would only be "arresto menor or a fine not exceeding 200 pesos and censure." These penalties are light under Article 25 of the Revised Penal Code and would prescribe in two months pursuant to Article 90.

Accordingly, since the slight physical injuries charged in Criminal Cases Nos. 145233 and 145234 were allegedly inflicted on 17 April 1993, the prescriptive period therefor would have expired two months thereafter. Nevertheless, its running was tolled by the filing of the private respondents' complaints with the lupon of Valenzuela, Makati, on 23 April 1993 and automatically suspended for a period of sixty days, or until 22 June 1993. If no mediation or conciliation could be reached within the said period of suspension and, accordingly, a certification to file action is issued, the private respondents would still have fifty-six days within which to file their separate criminal complaints for such offense. Evidently, there was no basis for the invocation by the respondent judge of the exception provided for in paragraph (b), Section 412 of the LGC.

Neither are we persuaded by the reasoning of the respondent Judge that the petitioner "had already waived the right to a reconciliation proceedings before the barangay of Valenzuela, Makati, considering that the accused and the complainant are residents of different barangays." The petitioner did not waive the reconciliation proceedings before the lupon of Valenzuela, Makati; she submitted to it and attended the scheduled conciliation on 28 April 1993 and invoked the pre-condition of referral to the lupon in her counter-affidavit.

Nor would this Court accept the contention of the private respondent that the parties could not agree on a compromise and that they had to request the barangay captain to issue a certification to file action. The request is dated 23 June 1993, or nearly one and a half months after Criminal Cases Nos. 145233 and 145234 were filed with the court a quo. Evidently, this was done to support their contention in the said court that, in any event, there was substantial compliance with the requirement of referral to the lupon. It must be stressed that the private respondents, after failing to

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appear at the initial confrontation and long after the criminal cases were filed, had no right to demand the issuance of a certification to file action.

The respondent judge thus acted with grave abuse of discretion in refusing to dismiss Criminal Cases Nos. 145233 and 145234.

Parties to disputes cognizable by the lupon should, with sincerity, exhaust the remedies provided by that law, government prosecutors should exercise due diligence in ascertaining compliance with it, and trial courts should not hesitate to impose the appropriate sanctions for non-compliance thereof.

Wingarts v. Mejia

Facts: Administrative complaints were filed against Judge Mejia in connection with 3 criminal cases decided by him. One of them is Crim. Case 2664 which was filed by Col. Munar against Johan Wingarts for grave threats. Initially, Judge Mejia took cognizance of the case and issued a warrant of arrest against Wingart. However, he later dismissed the same and indorsed it to the barangay official concerned for barangay conciliation. In the present case, Wingarts charges Judge Mejia with incompetence, ignorance of the law and abuse of authority for taking cognizance of Crim Case 2664 and issuing a warrant of arrest despite the lack of prior barangay conciliation. In its Memorandum, the Office of the Court Administrator made the following findings:that under Art. 408(c), Chapter 7, Title One, Book III, LocGov Code, offenses punishable by imprisonment not exceeding 1 year or a fine not exceeding P5,000 require prior barangay conciliation. that the crime of grave threats falls within the purview of this section. that Art. 412(a) likewise provided the following: CONCILIATION - (a) Precondition to filing of Complaint in Court - No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filled (SIC) or instituted directly in court or any other government office for adjudication unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto. The Court Administrator later concluded the following: "Had respondent Judge observed the mandate of the aforequoted provision of law he could have remanded the case to the lupon instead of taking cognizance thereof and prematurely issuing the warrant of arrest against the accused. Such an actuation, however, does not appear to be tainted with malice or evil intent. As can be gleaned from the records, respondent Judge dismissed Criminal Case No. 2664 in his Order of April 16, 1993 upon motion of the defense

counsel. This notwithstanding, administrative sanction is warranted against respondent Judge.

Issue: WON Judge Mejia is liable for incompetence and gross ignorance of the law for taking cognizance of the case when such was not first submitted to the Katarungang Pambarangay for conciliation. YES.

Although there is no clear proof of malice, bad faith, bias or partiality on his part, Judge Mejia should have exercised the requisite prudence, especially under the environmental circumstances of the aforesaid criminal case where personal liberty was involved. He should have carefully examined all relevant facts and issues and avoided the improvident issuance of the warrant of arrest without a circumspect review of the case which, after all, did not exhibit abstruse factual matters or complicated legal questions. The present controversy could have been avoided had he kept faith with the injunction that a member of the bench must continuously keep himself abreast of legal and jurisprudential developments because the learning process in law never ceases. Absence of bad faith & fact that Judge Mejia subsequently issued an order to recall the warrant of arrest mitigates but will not altogether exculpate him from the charge. Judge Mejia was order to pay a P2,000 fine with stern warning.

Judges are directed to desist from improvidently receiving and desultorily acting on complaints, petitions, actions or proceedings in cases falling within the authority of the Lupon Tagapamayapa. Proceedings before the lupon are a precondition to the filing of any action or proceeding in court or other government office. Such an initiatory pleading, if filed without compliance with the precondition, may be dismissed on motion of any interested party on the ground that it fails to state a cause of action.

Corpuz v. CA

Facts: Corpuz filed an action for unlawful detainer against private respondent Alvarado with the Metropolitan Trial Court of Manila, Branch 6, for recovery of possession of the room being occupied by the latter, which Corpuz' children allegedly needed for their own use. Alvarado and Corpuz were two of the tenants of a certain Lorenzo Barredo who, in May 1988, decided to sell his property to the tenants. Due to economic difficulties, however, Alvarado and the other lessees executed an "Affidavit of Waiver" granting Barredo the right to sell his house to any person who can afford to purchase the same. Consequently, Barredo sold his house to Corpuz for P37,500.00. As a result of the sale, a tenancy relationship was established between Corpuz and Alvarado. In October 1991, Corpuz sent a written

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notice to Alvarado demanding that he vacate the room which he was occupying because the children of Corpuz needed it for their own use. Alvarado refused to vacate the room as demanded, prompting Corpuz to seek his ejectment. In his answer, Alvarado raised two major defenses, to wit: (1) the alleged "Affidavit of Waiver" executed between him and Barredo was a forgery; and (2) the dispute was not referred to the Lupong Tagapayapa. Finding the defenses of Alvarado to be without merit, the MTC of Manila handed down on a decision ordering Alvarado to vacate the room. On appeal, the RTC reversed and decided that the purported sale between Corpuz and Barredo was the subject of a controversy pending before the National Housing Authority (NHA) which must be resolved first by said agency. It also concluded that the "Affidavit of Waiver" executed by Alvarado and Barredo was a forgery. Consequently, it ordered the dismissal of the case for unlawful detainer, and ruled that Alvarado cannot be legally expelled from the subject premises. MR denied. CA affirmed. MR denied. Issues: 1. WON Corpuz' unlawful detainer suit filed before the MTC against Alvarado should be suspended until the resolution of the case lodged in the NHA impugning the sale of said property 2. WON the "Affidavit of Waiver" between Corpuz and Barredo was authentic

It is elementary that the MTC has exclusive jurisdiction over ejectment cases. As the law now stands, the only issue to be resolved in forcible entry and unlawful detainer cases is the physical or material possession over the real property, that is, possession de facto.

Refugia v.CA: "In the case of De la Santa vs. Court of Appeals, et al., this Court, in making a distinction between the reception of evidence and the resolution of the issue of ownership, held that the inferior court may look into the evidence of title or ownership and possession de jure insofar as said evidence would indicate or determine the nature of possession. It cannot, however, resolve the issue of ownership, that is, by declaring who among the parties is the true and lawful owner of the subject property, because the resolution of said issue would effect an adjudication on ownership which is not sanctioned in the summary action for unlawful detainer. With this as a premise and taking into consideration the amendment introduced by Batas Pambansa Blg. 129, it may be suggested that inferior courts are now conditionally vested with adjudicatory power over the issue of title or ownership raised by the parties in an ejectment suit."

Since the present petition involves the issue of possession intertwined with the issue of ownership (i.e., the controversy pending in the NHA), the doctrinal pronouncement in Refugia is applicable.

The prevailing doctrine is that suits or actions for the annulment of sale, title or document do not abate any ejectment action respecting the same property.

Wilmor Auto Supply Construction Company Corporations, et al. v. CA: outlined the following cases involving the annulment of the title or document over the property which should not be considered in the abatement of an ejectment suit, to wit: "Neither do suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property. Clearly, the underlying reason for the above rulings is for the defendant not to trifle with the ejectment suit, which is summary in nature, by the simple expedient of asserting ownership thereon. Thus, the controversy pending before the NHA for the annulment of the Deed of Sale and assailing the authenticity of the "Affidavit of Joint Waiver" cannot deter the MTC from taking cognizance of the ejectment suit merely for the purpose of determining who has a better possessory right among the parties.

It may be stressed that Alvarado is not without remedy. We have ruled that a judgment rendered in an ejectment case shall not bar an action between the same parties respecting title to the land or building nor shall it be conclusive as to the facts therein found in a case between the same parties upon a different cause of action involving possession.

Furthermore, Alvarado raises the issue in the instant petition that the ejectment suit was not referred to the Lupon Tagapayapa as required by Presidential Decree No. 1508.

We are not persuaded. This defense was only stated in a single general short sentence in Alvarado's answer. We have held in Dui v. Court of Appeals that failure of a party to specifically allege the fact that there was no compliance with the Barangay conciliation procedure constitutes a waiver of that defense. A perusal of Alvarado's answer reveals that no reason or explanation was given to support his allegation, which is deemed a mere general averment.

In any event, the proceeding outlined in P.D. 1508 is not a jurisdictional requirement and non-compliance therewith cannot affect the jurisdiction which the lower court had already acquired over the subject matter and the parties therein.

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Bonifacio Law Office v. Bellosillo

Facts: In a letter-complaint dated August 28, 1997, Atty. Ricardo M. Salomon Jr. of the Bonifacio Law Office charged then acting Judge Reynaldo B. Bellosillo of the Metropolitan Trial Court of Quezon City, Branch 34, with ignorance of the law, grave abuse of discretion, and obvious partiality. Salomon assails the Order dated April 2, 1996 referring the said ejectment case back to the barangay for conciliation proceedings despite the fact that it was alleged in the verified complaint, that the matter had already been referred to the barangay and that a copy of the Certification to File Motion was attached [to] the verified complaint as ANNEX E thereof. Bewildered with such Order, he tried to talk with respondent judge but

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was prevented to do so because of the strict and extremely tight ‘cordon sanitaire’ of the latter. He then inquired from the respondent’s branch clerk of court the reason behind such order and he was advised that perhaps he should submit the minutes of the hearings held in the barangay. Following said advice, he filed a compliance with respondent’s court attaching therewith a copy of his complaint filed before the barangay and the minutes of the proceedings held thereat. After the filing of said compliance, no action was taken by the court despite the fact that the case falls under the Rule on Summary Procedure and respondent judge has still to come up with a determination as to whether summons should be issued or not. He then inquired personally with the court about the status of the case and he was told that no action could be taken unless the Order of April 2, 1996 had been complied with. Dismayed by the Court’s insistence of referring the case to the barangay though it had already gone through all the requisite proceedings thereat, he decided not to pursue the case and filed a notice to withdraw complaint dated August 20, 1996. Said withdrawal however was denied by respondent on the basis of the action already taken thereon as contained in the questioned Order dated April 2, 1996. He then filed a Notice of Dismissal but the same was still unacted upon by respondent. It was only after a year from the time the complaint was filed that respondent ordered that summons be served on defendants. When defendants failed to file an Answer, he (complainant) filed a Motion to Render Judgment in accordance with the provisions of Sec.5 of the Rule on Summary Procedure. However, instead of rendering judgment, respondent merely required defendants to comment on the motion to render judgment. After defendants filed their comment, respondent still did not act on the said motion. The inordinate delay of respondent on acting upon said case has caused him so much suffering as his family is forced to rent a house to live in at a monthly rental rate of P19,000.00.

Respondent’s argument: In all cases where there is failure of settlement of mediation proceedings before the Barangay Chairman, it is necessary that the Pangkat be constituted by the parties from the Lupon members in order that they may have a second opportunity to amicably settle their dispute. It is a mandatory duty of the Barangay Chairman to set the meeting of the parties for the constitution of the Pangkat upon failure of parties to amicably settle otherwise there is no compliance with the requirements of P.D. 1508, now Sec. 412, 1991 LGC. In the case of complainant, it appears from the records thereof that there was premature issuance of the Certificate to File Action considering that there is no proof to show that the Pangkat was duly constituted before the said certificate was issued. Moreover, the belated submission by complainant of the Minutes of Proceedings before the Barangay Chairman, which was inaccurate and difficult to decipher

glaringly reveals the non-compliance of complainant with the requirement of the aforecited law.

Issue: WON Judge was correct inreferring the case back to the barangay for conciliation proceedings. YES.

Complainant contends that he has complied with the mandatory barangay conciliation proceedings as evidenced by the Certification to File Action attached to the Complaint for ejectment. The records, however, reveal that such Certification was improperly and prematurely issued. In what appears to be a pre-printed standard form thereof, the “x” before the second enumerated statement clearly shows that no personal confrontation before a duly constituted Pangkat ng Tagapagkasundo took place. Respondent’s position that the Pangkat was not constituted, and that no face to face conciliation of the parties had taken place before it is substantiated by the Minutes submitted by complainant. Evidently, complainant failed to complete the barangay conciliation proceedings. We also note that the Complaint before the barangay was dated February 16, 1996. Records show that the hearing was scheduled for February 26, 1996 and was reset for February 29, 1996. And yet, the Certification to File Action [8] was issued on March 1, 1996, less than fifteen days after the first scheduled hearing before the barangay chairman.

Section 410 (b) of the LGC is quoted hereunder: “Mediation by lupon chairman. – Upon receipt of the complaint, the lupon chairman shall within the next working day summon the respondent(s), with notice to the complainant(s) for them and their witnesses to appear before him for a mediation of their conflicting interests. If he fails in his mediation effort within fifteen (15) days from the first meeting of the parties before him, he shall forthwith set a date for the constitution of the pangkat in accordance with the provisions of this Chapter.”

Administrative Circular No. 14-93 provides: “In order that the laudable purpose of the law may not be subverted and its effectiveness undermined by indiscriminate, improper and/or premature issuance of certifications to file actions in court by the Lupon or Pangkat Secretaries, attested by the Lupon/Pangkat Chairmen, respectively, the following guidelines are hereby issued for the information of trial court judges in cases brought before them coming from the Barangay. “[II] 4. If mediation or conciliation efforts before the Punong Barangay proved unsuccessful, there having been no agreement to arbitrate (Sec. 410-{b}, Revised Rule Katarungang Pambarangay Law; Sec. 1,c,[1], Rule III, Katarungang Pambarangay Rules), or where the respondent fails to appear at the mediation proceeding

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before the Punong Barangay (3rd par. Sec. 8,a, Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall not cause the issuance of this stage of a certification to file action, because it is now mandatory for him to constitute the Pangkat before whom mediation, conciliation, or arbitration proceedings shall be held. III. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial Court, Metropolitan Trial Court or Municipal Trial Court shall be carefully read and scrutinized to determine if there has been compliance with prior Barangay conciliation procedure under the Revised Katarungang Pambarangay Law and its Implementing Rules and Regulations, as a pre-condition to judicial action, particularly whether the certification to file action attached to the records of the case comply with the requirements hereinabove enumerated in part II; (Emphasis and italics supplied) IV. A case filed in court without compliance with prior Barangay conciliation which is a pre-condition for formal adjudication x x x may be dismissed upon motion of the defendant/s or the court may suspend proceedings upon petition of any partyand refer the case motu proprio to the appropriate Barangay authority.

Evidently, the barangay failed to exert enough effort required by law to conciliate between the parties and to settle the case before it. Hence, respondent judge was not incorrect in remanding the case to it for completion of the mandated proceedings. We cannot fault him for seeking to promote the objectives of barangay conciliation and for taking to heart the provisions of Supreme Court Circular No. 14-93. His referral of the case back to the barangay cannot be equated with gross ignorance of the law. Neither does it constitute grave abuse of discretion or obvious partiality.

Thereafter, complainant filed a Motion praying that the proceedings already held before the barangay be considered as substantial compliance with the requirements of the law. Acting on the Motion, respondent judge issued the summons and opted to continue with the court proceedings without insisting on strict compliance with the mandated barangay proceedings. He did so after noting that complainant was apparently not making any move to complete the barangay proceedings after the case had been remanded to the barangay, and that the case fell under the Rules on Summary Procedure.

Section 18 of the Rules on Summary Procedure, however, provides that such cases may be revived only after the requirement for conciliation has been complied with. Nevertheless, respondent judge’s error is judicial in nature and cannot be corrected in administrative proceedings. At any rate, because he chose to continue with the proceedings of the case, and

because respondents failed to answer the ejectment Complaint on time, he should have rendered judgment within thirty (30) days from the expiration of the period to file an answer. This action is required under the Rules on Summary Proceedings, which state: “Sec. 6. Effect of failure to answer. - Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein

“Sec. 10. Rendition of judgment. – Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment.”

Mendova v. Afable

Facts: In an affidavit-complaint dated July 1, 1999, Abraham L. Mendova charged Judge Crisanto B. Afable of the Municipal Circuit Trial Court of San Julian–Sulat, Eastern Samar, with ignorance of the law relative to Criminal Case No. 2198-98, “People of the Philippines, Plaintiff, vs. Roberto Q. Palada, Accused,” for slight physical injuries. Complainant Mendova alleged in his affidavit-complaint that on February 18, 1998 he filed with the Office of the Barangay Chairman of Poblacion San Julian, Eastern Samar a complaint for slight physical injuries against Robert Palada. Barangay Chairman Ronie D. Quintua, in his Certification dated April 19, 1999, [1] confirmed such fact. Pangkat Chairman Eufemia L. Cabago also certified in an undated “Minutes In Settling Disputes” that the case was set for hearing on March 16, 22 and 29, 1998, but the parties failed to reach an amicable settlement.On May 4, 1998, complainant filed with the Municipal Circuit Trial Court of San Julian–Sulat, Eastern Samar a complaint for slight physical injuries against Palada, docketed as Criminal Case No. 2198-98. On November 3, 1998, respondent judge rendered his Decision dismissing the case on the ground of prescription, thus: "Complaint in this case dated April 20, 1998 was filed with this Court on May 4, 1998. The affidavits of complainant as well as prosecution witness Melvin C. Quiloña were subscribed and sworn to before the undersigned also on May 4, 1998.“The alleged offense took place on February 15, 1998. From the date of the commission of the alleged offense, more than two months have elapsed.“This is for slight physical injuries and is therefore a light offense. “Under Art. 89 of the Revised Penal Code, criminal liability is totally extinguished by presciption of the crime. “Article 90 of the same Code provides that light offenses prescribe in two months. This being a light offense, the same should be considered as already having prescribed because the case against the accused was filed after two months.“LET, THEREFORE, this case be DISMISSED, the crime having already prescribed.

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“SO ORDERED.” On July 7, 1999, complainant filed with the Office of the Court Administrator an administrative complaint against respondent judge. He alleged that in dismissing the case, respondent judge showed his ignorance of the law when he did not apply the provisions of Section 410(c) of Republic Act No. 7160 (The LGC), which state: Section 410. Procedure for Amicable Settlement (c) Suspension of prescriptive period of offenses. – While the dispute is under mediation, conciliation or arbitration, the prescriptive periods for offenses and causes of action under existing laws shall be interrupted upon filing of the complaint with the Punong Barangay. The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the Lupon or Pangkat Secretary: Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong barangay." Complainant further alleged that respondent's conduct caused him injury and grave injustice. In his comment dated September 13, 1999, respondent admitted that his Decision being assailed by complainant “was wrong.” According to him, “(w)hen I rendered the questioned decision, what entered my mind was the rule on prescription as provided under the Revised Penal Code. There was a mental lapse on my part caused by heavy workload,” as he was likewise designated the Acting Presiding Judge of MCTC Llorente-Hernani, Eastern Samar. He begged for kindness and understanding, stating that he has been a trial judge for 10 years and that this is the “first kind of mistake” he has ever committed.In its Evaluation and Recommendation, the Office of the Court Administrator, through Deputy Court Administrator Zenaida N. Elepaño, found respondent guilty as charged and recommended that he be fined P3,000.00 with a warning that a commission of similar acts will be dealt with more severely. Both parties filed their respective manifestations that they are willing to have the case so decided. In his manifestation, respondent judge made the additional comment that the complainant did not allege bad faith or malice on his (respondent’s) part in rendering the questioned decision.

Issue: 1. WON respondent Judge is liable for dismissing the case on the ground of prescription.

It is axiomatic, as this Court has repeatedly stressed, that an administrative complaint is not the appropriate remedy for every irregular or erroneous order or decision issued by a judge where a judicial remedy is available, such as a motion for reconsideration, or an appeal. For, obviously, if subsequent developments prove the judge’s challenged act to be correct, there would be no occasion to proceed against him at all. Besides, to hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming he has erred, would be nothing short of harassment

and would make his position doubly unbearable. To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. It is only where the error is so gross, deliberate and malicious, or incurred with evident bad faith that administrative sanctions may be imposed against the erring judge.

Flores vs. Abesamis: “As everyone knows, the law provides ample judicial remedies against errors or irregularities being committed by a Trial Court in the exercise of its jurisdiction. The ordinary remedies against errors or irregularities which may be regarded as normal in nature (i.e., error in appreciation or admission of evidence, or in construction or application of procedural or substantive law or legal principle) include a motion for reconsideration (or after rendition of a judgment or final order, a motion for new trial), and appeal. The extraordinary remedies against error or irregularities which may be deemed extraordinary in character (i.e., whimsical, capricious, despotic exercise of power or neglect of duty, etc.) are inter alia the special civil actions of certiorari, prohibition or mandamus, or a motion for inhibition, a petition for change of venue, as the case may be. “Now, the established doctrine and policy is that disciplinary proceedings and criminal actions against Judges are not complementary or suppletory of, nor a substitute for, these judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of these judicial remedies, as well as the entry of judgment in the corresponding action or proceeding, are pre-requisites for the taking of other measures against the persons of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality, that the door to an inquiry into his criminal, civil or administrative liability may be said to have opened, or closed. “Flores (complainant) resorted to administrative prosecution (or institution of criminal actions) as a substitute for or supplement to the specific modes of appeals or review provided by law from court judgments or orders, on the theory that the Judges’ orders had caused him ‘undue injury.’ This is impermissible, as this Court has already more than once ruled. Law and logic decree that ‘administrative or criminal remedies are neither alternative nor cumulative to judicial review where such review is available, and must wait on the result thereof. Indeed, since judges must be free to judge, without pressure or influence from external forces or factors, they should not be subject to intimidation, the fear of civil, criminal or administrative sanctions for acts they may do and dispositions

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they may make in the performance of their duties and functions; and it is sound rule, which must be recognized independently of statute, that judges are not generally liable for acts done within the scope of their jurisdiction and in good faith; and that exceptionally, prosecution of a judge can be had only if ‘there be a final declaration by a competent court in some appropriate proceeding of the manifestly unjust character of the challenged judgment or order, and x x x also evidence of malice or bad faith, ignorance or inexcusable negligence, on the part of the judge in rendering said judgment or order’ or under the stringent circumstances set out in Article 32 of the Civil Code.

In the present case, we noticed from the records before us that the complainant did not bother at all to file a motion for reconsideration of respondent judge’s decision dismissing the criminal case. No reason was advanced by complainant why he failed to do so. Thus, following our settled pronouncements cited above, his instant administrative complaint is premature.

According to complainant, Robert Palada committed the crime of slight physical injuries on February 15, 1998. On February 18, 1998, complainant filed his complaint with the Office of the Barangay Chairman at Poblacion, San Julian, Eastern Samar. Pursuant to the provisions of Section 410(c) of The LGC, quoted earlier, such filing interrupted the prescriptive period [8] and started to run again upon receipt by the complainant of the Certification to File Action issued by the Pangkat Secretary. Here, records fail to show when complainant received the Barangay Certification to File Action. The undated certification he submitted merely states that the case was set for hearing before the barangay on March 16, 22 and 29, 1998, but the parties failed to reach an amicable settlement. When he filed on May 4, 1998 Criminal Case No. 2198-98 for slight physical injuries with respondent's court, until the dismissal of the case on November 3, 1998, he still failed to present proof of his receipt of the Barangay Certification to File Action. Clearly, he cannot now fault respondent judge for dismissing the case on the ground of prescription.

ALU v. Letrondo-Montejo

Facts: The President of the Philippines declared December 4, 1992 a "special day" for the holding of election for Sangguniang Kabataan (SK) throughout the nation. Employees, pursuant to their CBA subsequently filed claims for the payment to them of holiday pay for that day. Private respondent, however, refused their claims

on the ground that December 4, 1992 was not a regular holiday within the contemplation of the CBA.

Issue: WON the Sangguniang Kabataan Election Day considered a regular holiday for purpose of the CBA.

We hold that it is and that, in denying petitioner's claim, respondent Voluntary Arbitrator denied members of petitioner union substantial justice as a result of her erroneous interpretation of the CBA, thereby justifying judicial review.

First. The Sangguniang Kabataan (SK) is part of the local government structure. The LGC (Rep. Act. No. 7160) creates in every barangay a Sangguniang Kabataan composed of a chairman, seven (7) members, a secretary and a treasurer. 3 The chairman and the seven members are elected by the Katipunan ng Kabataan, which is composed of citizens of the Philippines residing in the barangay for at least six (6) months, who are between the ages of 15 and 21 and who are registered as members. The chairman of the SK is an ex officio member of the Sangguniang Baranggay with the same powers duties, functions and privileges as the regular members of the Sangguniang Barangay. 5 The President of the Pederasyon ng mga Sangguniang Kabataan, which is imposed of the SK chairmen of the sangguniang kabataan of the barangays in the province, city, or municipality, is an ex officio member of the Sangguniang Panlalawigan, Sangguniang Panlungsod, and Sangguniang Bayan. Hence, as the Solicitor General points out, the election for members of the SK may properly be considered a "local election" within the meaning of Art. VII, sec 3 of the CBA and the day on which it is held to be a holiday, thereby entitling petitioners members at the AMS Farming Corp. to the payment of holiday on such day.

Second. The Voluntary Arbitrator held, however, that the election for members of the SK cannot be considered a local election as the election for Governors , Vice Governors, Mayors and Vice Mayors and the various local legislative assemblies (sanggunians) because the SK election is participated in only by the youth who are between the ages of 15 and 21 and for this reason the day is not a nonworking holiday. To begin with, it is not true that December 4, 1992 was not a nonworking holiday. It was a nonworking holiday and this was announced in the media. 7 In Proclamation No. 118 dated December 2, 1992 President Ramos declared the day as "a special day through the country on the occasion of the Sangguniang Kabataan Elections" and enjoined all "local government units through their

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respective Chief Local Executives [to] extend all possible assistance and support to ensure the smooth conduct of the general elections."

A "special day" is a "special day", as provided by the Administrative Code of 1987. 8 On the other hand, the term "general elections" means, in the context of SK elections, the regular elections for members of the SK, as distinguished from the special elections for such officers. 9

Moreover, the fact that only those between 15 and 21 take part in the election for members of the SK does not make such election any less a regular local election. The Constitution provides, for example, for the sectoral representatives in the House of Representatives of, among others, women and youth. 10 Only voters belonging to the relevant sectors can take part in the election of their representatives. Yet it cannot be denied that such election is a regular national election and the day set for its holding, a holiday.

Third. Indeed, the CBA provision in question merely reiterates the provision on paid holidays. Whether in the context of the CBA or the Labor Code, December 4, 1992 was a holiday for which holiday pay should be paid by respondent employer.

Mercado v. Board of Election Supervisors

Facts: Jose M. Mercado was proclaimed winner in the 4 December 1992 election for chairman of the SK of Barangay Mabalor, Ibaan, Batangas. The proclamation was made by the Board of Election Tellers (BET) acting as the Board of Canvassers, on the basis of its tally which showed Mercado winning by one vote over his rival, private respondent Crisanto P. Pangilinan. Mercado' s victory was, however, short-lived. Immediately after Mercado's proclamation as the winner by the BET, Pangilinan filed a formal protest questioning the results of the election. He alleged that the BET Chairman, drinking gin and Coke during the counting, had invalidated some votes without consulting the other board members. The BES ordered .the reopening of the ballot box and the recount of the votes for SK Chairman. The recount reversed the earlier tally to 51 to 49 in favor of Pangilinan, who was thereupon proclaimed the duly elected SK Chairman by the BES, which issued for that purpose its own Certificate of Canvass and Proclamation. Mercado then filed with the Regional Trial Court (RTC) of Batangas City a petition for certiorari and mandamus praying for the annulment of Pangilinan's proclamation by the BES, and for the issuance of an order to compel the Department of Interior and Local Government (DILG) to recognize him as the duly elected SK Chairman of Barangay Mabalor and to allow him to take his oath of office and discharge his duties as such. In his petition docketed as Civil Case No. 3565, Mercado assailed the jurisdiction of

the BES to act on the protest filed by Pangilinan as the ground cited therein was allegedly in the nature of an election protest properly cognizable by the Metropolitan or Municipal Trial Court in accordance with Section 252 of the Omnibus Election Code. He further claimed that, assuming that the BES has jurisdiction over the protest, the grounds raised therein were deemed waived by Pangilinan's failure to invoke them at the level of the BET, and that the BES acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the petitioner of due process when it ordered the reopening of the ballot box and the recounting of the votes without affording him the opportunity to be heard.In its Order dated 13 January 1993, the RTC dismissed the petition for lack of jurisdiction, The trial court stated that it was not aware of any law by which it could act on the matters raised in Mercado's petition since Resolution No. 2499 of the COMELEC did not vest in the RTC jurisdiction over controversies affecting Sangguniang Kabataan elections; constituting instead the BES, which is under COMELEC jurisdiction , as the final arbiter of all election controversies within its level. Mercado moved for a reconsideration of the dismissal order. He argued that the RTC was competent to act on his petition because (a) one mode of seeking judicial review is through the writ of certiorari which may be issued by the RTC under B.P. Blg. 129;(b) under its Resolutions Nos. 2499 and 2520, the COMELEC was to provide only technical assistance in the conduct of the SK election and therefore could not grant any relief from the action of the BES; moreover, under said Resolution No. 2499, no appeal to a higher administrative level wash allowed from the action of the BES and (c) the principle of exhaustion of administrative remedies did not apply to the case at bar, the jurisdictional and due process issues raised therein being legal in nature. Unconvinced, the RTC, in its Order dated 2 March 1993, denied the motion for reconsideration for lack of merit. It ruled that the reopening of the ballot box for Barangay Mabalor and the recounting of the votes cast therein were perfectly within the ambit of the BES's authority, and that Mercado should have gone to the DILG which has direct control and supervision of the SK elections.

Issue: WON the BES may take cognizance of Pangilinan’s protest SK history: the SK was initially organized by P.D. No. 684 (15 April 1975) as

the Kabataang Barangay (KB), a youth organization composed of all barangay residents who were less than 18 years of age which aims to provide its members with the opportunity to express their views and opinions on issues of transcendental importance. Its affairs were administered by a barangay youth chairman together with six barangay youth leaders, who should at least be 15 years of age or over but less than 18 The then Secretary of Local Government and Community Development

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was authorized to promulgate the implementing rules and regulations. Pursuant to P.D. No. 1191 (1 September 1977), the Pambansang Katipunan ng Kabataang Barangay ng Pilipinas was constituted as "a body corporate" with "the powers and attributes of a corporation" and placed directly under the Office of the President. Its affairs were to be administered by the Executive Committee which was empowered to promulgate rules and regulations governing the KB. This youth organization was recognized in B.P. Blg. 337 (The LGC), 2 which raised the maximum age requirement of the members from 18 to 21. Under R.A. No. 7160 (The LGC), the Kabataang Barangay was changed to the Sangguniang Kabataan. 3 It remains as a youth organization in every barangay, composed of a chairman and seven members to be elected by the katipunan ng kabataan, and the secretary and the treasurer to be appointed by the SK chairman with the concurrence of the SK. 4 The katipunan ng kabataan is composed of all citizens of the Philippines actually residing in the barangay for at least six months who are 15 but not more than 21 and who are duly registered in the list of the SK or in the official barangay list in the custody of the barangay secretary. The chairman, upon assumption of office, shall automatically become an ex-officio member of the sangguniang barangay

Under subparagraph (5), paragraph (e) Article 203, Rule XXVII of the Rules and Regulations Implementing the LGC 7 the conduct and administration of the elections for sangguniang kabataan members shall be governed by the rules promulgated by the COMELEC.Pursuant to such authority and for purposes of the SK election authorized under Section 532 of R.A. No. 7160, the COMELEC promulgated Resolution No. 2499 which closely followed the pattern set in the Constitution of the Kabataang Barangay providing for a Board of Election Supervisors and Board of Election Tellers, with the former having direct general supervision in the conduct of such election and as the final arbiter of all election protests. Article V of Resolution No. 2499 expressly provides: There shall be created aboard of election supervisors (BES) in every city or municipality composed of the following: a) city/municipal local government operations officer as chairman; b) city/municipal election officer as member; and c) city/municipal secretary as member. The board shall have direct general supervision in the conduct of elections for sangguniang kabataan in the barangay and shall act as final arbiter in the resolution of all election protests. No pre-proclamation cases shall be allowed on matters relating to the election of sangguniang kabataan chairman and members.

The petitioner contends that COMELEC Resolution No. 2499 is illegal and unconstitutional because it makes the BES the final arbiter of election

contests involving the SK in contravention of Section 252 of the Omnibus Election Code which vests in the proper metropolitan or municipal trial court original jurisdiction over such contests and, on a more fundamental ground, in contravention of Section 2, Article IX-C of the Constitution which lodges on. such courts exclusive original jurisdiction over contests involving elective barangay officials.

This contention is without merit for it assumes that the SK election is an election involving elective barangay officials within the purview of the aforesaid statutory and constitutional provisions.

Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article IX-C of the Constitution on the COMELEC's exclusive appellate jurisdiction over contests involving elective barangay officials refer to the elective barangay officials under the pertinent laws in force at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the LGC, and the elective barangay officials referred to were the punong barangay and the six sangguniang bayan members. 9 They were to be elected by those qualified to exercise the right of suffrage. 10 They are also the same officers referred to by the provisions of the Omnibus Election Code of the Philippines on election of barangay officials. Metropolitan and municipal trial courts had exclusive original The jurisdiction over contests relating to their election . The decisions of these courts were appealable to the Regional Trial Courts.

The Court recognizes the consequences of the quasi-judicial acts performed by the BES pursuant to Section 24 of COMELEC Resolution No. 2499 under the operative fact doctrine; thus, we hold that the Regional Trial Court is competent to review the decision of the BES in election controversies within its level. As correctly stated by the petitioner, it is a basic principle in administrative law that the absence of a provision for the review of an administrative action does not preclude recourse to the courts.

It is generally understood that as to administrative agencies exercising quasi-judicial or legislative power there is an underlying power in the courts to scrutinize the acts of such agencies on questions of law and jurisdiction even though no right of review is given by statute. The purpose of judicial review is to keep the administrative agency within its jurisdiction and protect substantial rights of parties affected by its decisions. it is part of the system of checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications.

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Garvida v. Sales

Facts: Petitioner applied for membership in the Katipunan ng Kabataan but was denied such as she was already 21 years and 10 months old. She filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. The court found her qualified. The Board of Election Tellers appealed, but the RTC judge inhibited himself by reason of his close relation with her. Petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan. Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, disapproved petitioner's certificate of candidacy again due to her age. Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run. Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved. Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. That same day Rios issued the memorandum to petitioner, the COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. Petitioner won. In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27, 1996. On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party." On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon.

Issue: WON the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK is valid. YES.

The Katipunan ng Kabataan was originally created by PD 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age. The Kabataang Barangay sought to provide its members a medium

to express their views and opinions and participate in issues of transcendental importance. Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age. In 1983, Batas Pambansa Blg. 337, then the LGC, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age." The LGC changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan.

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the LGC: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude.

A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the LGC. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two

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(22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections.

A closer look at the LGC will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "on the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio. The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification.

The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the LGC. In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824. Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election.

The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The LGC speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each. One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth -- the last day of the year. In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire

span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as "at least fifteen years of age or over but less than eighteen." This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the LGC increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt.

The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday." Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election.

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan

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but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the LGC and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.

The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible. In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election. The will of the people as expressed through the ballot cannot cure the vice of ineligibility.

The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected. A defeated candidate cannot be deemed elected to the office. Moreover, despite his claims, private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate.

Neither can this Court order that pursuant to Section 435 of the LGC petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections. Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months."

The question of the age qualification is a question of eligibility. Being "eligible" means being "legally qualified; capable of being legally chosen." Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office. Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.

Montesclaros v. COMELEC

Facts: On February 18, 2002, petitioner Antoniette V.C. Montesclaros sent a letter to the Comelec, demanding that the SK elections be held as scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief. On February 20, 2002, Alfredo L. Benipayo, then Comelec Chairman, wrote identical letters to the Speaker of the House and the Senate President about the status of pending bills on the SK and Barangay elections. In his letters, the Comelec Chairman intimated that it was “operationally very difficult” to hold both elections simultaneously in May 2002. Instead, the Comelec Chairman expressed support for the bill of Senator Franklin Drilon that proposed to hold the Barangay elections in May 2002 and postpone the SK elections to November 2002. Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners received a copy of Comelec En Banc Resolution No. 4763 dated February 5, 2002 recommending to Congress the postponement of the SK elections to November 2002 but holding the Barangay elections in May 2002 as scheduled. On March 6, 2002, the Senate and the House of Representatives passed their respective bills postponing the SK elections. On March 11, 2002, the Bicameral Conference Committee (“Bicameral Committee” for brevity) of the Senate and the House came out with a Report recommending approval of the reconciled bill consolidating Senate Bill No. 2050 [14] and House Bill No. 4456. [15] The Bicameral Committee’s consolidated bill reset the SK and Barangay elections to July 15, 2002 and lowered the membership age in the SK to at least 15 but not more than 18 years of age. On March 11, 2002, petitioners filed the instant petition.On March 11, 2002, the Senate approved the Bicameral Committee’s consolidated bill and on March 13, 2002, the House of Representatives approved the same. The President signed the approved bill into law on March 19, 2002.Issues:

1. WON there exists a justiciable controversy. NO. The Court’s power of judicial review may be exercised in constitutional

cases only if all the following requisites are complied with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.

In the instant case, there is no actual controversy requiring the exercise of the power of judicial review. While seeking to prevent a postponement of the May 6, 2002 SK elections, petitioners are nevertheless amenable to a

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resetting of the SK elections to any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15, 2002, a date acceptable to petitioners. With respect to the date of the SK elections, there is therefore no actual controversy requiring judicial intervention.

Petitioners’ prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK does not present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power of judicial review cannot be exercised in vacuo. The second paragraph of Section 1, Article VIII of the Constitution states – “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its power of judicial review only after a law is enacted, not before.

Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion the legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative powers are not subject to judicial restraint: the filing of bills by members of Congress, the approval of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual approval into law of the reconciled bills by each chamber of Congress. Absent a clear violation of specific constitutional limitations or of constitutional rights of private parties, the Court cannot exercise its power of judicial review over the internal processes or procedures of Congress. The Court has also no power to dictate to Congress the object or subject of bills that Congress should enact into law. The judicial power to review the constitutionality of laws does not include the power to prescribe to Congress what laws to enact. The Court has no power to compel Congress by mandamus to enact a law allowing petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK elections. To do so would destroy the delicate system of checks and

balances finely crafted by the Constitution for the three co-equal, coordinate and independent branches of government.

2. WON the postponement of the SK elections amounted to a grave abuse of discretion. NO.

RA No. 9164 is now the law that prescribes the qualifications of candidates and voters for the SK elections. This law also fixes the date of the SK elections. Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in recommending to Congress the postponement of the SK elections. The very evidence relied upon by petitioners contradict their allegation of illegality. The evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated February 5, 2002 that recommended the postponement of the SK elections to 2003; (2) the letter of then Comelec Chairman Benipayo addressed to the Speaker of the House of Representatives and the President of the Senate; and (3) the Conference Committee Report consolidating Senate Bill No. 2050 and House Bill No. 4456.

The Comelec exercised its power and duty to “enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall” and to “recommend to Congress effective measures to minimize election spending.” The Comelec’s acts enjoy the presumption of regularity in the performance of official duties. These acts cannot constitute proof, as claimed by petitioners, that there “exists a connivance and conspiracy (among) respondents in contravention of the present law.”

The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and regulations relative to the conduct of elections. Petitioners failed to prove that the Comelec committed grave abuse of discretion in recommending to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by petitioners even establish that the Comelec has demonstrated an earnest effort to address the practical problems in holding the SK elections on May 6, 2002. The presumption remains that the decision of the Comelec to recommend to Congress the postponement of the elections was made in good faith in the regular course of its official duties.

Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Public respondents having acted strictly pursuant to their constitutional powers and duties, we find no grave abuse of discretion in their assailed acts.

3. WON the exclusion of persons 18-21 from the SK was unconstitutional. NO.

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Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter of the SK, which fixed the maximum age for membership in the SK to youths less than 18 years old. Petitioners do not have a vested right to the permanence of the age requirement under Section 424 of the LGC. Every law passed by Congress is always subject to amendment or repeal by Congress. The Court cannot restrain Congress from amending or repealing laws, for the power to make laws includes the power to change the laws.

The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an election that is limited under RA No. 9164 to youths at least 15 but less than 18 years old. A law is needed to allow all those who have turned more than 21 years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK members, and cannot participate in the July 15, 2002 SK elections. Congress will have to decide whether to enact an amendatory law. Petitioners’ remedy is legislation, not judicial intervention.

Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he has been, or is about to be denied some personal right or privilege to which he is lawfully entitled. A party must also show that he has a real interest in the suit. By “real interest” is meant a present substantial interest, as distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest.

In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at least 15 but not more than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those who on the date of the SK elections are at least 15 but less than 18 years old. The new law restricts membership in the SK to this specific age group. Not falling within this classification, petitioners have ceased to be members of the SK and are no longer qualified to participate in the July 15, 2002 SK elections. Plainly, petitioners no longer have a personal and substantial interest in the SK elections.

This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No. 9164, which reset the SK elections and reduced the age requirement for SK membership, was not yet enacted into law. After the passage of RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional. To grant petitioners’ prayer to be allowed to vote and be voted for in the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No. 9164. This, petitioners have not done. The Court will not strike down a

law unless its constitutionality is properly raised in an appropriate action and adequately argued.

4. WON SK membership is a property right. NO. Congress exercises the power to prescribe the qualifications for SK

membership. One who is no longer qualified because of an amendment in the law cannot complain of being deprived of a proprietary right to SK membership. Only those who qualify as SK members can contest, based on a statutory right, any act disqualifying them from SK membership or from voting in the SK elections. SK membership is not a property right protected by the Constitution because it is a mere statutory right conferred by law. Congress may amend at any time the law to change or even withdraw the statutory right.

A public office is not a property right. As the Constitution expressly states, a “[P]ublic office is a public trust.” No one has a vested right to any public office, much less a vested right to an expectancy of holding a public office. In Cornejo v. Gabriel, decided in 1920, the Court already ruled: ”Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office a “property.” It is, however, well settled that a public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency. The basic idea of the government is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents.”

Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a proprietary right to public office. While the law makes an SK officer an ex-officio member of a local government legislative council, the law does not confer on petitioners a proprietary right or even a proprietary expectancy to sit in local legislative councils. The constitutional principle of a public office as a public trust precludes any proprietary claim to public office. Even the State policy directing “equal access to opportunities for public service” cannot bestow on petitioners a proprietary right to SK membership or a proprietary expectancy to ex-officio public offices.

Moreover, while the State policy is to encourage the youth’s involvement in public affairs, this policy refers to those who belong to the class of people defined as the youth. Congress has the power to define who are the youth qualified to join the SK, which itself is a creation of Congress. Those who do not qualify because they are past the age group defined as

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the youth cannot insist on being part of the youth. In government service, once an employee reaches mandatory retirement age, he cannot invoke any property right to cling to his office. In the same manner, since petitioners are now past the maximum age for membership in the SK, they cannot invoke any property right to cling to their SK membership.

5. WON the postponement of the SK elections would allow the incumbent SK officers to perpetuate themselves in power, depriving other youths of the opportunity to serve in elective SK positions. NO.

This argument deserves scant consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can remain in office only until their successors have been elected or qualified. On July 15, 2002, when the SK elections are held, the hold-over period expires and all incumbent SK officials automatically cease to hold their SK offices and their ex-officio public offices.

Munez v. Ariño

Facts: Mayor Irisari of Loreto, Agusan del Sur summoned to his office herein complainant Apolinario S. Muñez for conference respecting a land dispute which Muñez had with one Tirso Amado. As complainant failed to attend the conference, Mayor Irisari issued a warrant of arrest against him on December 27, 1989. The warrant was served and by virtue of it complainant was brought before Mayor Irisari, although no investigation was later conducted.Complainant filed a complaint against Mayor Irisari for grave misconduct and usurpation of judicial function with the Office of the Ombudsman as well as administrative complaint for violation of the Constitution, misconduct in office and abuse of authority with the Sangguniang Panlalawigan of Agusan del Sur. After preliminary investigation, the investigating officer of the Office of the Ombudsman filed a case for usurpation of judicial function against Mayor Asuero Irisari in the Municipal Circuit Trial Court of Loreto, Agusan del Sur. Originally raffled to the judge of that court, the criminal case was later assigned to respondent Judge Ciriaco Ariño on account of the inhibition of the first judge. Accused Irisari moved to quash the information on the ground that the acts complained of did not constitute a crime under the law. He contended that under Sec. 143(3) of the former LGC (Batas Pambansa Blg. 337), mayors were authorized to issue warrants of arrest. Judge Ariño denied the motion to quash on the ground that the power of mayors to issue warrants of arrest had ceased to exist as of February 2, 1987 when the Constitution took effect. For its part the Sangguniang Panlalawigan, acting on the administrative complaint against the mayor, found him guilty of misconduct in office and abuse of authority and accordingly ordered him suspended for eight (8) months without pay. On appeal,

however, the Department of Interior and Local Government (DILG) reversed on the ground that what the mayor had issued to the complainant, although denominated "Warrant of Arrest," was actually just an invitation or a summons. Mayor Irisari filed a motion for reconsideration of the order of denial of respondent judge, invoking the resolution of the DILG. Judge Ariño reconsidered his previous order and dismissed the case. Respondent said in his order: The accused, in his Motion for Reconsideration, asserts that since the question about the warrant of arrest issued against Apolinario Muñez has been resolved in an administrative proceedings as not the warrant of arrest contemplated by law, it would follow then that this case now before this Court against the accused be dismissed. The Court finds that the subject matter in this case and that in the administrative complaint arose from one and the same incident and it involved the same parties. Courts are not bound by the findings of administrative agencies like the DILG as in this case if such findings are tainted with unfairness and there is arbitrary action or palpable serious error. The Court believes that the resolution by the administrative agency in DLG-AC-60-91 is not tainted with unfairness and arbitrariness neither it shows arbitrary action or palpable and serious error, therefore, it must be respected (Mangubat vs. de Castro, G.R. 33892; July 28, 1988; Blue Bar Coconut Philippines vs. Tantuico, Jr., et al., G.R. 47051, July 29, 1988, Cuerdo vs. Commission on Audit, G.R. 84592, October 27, 1988). Upon receipt of this order, complainant Muñez sent two letters dated July 5 and 12, 1933 to the Presidential Anti-Crime Commission charging respondent Judge Ciriaco C. Ariño with knowingly rendering an unjust judgment for dismissing the case against Mayor Irisari. The matter was indorsed to the Office of the Ombudsman which, as already stated, referred it to this Court for possible disciplinary action against respondent judge.

Issue: WON the Judge may be held administratively liable. YES. The acts alleged in the information constitute a crime. Under Art. 241 of

the Revised Penal Code, the crime of usurpation of judicial authority involves the following elements: (1) that the offender is an officer of the executive branch of the government; and (2) that he assumes judicial powers, or obstructs the execution of any order or decision rendered by any judge within his jurisdiction. These elements were alleged in the information. Mayor Irisari was an officer of the executive branch.

It is not true that what he had issued against the complainant was not a warrant of arrest. It was. In plain terms it stated: “You are hereby requested/ordered to effect the arrest of Apolinario Muñez of Poblacion, Loreto, Agusan del Sur, for his refusal to acknowledge the Summons dated December 26, 1989, and bring him before the Office of the Municipal Mayor to answer an inquiry/investigation in connection with the complaint

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of one Tirso Amado held pending before this Office.” (Sgd) ASUERO S. IRISARI, Municipal Mayor. For and in the absence of the Municipal Circuit Judge.

Any one reading the warrant could not have been mistaken that it was a warrant for the arrest of the complainant Apolinario Muñez. As a matter of fact Mayor Irisari justified his order on the basis of Sec. 143(3) of the former LGC which expressly provided that in cases where the mayor may conduct preliminary investigation, the mayor shall, upon probable cause after examination of witnesses, have the authority to order the arrest of the accused." This provision had, however, been repealed by Art. III, Sec. 2 of the 1987 Constitution

Ponsica v. Ignalaga: No longer does the mayor have at this time the power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the LGC, conferring this power on the mayor has been abrogated, rendered functus officio by the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino people. Section 2, Article III of the 1987 Constitution pertinently provides that "no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized." The constitutional proscription has thereby been manifested that thenceforth, the function of determining probable cause and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by judges, this being evidenced by the elimination in the present Constitution of the phrase, "such other responsible officer as may be authorized by law" found in the counterpart provision of said 1973 Constitution - who, aside from judges, might conduct preliminary investigation and issue warrants of arrest or search warrants.

That there was no pending criminal case against the complainant did not make the order against him any less an order of arrest, contrary to the opinion of DILG.

On the other hand, the issuance of the warrant when there was before him no criminal case, but only a land dispute as it is now being made to appear, only made it worse for the mayor, for it would then appear that he assumed a judicial function which even a judge could not have done. All the more, therefore, respondent judge should not have dismissed the criminal case against the mayor.

It cannot be pretended that Mayor Irisari merely intended to invite or summon Muñez to his office because he had precisely done this the day before he issued the warrant of arrest, and he ordered the arrest of complainant because the latter had refused to appear before him. The summons issued by Mayor Irisari shows clearly that he understood the difference between a summons and a warrant of arrest. The summons read: “You are hereby demanded to appear before the Office of the Municipal Mayor on 27 December 1989 at around 9:30 A.M. then and there to answer in an inquiry/investigation in connection with a certain complaint of Mr. Tirso Amado lodged in this office.

Indeed, respondent had previously denied the motion to dismiss which the accused Mayor Irisari had filed on the ground that the authority invoked by him as basis for his warrant of arrest had been abrogated by the Constitution. He subsequently reversed himself on the ground that the decision of the DILG, finding Mayor Irisari not guilty, "must be respected." He said, "Courts are not bound by findings of administrative agencies like the DILG as in this case if such findings are tainted with unfairness and there is arbitrary action or palpable serious error." Since the DILG decision was not so tainted, "therefore, it must be respected."

Judge Ciriaco Ariño should have known that the case of Mayor Irisari was not before him on review from the decision of an administrative agency and, therefore, there was no basis for applying the rule on substantiality of evidence. What was before him was a criminal case and he should have considered solely the facts alleged in the information in resolving the motion to dismiss of the accused.

Greater Balanga Development Corporation (supra)

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Lim and Garayblas v. CA

Facts: On December 7, 1992 Bistro filed before the trial court a petition for mandamus and prohibition, with prayer for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as Mayor of the City of Manila. Bistro filed the case because policemen under Lim’s instructions inspected and investigated Bistro’s license as well as the work permits and health certificates of its staff. This caused the stoppage of work in Bistro’s night club and restaurant operations. Lim also refused to accept Bistro’s application for a business license, as well as the work permit applications of Bistro’s staff, for the year 1993. TC: issued first assailed TRO, after hearing, court granted Bistro’s application for a writ of prohibitory preliminary injunction. Despite the trial court’s order, Lim still issued a

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closure order on Bistro’s operations, even sending policemen to carry out his closure order. Bistro filed an "Urgent Motion for Contempt" against Lim and the policemen who stopped Bistro’s operations. At the hearing of the motion for contempt, Bistro withdrew its motion on condition that Lim would respect the court’s injunction. Lim, acting through his agents and policemen, again disrupted Bistro’s business operations. Meanwhile, Lim filed a motion to dissolve the injunctive order and to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits and licenses. This statutory power is expressly provided for in Section 11 (l), Article II of the Revised Charter of the City of Manila and in Section 455, paragraph 3 (iv) of the LGC. TC denied. Lim filed with the CA a petition for certiorari, prohibition and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction. CA denied. MR denied. Manila City Ordinance No. 778314 took effect. On the same day, Lim ordered the Western Police District Command to permanently close down the operations of Bistro, which order the police implemented at once.

Issue: WON Lim, as Mayor of the City of Manila, properly closed down the operations of Bistro. NO.

The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. Section 11 (l), Article II of the Revised Charter of the City of Manila, reads: The general duties and powers of the mayor shall be: (l) To grant and refuse municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinances are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other reason of general interest." On the other hand, Section 455 (3) (iv) of theLGC provides: (b) For efficient, effective and economical governance the purpose of which is the general welfare of the City and its inhabitants pursuant to Section 16 of this Code, the City Mayor shall: (iv) Issue licenses and permits and suspend or revoke the same for any violation of the condition upon which said licenses or permits had been issued, pursuant to law or ordinance."

From the language of the two laws, it is clear that the power of the mayor to issue business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly

premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard.

True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 771618 which expressly prohibits police raids and inspections, to wit: No member of the Western Police District shall conduct inspection of food and other business establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits, and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly exercised by Local Government Authorities and other concerned agencies."

Lim has no authority to close down Bistro’s business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the LGC. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits.

The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lim’s exercise of this power violated Bistro’s property rights that are protected under the due process clause of the Constitution.

Lim did not charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed down Bistro’s operations even before the expiration of its business license on December 31, 1992. Lim also refused to accept Bistro’s license application for 1993, in effect

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denying the application without examining whether it complies with legal prerequisites.

Disomancop v. Datumanong

Facts: RA 6734, "An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao," was enacted and signed into law. Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi, pursuant to a plebiscite became the ARMM. In accordance with R.A. 6734, then President Aquino issued E.O. 426, "Placing the Control and Supervision of the Offices of the Department of Public Works and Highways within the ARMM under the Autonomous Regional Government, and for other purposes." ARMM was formally organized on 6 November 1990. President Corazon C. Aquino flew to Cotabato, the seat of the Regional Government, for the inauguration. At that point, she had already signed 7 EOs devolving to ARMM the powers of 7 cabinet departments, namely: (1) local government; (2) labor and employment; (3) science and technology; (4) public works and highways; (5) social welfare and development; (6) tourism; and (7) environment and national resources. Nearly nine years later, then DPWH Secretary Vigilar issued D.O. 119, which provides that a DPWH Marawi Sub-District Engineering Office shall have jurisdiction over all national infrastructure projects and facilities under the DPWH within Marawi City and the province of Lanao del Sur. The headquarters of the Marawi Sub-District Engineering Office shall be at the former quarters of the Marawi City Engineering Office. Personnel of the above-mentioned Sub-District Engineering Office shall be made up of employees of the National Government Section of the former Marawi City Engineering Office who are now assigned with the Iligan City Sub-District Engineering Office as may be determined by the DPWH Region XII Regional Director. Almost 2 years later, then President Estrada approved and signed into law R.A. 8999 which constituted the City of Marawi and the municipalities comprising the First District of the Province of Lanao del Sur into an engineering district to be known as the First Engineering District of the Province of Lanao del Sur. Congress later passed R.A. 9054, "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the ARMM, as Amended." Like its forerunner, R.A. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government. R.A. 9054 lapsed into law. It was ratified in a plebiscite. The province of Basilan and the City of Marawi also voted to join ARMM on the same date. R.A. 6734 and R.A. 9054 are collectively referred to as the ARMM Organic Acts. On 23 July 2001, petitioners Disomangcop and Dimalotang addressed a petition to then DPWH Secretary

Datumanong, seeking the revocation of D.O. 119 and the non-implementation of R.A. 8999. No action, however, was taken on the petition.

Issues: 1. WON petitioners have legal standing. YES. Legal standing or locus standi is defined as a personal and substantial

interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from a mere interest in the question involved, or a mere incidental interest.

A party challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way." He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.

But following the new trend, this Court is inclined to take cognizance of a suit although it does not satisfy the requirement of legal standing when paramount interests are involved. In several cases, the Court has adopted a liberal stance on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.

In the instant case, petitioner Disomangcop holds the position of Engineer IV. When he filed this petition, he was the Officer-in-Charge, Office of the District Engineer of the First Engineering District of DPWH-ARMM, Lanao del Sur. On the other hand, petitioner Dimalotang is an Engineer II and President of the rank and file employees also of the First Engineering District of DPWH-ARMM in Lanao del Sur. Both are charged with the duty and responsibility of supervising and implementing all public works projects to be undertaken and being undertaken in Lanao del Sur which is the area of their jurisdiction.

It is thus not far-fetched that the creation of the Marawi Sub-District Engineering Office under D.O. 119 and the creation of and appropriation of funds to the First Engineering District of Lanao del Sur as directed under R.A. 8999 will affect the powers, functions and responsibilities of the petitioners and the DPWH-ARMM. As the two offices have apparently been endowed with functions almost identical to those of DPWH-ARMM First Engineering District in Lanao del Sur, it is likely that petitioners are in imminent danger of being eased out of their duties and, not remotely,

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even their jobs. Their material and substantial interests will definitely be prejudiced by the enforcement of D.O. 119 and R.A. 8999. Such injury is direct and immediate. Thus, they can legitimately challenge the validity of the enactments subject of the instant case.

2. WON R.A. 8999 is constitutional. The challenged law never became operative and was superseded or

repealed by a subsequent enactment. The ARMM Organic Acts are deemed a part of the regional autonomy scheme. While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite. Hence, the provisions thereof cannot be amended by an ordinary statute, such as R.A. 8999 in this case. The amendatory law has to be submitted to a plebiscite.

The first ARMM Organic Act, R.A. 6074, as implemented by E.O. 426, devolved the functions of the DPWH in the ARMM which includes Lanao del Sur (minus Marawi City at the time)38 to the Regional Government. By creating an office with previously devolved functions, R.A. 8999, in essence, sought to amend R.A. 6074. The amendatory law should therefore first obtain the approval of the people of the ARMM before it could validly take effect. Absent compliance with this requirement, R.A. 8999 has not even become operative.

From another perspective, R.A. 8999 was repealed and superseded by R.A. 9054. Where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. Of course, the intention to repeal must be clear and manifest. Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other.

R.A. 9054 is anchored on the 1987 Constitution. It advances the constitutional grant of autonomy by detailing the powers of the ARG covering, among others, Lanao del Sur and Marawi City, one of which is its jurisdiction over regional urban and rural planning. R.A. 8999, however, ventures to reestablish the National Government's jurisdiction over infrastructure programs in Lanao del Sur. R.A. 8999 is patently inconsistent with R.A. 9054, and it destroys the latter law's objective.

Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with both ARMM Organic Acts, R.A. 6734 and R.A. 9054. The kernel of the antagonism and disharmony lies in the regional autonomy which the ARMM Organic Acts ordain pursuant to the Constitution. On the other

hand, R.A. 8999 contravenes true decentralization which is the essence of regional autonomy.

Regional Autonomy Under R.A. 6734 and R.A. 9054: The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer to the cry for a meaningful, effective and forceful autonomy.42 According to Commissioner Jose Nolledo, Chairman of the Committee which drafted the provisions, it "is an indictment against the status quo of a unitary system that, to my mind, has ineluctably tied the hands of progress in our country . . . our varying regional characteristics are factors to capitalize on to attain national strength through decentralization. The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions. These cultures, as a matter of right, must be allowed to flourish.

Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by the assimilationist approach. Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result, democracy becomes an irony to the minority group.

The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations. The Moros' struggle for self-determination dates as far back as the Spanish conquest in the Philippines. Even at present, the struggle goes on. Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic conflict and threat of secession.

However, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." Regional autonomy is the degree of self-determination exercised by the local government unit vis-à-vis the central government.

The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be

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in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs.

Decentralization is a decision by the central government authorizing its subordinates, whether geographically or functionally defined, to exercise authority in certain areas. It involves decision-making by subnational units. It is typically a delegated power, wherein a larger government chooses to delegate certain authority to more local governments. Federalism implies some measure of decentralization, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the sub-units that have been authorized to act (by delegation) do not possess any claim of right against the central government.

Decentralization comes in two forms—deconcentration and devolution. Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices. This mode of decentralization is also referred to as administrative decentralization. Devolution, on the other hand, connotes political decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units. This is a more liberal form of decentralization since there is an actual transfer of powers and responsibilities. It aims to grant greater autonomy to local government units in cognizance of their right to self-government, to make them self-reliant, and to improve their administrative and technical capabilities.

The diminution of Congress' powers over autonomous regions was confirmed in Ganzon v. Court of Appeals: "the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from Congress and to break Congress' 'control' over local government affairs." This is true to subjects over which autonomous regions have powers, as specified in Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are powers over certain areas. Worthy of note is that the area of public works is not excluded and neither is it reserved for the National Government. More importantly, Congress itself through R.A. 9054 transferred and devolved the administrative and fiscal management of public works and funds for public works to the ARG. Unless approved by the Regional Assembly, no public works funds allocated by the central government or

national government for the Regional Government or allocated by the Regional Government from its own revenues may be disbursed, distributed, realigned, or used in any manner.

The aim of the Constitution is to extend to the autonomous peoples, the people of Muslim Mindanao in this case, the right to self-determination—a right to choose their own path of development; the right to determine the political, cultural and economic content of their development path within the framework of the sovereignty and territorial integrity of the Philippine Republic.80 Self-determination refers to the need for a political structure that will respect the autonomous peoples' uniqueness and grant them sufficient room for self-expression and self-construction.

In treading their chosen path of development, the Muslims in Mindanao are to be given freedom and independence with minimum interference from the National Government. This necessarily includes the freedom to decide on, build, supervise and maintain the public works and infrastructure projects within the autonomous region. The devolution of the powers and functions of the DPWH in the ARMM and transfer of the administrative and fiscal management of public works and funds to the ARG are meant to be true, meaningful and unfettered. This unassailable conclusion is grounded on a clear consensus, reached at the Constitutional Commission and ratified by the entire Filipino electorate, on the centrality of decentralization of power as the appropriate vessel of deliverance for Muslim Filipinos and the ultimate unity of Muslims and Christians in this country.

With R.A. 8999, however, this freedom is taken away, and the National Government takes control again. The hands, once more, of the autonomous peoples are reined in and tied up.

The challenged law creates an office with functions and powers which, by virtue of E.O. 426, have been previously devolved to the DPWH-ARMM, First Engineering District in Lanao del Sur. E.O. 426 clearly ordains the transfer of the control and supervision of the offices of the DPWH within the ARMM, including their functions, powers and responsibilities, personnel, equipment, properties, and budgets to the ARG. Among its other functions, the DPWH-ARMM, under the control of the Regional Government shall be responsible for highways, flood control and water resource development systems, and other public works within the ARMM. Its scope of power includes the planning, design, construction and supervision of public works. According to R.A. 9054, the reach of the Regional Government enables it to appropriate, manage and disburse all public work funds allocated for the region by the central government.

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The use of the word "powers" in E.O. 426 manifests an unmistakable case of devolution. In this regard, it is not amiss to cite Opinion No. 120, S. 199182 of the Secretary of Justice on whether the national departments or their counterpart departments in the ARG are responsible for implementation of roads, rural water supply, health, education, women in development, agricultural extension and watershed management. Referring to Section 2, Article V of R.A. 6734 which enumerates the powers of the ARG, he states:It is clear from the foregoing provision of law that except for the areas of executive power mentioned therein, all other such areas shall be exercised by the Autonomous Regional Government ("ARG") of the Autonomous Region in Muslim Mindanao. It is noted that programs relative to infrastructure facilities, health, education, women in development, agricultural extension and watershed management do not fall under any of the exempted areas listed in the abovequoted provision of law. Thus, the inevitable conclusion is that all these spheres of executive responsibility have been transferred to the ARG.

Reinforcing the above view are the various executive orders issued by the President providing for the devolution of the powers and functions of specified executive departments of the National Government to the ARG. These are E.O. Nos. 425 (Department of Labor and Employment, Local Government, Tourism, Environment and Natural Resources, Social Welfare and Development and Science and Technology), 426 (Department of Public Works and Highways), 459 (Department of Education, Culture and Sports) and 460 (Department of Agriculture). The execution of projects on infrastructure, education, women, agricultural extension and watershed management within the Autonomous Region of Muslim Mindanao normally fall within the responsibility of one of the aforementioned executive departments of the National Government, but by virtue of the aforestated EOs, such responsibility has been transferred to the ARG.

E.O. 426 was issued to implement the provisions of the first ARMM Organic Act, R.A. 6734—the validity of which this Court upheld in the case of Abbas v. Commission on Elections.83 In Section 4, Article XVIII of said Act, "central government or national government offices and agencies in the autonomous region which are not excluded under Section 3, Article IV84 of this Organic Act, shall be placed under the control and supervision of the Regional Government pursuant to a schedule prescribed by the oversight committee."

Evidently, the intention is to cede some, if not most, of the powers of the national government to the autonomous government in order to effectuate a veritable autonomy. The continued enforcement of R.A. 8999,

therefore, runs afoul of the ARMM Organic Acts and results in the recall of powers which have previously been handed over. This should not be sanctioned, elsewise the Organic Acts' desire for greater autonomy for the ARMM in accordance with the Constitution would be quelled. It bears stressing that national laws are subject to the Constitution one of whose state policies is to ensure the autonomy of autonomous regions. (Section 25, Article II of the 1987 Constitution)

R.A. 8999 has made the DPWH-ARMM effete and rendered regional autonomy illusory with respect to infrastructure projects. The Congressional Record shows, on the other hand, that the "lack of an implementing and monitoring body within the area" has hindered the speedy implementation, of infrastructure projects.85 Apparently, in the legislature's estimation, the existing DPWH-ARMM engineering districts failed to measure up to the task. But if it was indeed the case, the problem could not be solved through the simple legislative creation of an incongruous engineering district for the central government in the ARMM. As it was, House Bill No. 995 which ultimately became R.A. 8999 was passed in record time on second reading (not more than 10 minutes), absolutely without the usual sponsorship speech and debates.86 The precipitate speed which characterized the passage of R.A. 8999 is difficult to comprehend since R.A. 8999 could have resulted in the amendment of the first ARMM Organic Act and, therefore, could not take effect without first being ratified in a plebiscite. What is more baffling is that in March 2001, or barely two (2) months after it enacted R.A. 8999 in January 2001, Congress passed R.A. 9054, the second ARMM Organic Act, where it reaffirmed the devolution of the DPWH in ARMM, including Lanao del Sur and Marawi City, to the Regional Government and effectively repealed R.A. 8999.

3. WON DO 119 is constitutional. DPWH Department Order No. 119: D.O. 119 creating the Marawi Sub-

District Engineering Office which has jurisdiction over infrastructure projects within Marawi City and Lanao del Sur is violative of the provisions of E.O. 426. The Executive Order was issued pursuant to R.A. 6734—which initiated the creation of the constitutionally- mandated autonomous region87 and which defined the basic structure of the autonomous government.88 E.O. 426 sought to implement the transfer of the control and supervision of the DPWH within the ARMM to the Autonomous Regional Government. In particular, it identified four (4) District Engineering Offices in each of the four (4) provinces, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi.89 Accordingly, the First

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Engineering District of the DPWH-ARMM in Lanao del Sur has jurisdiction over the public works within the province.

The office created under D.O. 119, having essentially the same powers, is a duplication of the DPWH-ARMM First Engineering District in Lanao del Sur formed under the aegis of E.O. 426. The department order, in effect, takes back powers which have been previously devolved under the said executive order. D.O. 119 runs counter to the provisions of E.O. 426. The DPWH's order, like spring water, cannot rise higher than its source of power—the Executive.

E.O. No. 124, upon which D.O. 119 is based, is a general law reorganizing the Ministry of Public Works and Highways while E.O. 426 is a special law transferring the control and supervision of the DPWH offices within ARMM to the Autonomous Regional Government. The latter statute specifically applies to DPWH-ARMM offices. E.O. 124 should therefore give way to E.O. 426 in the instant case.

In any event, the ARMM Organic Acts and their ratification in a plebiscite in effect superseded E.O. 124. In case of an irreconcilable conflict between two laws of different vintages, the later enactment prevails because it is the later legislative will. Further, in its repealing clause, R.A. 9054 states that "all laws, decrees, orders, rules and regulations, and other issuances or parts thereof, which are inconsistent with this Organic Act, are hereby repealed or modified accordingly."93 With the repeal of E.O. 124 which is the basis of D.O. 119, it necessarily follows that D.O. 119 was also rendered functus officio by the ARMM Organic Acts.

Abbas v. COMELEC

Facts: The present controversy relates to the plebiscite in 13 provinces and nine 9 cities in Mindanao and Palawan in implementation of RA 6734, "An Act Providing for an Organic Act for the ARMM." These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional. In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy, Article X, section 15 of the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the

Republic of the Philippines. Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1, 1989.

Issues: 1. WON certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.

In the first place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs sought.

2. WON majority refers to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both?

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which reads: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2].

It will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective

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when approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units.

More importantly, because of its categorical language, this is also the sense in which the vote requirement in the plebiscite provided under Article X, section 18 must have been understood by the people when they ratified the Constitution.

3. WON only those areas which, to his view, share common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics should be properly included within the coverage of the autonomous region.

Mama-o insists that R.A. No. 6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the 13 provinces and 9 cities included in the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including areas which do not strictly share the same characteristic as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers.

4. WON other non-Muslim areas in Mindanao should likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its

scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-Muslim areas denies said areas equal protection of the law, and therefore is violative of the Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by Congress of what areas in Mindanao should compromise the autonomous region, taking into

account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this Court.

Moreover, equal protection permits of reasonable classification. The Court ruled that once class may be treated differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not infringed in this case, the classification having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself.

5. WON RA 6734 violates the constitutional guarantee on free exercise of religion.

The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to a Muslim's religious convictions.

As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. In the present case, no actual controversy between real litigants exists. There are no conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the provisions the Muslim Code and national law.

6. WON RA 6734 grants the President the power to merge regions. What is referred to in R.A. No. 6734 is the merger of administrative

regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate

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the exercise of the power of general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions.

7. WON provisions in the Organic Act which create an Oversight Committee to supervise the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government by the organic Act are unconstitutional because while the Constitution states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the requirement of organizing an Oversight committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay the creation of the autonomous region.

Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on this point thus cannot be sustained as there is no bases therefor.

Pandi v. CA

Facts: Macacua, in her capacity as Regional Director and as Secretary of the Department of Health of the Autonomous Region in Muslim Mindanao, issued a Memorandum designating Pandi, who was then DOH-ARMM Assistant Regional Secretary, as Officer-in-Charge of the Integrated Provincial Health Office-Amai Pakpak General Hospital (IPHO-APGH), Lanao del Sur. In the same Memorandum, Macacua detailed Dr. Mamasao Sani, then the provincial health officer of the IPHO-APGH, Lanao del Sur, to the DOH-ARMM Regional Office in Cotabato City. Lanao del Sur Provincial Governor Mahid M. Mutilan issued Office Order No. 07 designating Saber also as Officer-in-Charge of the IPHO-APGH, Lanao del Sur. Sani filed a

complaint with the Regional Trial Court of Lanao del Sur, Branch 10, Marawi City challenging the August 9, 1993 Memorandum transferring him to the DOH-ARMM Regional Office in Cotabato City , alleging that he is the holder of a permanent appointment as provincial health officer of the IPHO-APGH, Lanao del Sur. Saber filed with the Court of Appeals a petition for quo warranto with prayer for preliminary injunction, claiming that he is the lawfully designated Officer-in-Charge of the IPHO-APGH, Lanao del Sur. President Ramos issued Executive Order No. 133 transferring the powers and functions of the Department of Health in the region to the Regional Government of the ARMM. On November 6, 1993, Macacua, again in her capacity as DOH-ARMM Secretary-Designate , issued a Memorandum reiterating Pandi’s designation as Officer-in-Charge of the IPHO-APGH, Lanao del Sur, as well as Sani’s detail to the Regional Office of the DOH-ARMM in Cotabato City . CA: Saber is the lawfully designated Officer-in-Charge of the IPHO-APGH, Lanao del Sur, and that Governor Mahid Mutilan has the power and authority to appoint the provincial health officer. CA maintained that the Organic Act of 1989 and the ARMM Local Code could not prevail over the LGC. CA interpreted Section 457 (b) and (d) of the ARMM Local Code to mean that it is the ARMM Regional Governor, and not the Provincial Governor, who exercises a recommendatory prerogative in the appointment of the provincial health officer.

Issues: 1. WON an incumbent provincial health officer of Lanao del Sur can be assigned to another province and if so, who can order such assignment.

2. Who can designate the Officer-in-Charge in the provincial health office of Lanao del Sur - the Provincial Governor or the ARMM Secretary of Health?

3. Who is empowered to appoint the provincial health officer of Lanao del Sur - the Provincial Governor, the Regional Governor or the ARMM Secretary of Health?

First Period: Prior to the Organic Act of 1989 The provincial health office was an agency of the Ministry of Health, and

the Minister of Health was the appointing power of provincial health officers.

Second Period: After the Organic Act of 1989 It was not until October 29, 1993, when then President Fidel V. Ramos

issued Executive Order No. 133, that the regional offices of the Department of Health in the ARMM were placed under the supervision and control of the Regional Government. Executive Order No. 133 was the operative act that actually transferred the powers and functions of the Department of Health, together with its regional personnel, equipment, properties, and budgets, to the Regional Government.

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Thus, until the effectivity of Executive Order No. 133, the Secretary of Health of the National Government continued to appoint provincial health officers in the ARMM, with the authority to assign a provincial health officer to any province within the region. This was the state of the law after the passage of the Organic Act of 1989 until the effectivity of Executive Order No. 133.

Third Period: After the LGC of 1991 Unlike the 1984 LGU Code, the 1991 LGU Code made, for the first time, the

provincial health officers one of the officials of the provincial government to be appointed by the provincial governor if his salary came mainly from provincial funds.

Even after the passage of the 1991 LGU Code, the Secretary of Health continued to be the appointing power of provincial health officers who remained national government officials. The Secretary of Health also continued to exercise the authority to assign provincial health officers to any province within the region. This situation, however, was only temporary, arising from the need for a phased transfer of the personnel, equipment, properties and budgets of the Department of Health in the ARMM to the Regional Government pursuant to Section 4, Article XIX of the Organic Act of 1989.

On October 29, 1993, Executive Order No. 133 was issued, finally transferring the powers and functions of the Department of Health in the autonomous region to the Regional Government.

The devolved powers under the Organic Act of 1989, as implemented by Executive Order No. 133, included the power of supervision and control over provincial health officers, as well as the power to appoint provincial health officers. The power of supervision and control, previously exercised by the Secretary of Health, carried with it the authority to assign provincial health officers to any province within the region pursuant to Section 17 of Executive Order No. 119. Assignment within a region of personnel appointed to a region is an administrative matter exercised by the head of office who is vested with the power of supervision and control over the office.

Upon the effectivity of Executive Order No. 133, the administrative authority of the Secretary of Health to assign provincial health officers to any province within a region was transferred to the ARMM Secretary of Health as the regional counterpart of the national Secretary of Health. This transfer of administrative authority to the Regional Secretary was essential to insure the continuation of vital health services to residents in the ARMM. On the other hand, the power to appoint provincial health officers,

previously conferred by law on the Secretary of Health, was devolved to the Regional Governor.

The power to appoint provincial health officers is one that the Regional Assembly could thus grant by law to the Regional Secretary of Health. However, the Regional Assembly has not enacted a law authorizing the Regional Secretary of Health to appoint provincial health officers. Since the power to appoint must be expressly conferred by law, and cannot be implied from the power of supervision and control, this ruled out the Regional Secretary of Health as the appointing power of provincial health officers. Significantly, the power to appoint provincial health officers is not one of the powers transferred to the Regional Secretary of Health under Executive Order No. 133. There could be no gap or lacuna in the devolution of powers from the National Government to the Regional Government because the exercise of these powers was essential to the maintenance of basic services for the general welfare.

Fourth Period: After the ARMM Local Code Under the ARMM Local Code, the provincial health officer in the ARMM,

previously a regional official, has also become a provincial government official, catching up with the status of provincial health officers outside of the ARMM. The Regional Governor appoints the provincial health officer from a list of three recommendees of the Provincial Governor. The ARMM Local Code provides that the salary of the provincial health officer shall be paid from regional funds.

The ARMM Local Code also states that if the salary of the provincial health officer comes mainly from provincial funds, the Provincial Governor is the appointing power. The power of the Regional Governor to appoint provincial officials applies only to provincial officials "paid by regional funds."

Section 459 of the ARMM Local Code vests in the Provincial Governor the power to exercise supervision and control over all provincial government officials. The conversion of the provincial health officer from a regional government official to a provincial government official under Section 457 of the ARMM Local Code placed the provincial health officer under the supervision and control of the Provincial Governor. Consequently, with the passage of the ARMM Local Code the Regional Secretary of Health lost the authority to assign provincial health officers to other provinces within the region.

The state of the law after the enactment of the ARMM Local Code became more favorable to Provincial Governors, at least with respect to the appointment and assignment of provincial health officers. While before the

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appointment of provincial health officers was solely the prerogative of the Regional Governor, now a Provincial Governor has the power to recommend three nominees. The Regional Governor can appoint only from among the three nominees of the Provincial Governor even though the salary of the provincial health officer comes from regional funds. Likewise, while before the Regional Secretary of Health could assign provincial health officers to other provinces within the region, this authority of the Regional Secretary ceased to exist. Since a provincial health officer was now appointed to a specific province, he could no longer be assigned to another province without his consent. Moreover, the Provincial Governor now exercises supervision and control over the provincial health officer who has become a provincial government official. Finally, if the provincial government assumes payment of the salary of the provincial health officer, then the Provincial Governor becomes the appointing power of such provincial official.

Fifth Period: The Organic Act of 2001 The passage of the Organic Act of 2001 means that the powers and

functions of a Provincial Governor under the 1991 LGU Code are now enjoyed, as a minimum, by a Provincial Governor in the ARMM. Thus, the Provincial Governor appoints the provincial health officer if the latter’s salary comes from provincial funds. If the provincial health officer’s salary comes mainly from regional funds, then the ARMM Local Code applies, in which case the Regional Governor is the appointing power but he must appoint only from among the three nominees of the Provincial Governor. Moreover, the Provincial Governor exercises supervision and control over the provincial health officer because the ARMM Local Code has classified him as a provincial government official. This is now the present state of the law on the appointment of provincial health officers in the ARMM.

Re: Saber: Lanao del Sur Provincial Governor Mahid M. Mutilan designated Saber as Officer-in-Charge of the IPHO-APGH, Lanao del Sur, on September 15, 1993. On this date the provincial health officer of Lanao del Sur was still a national government official paid entirely from national funds. The provincial health officer was still appointed by the national Secretary of Health to a region and not to a province. The Secretary of Health exercised supervision and control over the provincial health officer. The Secretary of Health was also the official authorized by law to assign the provincial health officer to any province within the region. Indisputably, on September 15, 1993, Provincial Governor Mutilan had no power to

designate Saber as Officer-in-Charge of IPHO-APGH, Lanao del Sur. Consequently, the designation of Saber as such Officer-in-Charge is void.

The Court of Appeals’ reliance on Section 478 of the 1991 LGU Code as Provincial Governor Mutilan’s authority to appoint Saber is misplaced. Section 478 of the 1991 LGU Code, which provides that "[T]he appointment of a health officer shall be mandatory for provincial, city and municipal governments, " is not a grant of power to governors and mayors to appoint local health officers. It is simply a directive that those empowered to appoint local health officers are mandated to do so. In short, the appointment of local health officers, being essential for public services, is a mandatory obligation on the part of those vested by law with the power to appoint them.

Re: Sani: Sani was appointed provincial health officer by then Secretary of Health Alfredo R.A. Bengzon on January 1, 1988. Sani was appointed provincial health officer in Region XII since at that time Executive Order No. 119, the charter of the Department of Health, expressly stated that provincial health officers were to be appointed to a region. The Secretary of Health, upon recommendation of the Regional Director, could assign provincial health officers to any province within the region.

Consequently, Sani cannot claim any security of tenure as provincial health officer of Lanao del Sur because he was never appointed to that office.

Macacua, in her capacity as Regional Director and ARMM Secretary of Health, detailed Sani to the DOH-ARMM Regional Office in Cotabato City on August 9, 1993. As of that date, the powers and functions of the Department of Health were not yet transferred to the Regional Government, and the Secretary of Health of the National Government still exercised the power to assign the provincial health officers in the ARMM. Consequently, the August 9, 1993 directive of Macacua detailing or assigning Sani to the Regional Office in Cotabato City is void.

The second detail or assignment of Sani to the Regional Office in Cotabato, issued on November 6, 1993, is within the authority of Macacua as Regional Secretary of Health. Thus, the second detail of Sani is valid.

Re: Pandi: The designation dated August 9, 1993 is void since the Regional Secretary at that time did not yet exercise supervision and control over the provincial health offices of the ARMM. However, the designation of Pandi on November 6, 1993 is valid since at that time Executive Order No. 133 had already been issued vesting in the Regional Secretary of Health supervision and control over all functions and activities of the Department of Health in the ARMM. The designation of Pandi, however, while valid is

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only temporary in nature, good until a new designation or a permanent appointment is made.

As Regional Secretary of Health, Macacua was, as of November 6, 1993, the official vested by law to exercise supervision and control over all provincial health offices in the ARMM. The Regional Secretary, by virtue of Executive Order No. 133, assumed the administrative powers and functions of the Secretary of Health of the National Government with respect to provincial health offices within the ARMM. The official exercising supervision and control over an office has the administrative authority to designate, in the interest of public service, an Officer-in-Charge if the office becomes vacant. Macacua, therefore, had the authority on November 6, 1993 to designate an Officer-in-Charge in the provincial health office of Lanao del Sur pending the appointment of the permanent provincial health officer. After the effectivity of the ARMM Local Code, the Regional Secretary of Health lost the authority to make such a designation.

Under the ARMM Local Code, the provincial health officer became for the first an official of the provincial government even though he is appointed by the Regional Governor and draws his salary from regional funds. The ARMM Local Code vests in the Provincial Governor the power to "exercise general supervision and control over all programs, projects, services, and activities of the provincial government." Upon the effectivity of the ARMM Local Code, the power of supervision and control over the provincial health officer passed from the Regional Secretary to the Provincial Governor. From then on the Provincial Governor began to exercise the administrative authority to designate an Officer-in-Charge in the provincial health office pending the appointment of a permanent provincial health officer.

Ordillo v. COMELEC

Facts: The people of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga Apayao and the city of Baguio cast their votes in a plebiscite held pursuant to RA 6766. The COMELEC results showed that the creation of the Region was approved only by a majority of 5,899 votes in only the Ifugao Province and was overwhelmingly rejected by 148,676 votes in the rest of the provinces and city abovementioned. Sec of Justice: considering the proviso that only the provinces and city voting favorably shall be included in the CAR, the province of Ifugao, being the only province which voted favorably legally constitutes the CAR. As a result of this,

Congress enacted RA 6861 which set the elections in the CAR. Ordillo et al then filed a petition with the COMELEC to declare the non-ratification of the Organic Act for the Region. The president issued AO 160 declaring that the Cordillera Executive Board and Cordillera Regional Assembly and other offices created under EO220 are abolished in view of the ratification of the Organic Act. The petitioners maintain that there can be no valid CAR as the Constitution and RA 6766 require that the said region be composed of more than one constituent unit. They pray that the court declare COMELEC Res. No. 2259 AO 160, and RA6861 as null and void, and restrain the respondents from implementing the same. They also pray that it declare EO 220 constituting the CEB and the CRA and other offices to be still in force and effect until another organic law for the Autonomous Region shall have been enacted and duly ratified.

Issue: WON the province of Ifugao, being the only province which voted favorably for the creation of the CAR can, alone, legally and validly constitute such region. NO.

Art. X Sec. 15 of 1987 Constitution: There shall be created autonomous regions in Muslim Mindanao and in the Cordillera consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

The term “region” used in its ordinary sense means two or more provinces. This is supported by the fact that the 13 regions into which the Philippines is divided for administrative purposes are groupings of contiguous provinces. Ifugao is a province by itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical areas.

RA 6766 shows that Congress never intended that a single province may constitute the autonomous region. Otherwise, we would be faced with the absurd situation of having two sets of provincial officials and another set of regional officials exercising their executive and legislative powers over exactly the same small area. Such will result in an awkward predicament where there will be two legislative bodies: the Cordillera Assembly and the Sangguniang Panlalawigan, exercising their legislative powers over the province of Ifugao.

RA 6766 provides for a Regional Planning and Developmental Board which has a provincial counterpart, the Provincial Planning and Developmental Coordinator. If it takes only one person in the provincial level to perform such functions while it takes an entire board to perform the same in the regional level, it could only mean that a larger area must be covered at the

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regional level. The law also provides an allocation for 10MPhp for its initial organizational requirements. Such cannot be construed as funding only a lone and small province. Moreover, the province of Ifugao makes up only 11% of the total population of the areas which were enumerated in the law.

This case must be distinguished from the Abbas case which laid down the rule on the meaning of majority: what is required by the Constitution is a simple majority of votes approving the Organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as the individual constituent units. There is nothing in the Abbas case that deals with the issue on whether an autonomous region could exist despite the fact that only one province or city is to constitute it.

Cordillera Broad Coalition v. COA (supra)

MMDA v. Bel-Air (supra)

MMDA v. Garin

Facts: Dante O. Garin was issued a traffic violation receipt (TVR) for parking illegally along Gandara Street, Binondo, Manila. His driver's license was also confiscated. Shortly before the expiration of the TVR's validity, the Garin addressed a letter to then MMDA Chairman Oreta requesting the return of his driver's license, and expressing his preference for his case to be filed in court. Receiving no immediate reply, Garin filed the original complaint with application for preliminary injunction contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses, pre-empting a judicial determination of the validity of the deprivation, thereby violating the due process clause of the Constitution. The respondent further contended that the provision violates the constitutional prohibition against undue delegation of legislative authority, allowing as it does the MMDA to fix and impose unspecified – and therefore unlimited - fines and other penalties on erring motorists. In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and continues to suffer great and irreparable damage because of the deprivation of his license and that, absent any implementing rules from the Metro Manila Council, the TVR and the confiscation of his license have no legal basis. For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the powers granted to it by Sec. 5(f) of RA 7924 are limited to the fixing, collection and imposition of fines and penalties for

traffic violations, which powers are legislative and executive in nature; the judiciary retains the right to determine the validity of the penalty imposed. It further argued that the doctrine of separation of powers does not preclude "admixture" of the three powers of government in administrative agencies. The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing board and policy making body of the petitioner, has as yet to formulate the implementing rules for Sec. 5(f) of Rep. Act No. 7924 and directed the court's attention to MMDA Memorandum Circular No. TT-95-001 dated 15 April 1995. Respondent Garin, however, questioned the validity of MMDA Memorandum Circular No. TT-95-001, as he claims that it was passed by the Metro Manila Council in the absence of a quorum. RTC: issued a temporary restraining order extending the validity of the TVR as a temporary driver's license for twenty more days. A preliminary mandatory injunction was granted, and the MMDA was directed to return the respondent's driver's license. RTC decision: a. There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23, 1995, hence MMDA Memorandum Circular No. TT-95-001, authorizing confiscation of driver's licenses upon issuance of a TVR, is void ab initio. b. The summary confiscation of a driver's license without first giving the driver an opportunity to be heard; depriving him of a property right (driver's license) without DUE PROCESS; not filling (sic) in Court the complaint of supposed traffic infraction, cannot be justified by any legislation (and is) hence unconstitutional.

Issues: 1. WON a license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police power. YES.

The petitioner correctly points out that a license to operate a motor vehicle is not a property right, but a privilege granted by the state, which may be suspended or revoked by the state in the exercise of its police power, in the interest of the public safety and welfare, subject to the procedural due process requirements.

State ex. Rel. Sullivan: "the legislative power to regulate travel over the highways and thoroughfares of the state for the general welfare is extensive. It may be exercised in any reasonable manner to conserve the safety of travelers and pedestrians. Since motor vehicles are instruments of potential danger, their registration and the licensing of their operators have been required almost from their first appearance. The right to operate them in public places is not a natural and unrestrained right, but a privilege subject to reasonable regulation, under the police power, in the interest of the public safety and welfare. The power to license imports further power to withhold or to revoke such license upon noncompliance with prescribed conditions."

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Commonwealth v. Funk: "Automobiles are vehicles of great speed and power. The use of them constitutes an element of danger to persons and property upon the highways. Carefully operated, an automobile is still a dangerous instrumentality, but, when operated by careless or incompetent persons, it becomes an engine of destruction. The Legislature, in the exercise of the police power of the commonwealth, not only may, but must, prescribe how and by whom motor vehicles shall be operated on the highways. One of the primary purposes of a system of general regulation of the subject matter, as here by the Vehicle Code, is to insure the competency of the operator of motor vehicles. Such a general law is manifestly directed to the promotion of public safety and is well within the police power."

The common thread running through the cited cases is that it is the legislature, in the exercise of police power, which has the power and responsibility to regulate how and by whom motor vehicles may be operated on the state highways.

2. WON the MMDA is vested with police power. NO. Metro Manila Development Authority v. Bel-Air Village Association, Inc.,

we categorically stated that Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all its functions are administrative in nature. Tracing the legislative history of RA 7924 creating the MMDA, we concluded that the MMDA is not a local government unit or a public corporation endowed with legislative power, and, unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances for the welfare of the community. Thus, in the absence of an ordinance from the City of Makati, its own order to open the street was invalid.

Police power, as an inherent attribute of sovereignty, is the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. Having been lodged primarily in the National Legislature, it cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the president and administrative boards as well as the lawmaking bodies of municipal corporations or local government units (LGUs). Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body.

Congress delegated police power to the LGUs in LGC. A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." Local government units are the provinces, cities, municipalities and barangays, which exercise police power through their respective legislative bodies. Metropolitan or Metro Manila is a body composed of several local government units. With the passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. Thus: the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area.

Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis.

3. WON Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations. YES.

Section 5 of RA 7924 enumerates the "Functions and Powers of the Metro Manila Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall "install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or nonmoving in nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and P.D. No.

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1605 to the contrary notwithstanding," and that "(f)or this purpose, the Authority shall enforce all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose."

Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case), the petitioner is not precluded – and in fact is duty-bound – to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs.

League of Cities v. COMELEC

Facts: 11th Congress: 33 bills converting 33 municipalities into cities were enacted. However, Congress did not act on bills converting 24 other municipalities into cities. 12th Congress: RA 9009 which amended Sec. 450 of the LGC by increasing the annual income requirement for conversion of a municipality into a city from P20 million to P100 million was enacted. The rationale for the amendment was to restrain, in the words of Sen. Pimentel, “the mad rush” of municipalities to convert into cities solely to secure a larger share in the Internal Revenue Allotment despite the fact that they are incapable of fiscal independence. After the effectivity of RA 9009, the House adopted Joint Resolution No. 29 which sought to exempt from the P100 million income requirement in RA 9009 the 24 municipalities whose cityhood

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bills were not approved in the 11th Congress. However, the 12th Congress ended without the Senate approving Joint Resolution No. 29. 13th Congress: JR 29 was re-adopted as JR 1 and was forwarded to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Sen.Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009. On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law without the President’s signature. The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each respondent municipality approve of the conversion of their municipality into a city. Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution, as well as for violation of the equal protection clause. Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the same amount of internal revenue set aside for all cities under Section 285 of the LGC.

Issues: 1. WON RA 9009 violates the principle of non-retroactivity. NO Congress passed the Cityhood Laws long after the effectivity of RA 9009.

RA 9009 became effective on 30 June 2001 or during the 11th Congress. The 13th Congress passed in December 2006 the cityhood bills which became law only in 2007. Thus, respondent municipalities cannot invoke the principle of non-retroactivity of laws. This basic rule has no application because RA 9009, an earlier law to the Cityhood Laws, is not being applied retroactively but prospectively.

2. WON RA 9009 violates Sec 10 Art X of the Constitution. The Constitution is clear. The creation of local government units must

follow the criteria established in the LGC and not in any other law. There is only one LGC. The Constitution requires Congress to stipulate in the LGC all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. The criteria prescribed in the LGC govern exclusively the creation of a city. No other law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the LGC. Any

derogation or deviation from the criteria prescribed in the LGC violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the LGC to increase the income requirement from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the LGC required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the LGC, as amended by RA 9009, does not contain any exemption from this income requirement.

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the LGC, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the LGC and not in any other law, including the Cityhood Laws.

There can be no resort to extrinsic aids — like deliberations of Congress — if the language of the law is plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law, within the law’s four corners. If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law.

Congress, in enacting RA 9009 to amend Section 450 of the LGC, did not provide any exemption from the increased income requirement, not even to respondent municipalities whose cityhood bills were then pending when Congress passed RA 9009. Section 450 of the LGC, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous that any municipality desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the LGC, as amended by RA 9009.

True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by the various deliberations on the matter during the 11th Congress. However, Congress did not write this intended exemption into law. Congress could have easily included such exemption in RA 9009 but Congress did not. This is fatal to the cause of respondent municipalities because such exemption must appear in RA 9009 as an

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amendment to Section 450 of the LGC. The Constitution requires that the criteria for the conversion of a municipality into a city, including any exemption from such criteria, must all be written in the LGC. Congress cannot prescribe such criteria or exemption from such criteria in any other law. In short, Congress cannot create a city through a law that does not comply with the criteria or exemption found in the LGC.

3. WON the Cityhood Laws violate Sec 6Art X of the Constitution. Uniform and non-discriminatory criteria as prescribed in the LGC are

essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides: Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units. A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the LGC, must be strictly followed because such criteria, prescribed by law, are material in determining the “just share” of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the LGC, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution.

4. WON the deliberations of unapproved bills by the 11th Congress may be used as basis for those approved by the 12th . NO

Congress is not a continuing body. The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses.

The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the cityhood bills in 2006 during the 13th Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval.

The deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses.

5. WON the equal protection clause was violated. If Section 450 of the LGC, as amended by RA 9009, contained an exemption

to the P100 million annual income requirement, the criteria for such exemption could be scrutinized for possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the LGC, could be assailed on the ground of absence of a valid classification. However, Section 450 of the LGC, as amended by RA 9009, does not contain any exemption. The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must be prescribed in the LGC as mandated in Section 10, Article X of the Constitution.

Even if the exemption provision in the Cityhood Laws were written in Section 450 of the LGC, as amended by RA 9009, such exemption would still be unconstitutional for violation of the equal protection clause. The exemption provision merely states, “Exemption from Republic Act No. 9009 ─ The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.” This one sentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted.

Even if we take into account the deliberations in the 11th Congress that municipalities with pending cityhood bills should be exempt from the P100 million income requirement, there is still no valid classification to satisfy the equal protection clause. The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement.

To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law, [23] not limited to existing conditions only, and applicable to all similarly situated. Thus, this Court has ruled:

The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions:

1. The classification must rest on substantial distinctions; 2. The classification must be germane to the purpose of the law;

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3. The classification must not be limited to existing conditions only; and 4. The classification must apply equally to all members of the same class. There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Municipalities that did not have pending cityhood bills were not informed

that a pending cityhood bill in the 11th Congress would be a condition for exemption from the increased P100 million income requirement. Had they been informed, many municipalities would have caused the filing of their own cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent municipalities, cannot now convert into cities if their income is less than P100 million.

The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. This requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck, where the challenged law allowed milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the same business. In Mayflower, the U.S. Supreme Court held: We are referred to a host of decisions to the effect that a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the profession subsequent to the passage of the act and exempt those then in practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a regulation of a business or an activity in the interest of, or for the protection of, the public, but an attempt to give an economic

advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date. The appellees do not intimate that the classification bears any relation to the public health or welfare generally; that the provision will discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the absence of any such showing, we have no right to conjure up possible situations which might justify the discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal protection of the law.

In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11th Congress – as against all other municipalities that want to convert into cities after the effectivity of RA 9009.

Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the LGC, would still be unconstitutional for violation of the equal protection clause.

Reyes dissent:

1. The cityhood laws do not violate Section 10, Article X of the 1987 Constitution.

Sec 10 mandatory. The use of the word "shall" in a constitutional provision is generally considered as a mandatory command, though the word "shall" may receive a permissive interpretation when necessary to carry out the true intent of the provision where the word is found. Thus, it is not always the case that the use of the word "shall" is conclusive. However, a reading of Section 10, Article X cannot be construed as anything else but mandatory.

The intent of R.A. No. 9009, which amended Section 450 of the LGC, is to exempt respondent municipalities from the income requirement of P100,000,000.00. Thus, the cityhood laws, which merely carry out the intent of R.A. No. 9009, are in accordance with the "criteria established in the LGC," pursuant to Section 10, Article X of the 1987 Constitution. The cityhood laws contain a uniformly worded exemption clause, which states:

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"Exemption from Republic Act No. 9009. The city of [___] shall be exempt from the income requirement prescribed under Republic Act No. 9009."

What Congress had in mind is not at all times accurately reflected in the language of the statute. Thus, the literal interpretation of a statute may render it meaningless; and lead to absurdity, injustice, or contradiction.105 When this happens, and following the rule that the intent or the spirit of the law is the law itself, resort should be had to the principle that the spirit of the law controls its letter. Not to the letter that killeth, but to the spirit that vivifieth. Hindi ang letra na pumapatay, kung hindi ang diwa na nagbibigay buhay.

The purpose of the enactment of R.A. No. 9009 can be seen in the sponsorship speech of Senator Pimentel on Senate Bill No. 2157. Noteworthy is his statement that the basis for the proposed increase from P20,000,000.00 to P100,000,000.00 in the income requirement for municipalities and cluster of barangays wanting to be converted into cities is the "mad rush of municipalities wanting to be converted into cities," and in order that the country "will not be a nation of all cities and no municipalities."

The deliberations of Congress are necessary to ferret out the intent of the legislature in enacting R.A. No. 9009. It is very clear that Congress intended that the then pending cityhood bills would not be covered by the income requirement of P100,000,000.00 imposed by R.A. No. 9009. It was made clear by the Legislature that R.A. No. 9009 would not have any retroactive effect.

It then becomes clear that the basis for the inclusion of the exemption clause of the cityhood laws is the clear-cut intent of the Legislature of not giving retroactive effect to R.A. No. 9009. In fact, not only do the legislative records bear the legislative intent of exempting the cityhood laws from the income requirement of P100,000,000.00 imposed by R.A. No. 9009. Congress has now made its intent express in the cityhood laws.

Petitioners and petitioners-intervention were not able to discharge their onus probandi of overcoming the presumption of constitutionality accorded to the cityhood laws.

2. The cityhood laws do not violate the equal protection clause under Section 1, Article III of the Constitution by granting special treatment to respondent municipalities in exempting them from the minimum income requirement imposed by R.A. No. 9009.

In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The

proponents are invoking the exemption on the basis of justice and fairness. Based on these data, it is clear that all the 12 municipalities under consideration are qualified to become cities prior to RA 9009. All of them satisfy the mandatory requirement on income and one of the two optional requirements of territory.

The classification rests on substantial distinctions. What distinguishes respondent municipalities from other municipalities is that the latter had pending cityhood bills before the passage of R.A. No. 9009. In the words of Senator Lim, the peculiar conditions of respondent municipalities, which led to their exemption from the increased P100,000,000.00 income requirement of R.A. No. 9009, is that the imposition of a much higher income requirement on those that were qualified to become cities before the enactment of R.A. No. 9009 was "unfair; like any sport - changing the rules in the middle of the game." Thus, "fairness dictates that they should be given a legal remedy by which they should be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the LGC prior to its amendment by R.A. No. 9009." Truly, the peculiar conditions of respondent municipalities, which are actual and real, furnish sufficient grounds for legislative classification.

The classification is germane to the purpose of the law. The exemption of respondent municipalities from the P100,000,000.00 income requirement of R.A. No. 9009 was unquestionably designed to insure that fairness and justice were accorded to respondent municipalities, as their cityhood bills were not enacted by Congress in view of intervening events and for reasons beyond their control. The equal protection clause does not merely prohibit Congress from passing discriminatory laws. The equal protection clause also commands Congress to pass laws which would positively promote equality or reduce existing inequalities. This was what Congress actually did in enacting the cityhood laws. These laws positively promote equality and reduce the existing inequality between respondent municipalities and the "other thirty-two (32) municipalities" whose cityhood bills were enacted during the 11th Congress.

The classification is not limited to existing conditions only. The non-retroactive effect of R.A. No. 9009 is not limited in application to conditions existing at the time of its enactment. It is intended to apply for all time as long as the conditions set there exist. It is applicable as long as the concerned municipalities have filed their respective cityhood bills before the effectivity of R.A. No. 9009, and qualify for conversion into city under the original version of Section 450 of the LGC.

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The common exemption clause in the cityhood laws is an application of the non-retroactive effect of R.A. No. 9009. It is not a declaration of certain rights but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of R.A. No. 9009.

Curiously, petitioners and petitioners-in-intervention do not question the constitutionality of R.A. No. 9009. In fact, they use R.A. No. 9009 to argue for the alleged unconstitutionality of the cityhood laws. This is absurd, considering that the cityhood laws only expressed the intent of R.A. No. 9009 to exempt respondent municipalities from the income requirement of P100,000,000.00.

An analogy may be found in the Constitution. Citizenship may be granted to those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. Citizenship, however, is denied to those who, although born before January 17, 1973, of Filipino mothers, did not elect Philippine citizenship upon reaching the age of majority.155 In like manner, Congress has the power to carry out the intent of R.A. No. 9009 by making a law which exempts municipalities from the P100,000,000.00 income requirement imposed by R.A. No. 9009 if their cityhood laws were pending when R.A. No. 9009 was passed, and were compliant with the income threshold requirement of P20,000,000.00 imposed by then Section 450 of the LGC.

Even if the classification of the cityhood laws is limited to existing conditions only, this does not automatically mean that they are unconstitutional. The general rule is that a classification must not be based on existing conditions only. It must also be made for future acquisitions of the class as other subjects acquire the characteristics which form the basis of the classification. The exception is when the statute is curative or remedial, and thus temporary.

Here, the cityhood laws are curative or remedial statutes. They seek to prevent the great injustice which would be committed to respondent municipalities. Again, the cityhood laws are not contrary to the spirit and intent of R.A. No. 9009 because Congress intended said law to be prospective, not retroactive, in application. Indeed, to deny respondent municipalities the same rights and privileges accorded to the other thirty-two (32) municipalities when they are under the same circumstances, is tantamount to denying respondent municipalities the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the equal protection clause. That the Court cannot sustain.

The classification applies equally to all members of the same class. The cityhood laws, in carrying out the clear intent of R.A. No. 9009, apply to municipalities that had pending cityhood bills before the passage of R.A. No. 9009 and were compliant with then Section 450 of the LGC that prescribed an income requirement of P20,000,000.00.

**Summing UpMajority’s ground for unconstitutionality:(1) applying R.A. No. 9009 to the present case is a prospective, not a retroactive

application, because R.A. No. 9009 took effect in 2001 while the cityhood bills became laws more than five (5) years later; cityhood bills were pending before the passage of R.A. No. 9009. Congress

was well aware of such fact. Thus, Congress intended the hiked income requirement in R.A. No. 9009 not to apply to the cityhood bills which became the subject cityhood laws. This is the context of the reference to the prospective application of the said R.A. Congress intended the cityhood laws in question to be exempted from the income requirement of P100,000,000.00 imposed by R.A. No. 9009.

(2) the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the LGC and not in any other law; The second point is specious. It overlooks that R.A. No. 9009 is now Section 450 of the LGC. The cityhood laws also merely carry out the intent of R.A. No. 9009 to exempt respondent municipalities from the income requirement of P100,000,000.00.

(3) the cityhood laws violate Section 6, Article X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units; The third needs clarification. Article X, Section 6 of the Constitution speaks for itself. While it is true that local government units shall have a "just share" in the national taxes, it is qualified by the phrase "as determined by law."

(4) the intent of members of Congress to exempt certain municipalities from the coverage of R.A. No. 9009 remained an intent and was never written into law; Congress meant not to incorporate its intent in what eventually became R.A. No. 9009. To recall, Senate President Franklin Drilon asked if there would be an appropriate language to be crafted which would reflect the intent of Congress. Senator Aquilino Pimentel gave a categorical answer: "I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill."

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(5) the criteria prescribed in Section 450 of the LGC, as amended by R.A. No. 9009, for converting a municipality into a city are clear, plain, and unambiguous, needing no resort to any statutory construction; Neither is the fifth item persuasive. The dissent admits that courts may resort to extrinsic aids of statutory construction like the legislative history of the law if the literal application of the law results in absurdity, impossibility, or injustice.

(6) the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress because it is not a continuing body; and It is immaterial if Congress is not a continuing body. The hearings and deliberations conducted during the 11th or 12th Congress may still be used as extrinsic aids or reference because the same cityhood bills which were filed before the passage of R.A. No. 9009 were being considered during the 13th Congress.

It does not matter if the officers of each Congress or the authors of the bills are different. In the end, the rationale for exempting the cityhood bills from the P100,000,000.00 income requirement imposed by R.A. No. 9009 remains the same: (1) the cityhood bills were pending before the passage of R.A. No. 9009, and (2) respondent municipalities were compliant with the P20,000,000.00 income requirement imposed by the old Section 450 of the LGC, which was eventually amended by R.A. No. 9009.

What should not be overlooked is that the cityhood laws enjoy the presumption of constitutionality. Petitioners and petitioners-in-intervention bear the heavy burden of overcoming such presumption. However, the majority does exactly the opposite. It shifts the onus probandi to respondent municipalities to prove that their cityhood laws are constitutional. That is violative of the basic rule of evidence.

(7) even if the exemption in the cityhood laws were written in Section 450 of the LGC, the exemption would still be unconstitutional for violation of the equal protection clause because the exemption is based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when R.A. No. 9009 was enacted. The exemption on the 16 municipalities is not only based on the fact that they had pending cityhood bills when R.A. No. 9009 was enacted. Aside from complying with the territory and population requirements of the LGC, these municipalities also met the P20,000,000.00 income threshold of the old Section 450 of the LGC.

** intent of R.A. No. 9009 is clear. Congress intended to exempt municipalities (1) that had pending cityhood bills before the passage of R.A. No. 9009; and (2) that

were compliant with the income threshold of P20,000,000.00 under the old Section 450 of the LGC. Respondent municipalities are covered by the twin criteria. Thus, petitioners and petitioners-in-intervention cannot hardly claim the cityhood laws are unconstitutional on the ground they violate the criteria established in the LGC. Neither may they claim that the cityhood laws violate the equal protection clause of the Constitution. Congress is given the widest latitude in making classifications and in laying down the criteria. Separation of powers prevents the Court from prying into the wisdom or judgment of Congress. Even if the Court did, there is no unreasonable classification here, much less grave abuse of discretion.The intent of Congress - to avert the mad rush of municipalities wanting to be converted into cities and to prevent this nation from becoming a nation of all cities and no municipalities - is preserved.

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Caasi v. CA

Facts: Merito Miguel won in the 1988 mayoral elections in Bolinao, Pangasinan. Petitions were filed seeking to disqualify him on the ground that he holds a green card issued to him by the US Immigration Service which would mean that he his a permanent resident of the United States, and not of Bolinao. COMELEC dismissed the petitions on the ground that possession of a green card by Miguel does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, despite his green card, he has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. Commissioner Badoy’s dissent: A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. Miguel’s opponent, Caasi also filed a petition for quo warranto. Miguel filed an MTD which was denied by the RTC. CA ordered the RTC to dismiss and desist from further proceeding in the quo warranto case on the ground that the COMELEC has already ruled on his qualifications.

Issues: 1. WON a green card is proof that the holder is a permanent resident of the United States

Consti: Article XI, Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

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Omnibus Election Code: SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

Court took note of: a.in the "Application for Immigrant Visa and Alien Registration" Miguel's answer regarding his "Length of intended stay (if permanently, so state)," was “Permanently." b. on its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. c. On the back of the card, the upper portion, the following information is printed:Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States."

Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

Immigration: removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it.

Immigrant: person who removes into a country for the purpose of permanent residence. However, statutes sometimes give a broader meaning to the term "immigrant."

As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides. This is in return for the protection given to him during the period of his residence therein. Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due

process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law.

Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.

The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.'

2. WON Miguel waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code).

Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office.

Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess. Miguel did not possess that qualification because he was a

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permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.

Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak.

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void.

Rodriguez v. COMELEC

Facts : Rodriguez won against Marquez for the gubernatorial post in Quezon province. Marquez challenged Rodriguez’ victory via petition for quo warranto

before the COMELEC. Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the LGC. The COMELEC dismissed Marquez’ quo warranto petition in a resolution of February 2, 1993, and likewise denied a reconsideration thereof. Marquez challenged the COMELEC dismissal via petition for certiorari. In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification was filed by Marquez on April 11, 1995 when Rodriguez' petition for certiorari (112889) — from where the April 18, 1995 MARQUEZ Decision sprung — was still then pending before the Court. On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95-089 (disqualification case).

Issue: WON Rodriguez is a "fugitive from justice" as contemplated by Section 40(e) of the LGC based on the alleged pendency of a criminal charge against him.

Fugitive from justice: A person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district (Black’s Law)

Objective facts sufficient to constitute flight from justice are: (a) a person committed a 'crime' or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode.

Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive from justice.’ Mere commission of a 'crime' without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word 'crime' which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person 'was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his ‘flight from justice.’

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State v. Richter: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice.

THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A 'FUGITIVE FROM JUSTICE.'

Marquez decision: includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution." The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27and June 26 of 1995,[4] preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by that same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez.

"The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these

developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns — first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office.

"Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him.

"It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and

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obligations that are supererogatory in nature. We do not dispute that an alleged 'fugitive from justice' must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. To require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office."

To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local position under Section 40(e) of the LGC, should be understood according to the definition given in the MARQUEZ Decision. Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.

De La Torre v. COMELEC

Facts: Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the COMELEC allegedly with grave abuse of discretion amounting to lack of jurisdiction in a case for disqualification filed against petitioner before the COMELEC. The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of the LGC which provides as follows: The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence. In disqualifying the petitioner, the COMELEC held that: Documentary

evidence established that herein respondent (petitioner) was found guilty by the Municipal Trial Court for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial Court , which however, affirmed respondent’s conviction in a Decision dated November 14,1990. Respondent’s conviction became final on January 18,1991. The second assailed resolution, dated August 28, 1995, denied petitioner’s motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the LGC does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well.[4]

Issues: 1. WON the crime of fencing involves moral turpitude. Section 40 (a): “when the conviction by final judgment is for an offense

involving moral turpitude.” And in this connection, the Court has consistently adopted the definition in Black’s Law Dictionary of “moral turpitude” as: an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.

Not every criminal act, however, involves moral turpitude. It is for this reason that “as to what crime involves moral turpitude, is for the Supreme Court to determine”. In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in “Zari v. Flores,” to wit: “It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited.”

This guideline nonetheless proved short of providing a clear-cut solution, for in “International Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and

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frequently depends on all the circumstances surrounding the violation of the statute.

Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as: the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

Elements: 1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on the part of the accused, intent to gain for himself or for another.

Moral turpitude is deducible from the third element. Actual knowledge by the “fence” of the fact that property received is stolen displays the same degree of malicious deprivation of one’s rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the “fence” and the actual perpetrator/s of the robbery or theft invaded one’s peaceful dominion for gain - thus deliberately reneging in the process “private duties” they owe their “fellowmen” or “society” in a manner “contrary to accepted and customary rule of right and duty, justice, honesty or good morals.” The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on “Human Relations” and “Solutio Indebiti”

The same underlying reason holds even if the “fence” did not have actual knowledge, but merely “should have known” the origin of the property received. In this regard, the Court held: “When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words ‘should know’ denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists.”

2. WON a grant of probation affects Section 40 (a)’s applicability. Anent the second issue where petitioner contends that his probation had

the effect of suspending the applicability of Section 40 (a) of the LGC, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioner’s conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Clearly then, petitioner’s theory has no merit.

Magno v. COMELECFacts: A case was filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija. On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14, 2001 elections based on Sec 12 of the Omnibus Election Code. On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001. Hence, this petition.

Issue: WON petitioner was disqualified to run for mayor in the 2001 elections. a. whether the crime of direct bribery involves moral turpitude Moral Turpitude: an act of baseness, vileness, or depravity in the private

duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. (Black’s Law)

Elements of Bribery: 1. the offender is a public officer; 2. the offender accepts an offer or promise or receives a gift or present by himself or

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through another; 3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and 4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties.

Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude.

b. whether it is the Omnibus Election Code or the LGC that should apply in this situation.

There appears to be a glaring incompatibility between the five-year disqualification period provided in Sec 12 of the Omnibus Election Code and the two-year disqualification period in Sec 40 of the LGC. It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the LGC (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the LGC states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly.

In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed.

David v. COMELEC: RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively

provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail.

The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law. The reduction of the disqualification period from five to two years is the manifest intent.

Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the LGC. Petitioner’s disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections.

Lingating v. COMELECFacts: Miguel M. Lingating filed a disqualification case against respondent Cesar B. Sulong as candidate for mayor of Lapuyan, Zamboanga del Sur in the May 14, 2001 elections, pursuant to §40(b) of the LGC, which disqualifies from running for any elective local position “those removed from office as a result of an administrative case. It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals, was administratively charged with various offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992. Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulong’s motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulong’s) motion had consequently

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remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91. After the parties had filed their memoranda, the case was submitted for resolution. Because the COMELEC was unable to render judgment before the elections of May 14, 2001, respondent Sulong was voted for in the elections, receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16, 2001, respondent Sulong was proclaimed by the Municipal Board of Canvassers of Lapuyan as the duly elected mayor of that municipality. In a resolution dated August 1, 2001, the COMELEC’s First Division declared respondent Cesar B. Sulong disqualified. Respondent Sulong filed a motion for reconsideration citing a certification, dated August 7, 2001, of Provincial Secretary of Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC No. 12-91 “has not become final and executory as the final disposition thereof was overtaken by the local elections of May 1992.” He reiterated his claim that at no time had he been removed by virtue of the said decision. Petitioner filed an opposition contending, among other things, that the fact that Zamboanga del Sur Governor Ariosa had ordered the enforcement of the decision signified that respondent Sulong’s motion for reconsideration and/or notice of appeal had not been given due course by the Sangguniang Panlalawigan; and that respondent Sulong’s claim that he had not been removed from office was belied by the fact that he (respondent Sulong) brought charges against Vicente Imbing for Usurpation of Official Functions (I.S. No. 92-35), in support of which respondent Sulong attested under oath that Imbing had succeeded him as mayor of Lapuyan. In a separate motion, petitioner prayed that the resolution of August 1, 2001 be executed and that he be installed as mayor of Lapuyan in view of private respondent’s disqualification. On August 30, 2001, the COMELEC’s First Division denied petitioner’s motion for execution on the ground that the disqualification of an elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated. Petitioner then filed a motion for reconsideration of this order. On April 4, 2002, the COMELEC en banc issued its resolution subject of the petition in this case, reversing the resolution, dated August 1, 2001, of its First Division insofar as it found respondent Sulong disqualified from running as mayor. In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan, Zamboanga del Sur despite the decision of the Sangguniang dismissing him from office. In the 1995 May elections, respondent Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga del Sur. The COMELEC en banc also ruled that, in any event, respondent Sulong was not entitled to occupy the office thus vacated. Hence, this petition by Lingating.

Issue: WON an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under §40(b) of the LGC.

Reyes case: Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, . . . the decision in the administrative case, . . . was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to §40(b) of the LGC, he was disqualified from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to §40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The LGC of 1991 (R.A. No. 7160) could not be given retroactive effect.

However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. The records of this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a “motion for reconsideration and/or notice of appeal;” that on February 27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang Panlalawigan resolved respondent’s motion. The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final.

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While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Thus, it was held[15] that a party in a disbarment proceeding under Rule 139-B, §12(c) can move for a reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not so provide: Although Rule 139-B, §12(c) makes no mention of a motion for reconsideration, nothing in its text or history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of evidence.

There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was “overtaken by the local elections of May [11,]1992.”

Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to §68[16] of the LGC, which makes decisions in administrative cases immediately executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondent’s motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago.

Having come to the conclusion that respondent Sulong is not disqualified from holding the position of mayor of Lapuyan, it is unnecessary to pass upon petitioner’s contention that, as the candidate who obtained the second highest number of votes, he is entitled to be installed as mayor because the votes cast in favor of respondent Sulong were void.

Flores v. COMELEC

Facts: The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief

Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational expenses attached to the office . . . ." Paragraph (d) reads: Chairman administrator — The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority. Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint", since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says: Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. — During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who

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promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations . . . .for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections.

Issue: WON proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts.

Sec. 7 of Art. IX-B of the Constitution:No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ."

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the LGC (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. X-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council.

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus — MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because in the case of appointive officials, there may be a law that will allow them to hold other positions. MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should allow them to hold some other positions. The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the

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Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used.

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. In his treatise, Philippine Political Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office." Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., "the choice of a person to fill an office constitutes the essence of his appointment," and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion."

Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court: The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the

necessary qualifications and eligibilities. It is a prerogative of the appointing power

When Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment.

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. As long as he is an incumbent, an elective official remains ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his

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appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility.

This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office and to render his election or appointment to the latter office void or voidable "Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such.

Garvida v. Sales (supra, see p. 116)

Galido v. COMELEC

Facts: Galido and Galeon were candidates during the 18 January 1988 local elections for the position of mayor in the Municipality of Garcia-Hernandez, Province of Bohol. Galido was proclaimed duly-elected Mayor by the Municipal Board of Canvassers. Galeon then filed an election protest before the RTC of Bohol. After hearing, the said court upheld the proclamation of Galido as the duly-elected Mayor of Garcia-Hernandez, by a majority of 11 votes. On appeal to the COMELEC, RTC decision was reversed and Galeon was declared duly-elected mayor by a plurality of 5 votes. MR denied. The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial "C" after the name "Galido" were marked ballots and, therefore, invalid. The COMELEC said that where a word or a letter recurs in a pattern or system to mark and identify ballots, the ballots containing the same should be rejected as marked ballots. Galido filed a petition for certiorari and injunction. SC dismissed for failure of petitioner to comply with par. 4 of the Court's Circular No. 1-88 which requires that a petition shall contain a verified statement of the date when notice of the questioned judgment, order or resolution was received and the date of receipt of the denial of the motion for reconsideration, if any was filed. MR denied. Galido filed petition for certiorari and injunction with prayer for a restraining order which contains the same allegations and legal issues. TRO issued, respondents required to file comment.

Issues: 1. WON final decisions of the COMELEC are appealable. The COMELEC has exclusive original jurisdiction over all contests relating to

the elections, returns, and qualifications of all elective regional, provincial, and city officials and has appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution).

The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are

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final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari.

MR. REGALADO: It is understood, however, that while these decisions with respect to barangay and municipal officials are final and immediately executory and, therefore, not appealable, that does not rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65 of the Rules of Court.

2. WON the COMELEC committed a grave abuse of discretion. We do not, however, believe that the respondent COMELEC committed

grave abuse of discretion amounting to lack or excess of jurisdiction in rendering the questioned decision. It is settled that the function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess of jurisdiction.

As correctly argued by public respondent COMELEC, it has the inherent power to decide an election contest on physical evidence, equity, law and justice, and apply established jurisprudence in support of its findings and conclusions; and that the extent to which such precedents apply rests on its discretion, the exercise of which should not be controlled unless such discretion has been abused to the prejudice of either party.

**The records disclose that private respondent had already assumed the position of Mayor of Garcia-Hernandez as the duly-elected mayor of the municipality by virtue of the COMELEC decision. The main purpose of prohibition is to suspend all action and prevent the further performance of the act complained of. In this light, the petition at bar has become moot and academic.

Rivera v. COMELEC

Facts: Rivera and Garcia II were candidates for the position of Mayor of Guinobatan, Albay, during the local elections in January 1988. The Municipal Board of Canvassers proclaimed Rivera as the duly elected Mayor by a majority of 10 votes. Garcia filed an election protest with the RTC. After due hearing, and upon considering the report of a Revision Committee it had earlier created, the trial court found Garcia to have obtained 6,376 votes as against Rivera's 6,222. Rivera appealed to the COMELEC. The COMELEC sustained with modification (found Garcia leading by 153 instead of 154). MR denied, reaffirmed with modification (123 votes). Garcia commenced to discharge the duties and functions of Mayor of Guinobatan on 10 October 1990, by virtue of a writ of execution implementing the COMELEC decision of 6 September 1990. He continued as mayor until 10 November 1990 when he was

served notice of this Court's temporary restraining order, issued upon Rivera's motion. Rivera filed the present petition on 5 October 1990 seeking annulment of the COMELEC en banc decision rendered in favor of respondent Garcia. He also prayed for the issuance of an order restraining the implementation of the said judgment, arguing that the same had not yet become final and executory as of the time this petition was filed. He cites Article IX-C, Section 2, Par. (2) of the 1987 Constitution, in relation to Part VII, Rule 39, Section 1 of the COMELEC Rules of Procedure. He also contends that since the COMELEC decision of 6 September 1990 has not yet become final and executory, the COMELEC has no authority to issue the assailed order and writ of execution. Petitioner maintains further that he has a period of thirty (30) days from 6 September 1990 or until 6 October 1990 within which to elevate the COMELEC decision, on certiorari, to this Court, pursuant to Section 1, Rule 39 of the COMELEC Rules of Procedure. He submits that the questioned COMELEC decision is not one that became final and executory unless restrained by this Court as provided under Section 3, Rule 39 of the COMELEC Rules, as said rule applies only to "decisions in pre-proclamation cases and petitions to deny due course or to disqualify a candidate, and postpone or suspend elections."

Lastly, according to petitioner, Section 13(a) of Rule 18 (finality of Comelec decisions or resolutions) and Section 1 of Rule 39 (review by the Supreme Court of Comelec decisions, orders and rulings) of the COMELEC Rules of Procedure, should be read in the context of Section 7, Article IX-A of the Constitution (Supreme Court authority to review on certiorari a Comelec decision, order or ruling).

Upon the other hand, respondent Garcia contends that:

1. The Constitution declares the decisions of the COMELEC on election contests involving elective municipal and barangay officials to be final, executory and not appealable (Article IX-C, Sec. 2, par. (2), second sentence, 1987 Constitution).

2. In an earlier petition for certiorari filed by Rivera with this Court, docketed as G.R. No. 87046, charging the Regional Trial Court of grave abuse of discretion in Case No. 01-88, wherein the same issue now raised in this petition was raised by Rivera, this Court dismissed the petition for lack of merit on 7 March 1989.

3. The supplemental ground raised by petitioner Rivera that the COMELEC committed grave abuse of discretion "by not excluding from the total votes of Garcia at least ten (10) votes which were misappreciated in Garcia's favor, outside of those objected votes already ruled upon by the COMELEC" does not deserve any

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consideration. If true, it is an error in judgment, correctible by appeal, not by a petition for certiorari pursuant to Rule 65, Section 1, of the Rules of Court.

Issues: 1. WON the decisions of the COMELEC in election contests involving elective municipal and barangay officials, being final and executory and not appealable, preclude the filing of a special civil action of certiorari.

Galido Case. Flores v. COMELEC: Obviously, the provision of Article IX-C, Section 2(2) of

the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. We eschew a literal reading of that provision that would contradict such authority.

2. WON the COMELEC committed a grave abuse of discretion. The main thrust of the present petition for certiorari is that the respondent

COMELEC en banc committed grave abuse of discretion when it affirmed the decision of its First Division, promulgated on 2 May 1990, annulling the proclamation of the petitioner as the duly elected Mayor of Guinobatan, Albay and when it did not exclude from the total votes of Garcia at least ten (10) votes which were allegedly misappreciated in Garcia's favor.

We have closely scrutinized the challenged COMELEC decision and find that the said decision was not arrived at capriciously or whimsically by respondent COMELEC. A painstaking re-evaluation of the questioned 67 ballots was made by the COMELEC en banc. In fact, 14 ballots originally adjudicated in Garcia's favor were overruled by the Commission en banc, thus reducing the number of votes in his favor to 894 votes out of the 2,445 contested ballots. On the other hand, 16 ballots were added in Rivera's favor, thus increasing the votes in his favor to 1,087 votes.

Moreover, the appreciation and re-evaluation of ballots are factual determinations. It is settled that in a petition for certiorari, findings of fact of administrative bodies are final unless grave abuse of discretion has marred such factual determinations. We find none in this case.

Borja v. COMELEC

Facts: Capco was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Borja. On May 11, 1992, he ran and was

elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. On March 27, 1998, Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections. Borja, Jr., who was also a candidate for mayor, sought Capco’s disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the COMELEC ruled in favor of Borja and declared Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. The majority stated in its decision: In both the Constitution and the LGC, the three-term limitation refers to the term of office for which the local official was elected. It made no reference to succession to an office to which he was not elected. Succession into office is not counted as 1 term for purposes of the computation of the three-term limitation under the Constitution and the LGC. Capco won and was proclaimed elected by the Municipal Board of Canvassers. This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of the COMELEC and to seed a declaration that Capco is disqualified to serve another term as Mayor of Pateros, Metro Manila.

Issue: WON a vice-mayor who succeeds to the office of mayor by operation of law and serves the remainder of the term is considered to have served a term in that office for the purpose of the three-term limit.

Article X, §8 of the Constitution provides: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

This provision is restated in §43(b) of the LGC (R.A. No. 7160): No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from

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the concern that the right of the people to choose those whom they wish to govern them be preserved.

In discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of reelection. Indeed, a fundamental tenet of representative democracy is that the people should be allowed to choose whom they please to govern them. To bar the election of a local official because he has already served three terms, although the first as a result of succession by operation of law rather than election, would therefore be to violate this principle.

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art. X, §8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of “the term of office of elective local officials” and bars “such official[s]” from serving for more than three consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served his full term of office, states that “voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.” The term served must therefore be one “for which [the official concerned] was elected.” The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term now withstanding his voluntary renunciation of office prior to its expiration.

There is a difference between the case of a vice-mayor and that of a member of the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by operation of law. On the other hand, the Representative is elected to fill the vacancy. In a real sense, therefore, such Representative serves a term for which he was elected. As the purpose of the constitutional provision is to limit the right ot be elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X, §8 with regard to elective local officials, the case of a Representative who succeeds another confirms the theory.

Petitioner also cites Art. VII, §4 of the Constitution which provides for succession of the Vice-President to the Presidency in case of vacancy in that office. After stating that “The President shall not be eligible for any

reelection,” this provision says that “No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.” Petitioner contends that, by analogy, the vice-mayor should likewise be considered to have served a full term as mayor if he succeeds to the latter’s office and serves for the remainder of the term.

The framers of the Constitution included such a provision because, without it, the Vice-President, who simply steps into the Presidency by succession would be qualified to run for President even if he has occupied that office for more than four years. The absence of a similar provision in Art. X, §8 on elective local officials throws in bold relief the difference between the two cases. It underscores the constitutional intent to cover only the terms of office to which one may have been elected for purpose of the three-term limit on local elective officials, disregarding for this purpose service by automatic succession.

There is another reason why the Vice-President who succeeds to the Presidency and serves in that office for more than four years is ineligible for election as President. The Vice-President is elected primarily to succeed the President in the event of the latter’s death, permanent disability, removal or resignation. While he may be appointed to the cabinet, his becoming so is entirely dependent on the good graces of the President. In running for Vice-President, he may thus be said to also seek the Presidency. For their part, the electors likewise choose as Vice-President the candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in the presidency for more than four years may rightly be considered as service for a full term.

This is not so in the case of the vice-mayor. Under the LGC, he is the presiding officer of the sanggunian and he appoints all officials and employees of such local assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy therein being only one of them. It cannot be said of him, as much as of the Vice-President in the event of a vacancy in the Presidency, that in running for vice-mayor, he also seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance than of design. Hence, his service in that office should not be counted in the application of any term limit.

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also

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have been elected to the same position for the same number of times before the disqualification can apply.

**Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election.

Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, §8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one “for which he was elected.” Since A is only completing the service of the term for which the deceased and not he was elected. A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term.**Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms.**Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X §8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of the mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death , of the deceased mayor. To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the third time he is standing for reelection) if his service of the first term is counted as one of the purpose of

applying the term limit. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed.

Lonzanida v. COMELEC

Facts: Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant. On appeal, the COMELEC declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term. In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the LGC. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.

Issue: WON Lonzanida's assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials.

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Sec. 8, Art. X of the Constitution provides: The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Sec. 43 of the LGC (R.A. No. 7160) restates the same rule: No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty. The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office.

Borja Case: This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated: To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been

elected to the same position for the same number of times before the disqualification can apply.

It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.

The two requisites for the application of the three term rule are absent. - - First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. 6 Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an

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interruption in the continuity of service for the full term for which he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.

Petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside.

2. WON the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected.

Such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.

3. WON the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner.

The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga vs.

COMELEC and Trinidad that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.

Sec. 6 of RA 6646 specifically mandates that: any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case.

Aguam v. COMELEC: Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene.

Purpose of a disqualification proceeding : to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed

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elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation .

Adormeo v. COMELEC

Facts: Adormeo and Talaga were the only candidates who filed their certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Talaga was then the incumbent mayor. Talaga was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001. On March 2, 2001, Adormeo filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Talaga on the ground that the latter was elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner contended that Talaga’s candidacy as Mayor constituted a violation of Section 8, Article X of the 1987 Constitution which provides that the term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Talaga responded that he was not elected City Mayor for three (3) consecutive terms but only for two (2) consecutive terms. He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the consecutiveness of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of three years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full term, in the contemplation of the law and the Constitution. The COMELEC found Talaga disqualified for the position of city mayor on the ground that he had already served three (3) consecutive terms, and his Certificate of Candidacy was ordered withdrawn and/or cancelled. MR reversed COMELEC ruling and held that 1) respondent was not elected for three (3) consecutive terms because he did not win in the May 11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his victory in the recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that he did not fully serve the three (3) consecutive

terms, and his loss in the May 11, 1998 elections is considered an interruption in the continuity of his service as Mayor of Lucena City. On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of Lucena City.Issue: WON COMELEC Talaga is qualified to run forMayor in Lucena City for the 2001 elections.

Petitioner contends that private respondent was disqualified to run for city mayor by reason of the three-term rule because the unexpired portion of the term of office he served after winning a recall election, covering the period May 12, 2000 to June 30, 2001 is considered a full term. He posits that to interpret otherwise, private respondent would be serving four (4) consecutive terms of 10 years, in violation of Section 8, Article X of 1987 Constitution[4] and Section 43 (b) of R.A. 7160, known as the LGC.

Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He lost his bid for a second re-election in 1998 and between June 30, 1998 to May 12, 2000, during Tagarao’s incumbency, he was a private citizen, thus he had not been mayor for 3 consecutive terms.

In its comment, the COMELEC restated its position that private respondent was not elected for three (3) consecutive terms having lost his third bid in the May 11, 1998 elections, said defeat is an interruption in the continuity of service as city mayor of Lucena.

Borja Case: Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed.

Lonzanida Case: Two conditions for the application of the disqualification must concur: a) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms.

COMELEC’s ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections.

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Patently untenable is petitioner’s contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of 1987 Constitution.

To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that “if one is elected representative to serve the unexpired term of another, that unexpired, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed.” As pointed out by the COMELEC en banc, Fr. Bernas’ comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is no recall election provided for members of Congress.

Neither can respondent’s victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as “voluntary renunciation” for clearly it is not. In Lonzanida vs. COMELEC, we said: The second sentence of the constitutional provision under scrutiny states, “Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.” The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.

Socrates v. COMELEC

Facts: On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of Victorino Dennis M. Socrates who assumed office as Puerto Princesa’s mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA. PRA passed a resolution which declared its loss of

confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution. On July 16, 2002, Socrates filed with the COMELEC a petition to nullify and deny due course to the Recall Resolution. On August 14, 2002, the COMELEC dismissed Socrates’ petition and gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. On August 21, 2002, the COMELEC en banc promulgated a resolution prescribing the calendar of activities and periods of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10 days. On August 23, 2002,. Hagedorn filed his certificate of candidacy for mayor in the recall election. Adovo and Gilo filed a petition to disqualify Hagedorn from running in the recall election and to cancel his certificate of candidacy. Ollave and Manaay also. The petitions were all anchored on the ground that “Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post.” In a resolution promulgated on September 20, 2002, the COMELEC dismissed for lack of merit and declared Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election from September 7, 2002 to September 24, 2002. MR denied. Hagedorn won and filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to assume office to give effect to the will of the electorate.

Issues: 1. WON the COMELEC committed grave abuse of discretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa.

Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC, however, found that on various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the LGC. Notices were likewise posted in conspicuous places particularly at the Barangay Hall. The proponents likewise utilized the broadcast mass media in the dissemination of the convening of the PRA.

The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a ‘thorough and careful verification of the signatures, majority of all members of the PRA concerned approved said resolution.’ She likewise certified ‘that not a single member/signatory of

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the PRA complained or objected as to the veracity and authenticity of their signatures.’

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, ‘upon proper review, all documents submitted are found in order.’

The Acting Director IV, Region IV, found that the PRA was validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.’

2. WON Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24, 2002.

The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.”

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the LGC, which provides: No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.”

These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after

three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service.

The framers of the Constitution thus clarified that a Senator can run after only three years following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend “the period of rest” of an elective official who has reached his term limit to be the full extent of the succeeding term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the LGC, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the LGC disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorn’s service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn’s three consecutive terms ended on June 30, 2001. Hagedorn’s new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn’s previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn’s service as mayor.

Lonzanida Case: Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for

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the full term for which he was elected.” The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.

In Hagedorn’s case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption “for any length of time,” as long as the cause is involuntary, is sufficient to break an elective local official’s continuity of service.

Adormeo Case: an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. The issue in Adormeo was whether Talaga’s recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor. Talaga’s recall term as mayor was not consecutive to his previous two terms because of this interruption, there having been a break of almost two years during which time Tagarao was the mayor.

In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term.

The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official’s terms in office. Hagedorn’s recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24,

2002 recall election if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorn’s recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not.

To make Hagedorn’s recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people.

A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit.

An elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election.

**Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa because:1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001;2. Hagedorn’s continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen;3. Hagedorn’s recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders.

Mendoza v. COMELEC

Osmeña v. COMELEC

Facts: RA 7056 (An Act Providing for the National and Local Elections in 1992, Pave the Way for Synchronized and Simultaneous Elections Beginning 1995, and

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Authorizing Appropriations Therefor) was enacted. Suit was instituted by Governor Osmeña, Governor Pagdanganan on behalf of the League of Governors of the Philippines, Representatives Garcia, del Mar, Bacaltos, Cainglet, and Guanzon, by way of a petition for Prohibition, mandamus and Injunction with temporary restraining order and/or preliminary injunction to prevent the implementation of said RA and the consequent expenditure of public funds and to compel the Comelec to immediately and with all deliberate speed set up the machinery and make the necessary preparation for the holding of synchronized national and local elections on the second Monday of May, 1992. They pray for this Court to declare Republic Act No. 7056 as unconstitutional and, therefore, invalid and inoperative because:1. Republic Act 7056 violates the mandate of the Constitution for the holding of synchronized national and local elections on the second Monday of May 1992.2. Republic Act 7056, particularly the 2nd paragraph of Section 3 thereof, providing that all incumbent provincial, city and municipal officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified violates Section 2, Article XVIII (Transitory Provision) of the Constitution.3. The same paragraph of Section 3 of Republic Act 7056, which in effect, shortens the term or tenure of office of local officials to be elected on the 2nd Monday of November, 1992 violates Section 8, Article X of the Constitution.4. Section 8 of Republic Act 7056, providing for the campaign periods for Presidential, Vice-Presidential and Senatorial elections, violates the provision of Section 9, Article IX under the title "Commission on Elections" of the Constitution.

5. The so-called many difficult if not insurmountable problems mentioned in Republic Act 7056 to synchronized national and local elections set by the Constitution on the second Monday of May, 1992, are not sufficient, much less, valid justification for postponing the local elections to the second Monday of November 1992, and in the process violating the Constitution itself. If, at all, Congress can devise ways and means, within the parameters of the Constitution, to eliminate or at least minimize these problems and if this, still, is not feasible, resort can be made to the self-correcting mechanism built in the Constitution for its amendment or revision. (pp. 4-5, Petition)

Similar claims have been made in the other cases mentioned in the caption.

The Court in its Resolution dated June 27, 1991 issued a restraining order, "ordering the respondents and/or anyone acting in their place or stead, or by their authority, to cease and desist from implementing Republic Act 7056, which provides among others, for the holding of desynchronized national and local elections in 1992." (p.

29, Rollo) The Court also required respondents to comment on the petition within a non-extendible period of ten (10) days from notice.

Commenting on the petition as required, the Solicitor General prays for the denial of the petition arguing that the question raised by petitioners is political in nature and therefore beyond the jurisdiction of this Court. He stresses, citing National Economic Protective Association v. Ongpin, 171 SCRA 657, that petitioners failed to show justification for the exercise of its judicial power, viz (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case. He also questions the legal standing of the petitioners, who, he contends are merely asking for an advisory opinion from the Court, there being no justiciable controversy for resolution.

On the merits of the case, the Solicitor General contends that Republic Act 7056 is a valid exercise of legislative power by Congress and that the regular amending process prescribed by the Constitution does not apply to its transitory provisions.

Issues: 1. WON the court may act on the matter at bar. What is before us is not a discretionary act of Congress or the Executive

that may not be reviewed by us because it is political in nature. What is involved here is the legality, not the wisdom of RA 7056. And even if we were to assume that the issue presented before us is political in nature, We would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers in proper cases even political questions, provided naturally, that the question is not solely and exclusively political (as when the Executive extends recognition to a foreign government) but one which really necessitates a forthright determination of constitutionality, involving as it does a question of national importance. Article VIII, Sec. 1 of the 1987 Constitution clearly provides: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The issue presented to us in the case at bar, is justiciable rather than political. Even if the question were political in nature, it would still come

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within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1 of the 1987 Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government. As for the other alleged procedural flaws — lack of court standing, etc., assuming the existence of such flaws, the same may be brushed aside, conformably with existing doctrine so that the important constitutional issue raised may be addressed.

2. WON RA 7056 is constitutional. Article XVIII, Sec 2of the 1987 Constitution: The Senators, Members of the

House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six year and the remaining twelve for three years.

Sec. 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

Terms of office of Senators, Members of the House of Representatives, the local officials, the President and the Vice-President have been synchronized to end on the same hour, date and year — noon of June 30, 1992.

Term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years.

The Constitution has mandated a synchronized national and local election prior to June 30, 1992 or more specifically as provided for in Article XVIII, Sec. 5-on the second Monday of May, 1992.

The term of office of elective local officials, except barangay officials, is fixed by the Constitution at three years (Sec. 8, Art. X). The incumbent local officials were elected in January 1988. Therefore, their term would have expired on February 2, 1991. But their term was adjusted to expire at noon of June 30, 1992. The reason for the said adjustment, as well as those of the Senators, members of the House of Representatives, President and Vice-President, is the same — to synchronize the national and local elections.

Upon the other hand, and contrary to the express mandate of the 1987 Constitution, Republic Act 7056 provides for two (2) separate elections in 1992 as follows: Sec. 2. Start of Synchronization — To start the process of synchronization of election in accordance with the policy hereinbefore declared there shall be held: (a) An election for President and Vice-President of the Philippines, twenty four (24) Senators and all elective Members of the House of Representatives on the second Monday of May, 1992, and (b) An election of all provincial, city and municipal elective officials on the second Monday of November, 1992. The purpose of Republic Act 7056 is as stated in Section 1 thereof under the heading "Statement of Policy" — to start, as much as practicable, the synchronization of the elections so that the process can be completed in the 1995 elections with the result that beginning 1995 there shall be only one (1) simultaneous regular elections for national and local elective officials every three (3) years.

With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act 7056 is clearly violative of the Constitution because it provides for the holding of a desynchronized election. Stated differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article XVIII, Sections 2 and 5 of the 1987 Constitution.

Other Consti provisions violated by RA 7056:1. Section 2, Article XVIII of the Constitution which provides that the local

official first elected under the Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified. It has been held that It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify with the time. American Jurisprudence: the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution.

2. Section 8, Article X of the Constitution which provides that: The term of office of elective local officials, except barangay officials which shall be

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determined by law shall be three years and no such official shall serve for more than three consecutive terms. But if the local election will be held on the second Monday of November 1992 under RA 7056, those to be elected will be serving for only two years and seven months, that is, from November 30, 1992 to June 30, 1995, not three years as provided for by the Constitution.

3. Section 9, Article IX of the Constitution provides that: Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter. Under this provision the filing of the Certificate of Candidacy and the ensuing campaign period must be embraced or circumscribed within that election period of ninety days, except when in special cases, the Comelec (not Congress) alters the period. But RA 7056 provides for a different campaign period, as follows: Sec. 8. (a) For President arid Vice-Presidential elections one hundred thirty (130) days before the day of election. (b) For Senatorial elections, ninety (90) days before the day of the election, and (c) For the election of Members of the House of Representatives and local elective provincial, city and municipal officials forty-five (45) days before the day of the elections.

**All these — the postponement of the holding of a synchronized national and local election from 1992 to 1995; the hold-over provision for incumbent local officials; the reduction of the term of office of local officials to be elected on the second Monday of November 1992 and the change in the campaign periods, are violative of the 1987 Constitution.**The contention of the Solicitor General that the method of amendment or revision prescribed by the Constitution (Article XVIII) does not apply to the Transitory Provisions because in the nature of things Transitory Provisions are to be carried out as soon as practicable, and Congress can, in the exercise of its legislative power enact the needed legislation, in this case RA 7056, deserves no consideration at all. The 1987 Constitution has stated in clear and categorical language that "the six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992 (Article XVIII, Sec. 5)." As discussed earlier, the elections referred to, to be synchronized with the election of the President and Vice-President on the second Monday of May 1992, is the election for Senators, Members of the House of Representatives and local officials.**Synchronization — as the act or result of synchronizing; concurrence of events or motions in respect to time.Synchronize — to happen or take place at the same time; to represent or arrange event so as to indicate coincidence or co-existence; to cause to agree in time.

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Labo, Jr. v. COMELEC (supra, see p.150)

Menzon v. Petilla

Facts: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, Secretary of Local Government Santos designated Vice-Governor Petilla as Acting Governor of Leyte. On March 25, 1988, Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Santos to act as the Vice-Governor for the province of Leyte. On May 29, 1989, Provincial Administrator Quintero inquired from the Undersecretary of the Department of Local Government Rubillar as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Rubillar stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of Menzon as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Quintero and Rubillar, the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte on the ground that there is no permanent vacancy in said office since Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position. Menzon, through the acting LDP Regional Counsel, Atty. Alegre, sought clarification from Undersecretary Rubillar regarding the June 22, 1989 opinion. According to Rubillar, the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vice-governor temporarily. In view, of the clarificatory letter of Rubillar, the Regional Director of the Department of Local Government, Region 8, Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly, as to previous actions made by his office and those of the Sangguniang Panlalawigan which may have tended to discredit the validity of Menzon's designation as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such. On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request. Despite these several letters of request, the Acting Governor and

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the Sangguniang Panlalawigan, refused to correct Resolution 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Thus, on November 12, 1989, the Menzon filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor. On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. On September 6, 1990, Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice-Governor of Leyte. On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such.

Issues: 1.WON there was a vacancy The law on Public Officers is clear on the matter. There is no vacancy

whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office.

Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.

There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. It was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor

should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority.

2. WON the Secretary of Local Government has the authority to make temporary appointments. YES.

Under the circumstances of this case (there had been no de jure permanent Governor for the province of Leyte for about two years, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case) and considering the silence of the LGC, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. Menzon’s temporary appointment valid.

The records show that it was primarily for this contingency that Undersecretary Rubillar corrected and reconsidered his previous position and acknowledged the need for an acting Vice-Governor.

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the LGC and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.

The appointment of the petitioner, moreover, is in full accord with the intent behind the LGC. There is no question that Section 49 in connection

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with Section 52 of the LGC shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor.

The LGC provides for the mode of succession in case of a permanent vacancy. Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . .

By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment.

Menzon must be paid his salary attached to his office, but only the remainder. Even granting the President, acting through the Secretary of Local Government possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn.

Docena v. Sangguniang Panlalawigan of Eastern Samar

Facts: Capito, a member of the Sangguniang Panlalawigan of Eastern Samar died in office. Secretary Santos of the DLG appointed Docena to succeed Capito on November 19, 1990. The record does not show why, but on November 27, 1990, Alar was appointed, also by Santos, to the position already occupied by Docena. On December 18, 990, the SPES passed Resolution 75 recognizing Alar rather than Docena as the legitimate successor of the late Board Member Capito. The following day, the SPES was in effect reversed by Secretary Santos. This action was affirmed in a First Indorsement dated January 4, 1991, signed by Head Executive Assistant

Agundo of the Department of Local Government. The reaction of the SPES was to pass, Resolution No. 1 dated January 8, 1991, where it reiterated its previous recognition of Alar and declared that "the recall order issued by Secretary Santos, dated December 19, 1990, recalling the appointment of Atty. Alar has no legal basis in fact and in law and issued to fit his whimsical, capricious and wishy-washy desires to the detriment of decency and due process of law. On the same date, Provincial Prosecutor Labrador had rendered an opinion that the recall order of Secretary Santos was "void ab initio"' because Alar's right to the office "had become vested." It is not clear if Secretary Santos agreed with these views, but at any rate he issued on February 20, 1991, another recall order, this time addressed to Docena. Docena then came to this Court in a petition for mandamus to compel the respondents to recognize and admit him as a lawfully appointed member of the SPES and also seeks to hold them officially and personally liable in damages for their refusal to do so in spite of his clear title to the disputed office. TRO issued, enjoining both Docena and Alar from assuming the office of member of the Sangguniang Panlalawigan of Eastern Samar.

Issue: 1. WON Docena may be recognized and properly admitted to office. Sec. 50. Permanent Vacancies in Local Sanggunians. — In case of

permanent vacancy in the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang barangay, the President of the Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified person to fill the vacancy in the sangguniang panlalawigan and the sangguniang panlungsod; the governor, in the case of sangguniang bayan members; or the city or municipal mayor, in the case of sangguniang barangay members. Except for the sangguniang barangay, the appointee shall come from the political party of the sanggunian member who caused the vacancy, and shall serve the unexpired term of the vacant office.

The petitioner makes the point, and it has not been disputed by the respondents, that both he and Capito ran for the provincial board in the 1988 elections under the banner of Lakas ng Bansa. Later, they both joined the Laban ng Demokratikong Pilipino under the leadership of Speaker Mitra, who administered the oath of office to him when he was appointed to the SPES on November 19, 1990. Docena argues that he has a preferential right to the disputed office even on equitable grounds because he placed ninth in the election, next to Capito, compared to Alar who did not even run for the office.

From the tenor of the appointment extended to Docena on November 19, 1990, there is no question that it was intended to be permanent, to fill the

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permanent vacancy caused by Capito's death. As such, it was to be valid for the unexpired portion of the term of the deceased member, who was entitled to serve "until noon of June 30, 1992," in accordance with Article XVIII, Section 2, of the Constitution.

The said appointment had been accepted by Docena, who had in fact already assumed office as member of the SPES as per certification of the Provincial Secretary. For all legal intents and purposes, the petitioner's appointment had already become complete and enforceable at the time it was supposed to have been "superseded" by the appointment in favor of Alar.

The respondents are ambivalent about the power of the Secretary of Local Government to recall his appointments. They described the appointment as "whimsical, capricious and wishy-washy" but they had no similar complaints about the recall of Docena's appointment although also apparently indecisive. On the contrary, they maintained a deep silence about this other recall and insisted simply that the subsequent appointment of Alar had invalidated the earlier appointment of Docena. It is noteworthy that absolutely no reason was given for the recall of Docena's appointment (or for that matter, the recall of Alar's appointment). It appears that after appointing Docena and later twice sustaining his title to the office, Secretary Santos simply had a change of heart and decided to award the position to Alar.

Docena's appointment having been issued and accepted earlier, and the petitioner having already assumed office, he could not thereafter be just recalled and replaced to accommodate Alar. The appointment was permanent in nature, and for the unexpired portion of the deceased predecessor's term. Docena had already acquired security of tenure in the position and could be removed therefrom only for any of the causes, and conformably to the procedure, prescribed by the LGC. These requirements could not be circumvented by the simple process of recalling his appointment.

Whatever gave the SPES the impression that the questioned appointments were revocable at will can only be left to conjecture; what is certain is that it was not based on careful legal study. The Provincial Prosecutor's opinion that the office had "become vested" in Alar suffers from the same flaw and a lack of understanding of the nature of a public office. Political rather than legal considerations seem to have influenced the action of the provincial government in rejecting the petitioner's claim despite its obvious merit.

2. WON mandamus is the proper action.

The respondents also argue that the petitioner should have sought to enforce his claimed right in a petition not for mandamus but for quo warranto, as his purpose is to challenge Alar's title to the disputed office. That is only secondary in this case. The real purpose of the present petition is to compel the respondent SPES to recognize and admit Docena as a member of the body by virtue of a valid appointment extended to him by the Secretary of Local Government.

Mandamus is employed to compel the performance of a ministerial duty to which the petitioner is entitled. In arguing that the recognition and admission of the petitioner is not a ministerial duty, the respondents are asserting the discretion to review, and if they so decide, reject, the Secretary's appointment. They have no such authority. Faced with a strictly legal question, they had no right and competence to resolve it in their discretion. What they should have done was reserve their judgment on the matter, leaving it to the courts of justice to decide which of the conflicting claims should be upheld. As a local legislative body subject to the general supervision of the President of the Philippines, the SPES had no discretion to rule on the validity of the decisions of the Secretary of Local Government acting as her alter ego.

Even assuming that the proper remedy is a petition for quo warranto, the Court may in its own discretion consider the present petition a. such and deal with it accordingly. We find that as a petition for quo warranto, it complies with the prescribed requirements, to wit, that it be filed on time and by a proper party asserting title to the office also claimed by the respondent. Acting thereon, we hold that Docena has proved his right to the disputed office and could not be legally replaced by Alar.

3. WON damages may be claimed. The Court will make no award of damages, there being no sufficient proof

to overcome the presumption that the respondents have acted in good faith albeit erroneously. Nevertheless, the petitioner is entitled to the payment of the salaries and other benefits appurtenant to the office of a Member of the Sangguniang Panlalawigan of Eastern Samar, from the time of his assumption of office and until he is actually admitted or reinstated.

De Rama v. CA

Facts: Upon his assumption to the position of Mayor of Pagbilao, Quezon, de Rama wrote a letter dated July 13, 1995 to the Civil Service Commission seeking the recall of the appointments of fourteen (14) municipal employees. De Rama justified his recall request on the allegation that the appointments of the said employees were

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“midnight” appointments of the former mayor Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution, which provides that two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. While the matter was pending before the CSC, three of the employees filed with the CSC a claim for payment of their salaries, alleging that although their appointments were declared permanent by Gulim, Director II of the CSC Field Office based in Quezon, de Rama withheld the payment of their salaries and benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the appointments of the said 14 employees were recalled. The CSC found them entitled to their salaries. On April 30, 1996, the CSC denied de Rama’s request for the recall of the appointments of the 14 employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus Rules, and declared that the appointments of the said employees were issued in accordance with pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by the appointing authority until disapproved by the CSC. The CSC also dismissed petitioner’s allegation that these were “midnight” appointments, pointing out that the Constitutional provision relied upon by petitioner prohibits only those appointments made by an outgoing President and cannot be made to apply to local elective officials. MR to CSC denied. CA affirmed. MR denied.

Issue: WON de Rama validly recalled the appointments. NO. The records reveal that when the petitioner brought the matter of recalling

the appointments of the 14 before the CSC, the only reason he cited to justify his action was that these were “midnight appointments” that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments. Neither did he allege that the said appointments were tainted by irregularities or anomalies that breached laws and regulations governing appointments. His solitary reason for recalling these appointments was that they were, to his personal belief, “midnight appointments” which the outgoing mayor had no authority to make.

The fourteen (14) employees were duly appointed following two meetings of the Personnel Selection Board held on May 31 and June 26, 1995. There

is no showing that any of the private respondents were not qualified for the positions they were appointed to. Moreover, their appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue thereof, they had already assumed their appointive positions even before petitioner himself assumed his elected position as town mayor. Consequently, their appointments took effect immediately and cannot be unilaterally revoked or recalled by petitioner.

It has been held that upon the issuance of an appointment and the appointee’s assumption of the position in the civil service, “he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing.” Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing.

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. In doing so, he overstepped the bounds of his authority. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSC’s jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that “an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission.” Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations.

Section 10 of the same rule provides: An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The

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appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance.

Section 20 of Rule VI also provides: Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds:(a) Non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan; (b) Failure to pass through the agency’s Selection/Promotion Board; (c) Violation of the existing collective agreement between management and employees relative to promotion; or (d) Violation of other existing civil service law, rules and regulations

The appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were “midnight appointments.” The CSC correctly ruled, however, that the constitutional prohibition on so-called “midnight appointments,” specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President.

If ever there were other procedural or legal requirements that were violated in implementing the appointments of the private respondents, the same were not seasonably brought before the Civil Service Commission. These cannot be raised for the first time on appeal.

David v. COMELEC

Facts (first case): In his capacity as barangay chairman of Barangay 77, Zone 7, Kalookan City and as president of the Liga ng mga Barangay sa Pilipinas, David filed on December 2, 1996 a petition for prohibition under Rule 65 of the Rules of Court, to prohibit the holding of the barangay election scheduled on the second Monday of May 1997. On January 29, 1997, the Solicitor General filed his four-page Comment siding with petitioner and praying that “the election scheduled on May 12, 1997 be held in abeyance.” The COMELEC filed a separate Comment, dated February 1, 1997 opposing the petition. On February 11, 1997, the Court issued a Resolution giving due course to the petition and requiring the parties to file simultaneous memoranda. It also requested former Senator Aquilino Q. Pimentel, Jr. to act as amicus curiae. It noted but did not grant petitioner’s Urgent Motion for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction dated January 31, 1997 (as well as his Urgent Ex-Parte Second Motion to the same effect, dated March 6, 1997). Accordingly, the parties filed their respective memoranda. The Petition for Leave to Intervene filed on March 17, 1997 by Punong Barangay Rodson F. Mayor was denied as it would just unduly delay the

resolution of the case, his interest like those of all other barangay officials being already adequately represented by Petitioner David who filed this petition as “president of the Liga ng mga Barangay sa Pilipinas.”

Facts (second case): On February 20, 1997, Petitioner Liga ng mga Barangay Quezon City Chapter represented by its president Rillon filed a petition “to seek a judicial review by certiorari to declare as unconstitutional: 1. Section 43(c) of R.A. 7160 which reads as follows: (c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994.’2. COMELEC Resolution Nos. 2880 and 2887 fixing the date of the holding of the barangay elections on May 12, 1997 and other activities related thereto;3. The budgetary appropriation of P400 million contained in Republic Act No. 8250 otherwise known as the General Appropriations Act of 1997 intended to defray the costs and expenses in holding the 1997 barangay elections;” Comelec Resolution 2880, promulgated on December 27, 1996 and referred to above, adopted a “Calendar of Activities and List and Periods of Certain Prohibited Acts for the May 12, 1997 Barangay Elections.” On the other hand, Comelec Resolution 2887 promulgated on February 5, 1997 moved certain dates fixed in Resolution 2880. Acting on the petition, the Court on February 25, 1997 required respondents to submit their comment thereon. The Court further resolved to consolidate the two cases inasmuch as they raised basically the same issue. Respondent Commission filed its Comment on March 6, 1997 and the Solicitor General, in representation of the other respondent, filed his on March 6, 1997. Petitioner’s Urgent Omnibus Motion for oral argument and temporary restraining order was noted but not granted. The petition was deemed submitted for resolution by the Court without need of memoranda.

Issues: 1. Which law governs the term of office of barangay officials: RA 7160 or RA 6679? 7160.

RA 7160, the LGC, was enacted later than RA 6679. It is basic that in case of an irreconciliable conflict between two laws of different vintages, the later enactment prevails. Legis posteriores priores contrarias abrogant. The rationale is simple: a later law repeals an earlier one because it is the later legislative will. It is to be presumed that the lawmakers knew the older law and intended to change it. In enacting the older law, the legislators could not have known the newer one and hence could not have intended to change what they did not know. Under the Civil Code, laws are repealed only by subsequent ones and not the other way around. Under Sec. 43-c of RA 7160, the term of office of barangay officials was

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fixed at “three (3) years which shall begin after the regular election of barangay officials on the second Monday of May 1994.” This provision is clearly inconsistent with and repugnant to Sec. 1 of RA 6679 which states that such “term shall be for five years.” Note that both laws refer to the same officials who were elected “on the second Monday of May 1994.”

RA 6679 requires the barangay voters to elect seven kagawads and the candidate obtaining the highest number of votes shall automatically be the punong barangay. RA 6653 empowers the seven elected barangay kagawads to select the punong barangay from among themselves. On the other hand, the Local Autonomy Code mandates a direct vote on the barangay chairman by the entire barangay electorate, separately from the seven kagawads. Hence, under the Code, voters elect eight barangay officials, namely, the punong barangay plus the seven kagawads. Under both RA 6679 and 6653, they vote for only seven kagawads, and not for the barangay chairman.

During the barangay elections held on May 9, 1994 (second Monday), the voters actually and directly elected one punong barangay and seven kagawads. If we agree with the thesis of petitioners, it follows that all the punong barangays were elected illegally and thus, Petitioner Alex David cannot claim to be a validly elected barangay chairman, much less president of the national league of barangays which he purports to represent in this petition. It then necessarily follows also that he is not the real party-in-interest and on that ground, his petition should be summarily dismissed.

In enacting the general appropriations act of 1997,[33] Congress appropriated the amount of P400 million to cover expenses for the holding of barangay elections this year. Likewise, under Sec. 7 of RA 8189, Congress ordained that a general registration of voters shall be held “immediately after the barangay elections in 1997.” These are clear and express contemporaneous statements of Congress that barangay officials shall be elected this May, in accordance with Sec. 43-c of RA 7160.

In Paras vs. Comelec,[34] this Court said that “the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled in May, 1997.” This judicial decision, per Article 8 of the Civil Code, is now a “part of the legal system of the Philippines.”

Petitioners pompously claim that RA 6679, being a special law, should prevail over RA 7160, an alleged general law pursuant to the doctrine of generalia specialibus non derogant. Petitioners are wrong. RA 7160 is a codified set of laws that specifically applies to local government units. It

specifically and definitively provides in its Sec. 43-c that “the term of office of barangay officials shall be for three years.” It is a special provision that applies only to the term of barangay officials who were elected on the second Monday of May 1994. With such particularity, the provision cannot be deemed a general law. Petitioner may be correct in alleging that RA 6679 is a special law, but they are incorrect in stating (without however giving the reasons therefor) that RA 7160 is necessarily a general law. It is a special law insofar as it governs the term of office of barangay officials. In its repealing clause, RA 7160 states that “all general and special laws which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.” There being a clear repugnance and incompatibility between the two specific provisions, they cannot stand together. The later law, RA 7160, should thus prevail in accordance with its repealing clause. When a subsequent law encompasses entirely the subject matter of the former enactments, the latter is deemed repealed.

2. WON RA 7160 insofar as it shortened such term to only three years constitutional. YES. SEC. 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Petitioner Liga ng mga Barangay Quezon City Chapter posits that by excepting barangay officials whose “term shall be determined by law” from the general provision fixing the term of “elective local officials” at three years, the Constitution thereby impliedly prohibits Congress from legislating a three-year term for such officers. We find this theory rather novel but nonetheless logically and legally flawed.

Undoubtedly, the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials. It merely left the determination of such term to the lawmaking body, without any specific limitation or prohibition, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service. It must be remembered that every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal (not just implied) breach of the Constitution. To strike down a law as unconstitutional, there must be a clear and unequivocal showing that what the fundamental law prohibits, the

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statute permits. The petitioners have miserably failed to discharge this burden and to show clearly the unconstitutionality they aver.

There is absolutely no doubt in our mind that Sec. 43-c of RA 7160 is constitutional. Sec. 8, Article X of the Constitution -- limiting the term of all elective local officials to three years, except that of barangay officials which “shall be determined by law” -- was an amendment proposed by Constitutional Commissioner Davide. According to Fr. Joaquin G. Bernas, S.J., the amendment was “readily accepted without much discussion and formally approved.”

3. WON petitioners estopped from claiming a term other than that provided under RA 7160.

If, as claimed by petitioners, the applicable law is RA 6679, then (1) Petitioner David should not have run and could not have been elected chairman of his barangay because under RA 6679, there was to be no direct election for the punong barangay; the kagawad candidate who obtained the highest number of votes was to be automatically elected barangay chairman; (2) thus, applying said law, the punong barangay should have been Ruben Magalona, who obtained the highest number of votes among the kagawads -- 150, which was much more than David’s 112; (3) the electorate should have elected only seven kagawads and not one punong barangay plus seven kagawads.

In other words, following petitioners’ own theory, the election of Petitioner David as well as all the barangay chairmen of the two Liga petitioners was illegal.

The sum total of these absurdities in petitioners’ theory is that barangay officials are estopped from asking for any term other than that which they ran for and were elected to, under the law governing their very claim to such offices: namely, RA 7160, the LGC. Petitioners’ belated claim of ignorance as to what law governed their election to office in 1994 is unacceptable because under Art. 3 of the Civil Code, “(i)gnorance of the law excuses no one from compliance therewith.”

Alinsug v. RTC

Facts: Zonsayda Alinsug was a regular employee of the municipal government of Escalante, Negros Occidental, when she received a permanent appointment as Clerk III in the office of the Municipal Planning and Development Coordinator of the same municipality. On 10 June 1992, she received an order from the newly proclaimed mayor Ponsica, detailing her to the Office of the Mayor. In compliance

with the order, she reported to said office the following day. On 19 June 1992, Zonsayda absented herself from work allegedly to attend to family matters. She had asked permission from the personnel officer but not from the mayor. On 23 June 1992, Mayor Ponsica issued Office Order No. 31, suspending Zonsayda for one month and one day commencing on 24 June 1992 for "a simple misconduct . . . which can also be categorized as an act of insubordination." The order also stated that the suspension "carries with it forfeiture of . . . benefits such as . . . salary and PERA and leave credits during the duration of its effectivity." Forthwith, Zonsayda filed with the RTC a petition dated 07 July 1992, for "injunction with damages and prayer for temporary restraining order and preliminary injunction" against Mayor Ponsica and the municipal treasurer. The petitioner alleged that since her family supported Mayor Ponsica's rival in the 11 May 1992 elections, her suspension was an act of "political vendetta". She further alleged that said respondents' acts were "malicious, illegal, unwarranted, wrongful and condemnable." Mayor Ponsica and the municipal treasurer filed an answer to the petition, through private practitioner Lezama, alleging that the petitioner had not exhausted administrative remedies and that her suspension was in accordance with law. The foregoing elicited a motion from the petitioner, praying that the answer be disregarded and expunged from the record, and that the respondents be all declared in default on the ground that since the respondents were sued in their official capacities, "not including their private capacities," they should have been represented by either the municipal legal officer or the provincial legal officer or prosecutor as provided for by Sec. 481 (b) [i] and [3] of the LGC. It also cited Sec. 1 of Rep. Act No. 10 and Art. 177 of the Revised Penal Code which penalizes usurpation of public authority. The respondents opposed the motion. Manifesting that the municipality of Escalante has no legal officer, they asserted that both the LGC and the Administrative Code of 1987 do not have any provision "relative to the duty of any provincial legal officer or prosecutor to represent a municipality or its officials in suits filed against them by an employee or a private individual." They contended that it was "unnecessary to provide such a provision because there are administrative and judicial rulings sustaining the validity of the employment of a private counsel by municipal officials. Moreover, since the petitioner prayed for the award of moral damages," on the strength of this Court's ruling in Albuera v. Torrens, 3 their hiring of a private counsel was justified. On 28 August 1992, Assistant Provincial Prosecutor Daniel M. Villaflor entered his appearance as "counsel for Rolando P. Ponsica and Patricio A. Alvarez in their official capacities." With the filing of said notice at appearance, on 08 September 1992, the lower court issued an Order, denying petitioners motion to declare the respondents in default and motion to expunge from the record respondents' answer. Acting on the motion for reconsideration filed by the petitioner, the lower court issued the Order of 16 November 1992, denying said motion on the thesis

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that since the appointment of a legal officer was optional on the part of the municipal government (Art. 481, third paragraph, LGC) and the municipality of Escalante had not, in fact, designated any such legal officer, petitioner's move to declare respondents in default "for having retained a private counsel" was not thereby legally sustainable.

Issues: 1. WON a private counsel may represent municipal officials sued in their official capacities

Sec. 443 (b) of the LGC provides that, in addition to the officials enumerated in the first paragraph thereof, the mayor may appoint, among other officials enumerated therein, a municipal legal officer. Section 481, Article 11 of Title V of the Code which provides for the appointment of local officials common to all municipalities, cities and provinces, states that "(t)he appointment of a legal officer shall be mandatory for the provincial and city governments and optional for the municipal government." The same section specifies the functions of the legal officer, and one of them being that he shall: (i) Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity, is a party: Provided, that in actions or proceedings where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province.

De Guia v. The Auditor General: the municipality's authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez which enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of case involving the municipality is vested in the Supreme Court, when the municipality is a party adverse to the provincial government or to some other municipality in the same province, and when, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise.

Ramos v. Court of Appeals: a municipality may not be represented by a private law firm which had volunteered its services gratis, in collaboration

with the municipal attorney and the fiscal, as such representation was violative Sec. 1683 of the old Administrative Code. This strict coherence to the letter of the law appears to have been dictated by the fact that "the municipality should not be burdened with expenses of hiring a private lawyer" and that "the interests of the municipality would be best protected if a government lawyer handles its litigations."

However, it can happen that a government official, ostensibly acting in his official capacity and sued in that capacity, is later held to have exceeded his authority. On the one hand, his defense would have then been underwritten by the people's money which ordinarily should have been his personal expense. On the other hand, personal liability can attach to him without, however, his having had the benefit of assistance of a counsel of his own choice. In Correa v. CFI of Bulacan, the Court held that in the discharge of governmental functions, "municipal corporations are responsible for the acts of its officers, except if and when, the only to the extent that, they have acted by authority of the law, and in conformity with the requirements thereof." In such instance, this Court has sanctioned that representation by private counsel.

Albuera v. Torres: a provincial governor sued in his official capacity may engage the services of private counsel when "the complaint contains other allegations and a prayer for moral damages, which, if due from the defendants, must be satisfied by them in their private capacity."

Urbano v. Chavez: The accused public official should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime.

The key then to resolving the issue of whether a local government official may secure the services of private counsel, in an action filed against him in his official capacity, lies on the nature of the action and the relief that is sought.

In this case, the Alinsug claims moral and exemplary damages, as well as litigation expenses. Moral damages cannot generally be awarded unless they are the proximate result of a wrongful act or omission. Exemplary damages, on the other hand, are not awarded if the defendant had not acted in a wanton, oppressive or malevolent manner nor in the absence of gross or reckless negligence. A public official, who in the performance of his duty acts in such fashion, does so in excess of authority, and his actions

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would be ultra vires that can thereby result in an incurrence of personal liability.

Municipality of Pililia v. CA

Facts: On March 17, 1989, the RTC of Tanay, Rizal, Branch 80, rendered judgment in Civil Case No. 057-T in favor of the Municipality of Pililla against PPC ordering it to pay business taxes as well as storage, mayor’s permit, and sanitary inspection fees. The SC affirmed with modification (1991 Pililia Case). This judgment became final and executory on July 13, 1991 and the records were remanded to the trial court for execution. On October 14, 1991, in connection with the execution of said judgment, Atty. Mendiola filed a motion in behalf of plaintiff municipality for the examination of defendant corporation's gross sales for the years 1976 to 1978 and 1984 to 1991 for the purpose of computing the tax on business imposed under the Local Tax Code, as amended. On October 21, 1991, PPC filed a manifestation to the effect that on October 18, 1991, Pililla Mayor Nicomedes Patenia received from it the sum of P11M as full satisfaction of the above-mentioned judgment of the Supreme Court, as evidence by the release and quitclaim documents executed by said mayor. Accordingly, on October 31, 1991 the court below issued an order denying plaintiff municipality's motion for examination and execution of judgment on the ground that the judgment in question had already been satisfied. Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for reconsideration of the court's aforesaid order of October 31, 1991, claiming that the total liability of defendant corporation to plaintiff municipality amounted to P24M , while the amount involved in the release and quitclaim executed by Mayor Patenia was only P12M; and that the said mayor could not waive the balance which represents the taxes due under the judgment to the municipality and over which judgment the law firm of Atty. Mendiola had registered two liens for alleged consultancy services of 25% and attorneys' fees of 25% which, when quantified and added, amount to more than P12 million. MR denied. On February 18, 1992, Atty. Mendiola, again ostensibly in behalf of herein petitioner municipality, filed a petition for certiorari with us, which petition we referred to the Court of Appeals for proper disposition. On March 2, 1992 PPC filed a motion questioning Atty. Mendiola's authority to represent petitioner municipality. Consequently, on March 31, 1992 the CA dismissed the petition for having been filed by a private counsel in violation of law and jurisprudence, but without prejudice to the filing of a similar petition by the Municipality of Pililla through the proper provincial or municipal legal officer. The Municipality filed an MR.

Issue: WON Atty. Mendoza has authority to file a petition in behalf of and in the name of the Municipality of Pililla. NO.

The matter of representation of a municipality by a private attorney has been settled in Ramos vs. Court of Appeals, et al., and reiterated in Province of Cebu vs. Intermediate Appellate Court, et al., where we ruled that private attorneys cannot represent a province or municipality in lawsuits.

Section 1683 of the Revised Administrative Code provides: The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council.

Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy Law, only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record. In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law.

The submission of Atty. Mendiola that the exception is broad enough to include situations wherein the provincial fiscal refuses to handle the case cannot be sustained. The fiscal's refusal to represent the municipality is not a legal justification for employing the services of private counsel. Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in court, pursuant to Section 1679 of the Revised Administrative Code.

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It is also significant that the lack of authority of herein counsel, Atty. Mendiola, was even raised by the municipality itself in its comment and opposition to said counsel's motion for execution of his lien, which was filed with the court a quo by the office of the Provincial Prosecutor of Rizal in behalf of said municipality.

The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his lack of authority to represent the municipality is untenable. The legality of his representation can be questioned at any stage of the proceedings. In the cases hereinbefore cited, the issue of lack of authority of private counsel to represent a municipality was only raised for the first time in the proceedings for the collection of attorney's fees for services rendered in the particular case, after the decision in that case had become final and executory and/or had been duly executed.

Furthermore, even assuming that the representation of the municipality by Atty. Mendiola was duly authorized, said authority is deemed to have been revoked by the municipality when the latter, through the municipal mayor and without said counsel's participation, entered into a compromise agreement with herein private respondent with regard to the execution of the judgment in its favor and thereafter filed personally with the court below two pleadings entitled and constitutive of a "Satisfaction of Judgment" and a "Release and Quitclaim".

A client, by appearing personally and presenting a motion by himself, is considered to have impliedly dismissed his lawyer. Herein counsel cannot pretend to be authorized to continue representing the municipality since the latter is entitled to dispense with his services at any time. Both at common law and under Section 26, Rule 138 of the Rules of Court, a client may dismiss his lawyer at any time or at any stage of the proceedings, and there is nothing to prevent a litigant from appearing before the court to conduct his own litigation.

The client has also an undoubted right to compromise a suit without the intervention of his lawyer. Even the lawyers' right to fees from their clients may not be invoked by the lawyers themselves as a ground for disapproving or holding in abeyance the approval of a compromise agreement. The lawyers concerned can enforce their rights in the proper court in an appropriate proceeding in accordance with the Rules of Court, but said rights may not be used to prevent the approval of the compromise agreement.

The apprehension of herein counsel that it is impossible that the municipality will file a similar petition, considering that the mayor who controls its legislative body will not take the initiative, is not only

conjectural but without factual basis. Contrary to his pretensions, there is presently a manifestation and motion pending with the trial court filed by the aforesaid municipal mayor for the withdrawal of the "Satisfaction of Judgment" and the "Release and Quitclaim" previously filed in the case therein as earlier mentioned.

Ramos v. CA

Facts: On April 18, 1990, Ramos, Perez, Castillo, and the Baliuag Market Vendors Association, Inc. filed a petition before the court a quo for the Declaration of Nullity of Municipal Ordinances No. 91 (1976) and No. 7 (1990) and the contract of lease over a commercial arcade to be constructed in the municipality of Baliuag, Bulacan. On April 27, 1980, during the hearing on the petitioners' motion for the issuance of preliminary injunction, the Provincial Fiscal appeared as counsel for respondent Municipality of Baliuag, which opposed the petition. Whereupon, a writ of preliminary injunction was issued by the court a quo on May 9, 1990. Meanwhile, on May 3, 1990, the Provincial Fiscal and the Provincial Attorney, Regalado, filed an Answer on behalf of respondent municipality. At the pre-trial conference scheduled on May 28, 1990, Atty. Romanillos appeared, manifesting that he was counsel for respondent municipality. On the same date, and on June 15, 1990, respectively, Atty. Romanillos filed a motion to dissolve injunction and a motion to admit an Amended Answer with motion to dismiss. On June 18, 1990, Provincial Attorney Regalado appeared as collaborating counsel of Atty. Romanillos. The Provincial Fiscal did not appear. It was Atty. Romanillos who submitted the Reply to- petitioners' Opposition to respondents' motion to dissolve injunction. It was also Atty. Romanillos who submitted a written formal offer of evidence on July 17, 1990 for respondent municipality. During the hearing on August 10, 1990, petitioners questioned the personality of Atty. Romanillos to appear as counsel for the respondent municipality, which opposition was reiterated on August 15, 1990, and was put in writing in petitioners' motion of August 20, 1990 to disqualify Atty. Romanillos from appearing as counsel for respondent municipality and to declare null and void the proceedings participated in and undertaken by Atty. Romanillos. Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint motion dated August 22, 1990 stating, among others, that Atty. Romanillos was withdrawing as counsel for respondent municipality and that Atty. Regalado, as his collaborating counsel for respondent municipality, is adopting the entire proceedings participated in/undertaken by Atty. Romanillos. On September 19, 1990 respondent Judge issued the Order now being assailed which, as already stated, denied petitioners' motion to disqualify Atty. Romanillos as counsel for respondent municipality and to declare null and void the proceedings participated in by Atty. Romanillos; and on

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the other hand, granted Atty. Regalado's motion 'to formally adopt the entire proceedings including the formal offer of evidence'. MR denied. CA dismissed. MR denied.

Issues: 1. WON a municipality may be represented in a suit against it by a private counsel.

Municipality of Pililla, Rizal vs. CA: private attorneys cannot represent a province or municipality in lawsuits. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it.

Alinsug v. RTC: Exceptions: the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province. This provision has its apparent origin in the ruling in De Guia v. The Auditor General where the Court held that the municipality's authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez which enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of case involving the municipality is vested in the Supreme Court, when the municipality is a party adverse to the provincial government or to some other municipality in the same province, and when, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise.

None of the foregoing exceptions is present in this case. It may be said that Atty. Romanillos appeared for respondent municipality inasmuch as he was already counsel of Kristi Corporation which was sued with respondent municipality in this same case. The order of the trial court dated September 19, 1990, stated that Atty. Romanillos "entered his appearance as collaborating counsel of the provincial prosecutor and the provincial attorney." This collaboration is contrary to law and hence should not have been recognized as legal. The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm does not legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M. While a private prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in civil cases wherein a municipality is the plaintiff."

2. WON the petitioners may be held in estoppels Petitioners cannot be held in estoppel for questioning the legality of the

appearance of Atty. Romanillos, notwithstanding that they questioned the witnesses of respondent municipality during the hearing of its motion to dissolve the preliminary injunction. Municipality of Pililla, Rizal vs. Court of Appeals held that the legality of the representation of an unauthorized counsel may be raised at any stage of the proceedings. This Court stated that: The legality of his representation can be questioned at any stage of the proceedings. In the cases hereinbefore cited, the issue of lack of authority of private counsel to represent a municipality was only raised for the first time in the proceedings for the collection of attorney's fees for services rendered in the particular case, after the decision in that case had become final and executory and/or had been duly executed.

Elementary fairness dictates that parties unaware of the unauthorized representation should not be held in estoppel just because they did not question on the spot the authority of the counsel for the municipality. The rule on appearances of a lawyer is that until the contrary is clearly shown, an attorney is presumed to be acting under authority of the litigant whom he purports to represent. His authority to appear for and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to file the complaint and appear for his client.

3. WON the adoption by Atty. Regalado of the proceedings participated in by Atty. Romanillos validate such proceedings. YES.

It does not appear that the adoption of proceedings participated in or undertaken by Atty. Romanillos when he was private counsel— such as the proceedings on the motion to dissolve the injunction, wherein petitioners had even cross-examined the witnesses presented by Atty. Romanillos in support of said motion and had even started to present their witnesses to sustain their objection to the motion — would have resulted in any substantial prejudice to petitioners' interest. To declare the said proceedings null and void — notwithstanding the formal adoption thereof by Atty. Regalado as Provincial Attorney of Bulacan who is authorized to represent respondent municipality of Baliuag in court — and to require trial anew to cover the same subject matter, to hear the same witnesses and to admit the same evidence adduced by the same parties cannot enhance the promotion of justice."

Although a municipality may not hire a private lawyer to represent it in litigations, in the interest of substantial justice however, we hold that a municipality may adopt the work already performed in good faith by such

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private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to the private lawyer. Unless so expressly adopted, the private lawyer's work cannot bind the municipality.

4. WON "Joint Motion" Need Not Comply with Rule 15. A motion to withdraw the appearance of an unauthorized lawyer is a non-

adversarial motion that need not comply with Section 4 of Rule 15 as to notice to the adverse party. The disqualification of Atty. Romanillos was what petitioners were really praying for when they questioned his authority to appear for the municipality. The disqualification was granted, thereby serving the relief prayed for by petitioners. Such being the case, no "notice directed to the parties concerned and served at least 3 days before the hearing thereof" need be given petitioners, the questioned motion not being contentious. Besides, what petitioners were questioning as to lack of authority was remedied by the adoption of proceedings by an authorized counsel, Atty. Regalado. The action of the trial court allowing the motion of respondent municipality effectively granted petitioners' motion to disqualify Atty. Romanillos. In People vs. Leviste, we ruled that: "While it is true that any motion that does not comply with the requirements of Rule 15 should not be accepted for filing and, if filed, is not entitled to judicial cognizance, this Court has likewise held that where a rigid application of the rule will result in a manifest failure or miscarriage of justice, technicalities may be disregarded in order to resolve the case. Litigations should, as much as possible, be decided on the merits and not on technicalities. As this Court held in Galvez vs. Court of Appeals, ‘an order of the court granting the motion to dismiss despite the absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings cannot deprive a competent court of jurisdiction over the Case."'

Rules of procedure are but tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation.

Salalima v. Guingona

Facts: Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President. Acting thereon, the President issued AO 94 creating an Ad Hoc

Committee to investigate the charges and to thereafter submit its findings and recommendations. The Ad Hoc committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar. On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President. On 7 October 1994, the President promulgated AO. 153 which meted out suspensions to the petitioners.

OP Case 5469:Because of the refusal by the NPC to pay real property taxes assessed by Albay covering the period from 11 June 1984 up to 10 March 1987 amounting to P214,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale. NPC failed to redeem its properties. It later filed a petition with the Supreme Court questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax. On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed it; comment on the NPC petition with the Supreme Court. On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC. On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The entry of appearance of Atty. Cornago bore the conformity of respondent Governor. On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm. On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm. Salalima signed the retainer agreement. On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the province to answer for NPC's tax liabilities. Payments amounting to P7,380,410.31 were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago.

Issue: WON respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in

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making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the province. YES.

Sec. 481 of the LGC (RA. No. 7160) requires the appointment of a legal officer for the province whose functions include the following: Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

Municipality of Bocaue, et al. v. Manotok: LGUs cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them. Under the law, the Provincial Fiscal of Bulacan and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions.

This ruling applies squarely to the case at hand because Sec. 481 of the LGC is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case.

In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the LGC and the doctrine laid down by the Supreme Court.

Moreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-255 dated 2 April 1986.

The respondents attempted to dispute this finding by presenting the Solicitor General's conformity dated 15 July 3993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 85-255 is a prior written conformity and acquiescence of the Solicitor General.

Another irregularity in the transaction concerns the lawyers. Resolution No. 01-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. In entering into a retainer agreement not

only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90.

Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G R. No. 87479). Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm. Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479.

Finally, the attorney's fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the "P214 million" claim of the Province against NPC amounts to P38.5 million. The word "unconscionable", as applied to attorney's fee, "means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him."

The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC's petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million.

Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College. It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the

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legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney's fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorney's fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority.

Issues: 1. WON the OP acted with grave abuse of discretion in suspending petitioners for periods ranging from 12-20 months.

Sec. 66(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meet the qualifications for the office.

This provision sets the limits to the penalty of suspension. It should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, every of the grounds or disciplinary action.

The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads: Sec. 60. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at Least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; (g) Acquisition for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of

suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners' term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. And this Court is not prepared to rule that the suspension to the petitioners' removal office.

2. WON the OP committed grave abuse of discretion in suspending Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989

We agree with the petitioners that Governor Salalima could no longer be held administratively liable in C.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Corte's and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual vs. Provincial Board of Nueva Ecija 17 and Aguinaldo vs. Santos. 18 In Pascual, this Court ruled: We now come to one main issue of the controversy — the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office. In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe. Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the office was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S W. 2d 418; People ex rel. Bagshaw

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vs. Thompson, 130 P. 2d 237; Board of Com'rs of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.V. 2d. 217). The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people.

This Court reiterated this rule in Aguinaldo and explicitly stated therein: Clearly then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioners for acts he may have committed during the failed coup.

However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official's reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected.

The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official's reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound public policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop

to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term.

We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not beheld administratively liable in O.P. case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet.

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Ganzon v. CA (August 1991, supra, see p. 9)

Ganzon v. CA (November 1991)

Facts: Sometime in 1988, a series of 10 administrative complaints were filed by various city officials, against petitioner Ganzon, the elected City Mayor of Iloilo City, on various charges such as abuse of authority, oppression, grave misconduct and others. In the course of the hearing of the administrative cases, Secretary Santos issued against Ganzon 3 separate orders of preventive suspension, each of the orders to last for a 60-day period. Petitioner assailed the validity of the said orders by filing with the Court of Appeals 2 separate petitions for prohibition. On 7 September 1988 and 5 July 1990, the appellate court rendered a decision dismissing the petitions for lack of merit. Hence, Ganzon filed with this Court 2 separate petitions assailing the decision. On 26 June 1990, we issued a TRO barring the respondent Secretary from implementing the suspension orders, and restraining the enforcement of the CA’s 2 decisions. However, it appears that even before the promulgation on 5 August 1991 of the main decision, respondent Secretary Santos had issued on 3 July 1991 against petitioner Ganzon another order of preventive suspension in connection with an Administrative Case filed by Jopson. On 6 July 1991, Ganzon filed his "extremely urgent motion" (with supplemental motions later filed) questioning the validity of the said last mentioned suspension order. This Court issued a resolution dated 9 July 1991, requiring respondents to comment on petitioner's urgent motion. After the main decision in the present petitions was rendered by the Court on 5 August 1991, respondents filed motions dated, 9 and 29 August 1991 alleging therein that the issues raised in petitioner's motion (6 July 1991) were rendered moot and academic by the said decision, and seeking clarification on whether it was still necessary to comply with this Court's resolutions requiring respondents to file comment on petitioner's said motion of 6 July 1991. Meanwhile, on 29 August 1991, respondent Santos issued a memorandum addressed to petitioner Ganzon, in connection with the 5 August 1991 main decision, stating therein that the third order of preventive suspension issued against petitioner on 3 May 1990 shall be deemed in force and effect. On 30 August 1991, petitioner Ganzon filed with the CA a petition for mandamus, against respondents. On the same day, petitioner filed in these petitions his "manifestation and compliance," alleging that he had already fully served the suspension orders issued against him, in compliance with the main decision of 5 August 1991, and that he should be allowed to re-assume his office starting 4 September 1991. Meanwhile, in reaction to the memorandum dated 29 August 1991 issued by respondent Santos, petitioner filed a motion praying for the issuance of a TRO, which motion was granted by the Court of Appeals. On 4 September 1991,

respondents filed with this Court a motion asking for the issuance of a restraining order addressed to the CA and against the TRO. Granting respondents' motion, this Court on 5 September 1991 issued a temporary restraining order directing the CA to cease and desist from implementing the TRO it had issued dated 3 September 1991 immediately suspending the implementation of the order of the Secretary of Interior and Local Government dated 29 August 1991. On 9 September 1991, petitioner Ganzon filed a motion to dissolve this Court's restraining order dated 5 September 1991. The records show that petitioner Ganzon, to this date, remains suspended from office (as the elected Mayor of Iloilo City) and since the order of preventive suspension dated 3 July 1991 (the fourth suspension order 3 ) was issued against him by respondent Secretary; in other words, he has been serving the said fourth suspension order which is to expire after a period of 60 days, or on 4 September 1991.

First suspension: 11 August 1988, fully served. Second: 11 October 1988, not served because its enforcement was restrained by an order of the RTC upon petition of petitioner himself. Third: 3 May 1990, the main decision states that petitioner is allowed to serve the duration of said third suspension order. It would seem, therefore, that after petitioner has served in full the third suspension order as decreed in the main decision, he can then return to his official duties as Iloilo City Mayor. Fourth: 3 July 1991, issued even before the main decision of 5 August 1991 was promulgated. (The records show, however, that petitioner has in fact fully served the fourth suspension order, as admitted by respondents no less. This will be discussed shortly; but any issue on its validity is now moot and academic. Besides, it is clear that this fourth suspension order is not one of the three orders covered by and subject of the main decision).Third: May 4, 1990 May 18, 1990 SC: June 9, 1990 June 26, 1990 records show that he was then in office discharging the functions of the Mayor of Iloilo City. Hence 46 days still remain to be served as decreed by the main decision. If we follow the mandate of such main decision which ordained that the third order be served and that the temporary restraining order 16 against it be lifted, it would follow that the remaining 46 days should be served starting 5 August 1991 (date of promulgation of main decision) until fully served. Another way to serve the 46 days would be to begin serving it only on 4 September 1991 (the day after 3 September 1991 which was the last day of service for the fourth suspension order), or until 20 October 1991 (the 46th day from 4 September 1990).Fourth: July 5, 1991 September 3, 1991

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However we take note of the fact that petitioner has already fully served the 60-day fourth order of preventive suspension which started 5 July 1991 (that is, even before the main decision was rendered) and ended on 3 September 1991. Petitioner raises the issue of whether he could or should be allowed to serve the third and the fourth orders "simultaneously". If we allow his submission and accept "simultaneous service", it would mean the following: that from 5 August 1991 (the date the TRO issued by this Court was lifted) up to 3 September 1991 (the last day for serving the fourth order), twenty-nine (29) days have elapsed; that these twenty-nine (29) days which form part of his service for the fourth order can be also credited to his favor by treating said twenty-nine (29) days as forming part of his service of the third order; if this were so, he would need to serve only seventeen (17) days more to complete the service of the third order; said seventeen (17) days from 3 September 1991 will expire on 20 September 1991, which would be the last day for serving the third suspension order.

Issues: 1. WON petitioner can be allowed the benefit of simultaneous service of preventive suspensions.

If simultaneous service of two (2) suspension orders is allowed, this would work in favor of the petitioner (an elective local official) as the balance of his third preventive suspension would, in effect, be reduced from 46 days to 17 days. In the main decision, noting that successive suspensions have been inflicted on Mayor Ganzon we stated that what "is intriguing is that respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal — apparently, to pin him down ten times the pain, when he, the respondent Secretary could have pursued a consolidated effort." 17 Surely, allowing petitioner to serve simultaneously the overlapping third and fourth suspensions will favor him, (and presumably the local constituency) and certainly lessen if not offset the harsh effects of whatever motive may be behind the intriguing action of the respondent Secretary in issuing those successive suspension orders.

LGC: Sec. 63. Preventive Suspension b) . . . that, any single preventive suspension of local elective official shall not extend beyond sixty (60) days: Provided, further that in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

Since we can allow, as we here allow, under the bizarre circumstances of this case, petitioner to serve the third and fourth orders simultaneously

(insofar as they overlap), this means that, as explained earlier, petitioner shall serve only 17 days more (not 46 days) to complete the service of the third order, that is, starting from 3 September 1991 and ending on 20 September 1991. Hence, as of this latter date, petitioner has complied with the mandate of the main decision for he has already fully served the third preventive suspension which ended on 20 September 1991.

WON petitioner must also serve his second suspension. If we follow the decision which states that the three (3) suspensions are

affirmed, there appears to be no reason why the second order should not be served for another 60-day period. However, there is no cogent reason why, under the bizarre circumstances of this case — where the respondent Secretary has chosen to impose preventive suspensions piecemeal, instead of consolidating the several administrative cases of similar nature and close vintage — we cannot allow the concept of simultaneous service to apply to the second order (as we did in the third order). It would follow then that the second order is also fully served to this date for the service of said second order would have started on 5 August 1991 (when the main decision was rendered as this was the time when this Court found and affirmed the validity of the three (3) suspension orders, including the second order). The 60-day period from 5 August 1991 expired on 4 October 1991.

Existing Special Civil Action in the RTC deemed moot and academic. Under the main decision of this Court, dated 5 August 1991, second preventive suspension has been affirmed.

Artieda v. Santos (Consolidated with Ganzon v. CA, see above)

Espiritu v. Melgar

Facts: On April 11, 1991, Garing filed a complaint charging Mayor Melgar of Naujan with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the public service. According to the charge, Melgar, with abuse of official function, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of Garing, by boxing and kicking thereby inflicting upon the latter physical injuries on different parts of his body and not being contented ordered his arrest and detention in the municipal jail of Naujan, Oriental Mindoro without filing any charges until he was released the following day. On April 22, 1991, the Sangguniang Panlalawigan of Oriental Mindoro required Mayor Melgar to answer the complaint. Melgar alleged that Garing attended graduation ceremonies drunk

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and disrupted such ceremonies. Garing was momentarily placed in custody for his own protection because he was drunk. An open knife (balisong) was taken from him. I was likewise informed that after he had sobered up, he was told to go home, but he refused to go and only did so the following morning. After evaluation, the Sangguniang Panlalawigan of Oriental Mindoro recommended, to the Provincial Governor, that respondent be preventively suspended for forty-five (45) days pending the investigation of the administrative complaint. On May 23, 1991, Mayor Melgar filed a motion to dismiss the administrative complaint. It was opposed by Garing. MTD dismissed. Meanwhile, pursuant to the recommendation of the Sangguniang Panlalawigan, Governor Espiritu placed Mayor Melgar under preventive suspension. On June 3, 1991, Mayor Melgar received the Order of Suspension. He forthwith filed a "Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the Regional Trial Court of Oriental Mindoro alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor. On June 24, 1991, RTC Judge Virola issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order of suspension against Mayor Melgar. Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied on July 16, 1991. Hence, this petition for certiorari and prohibition.

Issue: Won a provincial governor may suspend a municipal mayor. Section 63, Chapter IV of the LGC provides: Sec. 63. Preventive Suspension.

— (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official. (2) Preventive suspension may be imposed at anytime after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty-days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of the suspension.

Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist: 1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of; 2. When the evidence of culpability is strong; 3. When the gravity of the offense so warrants; or 4. When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses.

Since respondent mayor believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature. The regional trial court had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss the case.

There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they warrant disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and sufficiency of the cause. So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand that the action of said officer or body should be left undisturbed. However, in this particular case, since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed reinstated in office without prejudice to the continuation of the administrative investigation of the charges against him.

Aguinaldo v. Santos

Facts: Aguinaldo was the duly elected Governor of the province of Cagayan, having been elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He took his oath sometimes around March

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1988. Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof. On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by the Agateps and Mamba, mayors of municipalities in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers. On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice, pending the outcome of the formal investigation into the charges against him. The Secretary found petitioner guilty and ordered his removal from office. While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him, all based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent Secretary. The COMELEC granted the petitions. On the same day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon as a candidate for governor pending the final outcome of the disqualification cases with his Court. Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, seeking to nullify the resolution of the Commission ordering his disqualification. The Court, in a resolution dated May 14, 1992, issued a TRO against the Commission to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the disqualification case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a winner until this Court has decided the case. On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992 resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan.

Issues: 1. WON an officical may be punish for acts committed in a previous term Case Moot and academic because of Aguinaldo’s reelection. A public official can not be removed for administrative misconduct

committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting

off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup.

WON the power of respondent Secretary to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution.

The power of respondent Secretary to remove local government officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him.

The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows: Sec. 2. The National Assembly shall enact a LGC which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local government officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in the plebiscite called for the purpose.

A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads: Sec. 3. The Congress shall enact a LGC which shall provided for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment, and removal, term and salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

Inasmuch as the power and authority of the legislature to enact a LGC, which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it

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can not be said that BP Blg. 337 was repealed by the effective of the present Constitution.

Bagabuyo v. Davide: that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until such time as the proposed LGC of 1991 is approved. The power of respondent Secretary of the Department of Local Government to remove local elective government officials is found in Secs. 60 and 61 of B.P. Blg. 337.

As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to wit —In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vice-governor . . . shall assume the office for the unexpired term of the former.

WON the alleged act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act punishable as rebellion under the Revised Penal Code.

Petitioner is not being prosecuted criminally under the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence.

Reyes v. COMELEC

Facts: Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan by Manalo. It was alleged, among other things, that petitioner exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market; that certain checks issued to him by the National Reconciliation and Development Program of the Department of Interior and Local Government were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27) heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months. In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office. It appears that earlier, after learning that the Sanggunian had

terminated the proceedings in the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the proceedings had been terminated without giving him a chance to be heard. A TRO was issued by the court on February 7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration of the temporary restraining order and without any injunction being issued by the Regional Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila. However, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the decision. On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused.Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the Election Officer of the COMELEC in Bongabong. On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the LGC of 1991 (R.A. No .7160) which states: §40. Disqualification. — The following persons are disqualified from running for any elective local position: (b) Those removed from office as a result of an administrative case. Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner Reyes was voted for in the elections held on May 8, 1995. On May 9, 1995, the COMELEC's Second Division disqualified Reyes. On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor. MR denied. En banc: validly disqualified. Hence the petition.

Issue: 1. WON decision of the Sangguniang Panlalawigan, ordering Reyes removed from office, is not yet final because he has not been served a copy thereof.

Failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision.

Rule 13, §§ 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by

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delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. 4 Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995.

If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it.

Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the Regional Trial Court was pending. His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision.

Petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, § 67. 8 But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner.

The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding.

Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner.

Petitioner claims that the decision cannot be served upon him because at the hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the Sangguniang Panlalawigan pending final resolution of the petition for certiorari.

The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, § 66 (a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall immediately be furnished to respondent and/or interested parties." It was the Sangguniang Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner Reyes.

2. WON election of petitioner rendered the administrative charges against him moot and academic.

Petitioner invokes the ruling in Aguinaldo v. COMELEC, which held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term.

The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to § 40(b) of the LGC, he was disqualified from running for reelection.

At the time the Aguinaldo cases were decided there was no provision similar to § 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an

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administrative case. The LGC of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the Court in the first Aguinaldo case: The COMELEC applied Section 40(b) of the LGC Republic Act 7160) which provides: Sec. 40. The following persons are disqualified from running for any elective local position: (b) Those removed from office as a result of an administrative case.

Republic Act 7160 took effect only on January 1, 1992. There is no provision in the statute which would clearly indicate that the same operates retroactively. 40(b) of the LGC is not applicable to the present case.

All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the LGC of 1991). All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution).

Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election.

3. WON COMELEC committed a grave abuse of discretion in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.

Hagad v. Gozo-Dadole

Facts: Criminal and administrative complaints were filed against Mayor Ouano, Vice-Mayor Cañete and Sangguniang Panlungsod Member Mayol, all public officials of Mandaue City, by Mandaue City Councilors Dionson and Bercede with the Office of the Deputy Ombudsman for the Visayas. Councilors Dionson and Bercede averred that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. They moved for the preventive suspension of respondent officials in the separately docketed administrative case. Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992, prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the LGC of 1991, the power to investigate and impose administrative sanctions against said local officials, as well as to effect their preventive suspension, had now been vested with the Office of the President.

Issue: 1. WON the Ombudsman has jurisdiction. The general investigatory power of the Ombudsman is decreed by Section

13 (1,) Article XI, of the 1987 Constitution, 14 thus: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;

Section 19 of R.A. No. 6770: Administrative complaints. — The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: 1. Are contrary to law or regulation; 2. Are unreasonable, unfair, oppressive or discriminatory; 3. Are inconsistent with the general course of an agency's functions, though in accordance with law; 4. Proceed from a mistake of law or an arbitrary ascertainment of facts; 5. Are in the exercise of discretionary powers but for an improper purpose; or 6. Are otherwise irregular, immoral or devoid of justification.

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their

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subsidiaries except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

Section 24 of R.A. No. 6770: Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment, the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject.

Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long tentacles of officialdom."

Sections 61 and 63 of the present LGC run almost parallel with the provisions then existing under the old code. Section 61 and Section 63 of the precursor LGC of 1983, under the heading of "Suspension and Removal," read: Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective officials shall be prepared as follows: (a)

Against any elective provincial or city official, before the Minister of Local Government.

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official. (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension.

The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant. The LGC of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President.

2. WON the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the LGC to even now maintain it’s application.

The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective

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or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the LGC of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

3. WON petitioner committed grave abuse of discretion when he caused the issuance of the preventive suspension order without any hearing.

The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventive suspension would occur prior to any finding of guilt or innocence.

In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.

After a careful and honest scrutiny of the evidence submitted on record, at this stage, it is the holding of this office that the evidence of guilt against the respondents in the instant case is strong. There is no question that the charge against the respondents involves dishonesty or gross misconduct which would warrant their removal from the service and there is no gainsaying the fact that the charge for falsification of veritable documents like city ordinances are very serious charges that affect the very foundations of duly established representative governments. Finally, it is likewise the holding of this office at this stage that the continued stay in

office of respondents may prejudice the judicious investigation and resolution of the instant case.

4. WON respondent official's petition for prohibition, being an application for remedy against the findings of petitioner contained in his 21 September 1992 order, should not have been entertained by the trial court.

The proscription in Section 14 of R.A. No. 6770 reads: Sec. 14. Restrictions. — No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.

Section 27 of the law which prescribes a direct recourse to this Court on matters involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman; thus: In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

Salalima v. Guingona (supra, see p. 198)

Grego v. COMELEC

Facts: On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas. Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office. After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his position. All these challenges were, however, dismissed, thus, paving the way for Basco's continued stay in office. Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging sixth in a battle for six councilor seats. As in

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the past, however, his right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for Basco's disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manila's Second District. On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the petition. The other members of the BOC learned about this petition only two days later. The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously their respective memoranda. Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the seats. Basco immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila. In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He reiterated Basco's disqualification and prayed anew that candidate Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining Order). On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier. After the parties' respective memoranda had been filed, the COMELEC's First Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the administrative penalty imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and condoned by the electorate which elected him" and that on account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no longer be viable." MR denied by COMELEC en banc. Hence, this petition.

Issues: 1. WON Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992

SEC. 40. Disqualifications. — The following persons are disqualified from running for any elective local position (b) Those removed from office as a result of an administrative case.

Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation

of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. There is no provision in the statute which would clearly indicate that the same operates retroactively.

2. WON private respondent's election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office.

At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the issue of whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the LGC which, as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length.

3. WON Basco circumvented the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations.

The Tordesillas decision did not bar Basco from running for any elective position. As can be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise:

In this regard, particular attention is directed to the use of the term "reinstatement. " Under the former Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term "reinstatement" had a technical meaning, referring only to an appointive position. Thus: SEC. 24. Personnel Actions. (d) Reinstatement. — Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.

The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975, 17 provides a clearer definition. It reads: SEC. 7. Reinstatement is the REAPPOINTMENT of a person who was previously separated from the service through no delinquency or

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misconduct on his part from a position in the career service to which he was permanently appointed, to a position for which he is qualified."

In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position.

4. WON private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, void ab initio.

Section 20, paragraph (i) of Rep. Act 7166 reads: (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate.

Section 6 of Rep. Act 6646 which states: Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong."

This provision, however, does not support petitioner's contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion. What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and

capriciously. The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion.

Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that: Effect of petition if unresolved before completion of canvass. — . . . (H)is proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election.

However, being merely an implementing rule, the same must not override, but instead remain consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law.

Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna 28 where we clarified the nature of the functions of the Board of Canvassers, viz.: "The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. "

Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case.

In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns.

In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers' violation of its ministerial duty to proclaim

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the candidate receiving the highest number of votes and pave the way to succession in office. In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor.

Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation.

5. WON Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate. Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that Basco was well-known to have been disqualified in the small community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification.

Joson v. Executive Secretary Torres

Facts: On September 17, 1996, private respondents filed with the Office of the President a letter-complaint dated September 13, 1997 charging petitioner with grave misconduct and abuse of authority. Private respondents alleged that in the morning of September 12, 1996, they were at the session hall of the provincial capitol for a scheduled session of the Sangguniang Panlalawigan when petitioner belligerently barged into the Hall; petitioner angrily kicked the door and chairs in the Hall and uttered threatening words at them; close behind petitioner were several men with long and short firearms who encircled the area. Private respondents claim that this incident was an offshoot of their resistance to a pending legislative measure supported by petitioner that the province of Nueva Ecija obtain a loan of P150 million from the Philippine National Bank; that petitioner's acts were intended to harass them into approving this loan; that fortunately, no session of the Sangguniang Panlalawigan was held that day for lack of quorum and the

proposed legislative measure was not considered; that private respondents opposed the loan because the province of Nueva Ecija had an unliquidated obligation of more than P70 million incurred without prior authorization from the Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier disclosed that the province could not afford to contract another obligation; that petitioner's act of barging in and intimidating private respondents was a serious insult to the integrity and independence of the Sangguniang Panlalawigan; and that the presence of his private army posed grave danger to private respondents' lives and safety. Private respondents prayed for the suspension or removal of petitioner; for an emergency audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in light of the financial condition of the province. President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the members of the Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify "the use of force, intimidation or armed followers." He thus instructed the then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and investigative actions," but to "[b]reak not the peace." Acting upon the instructions of the President, Secretary Barbers notified petitioner of the case against him and attached to the notice a copy of the complaint and its annexes. In the same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn answer thereto, not a motion to dismiss, together with such documentary evidence that [he] has in support thereof, within fifteen (15) days from receipt." Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned petitioner and private respondents to a conference to settle the controversy. The parties entered into an agreement whereby petitioner promised to maintain peace and order in the province while private respondents promised to refrain from filing cases that would adversely affect their peaceful co-existence. The peace agreement was not respected by the parties and the private respondents reiterated their letter-complaint. Petitioner was again ordered to file his answer to the letter-complaint within fifteen days from receipt. Petitioner received a copy of this order on November 13, 1996. On April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary of the DILG, issued an order declaring petitioner in default and to have waived his right to present evidence. Private respondents were ordered to present their evidence ex-parte. Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance with Motion for Time to File Answer Ad Cautelam." Petitioner received a copy of the order of default on May 2, 1997. Through counsel, he moved for reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered the order of default in the interest of justice. He noted the appearance of petitioner's counsel and gave petitioner "for the last time" fifteen

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(15) days from receipt to file his answer. On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's counsel, whose office is in Manila, should have received a copy of the May 19, 1997 order ten days after mailing on May 27, 1997. Since petitioner still failed to file his answer, he was deemed to have waived his right to present evidence in his behalf. Undersecretary Sanchez reinstated the order of default and directed private respondents to present their evidence ex-parte on July 15, 1997. The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to Dismiss." Petitioner alleged that the letter-complaint was not verified on the day it was filed with the Office of the President; and that the DILG had no jurisdiction over the case and no authority to require him to answer the complaint. On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of the order of June 23, 1997 reinstating the order of default. Petitioner also prayed that the hearing on the merits of the case be held in abeyance until after the "Motion to Dismiss" shall have been resolved. On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued an order, by authority of the President, placing petitioner under preventive suspension for sixty (60) days pending investigation of the charges against him. Secretary Barbers directed the Philippine National Police to assist in the implementation of the order of preventive suspension. In petitioner's stead, Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time as petitioner's temporary legal incapacity shall have ceased to exist. Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of Appeals challenging the order of preventive suspension and the order of default. Meanwhile, the proceedings before the DILG continued. On August 20, 1997, Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss" and "Urgent Ex-Parte Motion for Reconsideration." In the same order, he required the parties to submit their position papers within an inextendible period of ten days from receipt after which the case shall be deemed submitted for resolution. On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of Preventive Suspension." On September 10, 1997, petitioner followed this with a "Motion to Lift Default Order and Admit Answer Ad Cautelam."[21] Attached to the motion was the "Answer Ad Cautelam"[22] and sworn statements of his witnesses. On the other hand, complainants (private respondents herein) manifested that they were submitting the case for decision based on the records, the complaint and affidavits of their witnesses. In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12, 1996, while he was at his district office in the town of Munoz, he received a phone call from Sangguniang Panlalawigan member Jose del Mundo. Del Mundo, who belonged to petitioner's political party, informed him that Vice-Governor Tinio was enraged at the members of the Sangguniang Panlalawigan who were in petitioner's party because they refused to place on the agenda the

ratification of the proposed P150 million loan of the province. Petitioner repaired to the provincial capitol to advise his party-mates on their problem and at the same time attend to his official functions. Upon arrival, he went to the Session Hall and asked the members present where Vice-Governor Tinio was. However, without waiting for their reply, he left the Hall and proceeded to his office. Petitioner claimed that there was nothing in his conduct that threatened the members of the Sangguniang Panlalawigan or caused alarm to the employees. He said that like Vice-Governor Tinio, he was always accompanied by his official security escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not inside the session hall during the incident but was at her desk at the office and could not in any way have seen petitioner in the hall. To attest to the truth of his allegations, petitioner submitted three (3) joint affidavits -- two (2) affidavits executed by six (6) and ten (10) employees, respectively, of the provincial government, and a third by four members of the Sangguniang Panlalawigan. On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the order of August 20, 1997 denying his motion to dismiss. The "Urgent Motion for Reconsideration" was rejected by Undersecretary Sanchez on October 8, 1997. Undersecretary Sanchez, however, granted the "Motion to Lift Default Order and to Admit Answer Ad Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's position paper pursuant to the order of August 20, 1997. On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation." Petitioner prayed that a formal investigation of his case be conducted pursuant to the provisions of the LGC of 1991 and Rule 7 of Administrative Order No. 23; and that this be held at the province of Nueva Ecija.[26] On October 29, 1997, petitioner submitted a "Manifestation and Motion" before the DILG reiterating his right to a formal investigation. In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's petition.

Issues: 1. WON the rules of procedure and evidence should be strictly applied in the administrative proceedings.

An administrative complaint against an erring elective official must be verified and filed with the proper government office. A complaint against an elective provincial or city official must be filed with the Office of the President. A complaint against an elective municipal official must be filed with the Sangguniang Panlalawigan while that of a barangay official must be filed before the Sangguniang Panlungsod or Sangguniang Bayan.

In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The letter-complaint against him was therefore properly filed with the Office of the President. According to petitioner, however, the

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letter-complaint failed to conform with the formal requirements set by the Code. He alleges that the complaint was not verified by private respondents and was not supported by the joint affidavit of the two witnesses named therein; that private respondents later realized these defects and surreptitiously inserted the verification and sworn statement while the complaint was still pending with the Office of the President.[38] To prove his allegations, petitioner submitted: (a) the sworn statement of private respondent Solita C. Santos attesting to the alleged fact that after the letter-complaint was filed, Vice-Governor Tinio made her and the other members of the Sangguniang Panlalawigan sign an additional page which he had later notarized; and (b) the fact that the verification of the letter-complaint and the joint affidavit of the witnesses do not indicate the document, page or book number of the notarial register of the notary public before whom they were made.

We find no merit in the contention of the petitioner. The absence of the document, page or book number of the notarial register of the subscribing officer is insufficient to prove petitioner's claim. The lack of these entries may constitute proof of neglect on the part of the subscribing officer in complying with the requirements for notarization and proper verification. They may give grounds for the revocation of his notarial commission.[40] But they do not indubitably prove that the verification was inserted or intercalated after the letter-complaint was filed with the Office of the President. Nor is the fact of intercalation sufficiently established by the affidavit of Solita C. Santos. Private respondent Santos was one of the signatories to the letter-complaint. In her affidavit, she prayed that she be dropped as one of the complainants since she had just joined the political party of petitioner Joson. She decided to reveal the intercalation because she was disillusioned with the "dirty tactics" of Vice-Governor Tinio to grab power from petitioner Joson.[41] Private respondent Santos cannot in any way be considered an unbiased witness. Her motive and change of heart render her affidavit suspect.

Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of the President, the defect was not fatal. The requirement of verification was deemed waived by the President himself when he acted on the complaint.

Verification is a formal, not jurisdictional requisite. Verification is mainly intended to secure an assurance that the allegations therein made are done in good faith or are true and correct and not mere speculation. The lack of verification is a mere formal defect. The court may order the correction of the pleading, if not verified, or act on the unverified pleading

if the attending circumstances are such that a strict compliance with the rule may be dispensed with in order that the ends of justice may be served.

2. WON the DILG Secretary has jurisdiction over the case. Jurisdiction over administrative disciplinary actions against elective local

officials is lodged in two authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No. 23, to wit: "Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against elective local officials mentioned in the preceding Section shall be acted upon by the President. The President, who may act through the Executive Secretary, shall hereinafter be referred to as the Disciplining Authority." Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby designated as the Investigating Authority. He may constitute an Investigating Committee in the Department of the Interior and Local Government for the purpose.The Disciplining Authority may, however, in the interest of the service, constitute a Special Investigating Committee in lieu of the Secretary of the Interior and Local Government."

Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee.

The power of the President over administrative disciplinary cases against elective local officials is derived from his power of general supervision over local governments. Section 4, Article X of the 1987 Constitution provides:"Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions."

The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their duties." If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. The President's power of general supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be

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faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.

The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the President has the power derived from the Constitution itself to investigate complaints against local government officials. A. O. No. 23, however, delegates the power to investigate to the DILG or a Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue delegation, contrary to petitioner Joson's claim. The President remains the Disciplining Authority. What is delegated is the power to investigate, not the power to discipline.

Moreover, the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the doctrine of qualified political agency. Thus: Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive."

This doctrine is corollary to the control power of the President.The power of control is provided in the Constitution, thus: "Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed."

Control is said to be the very heart of the power of the presidency. As head of the Executive Department, the President, however, may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the situation demand that he acts personally. The members of Cabinet may act for and in behalf of the President in certain matters because the President cannot be expected to exercise his control (and supervisory) powers personally all the time. Each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority.

When an administrative complaint is therefore filed, the Disciplining Authority shall issue an order requiring the respondent to submit his verified answer within fifteen (15) days from notice. Upon filing of the answer, the Disciplining Authority shall refer the case to the Investigating Authority for investigation.

In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed with the Office of the President but it was the DILG Secretary who ordered petitioner to answer.

Strictly applying the rules, the Office of the President did not comply with the provisions of A.O. No. 23. The Office should have first required petitioner to file his answer. Thereafter, the complaint and the answer should have been referred to the Investigating Authority for further proceedings. Be that as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable the President to make a preliminary assessment of the case.[62] The President found the complaint sufficient in form and substance to warrant its further investigation. The judgment of the President on the matter is entitled to respect in the absence of grave abuse of discretion.

3. WON the DILG erred in declaring him in default for filing a motion to dismiss.

It is true that a motion to dismiss is not a pleading prohibited under the LGC of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not to file a motion to dismiss in the order to file answer. Thrice, he requested for extension of time to file his answer citing as reasons the search for competent counsel and the demands of his official duties. And thrice, his requests were granted. Even the order of default was reconsidered and petitioner was given additional time to file answer. After all the requests and seven months later, he filed a motion to dismiss.

Petitioner should know that the formal investigation of the case is required by law to be finished within one hundred twenty (120) days from the time of formal notice to the respondent. The extensions petitioner requested consumed fifty-five (55) days of this period.[63] Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed, this was more than sufficient time for petitioner to comply with the order to file answer.

The speedy disposition of administrative complaints is required by public service. The efficiency of officials under investigation is impaired when a case hangs over their heads. Officials deserve to be cleared expeditiously if

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they are innocent, also expeditiously if guilty, so that the business of government will not be prejudiced.

4. WON the DILG erred in recommending to the Disciplining Authority his preventive suspension during the investigation in view of Joson’s inexcusable failure to file an answer.

Preventive suspension is authorized under Section 63 of the LGC, viz: (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

Preventive suspension may be imposed by the Disciplining Authority at any time (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

Executive Secretary Torres found that all the requisites for the imposition of preventive suspension had been complied with. Petitioner's failure to file his answer despite several opportunities given him was construed as a waiver of his right to file answer and present evidence; and as a result of this waiver, the issues were deemed to have been joined. The Executive Secretary also found that the evidence of petitioner Joson's guilt was strong and that his continuance in office during the pendency of the case could influence the witnesses and pose a threat to the safety and integrity of the evidence against him.

5. WON the January 8, 1998 Resolution of the Executive Secretary finding petitioner guilty as charged and imposing on him the penalty of suspension from office for six (6) months from office without pay is valid

Petitioner claims that the suspension was made without formal investigation pursuant to the provisions of Rule 7 of A.O. No. 23. We offer no objection and concur with the assertion of respondent that he has the right for the conduct of formal investigation. However, before there shall

be a formal investigation, joinder of issues must already be present or respondent's answer has already been filed. In the case at bar, the admission of respondent's answer after having been declared in default was conditioned on the fact of submission of position papers by the parties, after which, the case shall be deemed submitted for resolution. Respondent, instead of submitting his position paper filed his subject motion while complainants manifested to forego the submission of position paper and submit the case for resolution on the basis of the pleadings on hand.

Settled is the rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied. The essence of due process is to be found in the reasonable opportunity to be heard and to submit evidence one may have in support of one's defense. To be heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. Thus, when respondent failed to submit his position paper as directed and insisted for the conduct of formal investigation, he was not denied of his right of procedural process.

The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where he disputed the truth of the allegations that he barged into the session hall of the capitol and committed physical violence to harass the private respondents who were opposed to any move for the province to contract a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary Sanchez admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found petitioner guilty as charged on the basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers' findings and recommendations and imposed on petitioner the penalty of six (6) months suspension without pay.

The rejection of petitioner's right to a formal investigation denied him procedural due process. Section 5 of A. O. No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider whether they desire a formal investigation. This provision does not give the Investigating Authority the discretion to determine whether a formal investigation would be conducted. The records show that petitioner filed a motion for formal investigation. As

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respondent, he is accorded several rights under the law, to wit: "Sec. 65. Rights of Respondent. -- The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena duces tecum."

An erring elective local official has rights akin to the constitutional rights of an accused.These rights are essentially part of procedural due process.The local elective official has the (1) right to appear and defend himself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him; and (3) the right to compulsory attendance of witness and the production of documentary evidence. These rights are reiterated in the Rules Implementing the LGC and in A.O. No. 23. Well to note, petitioner formally claimed his right to a formal investigation after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez.

Petitioner's right to a formal investigation was not satisfied when the complaint against him was decided on the basis of position papers. There is nothing in the LGC and its Implementing Rules and Regulations nor in A.O. No. 23 that provide that administrative cases against elective local officials can be decided on the basis of position papers. A.O. No. 23 states that the Investigating Authority may require the parties to submit their respective memoranda but this is only after formal investigation and hearing.[72] A.O. No. 23 does not authorize the Investigating Authority to dispense with a hearing especially in cases involving allegations of fact which are not only in contrast but contradictory to each other. These contradictions are best settled by allowing the examination and cross-examination of witnesses. Position papers are often-times prepared with the assistance of lawyers and their artful preparation can make the discovery of truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal investigation applies to appointive officials and employees. Administrative disciplinary proceedings against elective government officials are not exactly similar to those against appointive officials. In fact, the provisions that apply to elective local officials are separate and distinct from appointive government officers and employees. This can be gleaned from the LGC itself.

The provisions for administrative disciplinary actions against elective local officials are markedly different from appointive officials. The rules on the removal and suspension of elective local officials are more stringent. The procedure of requiring position papers in lieu of a hearing in administrative cases is expressly allowed with respect to appointive officials but not to

those elected. An elective official, elected by popular vote, is directly responsible to the community that elected him. The official has a definite term of office fixed by law which is relatively of short duration. Suspension and removal from office definitely affects and shortens this term of office. When an elective official is suspended or removed, the people are deprived of the services of the man they had elected. Implicit in the right of suffrage is that the people are entitled to the services of the elective official of their choice. Suspension and removal are thus imposed only after the elective official is accorded his rights and the evidence against him strongly dictates their imposition.

Conducto v. Monzon

Facts: On 30 August 1993, complainant filed a complaint with the Sangguniang Panlungsod of San Pablo City against Maghirang, the barangay chairman of Barangay III-E of San Pablo City, for abuse of authority, serious irregularity and violation of law in that, among other things, Maghirang appointed his sister-in-law, Florian, to the position of barangay secretary on 17 May 1989 in violation of Section 394 of the LGC. At the same time, complainant filed a complaint for violation of Article 244 of the Revised Penal Code with the Office of the City Prosecutor against Maghirang, which was, however, dismissed on 30 September 1993 on the ground that Maghirang’s sister-in-law was appointed before the effectivity of the LGC of 1991, which prohibits a punong barangay from appointing a relative within the fourth civil degree of consanguinity or affinity as barangay secretary. The order of dismissal was submitted to the Office of the Deputy Ombudsman for Luzon. On 22 October 1993, complainant obtained Opinion No. 246, s. 1993 from Director Jacob Montesa of the Department of Interior and Local Government, which declared that the appointment issued by Maghirang to his sister-in-law violated paragraph (2), Section 95 of B.P. Blg. 337, the LGC prior to the LGC of 1991. In its Revised Resolution of 29 November 1993,[4] the Office of the Deputy Ombudsman for Luzon dismissed the case, but ordered Maghirang to replace his sister-in-law as barangay secretary. On 20 December 1993, complainant moved that the Office of the Deputy Ombudsman for Luzon reconsider the order of 29 November 1993, in light of Opinion No. 246, s. 1993 of Director Montesa. Acting on the motion, Francisco Samala, Graft Investigation Officer II of the Office of the Deputy Ombudsman for Luzon, issued an order[6] on 8 February 1994 granting the motion for reconsideration and recommending the filing of an information for unlawful appointment (Article 244 of the Revised Penal Code) against Maghirang. The recommendation was duly approved by Manuel C. Domingo, Deputy Ombudsman for Luzon. In a 3rd indorsement dated 4 March 1994,[7] the Deputy Ombudsman

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for Luzon transmitted the record of the case to the Office of the City Prosecutor of San Pablo City and instructed the latter to file the corresponding information against Maghirang with the proper court and to prosecute the case. In his Order of 30 June 1995,[9] respondent judge denied the motion for suspension on the ground that: [T]he alleged offense of UNLAWFUL APPOINTMENT under Article 244 of the Revised Penal Code was committed on May 17, 1989, during [Maghirang’s] terms (sic) of office from 1989 to 1994 and said accused was again re-elected as Barangay Chairman during the last Barangay Election of May 9, 1994, hence, offenses committed during previous term is (sic) not a cause for removal (Lizarez vs. Hechanova, et al., G.R. No. L-22059, May 17, 1965); an order of suspension from office relating to a given term may not be the basis of contempt with respect to ones (sic) assumption of the same office under a new term (Oliveros vs. Villaluz, G.R. No. L-34636, May 30, 1971) and, the Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would deprieve (sic) the people of their right to elect their officer. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct (sic), if he had been guilty if any. MR denied. Complainant then moved that respondent inhibit himself from Criminal Case No. 26240. In his order of 21 September 1995,[13] respondent voluntarily inhibited himself. The case was assigned to Judge Adelardo S. Escoses per order of Executive Judge Bienvenido V. Reyes of the Regional Trial Court of San Pablo City. On 15 October 1996, complainant filed his sworn letter-complaint with the Office of the Court Administrator. In his comment dated 14 February 1997, filed in compliance with the resolution of this Court of 27 January 1997, respondent asserted that he had been “continuously keeping abreast of legal and jurisprudential development [sic] in the law” since he passed the 1955 Bar Examinations; and that he issued the two challenged orders “only after due appreciation of prevailing jurisprudence on the matter,” citing authorities in support thereof. Issues: 1. WON a criminal offense for violation of Republic Act 3019 committed by an elective officer during one term may be the basis of his suspension in a subsequent term in the event of his reelection to office.

Luciano vs. Provincial Governor: the cases of Pascual and Lizares are authority for the precept that "a reelected public officer is no longer amenable to administrative sanctions for acts committed during his former tenure" but that as to criminal prosecutions, particularly, for violations of the Anti-Graft and Corrupt Practices Act, as in the case at bar, the same are not barred by reelection of the public officer, since, inter alia, one of the penalties attached to the offense is perpetual disqualification from public office and it "is patently offensive to the objectives and the letter of the

Anti-Graft and Corrupt Practice Act . . . that an official may amass wealth thru graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts."

Punishment for a crime is a vindication for an offense against the State and the body politic. The small segment of the national electorate that constitutes the electorate of the municipality of Antipolo has no power to condone a crime against the public justice of the State and the entire body politic. Reelection to public office is not provided for in Article 89 of the Revised Penal Code as a mode of extinguishing criminal liability incurred by a public officer prior to his reelection. On the contrary, Article 9 of the Anti-Graft Act imposes as one of the penalties in case of conviction perpetual disqualification from public office and Article 30 of the Revised Penal Code declares that such penalty of perpetual disqualification entails "the deprivation of the public offices and employments which the offender may have held, even if conferred by popular election."

It is manifest then, that such condonation of an officer's fault or misconduct during a previous expired term by virtue of his reelection to office for a new term can be deemed to apply only to his administrative and not to his criminal guilt. As succinctly stated in then Solicitor General (now Associate Justice) Felix Q. Antonio's memorandum for the State, "to hold that petitioner's reelection erased his criminal liability would in effect transfer the determination of the criminal culpability of an erring official from the court to which it was lodged by law into the changing and transient whim and caprice of the electorate. This cannot be so, for while his constituents may condone the misdeed of a corrupt official by returning him back to office, a criminal action initiated against the latter can only be heard and tried by a court of justice, his nefarious act having been committed against the very State whose laws he had sworn to faithfully obey and uphold. A contrary rule would erode the very system upon which our government is based, which is one of laws and not of men."

Aguinaldo v. Santos: a public official cannot be removed from administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup.

Thus far, no ruling to the contrary has even rippled the doctrine enunciated in the above-mentioned cases. If respondent has truly been “continuously keeping abreast of legal and jurisprudential development [sic] in the law,” it was impossible for him to have missed or misread these

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cases. What detracts from his claim of assiduity is the fact that he even cited the cases of Oliveros v. Villaluz and Aguinaldo v. Santos in support of his 30 June 1995 order. What is then evident is that respondent either did not thoroughly read these cases or that he simply miscomprehended them. The latter, of course, would only manifest either incompetence, since both cases were written in plain and simple language thereby foreclosing any possibility of misunderstanding or confusion; or deliberate disregard of a long settled doctrine pronounced by this Court.

Pablico v. Villapando

Facts: On August 5, 1999, Maagad, and Fernandez, both members of the Sangguniang Bayan of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of Palawan an administrative complaint against Villapando, then Mayor of San Vicente, Palawan, for abuse of authority and culpable violation of the Constitution. Complainants alleged that Villapando, on behalf of the municipality, entered into a consultancy agreement with Tiape, a defeated mayoralty candidate in the May 1998 elections. They argue that the consultancy agreement amounted to an appointment to a government position within the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution. However, according to Villapando, he merely hired Tiape. He invoked Opinion No. 106, s. 1992, of the DOJ stating that the appointment of a defeated candidate within one year from the election as a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution. The Sangguniang Panlalawigan of Palawan found Villapando guilty of the administrative charge and imposed on him the penalty of dismissal from service. He appealed to the Office of the President which, on May 29, 2000, affirmed the decision of the Sangguniang Panlalawigan of Palawan. Pending respondent’s motion for reconsideration of the decision of the Office of the President, or on June 16, 2000, petitioner Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took his oath of office as Municipal Mayor. Consequently, respondent filed with the Regional Trial Court of Palawan a petition for certiorari and prohibition with preliminary injunction and prayer for a temporary restraining order, docketed as SPL Proc. No. 3462. The petition, seeks to annul, inter alia, the oath administered to petitioner. The Executive Judge granted a Temporary Restraining Order effective for 72 hours, as a result of which petitioner ceased from discharging the functions of mayor. Meanwhile, the case was raffled to Branch 95 which, on June 23, 2000, denied respondent’s motion for extension of the 72-hour temporary restraining order. Hence, petitioner resumed his assumption of the functions of Mayor of San Vicente, Palawan. On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the Court of Appeals seeking to

annul: (1) the May 29, 2000 decision of the Office of the President; (2) the February 1, 2000, decision of the Sangguniang Panlalawigan of Palawan; and (3) the June 23, 2000 order of the Regional Trial Court of Palawan, Branch 95. On March 16, 2001, the Court of Appeals8 declared void the assailed decisions of the Office of the President and the Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate the Office of Mayor of San Vicente, Palawan. A motion for reconsideration was denied on April 23, 2001.10 Hence, the instant petition for review.

Issue: WON local legislative bodies and/or the Office of the President, on appeal, validly imposed the penalty of dismissal from service on erring elective local officials.

Moot and academic, but SC resolved to pass upon issue concerning the application of certain provisions of the LGC of 1991.

Section 60, last paragraph: An elective local official may be removed from office on the grounds enumerated above by order of the proper court. It is clear that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law.

Salalima v. Guingona: the Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60.

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the LGC, however, adds that – "(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, LGC of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other." The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.

Salalima: this grant to the "disciplining authority" of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. No rule or regulation may alter, amend, or contravene a provision of law, such as the LGC. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the LGC of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing rules.

The power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX, of the Rules

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and Regulations Implementing the LGC, insofar as it vests power on the "disciplining authority" to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the LGC of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove.

Evardone v. COMELEC

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Facts: Evardone is the mayor of the Municipality of Sulat, Eastern Samar, having been elected to the position during the 1988 local elections. He assumed office immediately after proclamation. On 14 February 1990, Apelado, Aclan and Nival filed a petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat. COMELEC issued a resolution approving the recommendation to hold on 14 July 1990 the signing of the petition for recall against incumbent Mayor Evardone of the said Municipality. Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance of restraining order and/or writ of preliminary injunction. SC issued TRO ordering the respondents to cease and desist from holding the signing of the petition for recall. Central Office got it on the same day, but field agent got it 3 days later, a day after the completion of the signing process sought to be temporarily stopped by the TRO.COMELEC nullified the signing process held in Sulat, Eastern Samar for being violative of the TRO. Apelado, et al., filed MR, denied. Hence, the present petition for review on certiorari.

Issues: 1. WON COMELEC Resolution 2272 is constitutional. YES. Evardone: Article X, Section 3 of the 1987 Constitution repealed Batas

Pambansa Blg. 337 in favor of one to be enacted by Congress. Since there was, during the period material to this case, no LGC enacted by Congress after the effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of elected government officials, there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings in the case at bar is premature.

COMELEC: The constitutional provision does not refer only to a LGC which is in futurum but also in esse. It merely sets forth the guidelines which Congress will consider in amending the provisions of the present LGC. Pending the enactment of the amendatory law, the existing LGC remains operative. The adoption of the 1987 Constitution did not abrogate the provisions of BP No. 337, unless a certain provision thereof is clearly irreconciliable with the provisions of the 1987 Constitution. In this case, Sections 54 to 59 of Batas Pambansa No. 337 are not inconsistent with the provisions of the Constitution. Hence, they are operative.

Article XVIII, Section 3 of the 1987 Constitution: all existing laws not inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the LGC of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the LGC of 1991 will take effect only on 1 January 1992 and therefore the old LGC (B.P. Blg. 337) is still the law applicable to the present case.

Constitutional Commission: pending the enactment of a new LGC under the report of the Committee on Amendments and Transitory Provisions, the former LGC, which is Batas Pambansa Blg. 337 shall continue to be effective until repealed by the Congress of the Philippines.

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the exercise of such powers, promulgate the necessary rules and regulations. The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official. Any such election shall be conducted in the manner and under the rules on special elections, unless otherwise provided by law or rule of the COMELEC. Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently, the respondent COMELEC had the authority to approve the petition for recall and set the date for the signing of said petition.

2. WON the TRO issued by this Court rendered nugatory the signing process of the petition for recall held pursuant to Resolution No. 2272.

Paredes v. Exec Sec where plebiscite was held before plea for restraining order could be determined: petition became moot and academic.

Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21 February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the outcome of such notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the Resolution of respondent COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent prayer for the issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.

Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the scheduled date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken by the constituents of the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the TRO earlier issued by this Court. As attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about 34% signed the petition for recall.

The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It is based on the theory that the

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electorate must maintain a direct and elastic control over public functionaries. It is also predicated upon the idea that a public office is "burdened" with public interests and that the representatives of the people holding public offices are simply agents or servants of the people with definite powers and specific duties to perform and to follow if they wish to remain in their respective offices.

Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political question. It belongs to the realm of politics where only the people are the judge. "Loss of confidence is the formal withdrawal by an electorate of their trust in a person's ability to discharge his office previously bestowed on him by the same electorate. The constituents have made a judgment and their will to recall the incumbent mayor has already been ascertained and must be afforded the highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg, 337, which states: Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— (2) No recall shall take place within two years from the date of the official's assumption of office or one year immediately preceding a regular local election.

The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as provided for in Article XVIII, Sec. 5 — on the second Monday of May, 1992. 11 Thus, to hold an election on recall approximately seven (7) months before the regular local election will be violative of the above provisions of the applicable LGC (B.P. Blg. 337)

Garcia v. COMELEC

Facts: Garcia was elected governor of the province of Bataan in the May 11, 1992 elections. In the early evening of July 1993, some mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province met at the National Power Corporation compound in Bagac, Bataan. At about 12:30 A.M of the following day, July 2, 1993, they proceeded to the Bagac town plaza where they constituted themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. The PRA promulgated Resolution 1 for the recall of the incumbent provincial governor Garcia for loss of confidence.Petitioners filed with the COMELEC a petition to deny due course to said Resolution on the ground that the PRAC failed to comply with the "substantive and procedural

requirement" laid down in Section 70 of the LGC. The COMELEC dismissed the petition and scheduled the recall elections for the position of Governor of Bataan. Petitioners then filed with the SC a petition for certiorari and prohibition with writ of preliminary injunction to annul the said Resolution of the respondent COMELEC.

Issues: 1. WON section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly initiate the recall of local elective officials is constitutional

Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy.

P: the right to recall does not extend merely to the prerogative of the electorate to reconfirm or withdraw their confidence on the official sought to be recalled at a special election. Such prerogative necessarily includes the sole and exclusive right to decide on whether to initiate a recall proceedings or not.

There is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. Neither did it prohibit the adoption of multiple modes of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a LGC which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. The power given was to select which among the means and methods of initiating recall elections are effective to carry out the judgment of the electorate. Congress was not straightjacketed to one particular mechanism of initiating recall elections. What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. Congress has made its choice as called for by the Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but even

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then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law.

2. WON in passing Resolution 1, the Bataan Preparatory Recall Assembly did not only initiate the process of recall but had de facto recalled petitioner Garcia from office, a power reserved to the people alone.

P: The initiation of a recall through the PRA effectively shortens and ends the term of the incumbent local officials. The PRA resolution of recall is the re call itself.

Petitioners have misconstrued the nature of the initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives. It is not constitutionally impermissible for the people to act through their elected representatives.

More far out is petitioners' stance that a PRA resolution of recall is the recall itself. It cannot be seriously doubted that a PRA resolution of recall merely, starts the process. It is part of the process but is not the whole process. This ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the purpose bears no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear before the tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render their sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question. This is clear in section 72 of the LGC which states that "the recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall.

3. WON the law is violative of the Equal Protection Clause. A careful reading of the law, however, will ineluctably show that it does

not give an asymmetrical treatment to locally elected officials belonging to the political minority. First to be considered is the politically neutral composition of the preparatory recall assembly. Sec. 70 (b) of the Code. Under the law, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned

to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority.

The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to initiate the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a ground to strike down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be no escape from the reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power to an individual or entity. Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly will not be corrupted by extraneous influences.

There is only one ground for the recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective officials without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are the subject of any recall petition.

Evardone vs. Commission on Elections: "loss of confidence" as a ground for recall is a political question. In the words of the Court, "whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question.

4. WON the resolution of the members of the PRA subverted the will of the electorate of the province of Bataan who elected petitioner Garcia with a majority of 12,500 votes.

Again, the contention proceeds from the erroneous premise that the resolution of recall is the recall itself. It refuses to recognize the reality that the resolution of recall is a mere proposal to the electorate of Bataan to

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subject petitioner to a new test of faith. The proposal will still be passed upon by the sovereign electorate of Bataan. As this judgment has yet to be expressed, it is premature to conclude that the sovereign will of the electorate of Bataan has been subverted.

Garcia v. COMELEC (supra, see p.93)

Paras v. COMELEC

Facts: Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting on the petition for recall, COMELEC resolved to approve the petition, scheduled the petition signing on October 14, 1995, and set the recall election on November 13, 1995. At least 29.30% of the registered voters signed. The COMELEC, however, deferred the recall election in view of petitioner’s opposition. On December 6, 1995, the COMELEC set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed before the RTC a petition for injunction. The RTC issued a TRO. After conducting a summary hearing, the trial court lifted the restraining order, dismissed the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without COMELEC approval. In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election on January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a TRO and required the OSG to comment on the petition. In view of the OSGl’s manifestation maintaining an opinion adverse to that of the COMELEC, the latter through its law department filed the required comment. Petitioner thereafter filed a reply.

Issue: WON the recall election may be barred by the SK elections. Section 74 (b), LGC: no recall shall take place within one (1) year from the

date of the official’s assumption to office or one (1) year immediately preceding a regular local election

P: the scheduled January 13, 1996 recall election is now barred as the SK) election was set on the first Monday of May 1996. Petitioner maintains that as the SK election is a regular local election, hence no recall election can be had for barely four months separate the SK election from the recall election.

It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context, i.e., that every part of the

statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office. Paragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject of a recall election, that is, during the second year of his term of office. Thus, subscribing to petitioner’s interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the LGC on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election which is set by R.A. No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase “regular local election”, as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall provision of the LGC.

In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a statute. An interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or nugatory.

It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution. Thus, the interpretation of Section 74 of the LGC, specifically paragraph (b) thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to enact a LGC which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum.

The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read according to its spirit and intent.

Recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the official’s replacement in the said election who certainly has a longer tenure in office than a successor elected through a

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recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate.

Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled on May 1997.

Malonzo v. COMELEC

Facts: Malonzo was duly elected as Mayor in the elections held on May 8, 1995, winning over former mayor Asistio. Barely one year into his term, petitioner's office as Mayor was put to serious question when on July 7, 1996, 1,057 Punong Barangays and Sangguniang Barangay members and Sangguniang Kabataan chairmen, constituting a majority of the members of the Preparatory Recall Assembly of the City of Caloocan, met, and upon deliberation and election, voted for the approval of Preparatory Recall Assembly Resolution No. 01-96, expressing loss of confidence in Mayor Malonzo, and calling for the initiation of recall proceedings against him. Together with relevant documents, PRA Resolution No. 01-96 was filed with the COMELEC for appropriate action. In response, Mayor Malonzo filed a Petition with the respondent Commission alleging, principally, that the recall process was deficient in form and substance, and therefore, illegally initiated. The COMELEC found the petition devoid of merit and declared the recall proceedings to be in order. Malonzo filed a Petition for Certiorari With Prayer For Temporary Restraining Order and Application for Writ of Preliminary Injunction. SC issued resolution ordering the respondent COMELEC to cease and desist from proceeding with the recall election projected on December 14, 1996, and directing the respondents to file their respective Comments.

Issue: 1. WON the requirements for the holding of a recall election were duly complied with.

The matter of validity of notices to the members of the Preparatory Recall Assembly was sufficiently considered by the respondent Commission, as in response to petitioner's request for a technical examination of the recall documents, the COMELEC directed its Election Records and Statistics Department (ERSD) to resolve the matter of notices sent to the Preparatory Recall Assembly members. The ERSD in turn performed its task and reported its findings to the COMELEC.

ERSD reported that there were a total of 1,927 notices sent, some members being served two or three notices. The Notices were sent in three modes; Personal, registered mail and by courier and they were in the name of the PRA member, and addressed at his residence or office of record.

Personal services were acknowledged by receipts signed, if not by the addressee himself, then, as indicated thereon, by his or her spouse, nearest relative or a person of sufficient discretion in the member's residence or office. Service by registered mail was evinced by the return card duly signed by the addressee or by persons acting for him. There were instances when notices were served but were refused, this fact noted in the acknowledgment receipt by the server and his witnesses. The circumstances being thus, we hold that there was complete service of the notices as contemplated in Section 8, Rule 13 of the Rules of Court which provides: Section 8 - Completeness of Service - Personal service is complete upon delivery. Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides; Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.'

That it was Alex David, President of the LIGA ng mga Barangay who sent the notices is of no moment. We had earlier determined that as member of the PRA, he can legally exercise the prerogatives attached to his membership in the Preparatory Recall Assembly, sending notices to the other members of its scheduled convening. It is evident from the foregoing and, therefore, the Commission so holds that the requirements of notice had been fully complied with.

The issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of the same.

2. WON the initiation of the recall proceedings was infirm since it was convened by the Liga ng mga Barangays. NO.

The Liga ng mga Barangay is undoubtedly an entity distinct from the Preparatory Recall Assembly. It just so happens that the personalities representing the barangays in the Liga are the very members of the

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Preparatory Recall Assembly, the majority of whom met on July 7, 1996, and voted in favor of the resolution calling for the recall of Mayor Malonzo, after deliberation reported in the record, in accordance with the existing law. Thus, the Punong Barangays and Sangguniang Barangay members convened and voted as members of the Preparatory Recall Assembly of the City of Caloocan, and not as members of the Liga ng mga Barangay. The recall proceedings, therefore, cannot be denied merit on this ground.

COMELEC: "The Minutes of the session of the Preparatory Assembly indicated that there was a session held. Attendees constitute the majority of all the members of the Preparatory Assembly, as we shall later on establish. Rules of procedure, simple they may be were formulated. Deliberations were conducted on the main issue, which was that of petitioner's recall. The members were given the opportunity to articulate on their resolve about the matter. More importantly, their sentiments were expressed through their votes signified by their signatures and thumbmarks affixed to the Resolution. No proof was adduced by Petitioner to substantiate his claim that the signatures appearing thereon represented a cause other than that of adopting the resolution. The law on recall did not prescribe an elaborate proceeding. Neither did it demand a specific procedure. What is fundamental is compliance with the provision that there should be a session called for the purpose of initiating recall proceedings, attended by a majority of all the members of the preparatory recall assembly, in a public place and that the resolution resulting from such assembly be adopted by a majority of all the PRA members."

The charges of graft and corruption, violence and irregularities, before and during the session of the preparatory recall assembly are largely uncorroborated, and cannot override the substantiated findings of the respondent COMELEC.

Claudio v. COMELEC

Facts: Jovito O. Claudio was the duly elected mayor of Pasay City in the May 11, 1998 elections. He assumed office on July 1, 1998. Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence. On May 19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City, several barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard Advincula, private respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was designated

chair. On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13) Councilors of Pasay City to witness the formal submission to the Office of the Election Officer on July 2, 1999 of the petition for recall. As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of the petition on the Office of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition were posted on the bulletin boards of the local COMELEC office, the City Hall, the Police Department, the public market at Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City. Subsequently, a verification of the authenticity of the signatures on the resolution was conducted by Ligaya Salayon, the election officer for Pasay City designated by the COMELEC. In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the oppositions against it. Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after which the Court, by the vote of 8 to 6 of its members, 3 resolved to dismiss the petition in G.R. No. 140560 for lack of showing that the COMELEC committed a grave abuse of discretion. On the other hand, the Court unanimously dismissed the petition in G.R. No. 140714 on the ground that the issue raised therein had become moot and academic.

Issues: 1. WON the word "Recall" in Paragraph (b) of §74 of the LGC Includes the Convening of the Preparatory Recall Assembly and the Filing by it of a Recall Resolution.

Recall is a process which begins with the convening of the preparatory recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date.

However, as used in paragraph (b) of §74, "recall" refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Several reasons can be cited in support of this conclusion.

§74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, §69 provides that "the power of recall . . . shall be exercised by the registered voters of a local government unit to which the local elective official belongs." Since the

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power vested on the electorate is not the power to initiate recall proceedings but the power to elect an official into office, the limitations in §74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall. Thus, there may be several PRAs held or petitions for recall filed with the COMELEC — there is no legal limit on the number of times such processes may be resorted to. These are merely preliminary steps for the purpose of initiating a recall. The limitations in §74 apply only to the exercise of the power of recall which is vested in the registered voters. It is this — and not merely the preliminary steps required to be taken to initiate a recall — which paragraph (b) of §74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of office of an elective local official.

Garcia v. COMELEC: where two objections were raised against the legality of PRAs: (1) that even the power to initiate recall proceedings is the sole prerogative of the electorate which cannot be delegated to PRAs, and (2) that by vesting this power in a PRA, the law in effect unconstitutionally authorizes it to shorten the term of office of incumbent elective local officials. Both objections were dismissed on the ground that the holding of a PRA is not the recall itself. With respect to the first objection, it was held that it is the power to recall and not the power to initiate recall that the Constitution gave to the people. With respect to the second objection, it was held that a recall resolution "merely sets the stage for the official concerned before the tribunal of the people so he can justify why he should be allowed to continue in office. [But until] the people render their sovereign judgment, the official concerned remains in office . . . ."

If these preliminary proceedings do not produce a decision by the electorate on whether the local official concerned continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against the holding of a recall, except one year after the official's assumption of office, cannot apply to such proceedings.

The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within one year immediately preceding a regular local election.

The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official. In the Bower case cited by this Court in Angobung v. COMELEC, it was held that "The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions." The one-year limitation was reckoned as of the filing of a petition for recall because the Municipal Code involved in that case expressly provided that "no removal petition shall be filed against any officer or until he has actually held office for at least twelve months." But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first year in office of a local official.

It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been in office for one-year would be to allow him to be judged without sufficient basis. As already stated, it is not the holding of PRA nor the adoption of recall resolutions that produces a judgment on the performance of the official concerned; it is the vote of the electorate in the election that does. Therefore, as long as the recall election is not held before the official concerned has completed one year in office, he will not be judged on his performance prematurely.

Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent.

Puno dissent: the purpose of the one-year period in paragraph (b) is to provide the local official concerned a "period of repose" during which "[his] attention should not be distracted by any impediment, especially by

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disturbance due to political partisanship." Unfortunately, the law cannot really provide for a period of honeymoon or moratorium in politics. From the day an elective official assumes office, his acts become subject to scrutiny and criticism, and it is not always easy to determine when criticism of his performance is politically motivated and when it is not. The only safeguard against the baneful and enervating effects of partisan politics is the good sense and self restraint of the people and its leaders against such shortcomings of our political system. A respite from partisan politics may have the incidental effect of providing respite from partisanship, but that is not really the purpose of the limitation on recall under the law. The limitation is only intended to provide a sufficient basis for evaluating and judging the performance of an elected local official. In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated directly by the people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's] Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they reelected him.

It is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is actually reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the question of cityhood is submitted to the people for their approval are not always approved by the people. Yet, no one can say that Congress is not a good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan City, had it been shown that the PRA was resorted to only because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as good a gauge of the people's will as are the 25 % of the voters.

Recalls initiated directly by 25% of the registered voters of a local government unit cannot be more representative of the sentiments of the people than those initiated by PRAs whose members represent the entire electorate in the local government unit. Voters who directly initiate recalls are just as vulnerable to political maneuverings or manipulations as are those composing PRAs.

The question here is not whether recalls initiated by 25% of the voters are better. The issue is whether the one-year period of limitation in paragraph (b) includes the convening of the PRA. Given that question, will convening the PRA outside this period make it any more representative of the people, as the petition filed by 25% of the registered voters is claimed to be?

As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor of that city, we hold that there is no bar to its holding on that date.

2. WON the Phrase "Regular Local Election" in the Same Paragraph (b) of §74 of the LGC includes the Election Period for that Regular Election or Simply the Date of Such Election.

P: date set by the COMELEC for the recall election is within the second period of prohibition in paragraph (b). He argues that the phrase "regular local elections" in paragraph (b) does not only mean "the day of the regular local election" which, for the year 2001 is May 14, but the election period as well, which is normally at least forty five (45) days immediately before the day of the election. Hence, he contends that beginning March 30, 2000, no recall election may be held.

This contention is untenable. The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately preceding a regular local election." Had Congress intended this limitation to refer to the campaign period, which period is defined in the Omnibus Election Code, it could have expressly said so.

P’s interpretation would severely limit the period during which a recall election may be held. Actually, because no recall election may be held until one year after the assumption of office of an elective local official, presumably on June 30 following his election, the free period is only the period from July 1 of the following year to about the middle of May of the succeeding year. This is a period of only nine months and 15 days, more or less. To construe the second limitation in paragraph (b) as including the campaign period would reduce this period to eight months. Such an interpretation must be rejected, because it would devitalize the right of recall which is designed to make local government units "more responsive and accountable."

Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code, unless otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the "election period" would emasculate even more a vital right of the people.

3. WON the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified.

P: a majority of the signatures of the members of the PRA was not obtained because 74 members did not really sign the recall resolution.

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According to petitioner, the 74 merely signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word "Attendance" written by hand at the top of the page on which the signatures of the 74 begin.

This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not raised before the COMELEC, in which the claim made by petitioner was that some of the names in the petition were double entries, that some members had withdrawn their support for the petition, and that Wenceslao Trinidad's pending election protest was a prejudicial question which must first be resolved before the petition for recall could be given due course.

Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question are part.

Adormeo v. COMELEC (supra, see p. 179)

Socrates v. COMELEC (supra, see p. 180)

Mendez v. Civil Service Commission

Facts: On June 7, 1984, then Acting Register of Deeds of Quezon City Coloyan filed an administrative complaint against Mendez, a legal research assistant in the Quezon City Office of the City Attorney, for Gross Misconduct and Dishonesty, allegedly for having torn off a portion of Transfer Certificate of Title No. 209287 from the registry book of Quezon City and for having pocketed it. After three months of investigation, then Quezon City Mayor Rodriguez dismissed the said complaint against the petitioner for insufficiency of evidence. Coloyan appealed to the MSPB which found Mendez guilty as charged and dismissed from the service. Said decision was affirmed by the CSC on appeal. MR (Coloyan not proper party, exoneration by the city mayor is unappealable pursuant to Section 37, paragraph (b) of P.D. 807): denied, there is nothing in the said law which precludes an appeal from the decision of the disciplining authorities to determine, among others, whether the decision rendered is supported by the facts on record and the law.

Issue: WON Mendez has the right to appeal. Right to appeal is merely a statutory privilege and may be exercised only in

the manner and in accordance with the provision of law. A cursory reading of P.D. 807, otherwise known as "The Philippine Civil

Service Law" shows that said law does not contemplate a review of decisions exonerating officers or employees from administrative charges.

Section 37 paragraph (a): The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office.

Said provision must be read together with Section 39 paragraph (a) of P.D 805 which contemplates: Appeals, where allowable, shall be made by the party adversely affected by the decision.

The phrase "party adversely affected by the decision" refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an aggrieved party because he is not the respondent in the administrative case below.

Pursuant to Section 37 paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent to one month against erring employees.

By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for appeal.

Macalingcag and Carlos v. Chang

Facts: On October 6, 1989, Carlos signed a formal administrative charge approved by Macalincag for dishonesty, neglect of duty and acts prejudicial to the best interest of the service. It was alleged that Chang disbursed funds inviolation of the Omnibus Election Code, incurred cash overdrafts in violation of Sections 41 and 44 of PD 477 and Section 4(3) of PD 1445, transferred the amount of P1,977,492.00 from the Treasurer/Cashier's safe to the Realty Tax Division's safe, thus subjecting said municipal funds to possible loss; and that she continually failed to remit to the Bureau of Treasury the national collection. The basis of the formal charge by

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petitioner Carlos was the preliminary evaluation of the COA Report dated January 18, 1989 and the affidavit-complaints of Councilor Roberto Brillante dated April 27, 1989 and May 23, 1989. On the same date, October 5, 1989, petitioner Macalincag issued an Order of Preventive Suspension against Chang. Also on October 6, 1989, petitioner Macalincag sent a letter to the "Governor, Metro Manila Commission — Attn: the Officer-in-Charge MMC Finance Office," seeking the implementation of the Order of Preventive Suspension dated October 6, 1989 and recommending that an Officer-in-Charge be immediately designated from the ranks of qualified Municipal Treasurers and Assistant Municipal Treasurers in Metro Manila. By virtue of the said letter, the Officer-in-Charge, MMC Finance Office furnished respondent Chang, by ordinary mail, with a copy of the Order of Preventive Suspension also dated October 6, 1989. On November 10, 1989, respondent Chang filed a petition for prohibition with writ of preliminary injunction before the Regional Trial Court (RTC) of Makati against petitioners Macalincag and Carlos. TRO on preventive suspension granted. TC: denied Chang application for a writ of preliminary injunction, and sustained the power of the Secretary of Finance to issue the Order of Preventive Suspension. MR: Chang raised a new argument by invoking Section 8 Executive Order No. 392 entitled "Constituting the Metropolitan Manila Authority, providing for its powers and functions and for other purposes.", application for a writ of preliminary injunction granted. TC: respondents permanently desist from enforcing the Order of Preventive Suspension. Hence, this petition for review on certiorari.Second Division of this Court: denied the petition for having been filed out of time but the same was reinstated in a resolution dated April 15, 1991. In the resolution dated July 10, 1991, the Second Division of this Court gave due course to the petition and required both parties to file their simultaneous memoranda.

Issue: 1. WON the Secretary of Finance has jurisdiction to issue an Order of Preventive Suspension against the acting municipal treasurer of Makati, Metro Manila.

P: the Order of Preventive Suspension became effective upon receipt thereof by respondent Chang and not upon the designation of an officer-in-charge to replace him; that the Order of Preventive Suspension dated October 6, 1989 became effective before the issuance of Executive Order No. 392 and, therefore, can no longer be enjoined by reason of the alleged transfer of the power to suspend from the Secretary of Finance to the President of the Republic of the Philippines and that the power to suspend and remove municipal officials is not an incident of the power to appoint.

R: a government officer is not suspended until someone has assumed the post and the officer subject of the suspension order has ceased performing his official function; that the implementation of the questioned suspension

order was overtaken by the issuance of Executive Order No. 392 creating the Metropolitan Manila Authority and that the power to discipline is vested solely on the person who has the power to appoint.

Preventive Suspension is governed by Sec. 41 of P.D. 807 or the Civil Service Law which provides: Sec. 41. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from service. Under the aforesaid law, designation of the replacement is not a requirement to give effect to the preventive suspension.

LGC (BP 337) Sec. 156. TEMPORARY DISABILITY. — In the event of inability of the treasurer to discharge the duties of his office on account of a trip on official business, absence on leave, sickness, suspension, or other temporary disability, the assistant municipal treasurer or, in his absence, the treasury official next in rank in the municipality shall discharge the duties of the office subject to existing laws. Section 233(2): Until otherwise provided by law, nothing in this code shall be understood to amend or repeal the pertinent provisions of P.D. No. 824 and BP 20, and all presidential decrees and issuances relevant to Metropolitan Manila and the Sangguniang Pampook of Regions IX and XII.

Order of Preventive Suspension of respondent Chang became effective upon his receipt thereof, which is presumed when he filed a complaint in the trial court preventing the implementation of such Order of Suspension. Otherwise stated, the designation of the OFFICER-IN-CHARGE to replace respondent Chang is immaterial to the effectivity of the latter's suspension. A contrary view would render nugatory the very purpose of preventive suspension.

2. WON EO392 gave rise to the creation of the Metropolitan Manila Authority and vested in the President of the Republic of the Philippines the power to appoint municipal treasurers in Metro Manila.

Sec. 8. All city and municipal treasurers, municipal assessors and their assistants as well as other officials whose appointment is currently vested upon the Metropolitan Manila Commission shall be appointed by the President of the Philippines, upon recommendation of the Council, subject to the Civil Service law, rules and regulations.

Before, the power to appoint the aforesaid public officials was vested in the Provincial Treasurers and Assessors of the Municipalities concerned,

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under P.D. No. 477 and later transferred to the Commissioner of Finance under P.D. No. 921, but under both decrees, the power of appointment was made subject to Civil Service Laws and the approval of the Secretary of Finance.

The intention of the aforesaid legislations to follow the Civil Service Laws, Rules and Regulations is unmistakable. The power to discipline is specifically vested under Sec. 37 of P.D. No. 807 in heads of departments, agencies and instrumentalities, provinces and chartered cities who have original jurisdiction to investigate and decide on matters involving disciplinary action. Stated differently, they are the proper disciplining authority referred to in Sec. 41 of the same law.The Office of the Municipal Treasurer is unquestionably under the Department of Finance as provided for in Sec. 3, P.D. No. 477. Hence, the Secretary of Finance is the proper disciplining authority to issue the preventive suspension order. More specifically acting Secretary of Finance, Macalincag, acted within his jurisdiction in issuing the aforesaid order. Even assuming that the power to appoint, includes the power to discipline as argued by Chang, acting Secretary Macalincag as Secretary of Finance is an alter ego of the President and therefore, it is within his authority, as an alter ego, to preventively suspend respondent Chang.

Salalima v. Guingona (supra, see p.198)

Garcia v. Pajaro and the City of Dagupan

Facts: Garcia is a Revenue Collector appointed to that position by then City Mayor Manaois. He was ordered suspended by City Treasurer Pajaro from June 1, 1990 to March 15, 1992 and directed the withholding of his salary because of the Formal Charge filed against him. Petitioner has been rating Unsatisfactory in his performance for several semesters which is the reason a [Formal] Charge was filed against petitioner received by him on June 1, 1990, 10:00 a.m. and, as a matter of procedure, if the charge is a major offense, by civil service laws, he was preventively suspended for ninety (90) days, also duly received by Mr. Garcia on June 4, 1990 at 2:00 p.m. Then an investigation was scheduled and a subpoena was issued to Mr. Garcia to appear and testify on August 15, 1990 duly received by him on August 1, 1990, 8:55. Again Mr. Garcia did not Answer and refused to honor the subpoena to submit himself for investigation. So he proceeded with ex-parte investigation and gathered and submitted testimonies to support the allegations in the Formal Charge then submitted the result of their findings to the Department of Finance for decision. A Decision was promulgated by the Department of Finance on August 1,

1991. The matter of preventive suspension of Mr. Garcia was submitted to the Regional Director, Bureau of Local Government Finance which was ‘favorably approved’ by the Regional Director. CA: Pajaro was vested with legal power and authority to institute disciplinary action against subordinate officers and employees. Hence, this Petition.

Issues: 1. WON the City Treasurer may discipline Garcia. YES. under the old and the present LGCs, appointive officers and employees of

local government units are covered by the Civil Service Law; and such rules, regulations and other issuances duly promulgated pursuant thereto, unless otherwise specified. Moreover, the investigation and the adjudication of administrative complaints against appointive local officials and employees, as well as their suspension and removal, shall be in accordance with the Civil Service Law and rules and other pertinent laws.

Administrative Code of 1987, specifically Book V on the civil service is the primary law governing appointive officials and employees in the government. Grounds for disciplining: 1) when the charge is serious and the evidence of guilt is strong; (2) when the respondent is a recidivist and (3) when the respondent is notoriously undesirable.

The power to discipline is specifically granted by Section 47 of the Administrative Code of 1987 to heads of departments, agencies and instrumentalities, provinces and cities. On the other hand, the power to commence administrative proceedings against a subordinate officer or employee is granted by Section 34 of the Omnibus Rules Implementing Book V of the said Administrative Code to the secretary of a department, the head of office of equivalent rank, the head of a local government unit, the chief of an agency, the regional director or a person with a sworn written complaint.

The city treasurer may institute, motu propio, disciplinary proceedings against a subordinate officer or employee. Local Administrative Regulations (LAR) No. 2-85,[22] which was issued by the Ministry of Finance on March 27, 1985, authorized the minister (now secretary) of finance, the regional director, and head of a local treasury or an assessment office to start administrative disciplinary action against officers or employees subordinate to them.

In the case at bar, the city treasurer is the proper disciplining authority referred to in Section 47 of the Administrative Code of 1987. The term “agency” refers to any of the various units of the government including a department, a bureau, an office, an instrumentality, a government-owned or controlled corporation, or a local government or a distinct unit therein.

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Respondent Pajaro, as the city treasurer, was the head of the Office of the Treasurer; while petitioner, a senior revenue collector, was an officer under him. Thus, the city treasurer is the proper disciplining authority who could investigate petitioner and issue a preventive suspension order against him.

Petitioner’s contention that it is only the city mayor who may discipline him is not persuasive. Section 455 of the 1991 LGC states that the city mayor “may cause to be instituted administrative or judicial proceedings against any official or employee of the city.” This rule is not incongruent with the provisions of the 1987 Administrative Code, which authorizes the heads of agencies to discipline subordinate employees. Likewise, the old LGC does not vest in city mayors the sole power to discipline and to institute criminal or administrative actions against any officers or employees under their jurisdiction. In fact, there is no provision under the present LGC expressly rescinding the authority of the Department of Finance to exercise disciplinary authority over its employees. By the same token, there is nothing that prohibits the city treasurer from filing a complaint against petitioner.

As a corollary, the power to discipline evidently includes the power to investigate. Hagad v. Gozo-Dadole, we explained the rationale for preventive suspension as follows: not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventive suspension would occur prior to any finding of guilt or innocence.” Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given opportunity to prove his innocence.”

In the present case, Respondent Pajaro was authorized to issue the assailed Preventive Suspension Order against petitioner, because the latter was charged with gross neglect of duty, refusal to perform official duties and functions, and insubordination -- grounds that allowed the issuance of such Order, as provided by Section 51 of the 1987 Administrative Code. Clearly, the city treasurer acted within the scope of his power when he commenced the investigation and issued the assailed Order.

2. WON Garcia’s right to due process was violated, because he was not heard during the administrative proceedings. NO.

In an administrative proceeding, the essence of due process is simply the opportunity to explain one’s side. Such process requires notice and an opportunity to be heard before judgment is rendered. One may be heard, not solely by verbal presentation in an oral argument, but also -- and perhaps even many times more creditably and practicably -- through pleadings. So long as the parties are given the opportunity to explain their side, the requirements of due process are satisfactorily complied with. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of an action or a ruling.

In the case at bar, the administrative proceedings were conducted in accordance with the procedure set out in the 1987 Administrative Code and other pertinent laws. First, petitioner was furnished a copy of the May 30, 1990 formal charge against him. Second, Respondent Pajaro requested the approval of the Order of Preventive Suspension in his June 1, 1990 letter addressed to the Bureau of Local Government Finance regional director, who approved the Order in the First Indorsement dated June 4, 1990. Third, a subpoena dated July 31, 1990 was issued to petitioner ordering him to testify during an investigation on August 15, 1990. However, he admittedly refused to attend the investigation; thus, it was conducted ex parte. Fourth, the Department of Finance affirmed Respondent Pajaro’s findings in its August 1, 1991 Decision.

Parties who choose not to avail themselves of the opportunity to answer charges against them cannot complain of a denial of due process.[55] Petitioner’s refusal to attend the scheduled hearings, despite due notice, was at his own peril.

Javellana v. DILG and Santos

Facts: City Engineer Divinagracia filed an administrative case against Atty. Javellana, an elected City Councilor of Bago City, Negros Occidental for continuously engaging in the practice of law without securing authority for that purpose from the Regional Director, Department of Local Government, as required by DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular No. 74-58 of the same department. Javellana also assails the constitutionality of Memorandum Circulars Nos. 80-38 and 90-on the ground that the Supreme Court has the sole and exclusive authority to regulate the practice of law.

Issue: WON the DILG committed a grave abuse of discretion in issuing the questioned DLG Circulars Nos. 80-30 and 90-81 and in denying petitioner's motion to dismiss the administrative charge against him.

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Complaints against public officers and employees relating or incidental to the performance of their duties are necessarily impressed with public interest for by express constitutional mandate, a public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint against the City Government of Bago City, their real employer, of which petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia would actually be a judgment against the City Government. By serving as counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government.

Petitioner's contention that Section 90 of the LGC of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Court's power and authority to prescribe rules on the practice of law. The LGC and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it.

Section 90 of the LGC does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in schools expect during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service.

Osea v. Malaya

Facts: On November 20, 1997, petitioner filed a Protest Case with the Civil Service Commission. She averred that she was appointed as Officer-in-Charge, Assistant Schools Division Superintendent of Camarines Sur, by then Secretary Ricardo T. Gloria of the Department of Education, Culture and Sports, upon the endorsement of the Provincial School Board of Camarines Sur; that despite the recommendation

of Secretary Gloria, President Fidel V. Ramos appointed respondent to the position of Schools Division Superintendent of Camarines Sur; that respondent's appointment was made without prior consultation with the Provincial School Board, in violation of Section 99 of the LGC of 1991. Hence, petitioner prayed that respondent's appointment be recalled and set aside for being null and void. On March 31, 1998, the Civil Service Commission issued Resolution No. 980699, dismissing petitioner's protest-complaint. The Civil Service Commission found that on September 13, 1996, President Ramos appointed respondent, who was then Officer-in-Charge Schools Division Superintendent of Iriga City, as Schools Division Superintendent without any specific division. Thus, respondent performed the functions of Schools Division Superintendent in Iriga City. Subsequently, on November 3, 1997, Secretary Gloria designated respondent as Schools Division Superintendent of Camarines Sur, and petitioner as Schools Division Superintendent of Iriga City. In dismissing petitioner's protest, the Civil Service Commission held that Section 99 of the LGC of 1991 contemplates a situation where the Department of Education, Culture and Sports issues the appointments, whereas respondent's appointment was made by no less than the President, in the exercise of his appointing power. Moreover, the designation of respondent as Schools Division Superintendent of Camarines Sur and of petitioner as Schools Division Superintendent of Iriga City were in the nature of reassignments, in which case consultation with the local school board was unnecessary. MR: denied. CA: dismissed.

Issues: 1. WON Sec 99 of the LGC is applicable. Clearly, the afore-quoted portion of Section 99 of the LGCof 1991 applies

to appointments made by the DECS. This is because at the time of the enactment of the LGC, schools division superintendents were appointed by the DECS to specific division or location. In 1994, the Career Executive Service Board issued Memorandum Circular No. 21, Series of 1994, placing the positions of schools division superintendent and assistant schools division superintendent within the career executive service. Consequently, the power to appoint persons to career executive service positions was transferred from the DECS to the President. The appointment may not be specific as to location. The prerogative to designate the appointees to their particular stations was vested in the DECS Secretary, pursuant to the exigencies of the service, as provided in DECS Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos in favor of respondent to the Schools Division Superintendent position on September 3, 1996 did not specify her station. It was Secretary Gloria who, in a Memorandum dated November 3, 1997, assigned and designated

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respondent to the Division of Camarines Sur, and petitioner to the Division of Iriga City.

Under the circumstances, the designation of respondent as Schools Division Superintendent of Camarines Sur was not a case of appointment. Her designation partook of the nature of a reassignment from Iriga City, where she previously exercised her functions as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur. Clearly, therefore, the requirement in Section 99 of the LGC of 1991 of prior consultation with the local school board, does not apply. It only refers to appointments made by the Department of Education, Culture and Sports. Such is the plain meaning of the said law.

The "plain meaning rule" or verba legis in statutory construction is thus applicable in this case. Where the words of a statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.

Appointment should be distinguished from reassignment. An appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. On the other hand, a reassignment is merely a movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment. In the same vein, a designation connotes merely the imposition of additional duties on an incumbent official.

2. WON Petitioner has a vested right to the position of Schools Division Superintendent of Camarines Sur, in view of her endorsement by the Provincial School Board.

Her qualification to the office, however, lacks one essential ingredient, i.e., her appointment thereto. While she was recommended by Secretary Gloria to President Ramos for appointment to the position of Schools Division Superintendent of Camarines Sur, the recommendation was not acted upon by the President. Petitioner's designation as Officer-in-Charge, Assistant Schools Division Superintendent, was expressly made subject to further advice from the Department of Education, Culture and Sports.16 Thus, her designation was temporary. In fact, there was a need to recommend her to the President for appointment in a permanent capacity. Inasmuch as she occupied her position only temporarily, petitioner can be transferred or reassigned to other positions without violating her right to

security of tenure. Indeed, petitioner has no vested right to the position of Schools Division Superintendent of Camarines Sur.

Basco v. PAGCOR (supra, see p. 2)

Ganzon v. CA (supra, see p. 9)

City of Cebu v. National Waterworks and Sewerage Authority

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Facts: The Osmeña Waterworks System was constructed through a sale of bonds as authorized by the Philippine Legislature through Act 2009. By statute, the City of Cebu came into existence as a political body corporate on 20 October 1936. The newly created city absorbed the former municipality of Cebu. Among the general powers granted to, and duties imposed upon, the legislative body of the City, known as the Municipal Board, is that of providing for the maintenance of waterworks for the purpose of supplying water to the inhabitants of the city, and the purification of the source of supply and the places through which the same passes, and to regulate the consumption and use of the water; to fix and provide for the collection of rents therefor; and to regulate the construction, repair, and use of hydrants, pumps, cisterns, and reservoirs. Sec. 17-x. Commonwealth Act 58).Pursuant to the aforesaid charter provision, the Municipal Board the City of Cebu has been running and operating the Osmeña Waterworks System. Its municipal Board provides for the budgetary expenses of the System and governs the disposition of the System's revenue.On 16 November 1948, the Public Service Commission granted plaintiff City a certificate of public convenience to operate and maintain the Osmeña Waterworks System, subject to the terms and conditions imposed therein. For the purpose of expanding the service to meet the water needs of its increased population, the City of Cebu, on 11 December 1950 filed with the Department of Agriculture and Natural Resources an application for the use of water emanating from a natural spring in a private land belonging to the late Dr. Pio Valencia, situated in Hagubiao, Consolacion, Cebu. The said application was in due time approved by the department head. On 17 June 1955, defendant Authority was created as a public corporation. (Sec. 1, Republic Act No. 1383). Pursuant to its charter, defendant shall own and/or have jurisdiction, supervision and control over all territory now embraced by the Metropolitan Water District as well as all areas now served by existing government-owned waterworks and sewerage and drainage systems within the boundaries of cities, municipalities, and municipal districts in the Philippines including those served by the Waterworks and Wells and Drills Sections of the Bureau of Public Works' (Sec. 1). Defendant was also given the power "to acquire, purchase, hold, transfer, sell, lease, rent, mortgage, encumber, and otherwise dispose of real and personal property including rights and franchises within the Philippines, as authorized by the purposes for which the Authority was created and reasonably and necessarily required for the transaction of the lawful business of the same unless otherwise provided in this Act", and to exercise the right of eminent domain for the purpose for which the Authority was created, in the manner provided for by law for condemnation proceedings by the national, provincial, and municipal governments; (Sec. 2, paragraphs [h] and [i]).Lastly, the Act provides that "all existing government-owned waterworks and sewerage systems in cities, municipalities and municipal districts, including springs

and other water sources, as well as the water-works and sewerage bonds, sinking funds, and all indebtedness in general of the said Metropolitan Water District, and government-owned waterworks and sewerage systems are transferred to the National Waterworks and Sewerage Authority, and the Board is hereby authorized and directed to receive and assume all such assets and liabilities or on behalf of the said Authority, and in turn to pledge such assets as security for the payment of waterworks and sewerage bonded debt" and that the net book value of the properties and assets of the Metropolitan Water District and of government owned waterworks and sewerage systems in cities, municipalities, or municipal districts, and other government-owned waterworks and sewerage systems shall be received by the Authority in payment for an equal value of the assets of the National Waterworks and Sewerage Authority. (Sec. 8).

Issue: WON RA 1383 constitutional. City of Baguio vs. The National Waterworks and Sewerage Authority: It is

clear that the State may, in the interest of national welfare, transfer to public ownership any private enterprise upon payment of just compensation. At the same time, one has to bear in mind that no person can be deprived of his property except for public use and upon payment of just compensation. There is an attempt to observe this requirement in Republic Act No. 1383 when in providing for the transfer of appellee's waterworks system to a national agency it was directed that the transfer be made upon payment of an equivalent value of the property. Has this been implemented? Has appellant actually transferred appellee any asset of the NAWASA that may be considered just compensation for the property expropriated? There is nothing in the record to show that such was done. Neither is there anything to this effect in Office Memorandum No. 7 issued by the NAWASA in implementation of the provision of Republic Act No. 1383. The law speaks of assets of the NAWASA but they are not specified. While the Act empowers the NAWASA to contract indebtedness and issue bonds subject to the approval of the Secretary of Finance when necessary for the transaction of its business (sec. 2, pa (1),sec. 5, Act No. 1383), no such action has been taken to comply with appellant's commitment in so far as payment of compensation of appellee is concerned. As to when such action should be taken no one knows. And unless this aspect of the law is clarified and appellee is given its due compensation, appellee cannot be deprived of its property even if appellant desires to take over its administration in line with the spirit of the law. We are therefore persuaded to conclude that the law, insofar as it

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expropriates the waterworks in question without providing for an effective payment of just compensation, violates our Constitution.

Exactly the same situation obtains in the present case. Section 8 of Republic Act No. 1383 (supra.) provides that "the net book value of the properties and assets of the Metropolitan Water District and of government-owned waterworks and sewerage systems in cities, municipalities of municipal districts, and other government-owned waterworks and sewerage systems shall be received by the Authority in payment for an equal value of the assets of the National Waterworks and Sewerage Authority". In other words, all the properties and assets of the Osmeña Waterworks System are transferred to the defendant NAWASA in exchange for an equal value of the latter's assets. But what these assets consist of, nothing concrete presently appears. All that is provided in Section 8 is that NAWASA acquires all the assets and liabilities of all government-owned waterworks and sewerage systems in the country. It is an equal value of these unliquidated assets and liabilities that is supposed to be given to plaintiff-appellee as payment of its System. Such, certainly, is not a compensation that satisfies the Constitutional provisions.

Cebu: waterworks involved herein is not a patrimonial property of the City of Cebu but one for public use and, therefore, falls within the control of the legislature. We find no merit in his contention. It must be remembered that the Osmeña Waterworks System was established out of the $125,000.00 loan extended to the municipality of Cebu by the U.S. Government, payable within 30 years from the release thereof (Sec. 1, Act 2009), and which apparently was fully paid for by said municipality as certified to by the Insular Treasurer (Exh. D). For its operation and maintenance, the City of Cebu (Osmeña Waterworks System) applied for and obtained a certificate of public convenience from the Public Service Commission (Exh. E) and was made subject to the rates fixed and regulations imposed by said body. The System owned properties which appellee estimated at P10,000,000.00, although appellant claims it to be worth only P1,000,000.00, and operates on a budget approved by its Board of Directors (not by Congress), the disbursement of which was placed under the supervision and custody of the City Treasurer (t.s.n., pp. 28-29). The mere fact that the Buhisan basin where the water is collected stands on a government reservation, and that the System was created to serve the needs of the residents of said City (upon payment of certain rates from which the System derives material gain), to our mind do not transform the proprietary nature of appellee's ownership over the same to governmental or public. The flaw in appellant's contention that the System is a public

works for public service is due to an apparent misapprehension that because the System serves the public in a manner of speaking, it is, but that token alone, necessarily for public service. The contention overlooks the fact that only those of the general public who pay the required rental or charge authorized and collected by the System, do make use of water. In other words, the System serves all who pay the charges. It is open to the public (in the sense, it is public service), but upon the payment only of a certain rental (which makes it proprietary.) Article 424 of New Civil Code cited by appellant makes clear distinction. It reads: ART. 424. Property for public use, in the province, cities, municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, public works for public service paid for by said provinces, cities 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. Thus, the term "public works for public service" must be interpreted, following the principle of ejusdem generis, in the concept of the preceding words "provincial roads, city streets, municipal streets, the squares, fountains, public waters and promenades" which are used freely by all without distinction. Hence, if the public works is not such free public service, it is not within the purview the first paragraph, but of the second paragraph of Article 424, and, consequently, patrimonial in character. And, as already held by this Court, a municipal water system designed to supply water to the inhabitants for profit is a corporate function of the municipality

Cases differ as to the public and private character of water works in some respects, but the weight of authority, in so far as legislative control is concerned, classes them as private affairs

The consequential effect of such declaration is foreseeable, thus: Although the state may regulate the service and rates of water plants owned and operated by municipalities, such property is not employed for governmental purposes and in the ownership operation thereof the municipality acts in its proprietary capacity, free from legislative interference

The water system of a city not being a property held for governmental purposes is not subject to legislative control In the ownership and control of a water system purchased by the city out of the proceeds of the loan contracted for that purpose, the city acts in its proprietary character as distinguished from its government capacity.

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Similarly, we cannot uphold appellant's theory that the transfer of ownership of the Osmeña Waterworks System to another government agency is a valid exercise of the police power of the State, because while the power to enact laws intended to promote public order, safety, health, morals and general welfare of society is inherent in every sovereign state, such power is not without limitations, notable among which is the constitutional prohibition against the taking of private property for public use without just compensation. (Art. III, Sec. 1, Philippine Constitution.).

No exercise of the police power can disregard the constitutional guarantees in respect to the taking of private property, due process and equal protection of the laws and it should not override the demands of natural justice If a statute purporting to have been enacted to protect the public health, morals or safety, has no real or substantial reason to these objects, or is a palpable invasion of rights secured by fundamental law, it is the duty of courts to so adjudge, and thereby give effect to the Constitution. Action in the nature of police regulation is void if against the express provisions of the Constitution although otherwise within its general power to make police regulations.

Appellant also urges recognition of the right of the National Government (through the National Waterworks & Sewerage Authority) to acquire the Osmeña Waterworks System by eminent domain. This, we find to be equally untenable, for one of the essential requisites to the lawful exercise of this right is the payment to the owner of condemned property of just compensation to be ascertained according to law. Needless to state in this respect, that it is precisely for this reason, that is, lack of provision regarding effective payment of just compensation, that Republic Act No. 1383 was declared violative of the Constitution, in the case of City of Baguio vs. National Waterworks & Sewerage Authority.

Province of Zamboanga del Norte v. City of Zamboanga

Facts: Prior to its incorporation as a chartered city, the Municipality of Zamboanga used to be the provincial capital of the then Zamboanga Province. On October 12, 1936, Commonwealth Act 39 was approved converting the Municipality of Zamboanga into Zamboanga City. Sec. 50 of the Act also provided that buildings and properties which the province shall abandon upon the transfer of the capital to another place will be acquired and paid for by the City of Zamboanga at a price to be fixed by the Auditor General. The properties and buildings referred to consisted of 50 lots and some buildings constructed thereon, located in the City of Zamboanga and covered individually by Torrens certificates of title in the name of

Zamboanga Province. In 1945, the capital of Zamboanga Province was transferred to Dipolog. Subsequently, or on June 16, 1948, Republic Act 286 was approved creating the municipality of Molave and making it the capital of Zamboanga Province. On May 26, 1949, the Appraisal Committee formed by the Auditor General, pursuant to Commonwealth Act 39, fixed the value of the properties and buildings in question left by Zamboanga Province in Zamboanga City at P1,294,244.00. On June 6, 1952, Republic Act 711 was approved dividing the province of Zamboanga into two: Zamboanga del Norte and Zamboanga del Sur. As to how the assets and obligations of the old province were to be divided between the two new ones, Sec. 6 of that law provided that the funds, assets and other properties and the obligations of the province of Zamboanga shall be divided equitably between the Province of Zamboanga del Norte and the Province of Zamboanga del Sur by the President of the Philippines, upon the recommendation of the Auditor General. Pursuant thereto, the Auditor General, on January 11, 1955, apportioned the assets and obligations of the defunct Province of Zamboanga as follows: 54.39% for Zamboanga del Norte and 45.61% for Zamboanga del Sur. Zamboanga del Norte therefore became entitled to 54.39% of P1,294,244.00, the total value of the lots and buildings in question, or P704,220.05 payable by Zamboanga City. On March 17, 1959, the Executive Secretary, by order of the President, issued a ruling holding that Zamboanga del Norte had a vested right as owner (should be co-owner pro-indiviso) of the properties mentioned in Sec. 50 of Commonwealth Act 39, and is entitled to the price thereof, payable by Zamboanga City. This ruling revoked the previous Cabinet Resolution of July 13, 1951 conveying all the said 50 lots and buildings thereon to Zamboanga City for P1.00, effective as of 1945, when the provincial capital of the then Zamboanga Province was transferred to Dipolog. The Secretary of Finance then authorized the Commissioner of Internal Revenue to deduct an amount equal to 25% of the regular internal revenue allotment for the City of Zamboanga for the quarter ending March 31, 1960, then for the quarter ending June 30, 1960, and again for the first quarter of the fiscal year 1960-1961. The deductions, all aggregating P57,373.46, was credited to the province of Zamboanga del Norte, in partial payment of the P764,220.05 due it. However, on June 17, 1961, Republic Act 3039 was approved amending Sec. 50 of Commonwealth Act 39 by providing that aAll buildings, properties and assets belonging to the former province of Zamboanga and located within the City of Zamboanga are hereby transferred, free of charge, in favor of the said City of Zamboanga. Consequently, the Secretary of Finance, on July 12, 1961, ordered the Commissioner of Internal Revenue to stop from effecting further payments to Zamboanga del Norte and to return to Zamboanga City the sum of P57,373.46 taken from it out of the internal revenue allotment of Zamboanga del Norte. Zamboanga City admits that since the enactment of Republic Act 3039, P43,030.11 of the

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P57,373.46 has already been returned to it. This constrained plaintiff-appellee Zamboanga del Norte to file on March 5, 1962, a complaint entitled "Declaratory Relief with Preliminary Mandatory Injunction" in the Court of First Instance of Zamboanga del Norte against defendants-appellants Zamboanga City, the Secretary of Finance and the Commissioner of Internal Revenue. It was prayed that: (a) Republic Act 3039 be declared unconstitutional for depriving plaintiff province of property without due process and just compensation; (b) Plaintiff's rights and obligations under said law be declared; (c) The Secretary of Finance and the Internal Revenue Commissioner be enjoined from reimbursing the sum of P57,373.46 to defendant City; and (d) The latter be ordered to continue paying the balance of P704,220.05 in quarterly installments of 25% of its internal revenue allotments. On June 4, 1962, the lower court ordered the issuance of preliminary injunction as prayed for. After defendants filed their respective answers, trial was held. On August 12, 1963, judgment was rendered declaring Republic Act No. 3039 unconstitutional insofar as it deprives plaintiff Zamboanga del Norte of its private properties, consisting of 50 parcels of land and the improvements thereon under certificates of title in the name of the defunct province of Zamboanga; ordering defendant City of Zamboanga to pay to the plaintiff the sum of P704,220.05 payment thereof to be deducted from its regular quarterly internal revenue allotment equivalent to 25% thereof every quarter until said amount shall have been fully paid; ordering defendant Secretary of Finance to direct defendant Commissioner of Internal Revenue to deduct 25% from the regular quarterly internal revenue allotment for defendant City of Zamboanga and to remit the same to plaintiff Zamboanga del Norte until said sum of P704,220.05 shall have been fully paid; ordering plaintiff Zamboanga del Norte to execute through its proper officials the corresponding public instrument deeding to defendant City of Zamboanga the 50 parcels of land and the improvements thereon under the certificates of title upon payment by the latter of the aforesaid sum of P704,220.05 in full; dismissing the counterclaim of defendant City of Zamboanga; and declaring permanent the preliminary mandatory injunction issued on June 8, 1962, pursuant to the order of the Court dated June 4, 1962. No costs are assessed against the defendants. Subsequently, but prior to the perfection of defendants' appeal, plaintiff province filed a motion to reconsider praying that Zamboanga City be ordered instead to pay the P704,220.05 in lump sum with 6% interest per annum. Over defendants' opposition, the lower court granted plaintiff province's motion.Issue: WON RA 3039 is unconstitutional.

The validity of the law depends on the nature of the 50 lots and buildings thereon in question. If the property is owned by the municipality (meaning municipal corporation) in its public and governmental capacity, the property is public and Congress has absolute control over it. But if the

property is owned in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control. The municipality cannot be deprived of it without due process and payment of just compensation.

The capacity in which the property is held is, however, dependent on the use to which it is intended and devoted.

ART. 423. The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property. ART. 424. Property for public use, in the provinces, cities, and municipalities, consists of the provincial roads, city streets, municipal 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.

Applying the above cited norm, all the properties in question, except the two (2) lots used as High School playgrounds, could be considered as patrimonial properties of the former Zamboanga province. Even the capital site, the hospital and leprosarium sites, and the school sites will be considered patrimonial for they are not for public use. They would fall under the phrase "public works for public service" for it has been held that under the ejusdem generis rule, such public works must be for free and indiscriminate use by anyone, just like the preceding enumerated properties in the first paragraph of Art 424. 7 The playgrounds, however, would fit into this category.

Municipality of Catbalogan v. Director of Lands, and Municipality of Tacloban v. Director of Lands: capitol site and the school sites in municipalities constitute their patrimonial properties. This result is understandable because, unlike in the classification regarding State properties, properties for public service in the municipalities are not classified as public. Assuming then the Civil Code classification to be the chosen norm, the lower court must be affirmed except with regard to the two (2) lots used as playgrounds.

Norm obtaining under the principles constituting the law of Municipal Corporations, all those of the 50 properties in question which are devoted to public service are deemed public; the rest remain patrimonial. Under this norm, to be considered public, it is enough that the property be held and, devoted for governmental purposes like local administration, public education, public health, etc.

HINUNANGAN V. DIRECTOR OF LANDS: where the municipality has occupied lands distinctly for public purposes, such as for the municipal court house, the public school, the public market, or other necessary

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municipal building, we will, in the absence of proof to the contrary, presume a grant from the States in favor of the municipality; but, as indicated by the wording, that rule may be invoked only as to property which is used distinctly for public purposes...."

VIUDA DE TANTOCO V. MUNICIPAL COUNCIL OF ILOILO: municipal properties necessary for governmental purposes are public in nature. Thus, the auto trucks used by the municipality for street sprinkling, the police patrol automobile, police stations and concrete structures with the corresponding lots used as markets were declared exempt from execution and attachment since they were not patrimonial properties.

MUNICIPALITY OF BATANGAS VS. CANTOS: a municipal lot which had always been devoted to school purposes is one dedicated to public use and is not patrimonial property of a municipality.

Following this classification, Republic Act 3039 is valid insofar as it affects the lots used as capitol site, school sites and its grounds, hospital and leprosarium sites and the high school playground sites — a total of 24 lots — since these were held by the former Zamboanga province in its governmental capacity and therefore are subject to the absolute control of Congress.

We noticed that the eight Burleigh lots above described are adjoining each other and in turn are between the two lots wherein the Burleigh schools are built, as per records appearing herein and in the Bureau of Lands. Hence, there is sufficient basis for holding that said eight lots constitute the appurtenant grounds of the Burleigh schools, and partake of the nature of the same.

Regarding the several buildings existing on the lots above-mentioned, the records do not disclose whether they were constructed at the expense of the former Province of Zamboanga. Considering however the fact that said buildings must have been erected even before 1936 when Commonwealth Act 39 was enacted and the further fact that provinces then had no power to authorize construction of buildings such as those in the case at bar at their own expense, 14 it can be assumed that said buildings were erected by the National Government, using national funds. Hence, Congress could very well dispose of said buildings in the same manner that it did with the lots in question.

But even assuming that provincial funds were used, still the buildings constitute mere accessories to the lands, which are public in nature, and so, they follow the nature of said lands, i.e., public. Moreover, said buildings, though located in the city, will not be for the exclusive use and benefit of city residents for they could be availed of also by the provincial

residents. The province then — and its successors-in-interest — are not really deprived of the benefits thereof.

But Republic Act 3039 cannot be applied to deprive Zamboanga del Norte of its share in the value of the rest of the 26 remaining lots which are patrimonial properties since they are not being utilized for distinctly, governmental purposes.

Moreover, the fact that these 26 lots are registered strengthens the proposition that they are truly private in nature. On the other hand, that the 24 lots used for governmental purposes are also registered is of no significance since registration cannot convert public property to private.

We are more inclined to uphold this latter view. The controversy here is more along the domains of the Law of Municipal Corporations — State vs. Province — than along that of Civil Law. Moreover, this Court is not inclined to hold that municipal property held and devoted to public service is in the same category as ordinary private property. The consequences are dire. As ordinary private properties, they can be levied upon and attached. They can even be acquired thru adverse possession — all these to the detriment of the local community. Lastly, the classification of properties other than those for public use in the municipalities as patrimonial under Art. 424 of the Civil Code — is "... without prejudice to the provisions of special laws." For purpose of this article, the principles, obtaining under the Law of Municipal Corporations can be considered as "special laws". Hence, the classification of municipal property devoted for distinctly governmental purposes as public should prevail over the Civil Code classification in this particular case.

Magtajas v. Pryce Properties Corp & PAGCOR

Facts: PAGCOR leased a portion of a building belonging to Pryce Properties, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The Sangguniang Panlungsod of Cagayan de Oro City enacted Ordinance No. 3353 which prohibits the issuance of business permits and cancels existing business permits to any establishment for the using and allowing to be used its premises or portions thereof for the operation of casinos. Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. CA declared the ordinances invalid and issued the writ prayed for to prohibit their enforcement. MR denied.

Issue: WON Ordinance 3353 is unconstitutional.

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Basco v. Philippine Amusements and Gaming Corporation: sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the LGC. It is expressly vested with the police power under what is known as the General Welfare Clause. In addition, Section 458 of the said Code specifically declares that the Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants. This section also authorizes the LGUs to regulate properties and businesses within their territorial limits in the interest of the general welfare.

P: the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the authority entrusted to it by the LGC. Such interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the LGUs the power to prevent or suppress gambling and other social problems, the LGC has recognized the competence of such communities to determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State.

Valid Ordinance: 1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy. 6) It must not be unreasonable.

Under Sec. 458 of the LGC, LGUs are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and

unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited games of chance, must be prevented or suppressed.

The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the LGC itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the LGC is permissible because one law can change or repeal another law.

It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos.

It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose the omission: Sec. 534. Repealing Clause. — (a) Batas

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Pambansa Blg. 337, otherwise known as the "LGC," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.

Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, this Court explained: The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this intention must be given effect; but there must always be a sufficient revelation of this intention, and it has become an unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the question arises bear to each other the relation of general to special.

There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the power crisis.

PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the LGC but has in fact been improved as it were to make the entity more responsive to the fiscal problems of the government.

It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the LGC, local government units may (and indeed must) prevent and suppress all kinds of gambling within their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the Code, to make both the Code and such laws equally effective and mutually complementary.

This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.

In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general.

The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government

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units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.

Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.

This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.

Court holds that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the LGC, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos.

Solicitor General v. Metro Manila Authority

Facts: Malapira complained to the Court that when he was stopped for an alleged traffic violation, his driver's license was confiscated in Quezon City. The Caloocan-

Manila Drivers and Operators Association then sent a letter to the Court asking who should enforce the decision in the above-mentioned case, whether they could seek damages for confiscation of their driver's licenses, and where they should file their complaints. Other letters were received by the Court complaining against the confiscation of driver's licenses. Still another complaint was received by the Court for removal of a front license plate and driver’s license. The traffic enforcers invoked Ordinance No. 7, Series of 1988, of Mandaluyong, authorizing the confiscation of driver's licenses and the removal of license plates of motor vehicles for traffic violations, and a memorandum dated February 27, 1991, from the District Commander of the Western Traffic District of the Philippine National Police, authorizing such sanction under certain conditions. Director General Nazareno of the Philippine National Police assured the Court in his own Comment that his office had never authorized the removal of the license plates of illegally parked vehicles and that he had in fact directed full compliance with the above-mentioned decision in a memorandum, copy of which he attached, entitled Removal of Motor Vehicle License Plates and dated February 28, 1991. Tano-an, on the other hand, argued that the Gonong decision prohibited only the removal of license plates and not the confiscation of driver's licenses. On May 24, 1990, the Metropolitan Manila Authority issued Ordinance No. 11, Series of 1991, authorizing itself "to detach the license plate/tow and impound attended/ unattended/ abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila."On July 2, 1991, the Court issued a resolution on Ord 11: sec 2 which allows theMetropolitan Manila Authority, thru the Traffic Operation Center, is authorized to detach the license plate/tow and impound attended/unattended/abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila appears to be in conflict with the decision of the Court in the case at bar, where it was held that the license plates of motor vehicles may not be detached except only under the conditions prescribed in LOI 43. Additionally, the Court has received several complaints against the confiscation by police authorities of driver's licenses for alleged traffic violations, which sanction is, according to the said decision, not among those that may be imposed under PD 1605. Comments required.MMA: defended the said ordinance on the ground that it was adopted pursuant to the powers conferred upon it by EO 392. It particularly cited Section 2 thereof vesting in the Council (its governing body) the responsibility among others of: 1. Formulation of policies on the delivery of basic services requiring coordination or consolidation for the Authority; and 2. Promulgation of resolutions and other issuances of metropolitan wide application, approval of a code of basic services requiring coordination, and exercise of its rule-making powers. The Authority argued that there was no conflict between the decision and the ordinance because the latter was meant to supplement and not supplant the latter. It stressed that the

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decision itself said that the confiscation of license plates was invalid in the absence of a valid law or ordinance, which was why Ordinance No. 11 was enacted. The Authority also pointed out that the ordinance could not be attacked collaterally but only in a direct action challenging its validity.SolGen: the ordinance was null and void because it represented an invalid exercise of a delegated legislative power. The flaw in the measure was that it violated existing law, specifically PD 1605, which does not permit, and so impliedly prohibits, the removal of license plates and the confiscation of driver's licenses for traffic violations in Metropolitan Manila. He made no mention, however, of the alleged impropriety of examining the said ordinance in the absence of a formal challenge to its validity.On October 24, 1991, the Office of the Solicitor General submitted a motion for the early resolution of the questioned sanctions, to remove once and for all the uncertainty of their validity. A similar motion was filed by the Metropolitan Manila Authority, which reiterated its contention that the incidents in question should be dismissed because there was no actual case or controversy before the Court.The Metropolitan Manila Authority is correct in invoking the doctrine that the validity of a law or act can be challenged only in a direct action and not collaterally. That is indeed the settled principle. However, that rule is not inflexible and may be relaxed by the Court under exceptional circumstances, such as those in the present controversy. The Solicitor General notes that the practices complained of have created a great deal of confusion among motorists about the state of the law on the questioned sanctions. More importantly, he maintains that these sanctions are illegal, being violative of law and the Gonong decision, and should therefore be stopped. We also note the disturbing report that one policeman who confiscated a driver's license dismissed the Gonong decision as "wrong" and said the police would not stop their "habit" unless they received orders "from the top." Regrettably, not one of the complainants has filed a formal challenge to the ordinances, including Monsanto and Trieste, who are lawyers and could have been more assertive of their rights.

Issue: WON MMA Ord 11 and Mandaluyong Ord 7 are valid. NO. MMA sustains Ordinance No. 11, Series of 1991, under the specific

authority conferred upon it by EO 392, while Ordinance No. 7, Series of 1988, is justified on the basis of the General Welfare Clause embodied in the LGC. It is not disputed that both measures were enacted to promote the comfort and convenience of the public and to alleviate the worsening traffic problems in Metropolitan Manila due in large part to violations of traffic rules.

valid delegation of legislative power: 1) the completeness of the statute making the delegation; and 2) the presence of a sufficient standard.

Under the first requirement, the statute must leave the legislature complete in all its terms and provisions such that all the delegate will have to do when the statute reaches it is to implement it. What only can be delegated is not the discretion to determine what the law shall be but the discretion to determine how the law shall be enforced. This has been done in the case at bar.

As a second requirement, the enforcement may be effected only in accordance with a sufficient standard, the function of which is to map out the boundaries of the delegate's authority and thus "prevent the delegation from running riot." This requirement has also been met. It is settled that the "convenience and welfare" of the public, particularly the motorists and passengers in the case at bar, is an acceptable sufficient standard to delimit the delegate's authority.

But the problem before us is not the validity of the delegation of legislative power. The question we must resolve is the validity of the exercise of such delegated power. The measures in question are enactments of local governments acting only as agents of the national legislature. Necessarily, the acts of these agents must reflect and conform to the will of their principal. To test the validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations.

Elliot: a municipal ordinance, to be valid: 1) must not contravene the Constitution or any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit but may regulate trade; 5) must not be unreasonable; and 6) must be general and consistent with public policy.

Gonong decision: measures under consideration do not pass the first criterion because they do not conform to existing law. The pertinent law is PD 1605 which does not allow either the removal of license plates or the confiscation of driver's licenses for traffic violations committed in Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila Commission (and now the Metropolitan Manila Authority) to impose such sanctions. In fact, the provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission was allowed to "impose fines and otherwise discipline" traffic violators only "in such amounts and under such penalties as are herein prescribed," that is, by the decree itself. Nowhere is the removal of license plates directly imposed by the decree or at least

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allowed by it to be imposed by the Commission. Notably, Section 5 thereof expressly provides that "in case of traffic violations, the driver's license shall not be confiscated." These restrictions are applicable to the Metropolitan Manila Authority and all other local political subdivisions comprising Metropolitan Manila, including the Municipality of Mandaluyong.

The requirement that the municipal enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government unit cannot contravene but must obey at all times the will of their principal. In the case before us, the enactments in question, which are merely local in origin, cannot prevail against the decree, which has the force and effect of a statute. The self-serving language of Section 2 of the challenged ordinance is worth noting. Curiously, it is the measure itself, which was enacted by the Metropolitan Manila Authority, that authorizes the Metropolitan Manila Authority to impose the questioned sanction.

Villacorta vs, Bernardo: the Court nullified an ordinance enacted by the Municipal Board of Dagupan City for being violative of the Land Registration Act. The powers of the board in enacting such a laudable ordinance cannot be held valid when it shall impede the exercise of rights granted in a general law and/or make a general law subordinated to a local ordinance.

To sustain the ordinance would be to open the floodgates to other ordinances amending and so violating national laws in the guise of implementing them. Thus, ordinances could be passed imposing additional requirements for the issuance of marriage licenses, to prevent bigamy; the registration of vehicles, to minimize carnapping; the execution of contracts, to forestall fraud; the validation of parts, to deter imposture; the exercise of freedom of speech, to reduce disorder; and so on. The list is endless, but the means, even if the end be valid, would be ultra vires.

The measures in question do not merely add to the requirement of PD 1605 but, worse, impose sanctions the decree does not allow and in fact actually prohibits. In so doing, the ordinances disregard and violate and in effect partially repeal the law.

We here emphasize the ruling in the Gonong case that PD 1605 applies only to the Metropolitan Manila area. It is an exception to the general

authority conferred by R.A. No. 413 on the Commissioner of Land Transportation to punish violations of traffic rules elsewhere in the country with the sanction therein prescribed, including those here questioned.

Manila Electric Co. v. City of Manila

Facts: On October 20, 1902, the Philippine Commission enacted Act No. 484, section 1 of which authorizes the City of Manila to grant to the "person or persons making the most favorable bid, as hereinafter provided, a franchise to construct and maintain in the streets of Manila and its suburbs an electric street railway and a franchise to construct, maintain, and operate an electric light, heat, and power system in the City of Manila and its suburbs." By virtue of said Act, the City of Manila passed on March 24, 1903, Ordinance No. 44 granting the franchise to one Charles M. Swift, as the highest bidder. Said Act No. 484 and Ordinance No. 44 were later amended by Act No. 1112 and Ordinances Nos. 70, 71, 144, 167, 192, 272, 490, 903, 988, 1162, 1244 and 1476, which deal with the sale and transfer of the franchise of the Compañia de Tranvias de Filipinas to the plaintiff in April, 1904.On March 27, 1903, the plaintiff, then known as "Manila Railways and Light Company", acquired the said franchise from Charles M. Swift, together with all the rights, privileges and obligations appurtenant thereto. The plaintiff has since then established electric car lines along certain streets of the City of Manila and suburbs, which have now and then been altered with the express consent either of the City of Manila or of the Philippine Legislature. As grantee of the franchise, the plaintiff corporation agreed to pay, and has to date been paying, to the City of Manila, 2 1/2 per cent "of the fares collected and tickets sold within the limits of the City of Manila, and the same percentage of fares collected and tickets sold without the said limits to the proper municipality or municipalities of the Province of Rizal." In 1927, the plaintiff applied for and obtained from the Public Service Commission certificates of public convenience to operate as it did in 1929, an autobus service along the streets, districts and suburbs of the City of Manila, not covered by its electric car lines. Alleging that these autobus service was included in the franchise granted the plaintiff, under Ordinance No. 44, the defendant and appellee City of Manila collected from the plaintiff — who had to pay under protest — a tax of 2 1/2 per cent of the fares collected and ticket sold in its autobus lines within the City of Manila from April, 1929 to November, 1932, amounting to P43,868.06. The present action was instituted to recover this tax.The plaintiff issues transfer tickets which entitle the holder of regular fare to transfer from a street car to an autobus and vice-versa without extra charge, although this privilege is not extended to zone fare passengers.

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Issue: WON the autobus business of the plaintiff is included in the franchise granted to it by Ordinance No. 44 of the City of Manila, and in case it is, if the defendant has any right to collect the tax of 2 1/2 per cent from the fares collected and tickets sold in the business, as prescribed in said ordinance.

Section 2 of Act No. 1112, amending Ordinance No. 44 of the City of Manila, inserted between paragraphs 2 and 3 of the first part of said ordinance, the following paragraph 2 (a): The Manila Electric Railroad and Light Company shall be authorized to make excavations and constructions for the purposes prescribed in Part One of said Ordinance Numbered Forty-four, upon such further streets, thoroughfares, bridges, and public places within the City of Manila as may, from time to time, be approved by the Municipal Board.

The purpose of this legal provision authorizing the Manila Electric Company to make excavations and constructions upon further streets, thoroughfares, bridges, and public places within the City of Manila, is no other than the construction and maintenance of a net of electric car lines. This broadening of the authorization cannot be construed as permitting the plaintiff to establish autobus lines along the streets of Manila and suburbs, not specified in the original authorization, because, as we have already said, the purpose of the additional authorization was to enable the plaintiff to construct and maintain a net of electric car lines in other streets of Manila. Furthermore, to establish autobus lines, it is not necessary to make excavations upon the streets. This is only required when laying out rails for electric cars.

Neither the letter nor the spirit of the law, therefore, authorizes that the franchise granted the plaintiff by the City of Manila be construed to include the establishment of autobus lines.

It is true that in the case of the City of Manila vs. Public Service Commission, this court, interpreting paragraph 4 of Act No. 484, which authorizes the plaintiff, by virtue of its franchise, to modify, improve or change its system of electric railways such as the progress of science and the development of motive power may make reasonable and proper, said that the plaintiff might abandon the use of electric cars and substitute autobusses in their stead, which is a better means of transportation, and under the franchise, the grantee is authorized to make improvements in its system, with the approval of the City of Manila. That case dealt with the substitution of autobus lines along the same streets and public thoroughfares where electric car lines already existed. It was not the intention of this court, and it has not so declared, that the Manila Electric

Company cannot establish autobus lines along streets and public thoroughfares where electric railways have not yet been established.

When public convenience so requires, the Philippine Legislature can authorize other transportation companies to use the streets and public thoroughfares where the Manila Electric Company has not established electric railways, nor signified its intention to do so, since such authorization does not violate the terms and conditions of the plaintiff's franchise. Impliedly, this was done, when it created the office of the Public Service Commission charged with the task of looking after the comfort of the public as regards transportation, with power to grant a certificate of public convenience to a company desiring to operate a passenger transportation service, when, in its judgment, it will serve the interest of the public. Like any other company engaged in passenger transportation, the Manila Electric Company has the right to secure from the Public Service Commission a certificate of public convenience authorizing it to establish autobus lines for public transportation. This means of transportation being distinct and different from the one authorized under the franchise granted to it, the Manila Electric Company is not controlled is not controlled by that franchise with respect to its autobus service, but by the law that regulate the operation of land transportation companies rendering service to the public. Neither can it be compelled to pay to the City of Manila the tax of 2 1/2 per cent of the fares collected and tickets sold within the city limits for using autobusses, which have no relation at all with its electric railways already existing or yet to be established. The fact that the Manila Electric Company issues transfer ticket which permit purchasers of regular fares (not zone fares) coming from outside the City of Manila, to transfer from a street car to an autobus, and vice-versa, does not make plaintiff's autobus system a part of its railway system since such issuance of transfer tickets is only accident and not essential in the operation of its railway system established under the authority of its franchise.

Laguna Lake Development Authority v. CA

Facts: RA 4850 was enacted creating the LLDA to carry out environmental protection and ecology, navigational safety, and sustainable development. PD 813 amended the RA because of the concern for the rapid expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna de Bay, combined with current and prospective uses of the lake for municipal-industrial water supply, irrigation, fisheries, and the like. To more effectively perform the role of the Authority, EO 927 further defined and enlarged the functions and powers of the

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Authority and named and enumerated the towns, cities and provinces encompassed by the term "Laguna de Bay Region". Section 29 of PD 813 defined the term "Laguna Lake" in this manner: Whenever Laguna Lake or lake is used in this Act, the same shall refer to Laguna de Bay which is that area covered by the lake water when it is at the average annual maximum lake level of elevation 12.50 meters, as referred to a datum 10.00 meters below mean lower low water (M.L.L.W). Lands located at and below such elevation are public lands which form part of the bed of said lake.Then came Republic Act No. 7160, the LGC of 1991. The municipalities in the Laguna Lake Region interpreted the provisions of this law to mean that the newly passed law gave municipal governments the exclusive jurisdiction to issue fishing privileges within their municipal waters because of R.A. 7160. Municipal governments thereupon assumed the authority to issue fishing privileges and fishpen permits. Big fishpen operators took advantage of the occasion to establish fishpens and fishcages to the consternation of the Authority. Unregulated fishpens and fishcages, as of July, 1995, occupied almost one-third of the entire lake water surface area, increasing the occupation drastically from 7,000 hectares in 1990 to almost 21,000 hectares in 1995. The Mayor's permit to construct fishpens and fishcages were all undertaken in violation of the policies adopted by the Authority on fishpen zoning and the Laguna Lake carrying capacity.To be sure, the implementation by the lakeshore municipalities of separate independent policies in the operation of fishpens and fishcages within their claimed territorial municipal waters in the lake and their indiscriminate grant of fishpen permits have already saturated the lake area with fishpens, thereby aggravating the current environmental problems and ecological stress of Laguna Lake. Ramos then issued instructions that all structures in the LdB not registered with the LLDA are illegal. Reacting thereto, the affected fishpen owners filed injunction cases against the Authority before various RTCs. The Authority filed motions to dismiss the cases against it on jurisdictional grounds. The motions to dismiss were invariably denied. Meanwhile, temporary restraining order/writs of preliminary mandatory injunction were issued in Civil Cases Nos. 64124, 759 and 566 enjoining the Authority from demolishing the fishpens and similar structures in question.Hence, the herein petition for certiorari, prohibition and injunction, G.R. Nos. 120865-71, were filed by the Authority with this court. CA: dismissed the Authority's consolidated petitions, the Court of Appeals holding that: (A) LLDA is not among those quasi-judicial agencies of government whose decision or order are appealable only to the Court of Appeals; (B) the LLDA charter does vest LLDA with quasi-judicial functions insofar as fishpens are concerned; (C) the provisions of the LLDA charter insofar as fishing privileges in Laguna de Bay are concerned had been repealed by the LGC of 1991; (D) in view of the aforesaid repeal, the power to grant

permits devolved to and is now vested with their respective local government units concerned.

Issue: Which agency of the Government — the Laguna Lake Development Authority or the towns and municipalities comprising the region — should exercise jurisdiction over the Laguna Lake and its environs insofar as the issuance of permits for fishery privileges is concerned?

Section 4 (k) of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, the provisions of Presidential Decree No. 813, and Section 2 of Executive Order No. 927, cited above, specifically provide that the Laguna Lake Development Authority shall have exclusive jurisdiction to issue permits for the use of all surface water for any projects or activities in or affecting the said region, including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. On the other hand, Republic Act No. 7160, the LGC of 1991, has granted to the municipalities the exclusive authority to grant fishery privileges in municipal waters. The Sangguniang Bayan may grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry area within a definite zone of the municipal waters.

We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the aforementioned laws creating the Laguna Lake Development Authority and granting the latter water rights authority over Laguna de Bay and the lake region.

The LGC of 1991 does not contain any express provision which categorically expressly repeal the charter of the Authority. It has to be conceded that there was no intent on the part of the legislature to repeal Republic Act No. 4850 and its amendments. The repeal of laws should be made clear and expressed.

It has to be conceded that the charter of the Laguna Lake Development Authority constitutes a special law. Republic Act No. 7160, the LGC of 1991, is a general law. It is basic in statutory construction that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law. It is a well-settled rule in this jurisdiction that "a special statute, provided for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law."

Where there is a conflict between a general law and a special statute, the special statute should prevail since it evinces the legislative intent more

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clearly than the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. This is because implied repeals are not favored and as much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. Thus, it has to be concluded that the charter of the Authority should prevail over the LGC of 1991.

Considering the reasons behind the establishment of the Authority, which are environmental protection, navigational safety, and sustainable development, there is every indication that the legislative intent is for the Authority to proceed with its mission.

We are on all fours with the manifestation of petitioner Laguna Lake Development Authority that "Laguna de Bay, like any other single body of water has its own unique natural ecosystem. The 900 km² lake surface water, the eight (8) major river tributaries and several other smaller rivers that drain into the lake, the 2,920 km² basin or watershed transcending the boundaries of Laguna and Rizal provinces, greater portion of Metro Manila, parts of Cavite, Batangas, and Quezon provinces, constitute one integrated delicate natural ecosystem that needs to be protected with uniform set of policies; if we are to be serious in our aims of attaining sustainable development. This is an exhaustible natural resource — a very limited one — which requires judicious management and optimal utilization to ensure renewability and preserve its ecological integrity and balance." "Managing the lake resources would mean the implementation of a national policy geared towards the protection, conservation, balanced growth and sustainable development of the region with due regard to the inter-generational use of its resources by the inhabitants in this part of the earth. The authors of Republic Act 4850 have foreseen this need when they passed this LLDA law — the special law designed to govern the management of our Laguna de Bay lake resources." "Laguna de Bay therefore cannot be subjected to fragmented concepts of management policies where lakeshore local government units exercise exclusive dominion over specific portions of the lake water. The garbage thrown or sewage discharged into the lake, abstraction of water therefrom or construction of fishpens by enclosing its certain area, affect not only that specific portion but the entire 900 km² of lake water. The implementation of a cohesive and integrated lake water resource management policy, therefore, is necessary to conserve, protect and sustainably develop Laguna de Bay."

The power of the local government units to issue fishing privileges was clearly granted for revenue purposes. This is evident from the fact that Section 149 of the New LGC empowering local governments to issue fishing permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the heading, "Specific Provisions On The Taxing And Other Revenue Raising Power Of Local Government Units."

On the other hand, the power of the Authority to grant permits for fishpens, fishcages and other aqua-culture structures is for the purpose of effectively regulating and monitoring activities in the Laguna de Bay region (Section 2, Executive Order No. 927) and for lake quality control and management. 6 It does partake of the nature of police power which is the most pervasive, the least limitable and the most demanding of all State powers including the power of taxation. Accordingly, the charter of the Authority which embodies a valid exercise of police power should prevail over the LGC of 1991 on matters affecting Laguna de Bay.

There should be no quarrel over permit fees for fishpens, fishcages and other aqua-culture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927 provides for the proper sharing of fees collected.

**LLDA: regulatory and quasi-judicial body in respect to pollution cases with authority to issue a "cease and desist order" and on matters affecting the construction of illegal fishpens, fishcages and other aqua-culture structures in Laguna de Bay. The Authority's pretense, however, that it is co-equal to the Regional Trial Courts such that all actions against it may only be instituted before the Court of Appeals cannot be sustained. On actions necessitating the resolution of legal questions affecting the powers of the Authority as provided for in its charter, the Regional Trial Courts have jurisdiction.

Section 149 of Republic Act No. 7160, otherwise known as the LGC of 1991, has not repealed the provisions of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it. Removal from the Authority of the aforesaid licensing authority will render nugatory its avowed purpose of protecting and developing the Laguna Lake Region. Otherwise stated, the abrogation of this power would render useless its reason for being and will in effect denigrate, if not abolish, the Laguna Lake Development Authority. This, the LGC of 1991 had never intended to do.

Mondano v. Silvosa

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Facts: Mosende filed a complaint against Mondano, mayor of the municipality of Mainit, province of Surigao with the Presidential Complaints and Action Committee accusing him of (1) rape committed on her daughter Caridad Mosende; and (2) concubinage for cohabiting with her daughter in a place other than the conjugal dwelling. On 6 March the Assistant Executive Secretary indorsed the complaint to the respondent provincial governor for immediate investigation, appropriate action and report. On 10 April the petitioner appeared before the provincial governor in obedience to his summons and was served with a copy of the complaint filed by the provincial governor with provincial board. On the same day, the provincial governor issued AO 8 suspending the petitioner from office. Thereafter, the Provincial Board proceeded to hear the charges preferred against the petitioner over his objection. The petitioner prays for a writ of prohibition with preliminary injunction to enjoin the respondents from further proceeding with the hearing of the administrative case against him and for a declaration that the order of suspension issued by the respondent provincial governor is illegal and without legal effect. On 4 May 1954 the writ of preliminary injunction prayed for was issued after filing and approval of a bond for P500.

Issue: WON the provincial governor may issue an order of suspension. Section 10, paragraph 1, Article VII, of the Constitution provides: "The

President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed." Under this constitutional provision the President has been invested with the power of control of all the executive departments, bureaus, or offices, but not of all local governments over which he has been granted only the power of general supervision as may be provided by law.

The Department head as agent of the President has direct control and supervision over all bureaus and offices under his jurisdiction as provided for in section 79 (c) of the Revised Administrative Code, but he does not have the same control of local governments as that exercised by him over bureaus and offices under his jurisdiction. Likewise, his authority to order the investigation of any act or conduct of any person in the service of any bureau or office under his department is confined to bureaus or offices under his jurisdiction and does not extend to local governments over which, as already stated, the President exercises only general supervision as may be provided by law. If the provisions of section 79 (c) of the Revised Administrative Code are to be construed as conferring upon the corresponding department head direct control, direction, and supervision over all local governments and that for the reason he may order the

investigation of an official of a local government for malfeasance in office, such interpretation would be contrary to the provisions of paragraph 1, section 10, Article VII, of the Constitution. If "general supervision over all local governments" is to be construed as the same power granted to the Department Head in section 79 (c) of the Revised Administrative Code, then there would no longer be a distinction or difference between the power of control and that of supervision.

In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Such is the import of the provisions of section 79 (c) of the Revised Administrative Code and 37 of Act No. 4007. The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question." 3 Section 86 of the Revised Administrative Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of . . . municipalities . . .. If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79 (c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by section 10 (1), Article VII, of the Constitution.

Lacson vs. Roque: the power of the President to remove officials from office as provided for in section 64 (b) of the Revised Administrative Code must be done "conformably to law;" and only for disloyalty to the Republic of the Philippines he "may at any time remove a person from any position of trust or authority under the Government of the (Philippine Islands) Philippines." Again, this power of removal must be exercised conformably to law.

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In the indorsement to the provincial governor the Assistant Executive Secretary requested immediate investigation, appropriate action and report on the complaint indorsed to him, and called his attention to section 2193 of the Revised Administrative Code which provides for the institution of judicial proceedings by the provincial fiscal upon direction of the provincial governor. If the indorsement of the Assistant Executive Secretary be taken as a designation of the provincial governor to investigate the petitioner, then he would only be acting as agent of the Executive, but the investigation to be conducted by him would not be that which is provided for in sections 2188, 2189 and 2190 of the Revised Administrative Code. The charges preferred against the respondent are not malfeasances or any of those enumerated or specified in section 2188 of the Revised Administrative Code, because rape and concubinage have nothing to do with the performance of his duties as mayor nor do they constitute or involve" neglect of duty, oppression, corruption or any other form of maladministration of office." True, they may involve moral turpitude, but before the provincial governor and board may act and proceed in accordance with the provisions of the Revised Administrative Code referred to, a conviction by final judgment must precede the filing by the provincial governor of charges and trial by the provincial board. Even the provincial fiscal cannot file an information for rape without a sworn complaint of the offended party who is 28 years of age and the crime of concubinage cannot be prosecuted but upon sworn complaint of the offended spouse.4 The charges preferred against the petitioner, municipal mayor of Mainit, province of Surigao, not being those or any of those specified in section 2188 of the Revised Administrative Code, the investigation of such charges by the provincial board is unauthorized and illegal. The suspension of the petitioner as mayor of the municipality of Mainit is, consequently, unlawful and without authority of law.

Hebron v. Reyes

Facts: In the general elections held in 1951, petitioner Bernardo Hebron, a member of the Liberal Party, and respondent Eulalio D. Reyes, of the Nacionalista Party, were elected mayor and vice-mayor, respectively, of said municipality, for a term of four (4) years, beginning from January 1, 1952, on which date they presumably assumed the aforementioned offices. Petitioner discharged the duties and functions of mayor continuously until May 22 or 24, 1954, when he received communication that the President has decided to assume directly the investigation to the administrative charges against him for alleged oppression, grave abuse of authority

and serious misconduct in office, and has designated the Provincial Fiscal of that province as Special Investigator of the said charges. Hebron was also suspended from office. The Vice-Mayor was directed to assume the office of Acting Mayor. Thereupon, Reyes acted as mayor of Carmona and the Provincial Fiscal of Cavite investigated the charges. After holding hearings in connection with said charges, the provincial fiscal submitted his report thereon on July 15, 1954. Since then the matter has been pending in the Office of the President for decision. Inasmuch as the same did not appear to be forthcoming, and the term of petitioner, who remained suspended, was about to expire, on May 13, 1955, he instituted the present action for quo warranto, upon the ground that respondent was illegally holding the Office of Mayor of Carmona, and had unlawfully refused and still refused to surrender said office to petitioner, who claimed to be entitled thereto. Respondent and the Solicitor General, who was allowed to intervene, filed their respective answers admitting substantially the main allegations of fact in petitioner's complaint, but denying the alleged illegality of petitioner's suspension and alleging that respondent was holding the office of the mayor in compliance with a valid and lawful order of the President. Owing to the nature and importance of the issue thus raised, Dean Vicente G. Sinco of the College of Law, University of the Philippines, and Professor Enrique M. Fernando, were allowed to intervene as amici curiae. At the hearing of this case, the parties, as well as the Solicitor General and said amici curiae, appeared and argued extensively. Subsequently, they filed their respective memoranda, and, on September 2, 1955, the case became submitted for decision. The case could not be disposed of, however, before the close of said year, because the members of this Court could not, within the unexpired portion thereof, reach an agreement on the decision thereon. Although the term of office of petitioner herein expired on December 31, 1955, his claim to the Office of Mayor of Carmona, Cavite, has not thereby become entirely moot, as regards such rights as may have accrued to him prior thereto. For this reason, and, also, because the question of law posed in the pleadings, concerns a vital feature of the relations between the national government and the local governments, and the Court has been led to believe that the parties, specially the executive department, are earnestly interested in a clear-cut settlement of said question, for the same will, otherwise, continue to be a constant source of friction, disputes and litigations to the detriment of the smooth operation of the Government and of the welfare of the people, the members of this Court deem it necessary to express their view thereon, after taking ample time to consider and discuss full every conceivable aspect thereof.Issue: WON a municipal mayor, not charged with disloyalty to the Republic of the Philippines, may be removed or suspended directly by the President of the Philippines, regardless of the procedure set forth in sections 2188 to 2191 of the Revised Administrative Code.

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under the present law, the procedure prescribed in sections 2188 to 2191 of the Revised Administrative Code, for the suspension and removal of the municipal officials therein referred to, is mandatory; that, in the absence of a clear and explicit provision to the contrary, relative particularly to municipal corporations — and none has been cited to us — said procedure is exclusive; that the executive department of the national government, in the exercise of its general supervision over local governments, may conduct investigations with a view to determining whether municipal officials are guilty of acts or omissions warranting the administrative action referred to in said sections, as a means only to ascertain whether the provincial governor and the provincial board should take such action; that the Executive may take appropriate measures to compel the provincial governor and the provincial board to take said action, if the same is warranted, and they failed to do so

the provincial governor and the provincial board may not be deprived by the Executive of the power to exercise the authority conferred upon them in sections 2188 to 2190 of the Revised Administrative Code; that such would be the effect of the assumption of those powers by the Executive; that said assumption of powers would further violate section 2191 of the same code, for the authority therein vested in the Executive is merely appellate in character; that, said assumption of powers, in the case at bar, even exceeded those of the Provincial Governor and Provincial Board, in whom original jurisdiction is vested by said sections 2188 to 2190, for, pursuant thereto, "the preventive suspension of a municipal officer shall not be for more than 30 days" at the expiration of which he shall be reinstated, unless the delay in the decision of the case is due to his fault, neglect or request, or unless he shall have meanwhile been convicted, whereas petitioner herein was suspended "until the final determination of the proceedings" against him, regardless of the duration thereof and cause of the delay in its disposition;11 and that so much of the rule laid down in Villena vs. Secretary of the Interior (67 Phil., 451) Villena vs. Roque (93 Phil., 363), as may be inconsistent with the foregoing views, should be deemed, and, are hereby, reversed or modified accordingly.

Ganzon v. Kayanan

Facts: On August 25, 1956, Rosales lodged a verified complaint against Ganzon for taking advantage of his public position. On September 13, 1956, the Executive

Secretary, by authority of the President, designated Kayanan to conduct the investigation of said complaint pursuant to the provisions of Section 64(c) of the RAC granting Kayanan all the powers given to an investigating officer by Sections 71 and 580 of the same Code. On September 18, 1956, respondent served a copy of the complaint on petitioner and set the investigation of the charges on September 20, 1956. Petitioner, having filed a motion for postponement, respondent definitely set the investigation for September 25 and 26, 1956. On September 24, 1956, Ganzon instituted in the CFI an action for prohibition with preliminary injunction questioning the authority of the President to order his investigation and praying that respondent be enjoined to suspend and desist from proceeding with the investigation and that, pending decision of the case on the merits, a preliminary injunction be issued against respondent. On September 26, 1956, the lower court declined to issue the writ and instead set the case for hearing on the merits on September 28, 1956. At the hearing, both parties agreed to admit all the facts set forth in the pleadings and submitted the case for decision. And on October 2, 1956, the lower court rendered decision dismissing the petition. His motion for reconsideration having been denied, petitioner took the present appeal.

Issues: 1. WON the President of the Philippines has the power and authority under our Constitution and the laws at present in force in this jurisdiction to investigate the mayor of a city and, if found guilty, to take disciplinary action against him as the evidence and law may warrant.

Iloilo charter does not contain any provision as regards the procedure by which he may be removed. Nevertheless, as this Court has once said, "the rights, duties, and privileges of municipal officers (including city officials) do not have to be embodied in the charter, but may be regulated by provisions of general application specially if these are incorporated in the same code of which the city organic law forms a part". The code herein referred to is the Revised Administrative Code. The charter does not say that he shall hold office at the pleasure of the President unlike similar provisions appearing in other city charters. The idea is to give the mayor a definite tenure of office not dependent upon the pleasure of the President. If this were the case, he could be separated from the service regardless of the cause or motive. But when he was given a definite tenure, the implication is that he can only be removed for cause. An inferential authority to remove at pleasure can not be deduced, since the existence of a defined term, ipso facto, negatives such an inference, and implies a contrary presumption, i.e. that the incumbent shall hold office to the end of his term subject to removal for cause.'

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64(b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the (United States), the Republic of the Philippines, the (Governor-General) President of the Philippines may at any time remove a person from any position of trust or authority under the Government of the (Philippine Islands) Philippines. (c) To order, when in his opinion the good of the public services requires, an investigation of any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee, or person by whom such investigation shall be conducted.

SEC. 10. (1) The President shall have control of an the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

It may clearly be inferred from the above that the President may remove any official in the government service "conformably to law" and to declare vacant the office held by the removed official. And to this end, the President may order "an investigation of any action or the conduct of any person in the Government service, and in connection therewith to designate the official committee, or person by whom such investigation shall be conducted." Note that the provision refers to any official in the government service, which must necessarily include the mayor of a chartered city. It cannot therefore be disputed that in the particular case under consideration the President is vested with the authority to order the investigation of petitioner when in his opinion the good of the public service so requires, and such being the case, petitioner cannot now contend that the designation of respondent as the official to investigate him in connection with the charges lodged against him by Rosales has been done without the authority of law. This of course is upon the premise that the charges involved in the investigation refer to those for which petitioner may be suspended or removed under the law, a question which we will take up later in this decision.

Mondano v. Silvosa on Supervision v. Control. From distinction, it cannot be reasonably inferred that the power of supervision of the President over local government officials does not include the power of investigation when in his opinion the good of the public service so requires, as postulated in Section 64(c) of the Revised Administrative Code.

Hebron v. Reyes: the procedure prescribed in sections 2188 to 2191 of the Revised Administrative Code, for the suspension and removal of municipal officials therein referred to, is mandatory; that, in the absence of a clear

and explicit provision to the contrary, relative particularly to municipal corporations — and none has been cited to us — said procedure is exclusive; that the executive department of the national government, in the exercise of its general supervision over local government, may conduct investigations with a view to determining whether municipal officials are guilty of acts or omissions warranting the administrative action referred to in said sections, as a means only to ascertain whether the provincial governor and the provincial board should take such action; that the Executive may take appropriate measures to compel the provincial governor and the provincial board to take said action, if the same is warranted, and they failed to do so; that the provincial governor and the provincial board may not be deprived by the Executive of the power to exercise the authority conferred upon them in sections 2188 to 2190 of the Revised Administrative Code; that such would be the effect of the assumption those powers by the Executive; that said assumption of powers would further violate section 2191 of the same Code, for the authority therein vested in the Executive is merely appellate in character; that, said assumption of powers, in the case at bar, even exceeded those of the Provincial Governor and Provincial Board, in whom original jurisdiction is vested by said sections 2188 to 2190, for, pursuant thereto, "the preventive suspension of a municipal officer shall not be for more than thirty (30) days," at the expiration of which he shall be reinstated, unless the delay in the decision of the case is due to his fault, neglect or request, or unless he shall have meanwhile been convicted, whereas petitioner herein was suspended "until the final determination of the proceedings" against him, regardless of the of the duration thereof and the cause of the delay in its disposition and that so much of the rule laid down in Villena vs. Secretary of the Interior and Villena vs. Roque, as may be inconsistent with the foregoing views, should be deemed, and, are hereby reversed or modified accordingly.

2. For what cause or causes may the President order the investigation of petitioner "conformably to law?

Lacson vs. Roque: Considering that the position of mayor of a chartered city may be fairly compared in category and stature with that of a provincial governor, we are of the opinion that the former, by analogy, may also be amenable to removal and suspension for the same causes as the latter, which causes, under Section 2078 of the Revised Administrative Code, are: disloyalty, dishonesty, oppression and misconduct in office. And considering the allegations in the complaint to the effect that petitioner took advantage of his public position as mayor of Iloilo City in committing

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the acts of violence and intimidation upon respondent in order to stop the radio program he was then conducting in his station thus suppressing and curtailing his right to free speech, we are of the opinion that said acts constitute misconduct in office for which he may be ordered investigated by the President within the meaning of the law. There is therefore no plausible reason to disturb the decision rendered by the lower court which we find to be in accordance with law.

Ganzon v. CA (supra, see p. 203)

Taule v. Santos

Facts: On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven (11) members, in their capacities as Presidents of the Association of Barangay Councils in their respective municipalities, convened in Virac, Catanduanes with six members in attendance for the purpose of holding the election of its officers. Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of Election Supervisors/Consultants was composed of Provincial Government Operation Officer (PGOO) Alberto P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor Arnold Soquerata as members. When the group decided to hold the election despite the absence of five (5) of its members, the Provincial Treasurer and the Provincial Election Supervisor walked out. The election nevertheless proceeded. On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent Luis T. Santos, the Secretary of Local Government, protesting the election of the officers of the FABC and seeking its nullification in view of several flagrant irregularities in the manner it was conducted. In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of the FABC, filed his comment on the letter-protest of respondent Governor denying the alleged irregularities and denouncing said respondent Governor for meddling or intervening in the election of FABC officers which is a purely non-partisan affair and at the same time requesting for his appointment as a member of the Sangguniang Panlalawigan of the province being the duly elected President of the FABC in Catanduanes. On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers of the FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as early as possible to be presided by the Regional Director of Region V of the Department of Local Government. Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied by respondent

Secretary in his resolution of September 5, 1989. In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of respondent Secretary dated August 4, 1989 and September 5, 1989 for being null and void.

Issues: 1. WON the Secretary has jurisdiction to entertain an election protest involving the election of the officers of the Federation of Association of Barangay Councils.

It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are bereft of quasi- judicial powers. 19 The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves. Such jurisdiction is essential to give validity to their determinations. There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protect involving officers of the katipunan ng mga barangay. An understanding of the extent of authority of the Secretary over local governments is therefore necessary if We are to resolve the issue at hand.

Presidential power over local governments is limited by the Constitution to the exercise of general supervision "to ensure that local affairs are administered according to law." The general supervision is exercised by the President through the Secretary of Local Government.

In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.

Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or

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regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments.

Indeed, it is the policy of the state to ensure the autonomy of local governments. This state policy is echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote the autonomy of local government units to ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments.

Moreover, although the Department is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances. To monitor means "to watch, observe or check. This is compatible with the power of supervision of the Secretary over local governments which as earlier discussed is limited to checking whether the local government unit concerned or the officers thereof perform their duties as provided by statutory enactments. Even the Local Government Code which grants the Secretary power to issue implementing circulars, rules and regulations is silent as to how these issuances should be enforced. Since the respondent Secretary exercises only supervision and not control over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular. Any doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.

Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent Governor and declaring the election of the officers of the FABC on June 18, 1989 as null and void, the respondent Secretary acted in excess of his jurisdiction. The respondent Secretary not having the jurisdiction to hear an election protest involving officers of the

FABC, the recourse of the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the protest. 33

The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct and being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations 34 cannot be applied retrospectively. Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself.

2. WON the Governor has the legal personality to file an election protest The Court finds that respondent Governor has the personality to file the

protest. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. As presiding officer of the sagguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawigan the official actions of the sanggunian may be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC.

3. Assuming that the respondent Secretary has jurisdiction over the election protest, WON he committed grave abuse of discretion amounting to lack of jurisdiction in nullifying the election

As to the third issue raised by petitioner, the Court has already ruled that the respondent Secretary has no jurisdiction to hear the protest and nullify the elections. Nevertheless, the Court holds that the issue of the validity of the elections should now be resolved in order to prevent any unnecessary delay that may result from the commencement of an appropriate action by the parties.

The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the

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reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive, 37 as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels 38 as well as the regional level.. 39

It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified.

Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election Supervisors/Consultants shall be constituted to oversee and/or witness the canvassing of votes and proclamation of winners. The rules confine the role of the Board of Election Supervisors/Consultants to merely overseeing and witnessing the conduct of elections. This is consistent with the provision in the Local Government Code limiting the authority of the COMELEC to the supervision of the election.

In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct participation by the Chairman of the Board in the elections contrary to what is dictated by the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The objective of keeping the election free and honest was therefore compromised.

The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null and void for failure to comply with the provisions of DLG Circular No. 89-09.

Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto Antonio as temporary representative of the Federation to the sangguniang panlalawigan of Catanduanes. By virtue of this memorandum, respondent governor swore into said office Augusto Antonio on June 14, 1990.

The Solicitor General filed his comment on the supplemental petition 43 as required by the resolution of the Court dated September 13,1990. In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as something immaterial to the petition. He argues that

Antonio's appointment was merely temporary "until such time that the provincial FABC president in that province has been elected, appointed and qualified." 44 He stresses that Antonio's appointment was only a remedial measure designed to cope with the problems brought about by the absence of a representative of the FABC to the "sanggunian ang panlalawigan."

Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides- (2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation who shall be appointed by the President of the Philippines.

Batas Pambansa Blg. 51, under Sec. 2 likewise states: The sangguniang panlalawigan of each province shall be composed of the governor as chairman and presiding officer, the vice-governor as presiding officer pro tempore, the elective sangguniang panlalawigan members, and the appointive members consisting of the president of the provincial association of barangay councils, and the president of the provincial federation of the kabataang barangay.

In Ignacio vs. Banate Jr. 45 the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod, 46 declared as null and void the appointment of private respondent Leoncio Banate Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the elegibility and qualification required by law, not being a barangay captain and for not having been elected president of the association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, 47 the appointment of Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337.

In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the qualifications set by law. 48 The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who

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does not meet the minimum qualification to be the president of the federation of barangay councils.

Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interest of the federation in the sanggunian, he should have appointed the incumbent FABC President in a hold-over capacity. For even under the guidelines, the term of office of officers of the katipunan at all levels shall be from the date of their election until their successors shall have been duly elected and qualified, without prejudice to the terms of their appointments as members of the sanggunian to which they may be correspondingly appointed. Since the election is still under protest such that no successor of the incumbent has as yet qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit as member of the sanggunian. He could even have appointed petitioner since he was elected the president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by respondent Governor in the organization. This should not be allowed. The barangays should be insulated from any partisan activity or political intervention if only to give true meaning to local autonomy.

Carpio v. Executive Secretary

Facts: Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES" was enacted. Carpio assails said RA’s constitutionality. But in an en banc resolution dated December 27, 1990, th SC simply required the public respondents to file their Comment, without however giving due course to the petition and the prayer therein. Hence, the Act took effect after fifteen days following its publication, or on January 1, 1991.Issue: WON RA 6975 emasculated the National Police Commission by limiting its power "to administrative control" over the Philippine National Police (PNP), thus, "control" remained with the Department Secretary under whom both the National Police Commission and the PNP were placed. NO.

the President has control of all executive departments, bureaus, and offices to lay at rest petitioner's contention on the matter. This presidential power of control over the executive branch of government extends over all executive officers from Cabinet Secretary to the lowliest clerk 17 and has been held by us, in the landmark case of Mondano vs. Silvosa, 18 to mean "the power of [the President] to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter." It is said to be at the very "heart of the meaning of Chief Executive." Equally well accepted, as a corollary rule to the control powers of the President, is the "Doctrine of Qualified Political Agency". As the President cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to his Cabinet members.

Under this doctrine, which recognizes the establishment of a single executive, "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive." Thus, and in short, "the President's power of control is directly exercised by him over the members of the Cabinet who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department."

Additionally, the circumstance that the NAPOLCOM and the PNP are placed under the reorganized Department of Interior and Local Government is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under the assailed Act, 24 the funding of the PNP being in large part subsidized by the national government. Such organizational set-up does not detract from the mandate of the Constitution that the national police force shall be administered and controlled by a national police commission as at any rate, and in fact, the Act in question adequately provides for administration and control at the commission level.

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Petitioner further asserts that in manifest derogation of the power of control of the NAPOLCOM over the PNP, RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in the Governors and Mayors, respectively; the power of "operational supervision and control" over police units in city and municipal mayors; in the Civil Service Commission, participation in appointments to the positions of Senior Superintendent to Deputy Director-General as well as the administration of qualifying entrance examinations; disciplinary powers over PNP members in the "People's Law Enforcement Boards" and in city and municipal mayors.

Once more, we find no real controversy upon the foregoing assertions. It is true that when the Constitutional Commissioners of 1986 provided that the authority of local executives over the police units in their jurisdiction shall be provided by law, they intended that the day-to-day functions of police work like crime, investigation, crime prevention activities, traffic control, etc., would be under the operational control of the local executives as it would not be advisable to give full control of the police to the local executives. They reasoned that in the past, this gave rise to warlordism, bossism, and sanctuaries for vices and abuses.

It would appear then that by vesting in the local executives the power to choose the officers in question, the Act went beyond the bounds of the Constitution's intent. Not so. We find light in the principle of constitutional construction that every presumption should be indulged in favor of constitutionality and the court in considering the validity of the statute in question should give it such reasonable construction as can be reached to bring it within the fundamental law.

\We agree, and so hold, with the view of the Solicitor General that "there is no usurpation of the power of control of the NAPOLCOM under Section 51 because under this very same provision, it is clear that the local executives are only acting as representatives of the NAPOLCOM. . . . As such deputies, they are answerable to the NAPOLCOM for their actions in the exercise of their functions under that section. Thus, unless countermanded by the NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." It is significant to note that the local officials, as NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general qualifications for appointment to the PNP) to be recommended by PNP officials. The same holding is true with respect to the contention on the operational supervision and control exercised by the local officials. Those officials would simply be acting as representatives of the Commission.

The grant of disciplinary powers over PNP members to the "People's Law Enforcement Boards" (or the PLEB) and city and municipal mayors is also not in derogation of the commission's power of control over the PNP. Pursuant to the Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB and the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing guidelines and procedures to be adopted by the PLEB for in the conduct of its hearings, and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs. As a disciplinary board primarily created to hear and decide citizen's complaints against erring officers and members of the PNP, the establishment of PLEBs in every city, and municipality would all the more help professionalize the police force.

Sec 12 gives muscle to and enforces the proposition that the national police force does not fall under the Commander-in-Chief powers of the President. This is necessarily so since the police force, not being integrated with the military, is not a part of the Armed Forces of the Philippines. As a civilian agency of the government, it properly comes within, and is subject to, the exercise by the President of the power of executive control.

Consequently, Section 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process during which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under this instance, the President, to repeat, abdicates nothing of his war powers. It would bear to here state, in reiteration of the preponderant view, that the President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commander-in-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature." 31 His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution)

Finally, petitioner submits that the creation of a "Special Oversight Committee" under Section 84 of the Act, especially the inclusion therein of some legislators as members (namely: the respective Chairmen of the Committee on Local Government and the Committee on National Defense and Security in the Senate, and the respective Chairmen of the Committee on Public Order and Security and the Committee on National Defense in the House of Representatives) is an "unconstitutional encroachment upon

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and a diminution of, the President's power of control over all executive departments, bureaus and offices."

But there is not the least interference with the President's power of control under Section 84. The Special Oversight Committee is simply an ad hoc or transitory body, established and tasked solely with planning and overseeing the immediate "transfer, merger and/or absorption" into the Department of the Interior and Local Governments of the "involved agencies." This it will undertake in accordance with the phases of implementation already laid down in Section 85 of the Act and once this is carried out, its functions as well as the committee itself would cease altogether. 32 As an ad hoc body, its creation and the functions it exercises, decidedly do not constitute an encroachment and in diminution of the power of control which properly belongs to the President. What is more, no executive department, bureau or office is placed under the control or authority, of the committee.

Drilon v. Lim (supra, see p. 76)

Bito-Onon v. Fernandez

Facts: Joel Bito-Onon is the duly elected Barangay Chairman of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President for the Municipality of Narra, Palawan. The private respondent, Elegio Quejano, Jr. on the other hand, is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter President for the Municipality of Magsaysay, Palawan. Both Onon and Quejano were candidates for the position of Executive Vice-President in the August 23, 1997 election for the Liga ng Barangay Provincial Chapter of the province of Palawan. Onon was proclaimed the winning candidate in the said election prompting Quejano to file a post proclamation protest with the Board of Election Supervisors (BES), which was decided against him on August 25, 1997. Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision of the BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC). On April 26, 1999, Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction. Onon claimed that the RTC had no jurisdiction to review the decisions rendered by the BES in any post proclamation electoral protest in connection with the 1997 Liga ng mga Barangay election of officers and directors. In his motion to dismiss, Onon claimed that the Supplemental Guidelines for the 1997 Liga ng mga Barangay election issued by the DILG on August 11, 1997 in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the BES by the regular courts of law is an ultra vires act and is void

for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise of control over the Liga's internal organization.On June 22, 1999, the RTC denied Onon's motion to dismiss. In its order, the RTC ratiocinated that the Secretary of the Department of Interior and Local Government2 is vested with the power "to establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and the promotion of local autonomy and monitor compliance thereof by said units."3 The RTC added that DILG Circular No. 97-193 was issued by the DILG Secretary pursuant to his rule-making power as provided for under Section 7, Chapter II, Book IV of the Administrative Code.4 Consequently, the RTC ruled that it had jurisdiction over the petition for review filed by Quejada. Motion for reconsideration of the aforesaid Order was denied prompting the petitioner to file the present petition.

Issue: WON the questioned provision in the MC was issued by the DILG secretary in excess of his authority.

The resolution of the present controversy requires an examination of the questioned provision of Memorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors (Guidelines). The memorandum circular reads, insofar as pertinent, as follows: "Any post-proclamation protest must be filed with the BES within twenty-four (24) hours from the closing of the election. The BES shall decide the same within forty-eight (48) hours from receipt thereof. The decision of the BES shall be final and immediately executory without prejudice to the filing of a Petition for Review with the regular courts of law."

On the other hand, the GUIDELINES provides that the BES shall have the following among its duties: "To resolve any post-proclamation electoral protest which must be submitted in writing to this Board within twenty-four (24) hours from the close of election; provided said Board shall render its decision within forty-eight (48) hours from receipt hereof; and provided further that the decision must be submitted to the National Liga Headquarters within twenty-four (24) hours from the said decision. The decision of the Board of Election Supervisors in this respect shall be subject to review by the National Liga Board the decision of which shall be final and executory."

Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power of general supervision of the President over all local government units which was delegated to the DILG Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.13 The President's

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power of general supervision over local government units is conferred upon him by the Constitution.14 The power of supervision is defined as "the power of a superior officer to see to it that lower officers perform their functions in accordance with law."15 This is distinguished from the power of control or "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter."

On many occasions in the past, this court has had the opportunity to distinguish the power of supervision from the power of control. In Taule vs. Santos,17 we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.18 Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act. Does the President's power of general supervision extend to the liga ng mga barangay, which is not a local government unit?

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code21 defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.22 The liga shall have chapters at the municipal, city, provincial and metropolitan political subdivision levels. The municipal and city chapters of the liga shall be composed of the barangay representatives of the municipal and city barangays respectively. The duly elected presidents of the component municipal and city chapters shall constitute

the provincial chapter or the metropolitan political subdivision chapter. The duly elected presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.

The liga at the municipal, city, provincial, metropolitan political subdivision, and national levels directly elect a president, a vice-president and five (5) members of the board of directors. The board shall appoint its secretary and treasurer and create such other positions as it may deem necessary for the management of the chapter. The ligas are primarily governed by the provisions of the Local Government Code.25 However, their respective constitution and by-laws shall govern all other matters affecting the internal organization of the liga not otherwise provided for in the Local Government Code provided that the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws.

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for Review of the decision of the BES with the regular courts in a post proclamation electoral protest is of doubtful constitutionality. We agree with both the petitioner and the Solicitor General that in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga Board. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances.27 To monitor means "to watch, observe or check" and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments. Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.

National Liga ng mga Barangay v. Paredes

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Facts: On 11 June 1997, Rayos, Punong Barangay of Barangay 52, District II, Zone 5, District II, Caloocan City, filed a petition for prohibition and mandamus, with prayer for a writ of preliminary injunction and/or temporary restraining order and damages before the RTC of Caloocan, alleging that David, Punong Barangay of Barangay 77, Zone 7, Caloocan City and then president of the Liga Chapter of Caloocan City and of the Liga ng mga Barangay National Chapter, committed certain irregularities in the notice, venue and conduct of the proposed synchronized Liga ng mga Barangay elections in 1997. On 13 June 1997, the Executive Judge issued a temporary restraining order (TRO), effective for seventy-two (72) hours, enjoining the holding of the general membership and election meeting of Liga Chapter of Caloocan City on 14 June 1975. However, the TRO was allegedly not properly served on herein petitioner David, and so the election for the officers of the Liga-Caloocan was held as scheduled. Petitioner David was proclaimed President of the Liga-Caloocan, and thereafter took his oath and assumed the position of ex-officio member of the Sangguniang Panlungsod of Caloocan. On 17 July 1997, respondent Rayos filed a second petition, this time for quo warranto, mandamus and prohibition, with prayer for a writ of preliminary injunction and/or temporary restraining order and damages, against David, Nancy Quimpo, Presiding Officer of the Sangguniang Panlungsod of Caloocan City, and Secretary Barbers.7 Rayos alleged that he was elected President of the Liga Caloocan Chapter in the elections held on 14 June 1997 by the members of the Caloocan Chapter pursuant to their Resolution/Petition No. 001-97.8 On 18 July 1997, the presiding judge granted the TRO, enjoining therein respondents David, Quimpo and Secretary Barbers from proceeding with the synchronized elections for the Provincial and Metropolitan Chapters of the Liga scheduled on 19 July 1997, but only for the purpose of maintaining the status quo and effective for a period not exceeding seventy-two (72) hours. Eventually, on 18 July 1997, at petitioner David’s instance, Special Civil Action (SCA) No. C-512 pending before Branch 126 was consolidated with SCA No. C-508 pending before Branch 124. Before the consolidation of the cases, on 25 July 1997, the DILG through respondent Secretary Barbers, filed in SCA No. C-512 an Urgent Motion, invoking the President’s power of general supervision over all local government units and seeking that the DILG pursuant to its delegated power of general supervision, be appointed as the Interim Caretaker to manage and administer the affairs of the Liga, until such time that the new set of National Liga Officers shall have been duly elected and assumed office.

Issue: WON the Liga ng mga Barangay is subject to DILG supervision.

Bito-Onon v. Fernandez: Court ruled that the President’s power of the general supervision, as exercised therein by the DILG Secretary as his alter ego, extends to the Liga ng mga Barangay.

Does the President’s power of general supervision extend to the liga ng mga barangay, which is not a local government unit? We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.

The rationale for making the Liga subject to DILG supervision is quite evident, whether from the perspectives of logic or of practicality. The Liga is an aggroupment of barangays which are in turn represented therein by their respective punong barangays. The representatives of the Liga sit in an ex officio capacity at the municipal, city and provincial sanggunians. As such, they enjoy all the powers and discharge all the functions of regular municipal councilors, city councilors or provincial board members, as the case may be. Thus, the Liga is the vehicle through which the barangay participates in the enactment of ordinances and formulation of policies at all the legislative local levels higher than the sangguniang barangay, at the same time serving as the mechanism for the bottom-to-top approach of development.

In the case at bar, even before the respondent Judge designated the DILG as interim caretaker of the Liga, on 28 July 1997, it issued Memorandum Circular No. 97-176, directing local government officials not to recognize David as the National Liga President and his pronouncements relating to the affairs of the Liga. Not only was the action premature, it even smacked of superciliousness and injudiciousness. The DILG is the topmost government agency which maintains coordination with, and exercises supervision over local government units and its multi-level leagues. As such, it should be forthright, circumspect and supportive in its dealings with the Ligas especially the Liga ng mga Barangay. The indispensable role played by the latter in the development of the barangays and the promotion of the welfare of the inhabitants thereof deserve no less than the full support and respect of the other agencies of government. As the

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Court held in the case of San Juan v. Civil Service Commission,92 our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based.

When the respondent judge eventually appointed the DILG as interim caretaker to manage and administer the affairs of the Liga, she effectively removed the management from the National Liga Board and vested control of the Liga on the DILG. Even a cursory glance at the DILG’s prayer for appointment as interim caretaker of the Liga "to manage and administer the affairs of the Liga, until such time that the new set of National Liga officers shall have been duly elected and assumed office" reveals that what the DILG wanted was to take control over the Liga. Even if said "caretakership" was contemplated to last for a limited time, or only until a new set of officers assume office, the fact remains that it was a conferment of control in derogation of the Constitution.

With his Department already appointed as interim caretaker of the Liga, Secretary Barbers nullified the results of the Liga elections and promulgated DILG Memorandum Circular No. 97-193 dated 11 August 1997, where he laid down the supplemental guidelines for the 1997 synchronized elections of the provincial and metropolitan chapters and for the election of the national chapter of the Liga ng mga Barangay; scheduled dates for the new provincial, metropolitan and national chapter elections; and appointed respondent Rayos as president of Liga-Caloocan Chapter.

These acts of the DILG went beyond the sphere of general supervision and constituted direct interference with the political affairs, not only of the Liga, but more importantly, of the barangay as an institution. The election of Liga officers is part of the Liga’s internal organization, for which the latter has already provided guidelines. In succession, the DILG assumed stewardship and jurisdiction over the Liga affairs, issued supplemental guidelines for the election, and nullified the effects of the Liga-conducted elections. Clearly, what the DILG wielded was the power of control which even the President does not have.

Furthermore, the DILG assumed control when it appointed respondent Rayos as president of the Liga-Caloocan Chapter prior to the newly scheduled general Liga elections, although petitioner David’s term had not yet expired. The DILG substituted its choice, who was Rayos, over the choice of majority of the punong barangay of Caloocan, who was the incumbent President, petitioner David. The latter was elected and had in fact been sitting as an ex-officio member of the sangguniang panlungsod in

accordance with the Liga Constitution and By-Laws. Yet, the DILG extended the appointment to respondent Rayos although it was aware that the position was the subject of a quo warranto proceeding instituted by Rayos himself, thereby preempting the outcome of that case. It was bad enough that the DILG assumed the power of control, it was worse when it made use of the power with evident bias and partiality.

As the entity exercising supervision over the Liga ng mga Barangay, the DILG’s authority over the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules itself, nor does it have the discretion to modify or replace them. In this particular case, the most that the DILG could do was review the acts of the incumbent officers of the Liga in the conduct of the elections to determine if they committed any violation of the Liga’s Constitution and By-laws and its implementing rules. If the National Liga Board and its officers had violated Liga rules, the DILG should have ordered the Liga to conduct another election in accordance with the Liga’s own rules, but not in obeisance to DILG-dictated guidelines. Neither had the DILG the authority to remove the incumbent officers of the Liga and replace them, even temporarily, with unelected Liga officers.

Like the local government units, the Liga ng mga Barangay is not subject to control by the Chief Executive or his alter ego. In the Bito-Onon94 case, this Court held that DILG Memorandum Circular No. 97-193, insofar as it authorized the filing of a petition for review of the decision of the Board of Election Supervisors (BES) with the regular courts in a post-proclamation electoral protest, involved the exercise of control as it in effect amended the guidelines already promulgated by the Liga. Officers in control, lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform for to the prescribed rules. He cannot prescribe his own manner the doing of the act. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance by local government units of such issuances. To monitor means to "watch, observe or check" and is compatible with the power of supervision of the DILG Secretary over

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local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments. Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.

In Taule,96 the Court ruled that the Secretary of Local Government had no authority to pass upon the validity or regularity of the election of officers of katipunan ng mga barangay or barangay councils. In that case, a protest was lodged before the Secretary of Local Government regarding several irregularities in, and seeking the nullification of, the election of officers of the Federation of Associations of Barangay Councils (FABC) of Catanduanes. Then Local Government Secretary Luis Santos issued a resolution nullifying the election of officers and ordered a new one to be conducted. The Court ruled: Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. All given, the Court is convinced that the assailed order was issued with grave abuse of discretion while the acts of the respondent Secretary, including DILG Memorandum Circulars No. 97-176 and No. 97-193, are unconstitutional and ultra vires, as they all entailed the conferment or exercise of control — a power which is denied by the Constitution even to the President.

Batangas v. Romulo

Facts: The Province of Batangas, represented by Governor Mandanas, filed the present petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, as amended, to declare as unconstitutional and void certain provisos contained in the General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly earmarked for each corresponding year the amount of five billion

pesos (P5,000,000,000.00) of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release thereof.

Issue: WON the provisos in the GAAS of 1999-2001 relating to the LGSEF, as well as the Oversight Committee’s Resolutions issued pursuant thereto are unconstitutional and void

Article II of the Constitution, the State has expressly adopted as a policy that: Section 25. The State shall ensure the autonomy of local governments.

Consistent with the principle of local autonomy, the Constitution confines the President’s power over the LGUs to one of general supervision. This provision has been interpreted to exclude the power of control. The distinction between the two powers was enunciated in Drilon v. Lim: An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for doing the act. He has no judgment on this matter except to see to it that the rules are followed.

The Local Government Code of 1991 was enacted to flesh out the mandate of the Constitution. The State policy on local autonomy is amplified in Section 2 thereof: Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units.

The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions violate the constitutional precept on local autonomy

Article X of the Constitution reads: Sec. 6. Local government units shall have a just share, as determined by law, in the national taxes which shall

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be automatically released to them. When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall have a “just share” in the national taxes; (2) the “just share” shall be determined by law; and (3) the “just share” shall be automatically released to the LGUs.

The Local Government Code of 1991, among its salient provisions, underscores the automatic release of the LGUs’ “just share” in this wise: Sec. 18. Power to Generate and Apply Resources. Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenue and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them; to have a just share in national taxes which shall be automatically and directly released to them without need of further action; Sec. 286. Automatic Release of Shares. (a) The share of each local government unit shall be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer, as the case may be, on a quarterly basis within five (5) days after the end of each quarter, and which shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. (b) Nothing in this Chapter shall be understood to diminish the share of local government units under existing laws.

Automatic: involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton. As such, the LGUs are not required to perform any act to receive the “just share” accruing to them from the national coffers. As emphasized by the Local Government Code of 1991, the “just share” of the LGUs shall be released to them “without need of further action.” Construing Section 286 of the LGC, we held in Pimentel, Jr. v. Aguirre: Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the National internal revenue. This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and “shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.” As a rule, the term “SHALL” is a word of command that must be given a compulsory meaning. The provision is, therefore, IMPERATIVE.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs’ IRA “pending the assessment and

evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation” in the country. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means “something held back or withheld, often temporarily.” Hence, the “temporary” nature of the retention by the national government does not matter. Any retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments. Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs’ IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.

The “just share” of the LGUs is incorporated as the IRA in the appropriations law or GAA enacted by Congress annually. Under the assailed provisos in the GAAs of 1999, 2000 and 2001, a portion of the IRA in the amount of five billion pesos was earmarked for the LGSEF, and these provisos imposed the condition that “such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government units subject to the guidelines that may be prescribed by the Oversight Committee on Devolution.” Pursuant thereto, the Oversight Committee, through the assailed OCD resolutions, apportioned the five billion pesos LGSEF. Significantly, the LGSEF could not be released to the LGUs without the Oversight Committee’s prior approval. Further, with respect to the portion of the LGSEF allocated for various projects of the LGUs (P1 billion for 1999; P1.5 billion for 2000 and P2 billion for 2001), the Oversight Committee, through the assailed OCD resolutions, laid down guidelines and mechanisms that the LGUs had to comply with before they could avail of funds from this portion of the LGSEF. The guidelines required (a) the LGUs to identify the projects eligible for funding based on the criteria laid down by the Oversight Committee; (b) the LGUs to submit their project proposals to the DILG for appraisal; (c) the project proposals that passed the appraisal of the DILG to be submitted to the Oversight Committee for review, evaluation and approval. It was only upon approval thereof that the Oversight Committee would direct the DBM to release the funds for the projects.

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To the Court’s mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or “just share” of the LGUs in the national taxes. To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and statutory mandate that the “just share” of the LGUs “shall be automatically released to them.” The LGUs are, thus, placed at the mercy of the Oversight Committee.

Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed. Moreover, as correctly posited by the petitioner, the use of the word “shall” connotes a mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of discretion.

Indeed, the Oversight Committee exercising discretion, even control, over the distribution and release of a portion of the IRA, the LGSEF, is an anathema to and subversive of the principle of local autonomy as embodied in the Constitution. Moreover, it finds no statutory basis at all as the Oversight Committee was created merely to formulate the rules and regulations for the efficient and effective implementation of the Local Government Code of 1991 to ensure “compliance with the principles of local autonomy as defined under the Constitution.”[29] In fact, its creation was placed under the title of “Transitory Provisions,” signifying its ad hoc character. According to Senator Aquilino Q. Pimentel, the principal author and sponsor of the bill that eventually became Rep. Act No. 7160, the Committee’s work was supposed to be done a year from the approval of the Code, or on October 10, 1992.[30] The Oversight Committee’s authority is undoubtedly limited to the implementation of the Local Government Code of 1991, not to supplant or subvert the same. Neither can it exercise control over the IRA, or even a portion thereof, of the LGUs.

That the automatic release of the IRA was precisely intended to guarantee and promote local autonomy can be gleaned from the discussion between Messrs. Jose N. Nolledo and Regalado M. Maambong, then members of the 1986 Constitutional Commission.

The concept of local autonomy was explained in Ganzon v. Court of Appeals in this wise: As the Constitution itself declares, local autonomy ‘means a more responsive and accountable local government structure

instituted through a system of decentralization.’ The Constitution, as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to “liberate the local governments from the imperialism of Manila.” Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government.

As we observed in one case, decentralization means devolution of national administration – but not power – to the local levels. Thus: Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments ‘more responsive and accountable’ and ‘ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.’ At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises ‘general supervision’ over them, but only to ‘ensure that local affairs are administered according to law.’ He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the [sic] favor of local governments [sic] units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to ‘self-immolation,’ since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.

Local autonomy includes both administrative and fiscal autonomy. The fairly recent case of Pimentel v. Aguirre[35] is particularly instructive. The Court declared therein that local fiscal autonomy includes the power of the LGUs to, inter alia, allocate their resources in accordance with their own priorities: Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions, enjoy fiscal

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autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not.

Further, a basic feature of local fiscal autonomy is the constitutionally mandated automatic release of the shares of LGUs in the national internal revenue. Following this ratiocination, the Court in Pimentel struck down as unconstitutional Section 4 of Administrative Order (A.O.) No. 372 which ordered the withholding, effective January 1, 1998, of ten percent of the LGUs’ IRA “pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation.”

In like manner, the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions constitute a “withholding” of a portion of the IRA. They put on hold the distribution and release of the five billion pesos LGSEF and subject the same to the implementing rules and regulations, including the guidelines and mechanisms prescribed by the Oversight Committee from time to time. Like Section 4 of A.O. 372, the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions effectively encroach on the fiscal autonomy enjoyed by the LGUs and must be struck down. They cannot, therefore, be upheld.

The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions cannot amend Section 285 of the Local Government Code of 1991 Section 284 of the Local Government Code provides that, beginning the third year of its effectivity, the LGUs’ share in the national internal revenue taxes shall be 40%. This percentage is fixed and may not be reduced except “in the event the national government incurs an unmanageable public sector deficit" and only upon compliance with stringent requirements set forth in the same section: Sec. 284. Provided, That in the event that the national government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon recommendation of Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty

percent (30%) of the collection of the national internal revenue taxes of the third fiscal year preceding the current fiscal year; Provided, further That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personnel services.

Thus, from the above provision, the only possible exception to the mandatory automatic release of the LGUs’ IRA is if the national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fiscal year. The adjustment may even be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fiscal year. In the instant case, however, there is no allegation that the national internal revenue tax collections for the fiscal years 1999, 2000 and 2001 have fallen compared to the preceding three fiscal years.

Section 285 then specifies how the IRA shall be allocated among the LGUs. However, this percentage sharing is not followed with respect to the five billion pesos LGSEF as the assailed OCD resolutions, implementing the assailed provisos in the GAAs of 1999, 2000 and 2001, provided for a different sharing scheme. For example, for 1999, P2 billion of the LGSEF was allocated as follows: Provinces – 40%; Cities – 20%; Municipalities – 40%.[39] For 2000, P3.5 billion of the LGSEF was allocated in this manner: Provinces – 26%; Cities – 23%; Municipalities – 35%; Barangays – 26%.[40] For 2001, P3 billion of the LGSEF was allocated, thus: Provinces – 25%; Cities – 25%; Municipalities – 35%; Barangays – 15%.[41]

The respondents argue that this modification is allowed since the Constitution does not specify that the “just share” of the LGUs shall only be determined by the Local Government Code of 1991. That it is within the power of Congress to enact other laws, including the GAAs, to increase or decrease the “just share” of the LGUs. This contention is untenable. The Local Government Code of 1991 is a substantive law. And while it is conceded that Congress may amend any of the provisions therein, it may not do so through appropriations laws or GAAs. Any amendment to the Local Government Code of 1991 should be done in a separate law, not in the appropriations law, because Congress cannot include in a general appropriation bill matters that should be more properly enacted in a separate legislation. A general appropriations bill is a special type of

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legislation, whose content is limited to specified sums of money dedicated to a specific purpose or a separate fiscal unit.[43] Any provision therein which is intended to amend another law is considered an “inappropriate provision.” The category of “inappropriate provisions” includes unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kinds of laws have no place in an appropriations bill.

Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein, which are fixed in the Local Government Code of 1991, are matters of general and substantive law. To permit Congress to undertake these amendments through the GAAs, as the respondents contend, would be to give Congress the unbridled authority to unduly infringe the fiscal autonomy of the LGUs, and thus put the same in jeopardy every year. This, the Court cannot sanction.

It is relevant to point out at this juncture that, unlike those of 1999, 2000 and 2001, the GAAs of 2002 and 2003 do not contain provisos similar to the herein assailed provisos. In other words, the GAAs of 2002 and 2003 have not earmarked any amount of the IRA for the LGSEF. Congress had perhaps seen fit to discontinue the practice as it recognizes its infirmity. Nonetheless, as earlier mentioned, this Court has deemed it necessary to make a definitive ruling on the matter in order to prevent its recurrence in future appropriations laws and that the principles enunciated herein would serve to guide the bench, bar and public.

Feliciano v. COA

Facts: A Special Audit Team from COA Regional Office No. VIII audited the accounts of LMWD. Subsequently, LMWD received a letter from COA dated 19 July 1999 requesting payment of auditing fees. As General Manager of LMWD, petitioner sent a reply dated 12 October 1999 informing COA’s Regional Director that the water district could not pay the auditing fees. Petitioner cited as basis for his action Sections 6 and 20 of Presidential Decree 198 (“PD 198”)[2], as well as Section 18 of Republic Act No. 6758 (“RA 6758”). The Regional Director referred petitioner’s reply to the COA Chairman on 18 October 1999. On 19 October 1999, petitioner wrote COA through the Regional Director asking for refund of all auditing fees LMWD previously paid to COA. On 16 March 2000, petitioner received COA Chairman Celso D. Gangan’s Resolution dated 3 January 2000 denying his requests. Petitioner filed a motion for reconsideration on 31 March 2000, which COA denied on 30 January 2001. On 13 March 2001, petitioner filed this instant petition. Attached to the petition were resolutions of the Visayas Association of Water

Districts (VAWD) and the Philippine Association of Water Districts (PAWD) supporting the petition.

Issue: 1. WON COA has the authority to audit LMWD. The Constitution and existing laws[4] mandate COA to audit all

government agencies, including government-owned and controlled corporations (“GOCCs”) with original charters. An LWD is a GOCC with an original charter. Section 2(1), Article IX-D of the Constitution provides for COA’s audit jurisdiction, as follows: SECTION 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

The COA’s audit jurisdiction extends not only to government “agencies or instrumentalities,” but also to “government-owned and controlled corporations with original charters” as well as “other government-owned or controlled corporations” without original charters.

2. WON LWDs are GOCCs with original charters. LWDs are not private corporations because they are not created under the

Corporation Code. LWDs are not registered with the Securities and Exchange Commission. Section 14 of the Corporation Code states that “[A]ll corporations organized under this code shall file with the Securities and Exchange Commission articles of incorporation x x x.” LWDs have no articles of incorporation, no incorporators and no stockholders or members. There are no stockholders or members to elect the board

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directors of LWDs as in the case of all corporations registered with the Securities and Exchange Commission. The local mayor or the provincial governor appoints the directors of LWDs for a fixed term of office. This Court has ruled that LWDs are not created under the Corporation Code, thus: From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the CSC are those corporations created pursuant to the Corporation Code. Significantly, petitioners are not created under the said code, but on the contrary, they were created pursuant to a special law and are governed primarily by its provision.

LWDs exist by virtue of PD 198, which constitutes their special charter. Since under the Constitution only government-owned or controlled corporations may have special charters, LWDs can validly exist only if they are government-owned or controlled. To claim that LWDs are private corporations with a special charter is to admit that their existence is constitutionally infirm. Unlike private corporations, which derive their legal existence and power from the Corporation Code, LWDs derive their legal existence and power from PD 198 which expressly confers on LWDs corporate powers. Section 6 of PD 198 provides that LWDs “shall exercise the powers, rights and privileges given to private corporations under existing laws.” Without PD 198, LWDs would have no corporate powers. Thus, PD 198 constitutes the special enabling charter of LWDs. The ineluctable conclusion is that LWDs are government-owned and controlled corporations with a special charter.

The phrase “government-owned and controlled corporations with original charters” means GOCCs created under special laws and not under the general incorporation law. There is no difference between the term “original charters” and “special charters.”

Petitioner’s contention that the Sangguniang Bayan resolution creates the LWDs assumes that the Sangguniang Bayan has the power to create corporations. This is a patently baseless assumption. The Local Government Code[17] does not vest in the Sangguniang Bayan the power to create corporations.[18] What the Local Government Code empowers the Sangguniang Bayan to do is to provide for the establishment of a waterworks system “subject to existing laws.” Thus, Section 447(5)(vii) of the Local Government Code provides: SECTION 447. Powers, Duties, Functions and Compensation. — (a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as

provided for under Section 22 of this Code, and shall: (vii) Subject to existing laws, provide for the establishment, operation, maintenance, and repair of an efficient waterworks system to supply water for the inhabitants; regulate the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protect the purity and quantity of the water supply of the municipality and, for this purpose, extend the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulate the consumption, use or wastage of water;

The Sangguniang Bayan may establish a waterworks system only in accordance with the provisions of PD 198. The Sangguniang Bayan has no power to create a corporate entity that will operate its waterworks system. However, the Sangguniang Bayan may avail of existing enabling laws, like PD 198, to form and incorporate a water district. Besides, even assuming for the sake of argument that the Sangguniang Bayan has the power to create corporations, the LWDs would remain government-owned or controlled corporations subject to COA’s audit jurisdiction. The resolution of the Sangguniang Bayan would constitute an LWD’s special charter, making the LWD a government-owned and controlled corporation with an original charter. In any event, the Court has already ruled in Baguio Water District v. Trajano[19] that the Sangguniang Bayan resolution is not the special charter of LWDs, thus: While it is true that a resolution of a local sanggunian is still necessary for the final creation of a district, this Court is of the opinion that said resolution cannot be considered as its charter, the same being intended only to implement the provisions of said decree.

Petitioner further contends that a law must create directly and explicitly a GOCC in order that it may have an original charter. In short, petitioner argues that one special law cannot serve as enabling law for several GOCCs but only for one GOCC. Section 16, Article XII of the Constitution mandates that “Congress shall not, except by general law,”[20] provide for the creation of private corporations. Thus, the Constitution prohibits one special law to create one private corporation, requiring instead a “general law” to create private corporations. In contrast, the same Section 16 states that “Government-owned or controlled corporations may be created or established by special charters.” Thus, the Constitution permits Congress to create a GOCC with a special charter. There is, however, no prohibition on Congress to create several GOCCs of the same class under one special enabling charter.

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The rationale behind the prohibition on private corporations having special charters does not apply to GOCCs. There is no danger of creating special privileges to certain individuals, families or groups if there is one special law creating each GOCC. Certainly, such danger will not exist whether one special law creates one GOCC, or one special enabling law creates several GOCCs. Thus, Congress may create GOCCs either by special charters specific to each GOCC, or by one special enabling charter applicable to a class of GOCCs, like PD 198 which applies only to LWDs.

Petitioner also contends that LWDs are private corporations because Section 6 of PD 198[21] declares that LWDs “shall be considered quasi-public” in nature. Petitioner’s rationale is that only private corporations may be deemed “quasi-public” and not public corporations. Put differently, petitioner rationalizes that a public corporation cannot be deemed “quasi-public” because such corporation is already public. Petitioner concludes that the term “quasi-public” can only apply to private corporations. Petitioner’s argument is inconsequential.

Petitioner forgets that the constitutional criterion on the exercise of COA’s audit jurisdiction depends on the government’s ownership or control of a corporation. The nature of the corporation, whether it is private, quasi-public, or public is immaterial.

The Constitution vests in the COA audit jurisdiction over “government-owned and controlled corporations with original charters,” as well as “government-owned or controlled corporations” without original charters. GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters are subject to COA post-audit. GOCCs without original charters refer to corporations created under the Corporation Code but are owned or controlled by the government. The nature or purpose of the corporation is not material in determining COA’s audit jurisdiction. Neither is the manner of creation of a corporation, whether under a general or special law.

The determining factor of COA’s audit jurisdiction is government ownership or control of the corporation. In Philippine Veterans Bank Employees Union-NUBE v. Philippine Veterans Bank,[22] the Court even ruled that the criterion of ownership and control is more important than the issue of original charter, thus:

This point is important because the Constitution provides in its Article IX-B, Section 2(1) that “the Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.” As the Bank is not owned or controlled by the Government although it does have an

original charter in the form of R.A. No. 3518,[23] it clearly does not fall under the Civil Service and should be regarded as an ordinary commercial corporation. Section 28 of the said law so provides. The consequence is that the relations of the Bank with its employees should be governed by the labor laws, under which in fact they have already been paid some of their claims.

Certainly, the government owns and controls LWDs. The government organizes LWDs in accordance with a specific law, PD 198. There is no private party involved as co-owner in the creation of an LWD. Just prior to the creation of LWDs, the national or local government owns and controls all their assets. The government controls LWDs because under PD 198 the municipal or city mayor, or the provincial governor, appoints all the board directors of an LWD for a fixed term of six years.[24] The board directors of LWDs are not co-owners of the LWDs. LWDs have no private stockholders or members. The board directors and other personnel of LWDs are government employees subject to civil service laws[25] and anti-graft laws.

While Section 8 of PD 198 states that “[N]o public official shall serve as director” of an LWD, it only means that the appointees to the board of directors of LWDs shall come from the private sector. Once such private sector representatives assume office as directors, they become public officials governed by the civil service law and anti-graft laws. Otherwise, Section 8 of PD 198 would contravene Section 2(1), Article IX-B of the Constitution declaring that the civil service includes “government-owned or controlled corporations with original charters.”

If LWDs are neither GOCCs with original charters nor GOCCs without original charters, then they would fall under the term “agencies or instrumentalities” of the government and thus still subject to COA’s audit jurisdiction. However, the stark and undeniable fact is that the government owns LWDs. Section 45[27] of PD 198 recognizes government ownership of LWDs when Section 45 states that the board of directors may dissolve an LWD only on the condition that “another public entity has acquired the assets of the district and has assumed all obligations and liabilities attached thereto.” The implication is clear that an LWD is a public and not a private entity.

Petitioner does not allege that some entity other than the government owns or controls LWDs. Instead, petitioner advances the theory that the “Water District’s owner is the District itself.”[28] Assuming for the sake of argument that an LWD is “self-owned,”[29] as petitioner describes an LWD, the government in any event controls all LWDs. First, government officials appoint all LWD directors to a fixed term of office. Second, any per

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diem of LWD directors in excess of P50 is subject to the approval of the Local Water Utilities Administration, and directors can receive no other compensation for their services to the LWD.[30] Third, the Local Water Utilities Administration can require LWDs to merge or consolidate their facilities or operations.[31] This element of government control subjects LWDs to COA’s audit jurisdiction.

Petitioner argues that upon the enactment of PD 198, LWDs became private entities through the transfer of ownership of water facilities from local government units to their respective water districts as mandated by PD 198. Petitioner is grasping at straws. Privatization involves the transfer of government assets to a private entity. Petitioner concedes that the owner of the assets transferred under Section 6 (c) of PD 198 is no other than the LWD itself.[32] The transfer of assets mandated by PD 198 is a transfer of the water systems facilities “managed, operated by or under the control of such city, municipality or province to such (water) district.”[33] In short, the transfer is from one government entity to another government entity. PD 198 is bereft of any indication that the transfer is to privatize the operation and control of water systems.

Finally, petitioner claims that even on the assumption that the government owns and controls LWDs, Section 20 of PD 198 prevents COA from auditing LWDs. [34] Section 20 of PD 198 provides: Sec. 20. System of Business Administration. — The Board shall, as soon as practicable, prescribe and define by resolution a system of business administration and accounting for the district, which shall be patterned upon and conform to the standards established by the Administration. Auditing shall be performed by a certified public accountant not in the government service. The Administration may, however, conduct annual audits of the fiscal operations of the district to be performed by an auditor retained by the Administration. Expenses incurred in connection therewith shall be borne equally by the water district concerned and the Administration.

Petitioner argues that PD 198 expressly prohibits COA auditors, or any government auditor for that matter, from auditing LWDs. Petitioner asserts that this is the import of the second sentence of Section 20 of PD 198 when it states that “[A]uditing shall be performed by a certified public accountant not in the government service.”

PD 198 cannot prevail over the Constitution. No amount of clever legislation can exclude GOCCs like LWDs from COA’s audit jurisdiction. Section 3, Article IX-C of the Constitution outlaws any scheme or devise to escape COA’s audit jurisdiction, thus: Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise

whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

The framers of the Constitution added Section 3, Article IX-D of the Constitution precisely to annul provisions of Presidential Decrees, like that of Section 20 of PD 198, that exempt GOCCs from COA audit.

There is an irreconcilable conflict between the second sentence of Section 20 of PD 198 prohibiting COA auditors from auditing LWDs and Sections 2(1) and 3, Article IX-D of the Constitution vesting in COA the power to audit all GOCCs. We rule that the second sentence of Section 20 of PD 198 is unconstitutional since it violates Sections 2(1) and 3, Article IX-D of the Constitution.

3. WON the COA may properly charge auditing fees. Section 18 of RA 6758 prohibits COA personnel from receiving any kind of

compensation from any government entity except “compensation paid directly by COA out of its appropriations and contributions.” Thus, RA 6758 itself recognizes an exception to the statutory ban on COA personnel receiving compensation from GOCCs. In Tejada v. Domingo,[40] the Court declared: There can be no question that Section 18 of Republic Act No. 6758 is designed to strengthen further the policy x x x to preserve the independence and integrity of the COA, by explicitly PROHIBITING: (1) COA officials and employees from receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local government unit, GOCCs and government financial institutions, except such compensation paid directly by the COA out of its appropriations and contributions, and (2) government entities, including GOCCs, government financial institutions and local government units from assessing or billing other government entities, GOCCs, government financial institutions or local government units for services rendered by the latter’s officials and employees as part of their regular functions for purposes of paying additional compensation to said officials and employees. The first aspect of the strategy is directed to the COA itself, while the second aspect is addressed directly against the GOCCs and government financial institutions. Under the first, COA personnel assigned to auditing units of GOCCs or government financial institutions can receive only such salaries, allowances or fringe benefits paid directly by the COA out of its appropriations and contributions. The contributions referred to are the cost of audit services earlier mentioned which cannot include the extra emoluments or benefits now claimed by petitioners. The COA is further barred from assessing or billing GOCCs and government financial institutions for services rendered by its personnel as part of their regular

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audit functions for purposes of paying additional compensation to such personnel

In Tejada, the Court explained the meaning of the word “contributions” in Section 18 of RA 6758, which allows COA to charge GOCCs the cost of its audit services: the contributions from the GOCCs are limited to the cost of audit services which are based on the actual cost of the audit function in the corporation concerned plus a reasonable rate to cover overhead expenses. The actual audit cost shall include personnel services, maintenance and other operating expenses, depreciation on capital and equipment and out-of-pocket expenses. In respect to the allowances and fringe benefits granted by the GOCCs to the COA personnel assigned to the former’s auditing units, the same shall be directly defrayed by COA from its own appropriations.

COA may charge GOCCs “actual audit cost” but GOCCs must pay the same directly to COA and not to COA auditors. Petitioner has not alleged that COA charges LWDs auditing fees in excess of COA’s “actual audit cost.” Neither has petitioner alleged that the auditing fees are paid by LWDs directly to individual COA auditors. Thus, petitioner’s contention must fail.

San Diego v. Municipality of Naujan, Oriental Mindoro

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Facts: The municipality of Naujan issued Resolution 46 awarding the concession of the Butas River and the Naujan Lake to San Diego. Contract: 5 years, from January 1, 1948 to December 31, 1952, lease of "the exclusive privilege of erecting fish corrals along the Butas River beginning from its junction with the San Agustin River up to the Naujan Lake itself," for annual rental of P26,300.00. Upon petition by the lessee, however, the said council reduced the annual rental by 20% by virtue of Resolution 59, series of 1949. On September 5, 1950, the lessee requested for a five-year extension of the original lease period. The request was, for some time, left pending before the municipal council, but on December 1, 1951, after the lessee had reiterated his petition for extension, for the reason that the typhoon "Wanda", which took place that month, destroyed most of his fish corrals, the council adopted Resolution 222, series of 1951 extending the lease for another five (5) years beginning January 1, 1952, with the express condition that the plaintiff would waive the privilege to seek for reduction of the amount of rent which was to be based on the original contract. After the resolution had been approved by the Provincial Board of Oriental Mindoro, the lessor and the lessee, on December 23, 1951, contracted for the extension of the period of the lease. The contract was approved and confirmed on December 29, 1951 by Resolution 229, series of 1951, of the municipal council of Naujan whose term was then about to expire. Pursuant to the said contract, the lessee filed a surety bond of P52,000.00 and then reconstructed his fish corrals and stocked the Naujan Lake with bañgus fingerlings.On January 2, 1952, the municipal council of Naujan, this time composed of a new set of members, adopted Resolution 3, series of 1952, revoking Resolution 222, series of 1951. On the same date, the new council also passed Resolution 11, revoking Resolution 229 of the old council which confirmed the extension of the lease period. The lessee requested for reconsideration and recall of Resolution 3, on the ground, among others, that it violated the contract executed between him and the municipality on December 23, 1951, and, therefore, contrary to Article III, section 1, clause 10 of the Constitution. The request, however, was not granted.On September 4, 1952, the lessee instituted this proceedings in the court below seeking to have Resolution 3, series of 1952, of the municipal council of Naujan, declared null and void, for being unconstitutional, and praying for an order enjoining the defendant municipality from conducting a public bidding for the leasing of the Naujan fisheries to any person other than the plaintiff during the period from January 1, 1953 to December 31, 1957.Answering the complaint, the defendant asserted the validity of Resolution 3, series of 1951, alleging by the way of special defense that the resolution authorizing the original lease contract, reducing the lease rentals and renewing the lease are null and void for not having been passed in accordance with law. Defendant further put up a counterclaim for the amount representing the illegal reduction of 20% of the

original rentals, plus the sum of P2,191.60 per month beginning December 1, 1952 until the case shall have been terminated. After trial, the lower court rendered judgment upholding the validity of the lease contract, as well at is extension, and declaring Resolution 3, series of 1952, null and void. The municipality of Naujan has taken this appeal.Issue: WON Resolution No. 3, series of 1952, revoking Resolution 222, series of 1951, of the municipal council of Naujan is valid.

The law (Sec. 2323 of the Revised Administrative Code) requires that when the exclusive privilege of fishery or the right to conduct a fish-breeding ground is granted to a private party, the same shall be let to the highest bidder in the same manner as is being done in exploiting a ferry, a market or a slaughterhouse belonging to the municipality. The requirement of competitive bidding is for the purpose of inviting competition and to guard against favoritism, fraud and corruption in the letting of fishery privileges

There is no doubt that the original lease contract in this case was awarded to the highest bidder, but the reduction of the rental and the extension of the term of the lease appear to have been granted without previous public bidding.

Caltex (Phil.), Inc., et al. vs. Delgado Bros., Inc.:the amendment to an arrastre contract was declared null and void on the ground that it was made without previous public bidding. In so declaring, this Court has adopted the following opinion:. . . it is the opinion of the Court that the said agreement .. executed and entered into without previous public bidding, is null and void, and cannot adversely affect the rights of third parties . . . and of the public in general. The Court agrees with the contention of counsel for the plaintiffs that the due execution of a contract after public bidding is a limitation upon the right of the contradicting parties to alter or amend it without another public bidding, for otherwise what would a public bidding be good for if after the execution of a contract after public bidding, the contracting parties may alter or amend the contract or even cancel it, at their will? Public biddings are held for the protection of the public, and to give the public the best possible advantages by means of open competition between the bidders. He who bids or offers the best terms is awarded the contract subject of the bid, and it is obvious that such protection and best possible advantages to the public will disappear if the parties to a contract executed after public bidding may alter or amend it without another previous public bidding.

While in that case we ruled that although the "arrastre contract" therein questioned authorized the parties to alter or amend any of the terms thereof, such authority must be considered as being subject to the

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requirement of previous public bidding, a formality observed before the original contract was awarded, with more reason should the rule requiring such public bidding be strickly applied in the instant case where no such authority to alter or amend the terms of the contract was reserved.

Furthermore, it has been ruled that statutes requiring public bidding apply to amendments of any contract already executed in compliance with the law where such amendments alter the original contract in some vital and essential particular Inasmuch as the period in a lease is a vital and essential particular to the contract, we believe that the extension of the lease period in this case, which was granted without the essential requisite of public bidding, is not in accordance with law. And it follows the Resolution 222, series of 1951, and the contract authorized thereby, extending the original five-year lease to another five years are null and void as contrary to law and public policy.

We agree with the defendant-appellant in that the question Resolution 3 is not an impairment of the obligation of contract, because the constitutional provision on impairment refers only to contract legally executed. While, apparently, Resolution 3 tended to abrogate the contract extending the lease, legally speaking, there was no contract abrogated because, as we have said, the extension contract is void and inexistent.

The lower court, in holding that the defendant-appellant municipality has been estopped from assailing the validity of the contract into which it entered on December 23, 1951, seems to have overlooked the general rule that —. . . the doctrine of estoppel cannot be applied as against a municipal corporation to validate a contract which it has no power to make or which it is authorized to make only under prescribed conditions, within prescribed limitations, or in a prescribed mode or manner, although the corporation has accepted the benefits thereof and the other party has fully performed his part of the agreement, or has expended large sums in preparation for performance. A reason frequently assigned for this rule is that to apply the doctrine of estoppel against a municipality in such case would be to enable it to do indirectly what it cannot do directly. Also, where a contract is violative of public policy, the municipality executing it cannot be estopped to assert the invalidity of a contract which has ceded away, controlled, or embarrassed its legislative or government powers.

As pointed out above, "public biddings are held for the best protection of the public and to give the public the best possible advantages by means of open competition between the bidders." Thus, contracts requiring public bidding affect public interest, and to change them without complying with that requirement would indeed be against public policy. There is,

therefore, nothing to plaintiff-appellee's contention that the parties in this case being in pari delicto should be left in the situation where they are found, for "although the parties are in pari delicto, yet the court may interfere and grant relief at the suit of one of them, where public policy requires its intervention, even though the result may be that a benefit will be derived by a plaintiff who is in equal guilt with defendant. But here the guilt of the parties is not considered as equal to the higher right of the public, and the guilty party to whom the relief is granted is simply the instrument by which the public is served."

In view of the foregoing, we hold that the municipal council of Naujan acted aright in adopting Resolution 3, series of 1952, now in question. In consonance with the principles enunciated above, Resolution 59, series of 1947, reducing the rentals by 20% of the original price, which was also passed without public bidding, should likewise be held void, since a reduction of the rental to be paid by the lessee is a substantial alternation in the contract, making it a distinct and different lease contract which requires the prescribed formality of public bidding.

There seems to be no necessity of passing on the validity of Resolution 46, series of 1947, for defendant-appellant, apparently, did not mean to have it annulled, as may be seen from its prayer in the court below and also in this appeal. At any rate, the validity of said resolution does not alter our finding to the effect that Resolution 59, series of 1949, and Resolution 222, series of 1951, are illegal and void; and that Resolution 3, series of 1952, is valid.

Rivera v. Municipality of Malolos

Facts: Sometime in August 1949 the municipality of Malolos, Bulacan, called for bids for the supply of road construction materials to repair the roads of the municipality. At the public bidding held on 28 August 1949 for that purpose, the Rivera's bid was the lowest. On the same day, 28 August 1949, the acting municipal treasurer informed the petitioner that the contract had been awarded to him and requested him to call at his office for the execution of the contract. On 31 August 1949 the contract was signed by the municipal mayor in behalf of the municipality and the petitioner. It was stipulated that for and in consideration of the sum of P19,235 the petitioner was to furnish and deliver to the municipality of Malolos 2,700 cubic meters of crushed adobe stone (cascajo) and 1,400 cubic meters of gravel. In compliance with the contract, the petitioner delivered crushed adobe stone and gravel to the municipality at the places designated by the municipal mayor. On 29 July 1950 the petitioner wrote to the municipal treasurer, through the provincial

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auditor, calling his attention to the fact that the sum of P19,339.56 due him as payment for the value of crushed adobe stone and gravel delivered to the municipality had not yet been paid and that as the fiscal year 1949-1950 had already expired, he requested that the sum be included in the appropriations for the incoming fiscal year 1950-1951 as an outstanding obligation. On 2 August 1950, the principal clerk, acting in behalf of the municipal treasurer, informed the petitioner that "The Municipal Council (had) agreed to put said amount as standing obligation of the municipality authorizing payment and authorizing the Municipal Treasurer to pay as soon as funds are available." On 16 October 1951 the municipal council passed Resolution No. 68 ratifying the public bidding called by the municipal treasurer for the supply of road construction materials, and the contract entered into by the municipal mayor in behalf of the municipality on 31 August 1949. On 30 October 1951 the petitioner filed a complaint against the municipality of Malolos in the Court of First Instance of Bulacan to collect the sum of P19,235 for the value of crushed adobe stone and gravel delivered by the petitioner under the contract. On 8 May 1952 the petitioner amended his complaint. On 8 January 1954 the Court dismissed the case without prejudice. On 11 January 1954 the petitioner sought the intervention of the Presidential Complaints and Action Committee, which forwarded the petitioner's claim through proper channels to the Office of the Auditor General. On 14 January 1955 the Deputy Auditor General denied the petitioner's claim on the ground that as there was no sum of money appropriated to meet the obligation incurred before the execution of the contract, as required by section 607 of the Revised Administrative Code, the said contract is void, as provided in section 608 of the same Code; and that even if there was such sum appropriated to meet such obligation, the alleged deliveries of crushed adobe stone and gravel could no longer be verified by the Provincial Auditor of Bulacan or his representative. On 1 March 1955, the petitioner requested the Deputy Auditor General to reconsider his decision. On 5 March 1955, before the said officer could take action on the request for reconsideration, the petitioner filed his notice of appeal with the Office of the Auditor General, and this petition for review in this Court. On 9 March 1955, on motion of the petitioner, this Court resolved to suspend the service of notice upon the Auditor General pursuant to section 4, Rule 45, and granted the petitioner five days from receipt of notice of the action taken by the Auditor General on his request for reconsideration, within which to file a supplement to his petition for review. On 2 June 1955 the Deputy Auditor General denied his request for reconsideration, reiterating the grounds previously relied upon in his decision on 14 January 1954. On 21 June 1955 the petitioner filed a supplement to his petition for review in this Court.

Issue: WON Rivera can properly claim from the municipality.

The petitioner contends that the respondent should not be allowed to invoke legal technicalities to delay or refuse payment after its municipal council has acknowledged the indebtedness, because the respondent municipality had received an annual allotment or a certain percentage of the amount collected under the provisions of Act No. 3992, known as the Motor Vehicle Law, out of which it could pay said indebtedness, and that there is no issue as to the validity of the contract entered into by and between the petitioner and the respondent, nor is there any question as to the delivery by the petitioner and receipt by the respondent of the road construction materials.

Before a contract may be entered into validly by a municipality, the law requires that there should be an appropriation of municipal funds to meet the obligation validly passed by the municipal council and approved by the municipal mayor. In answer to the statement of the Solicitor General that there is no provision of law which authorizes a municipal mayor to enter into a contract with a private contractor for furnishing the municipality with public works materials, the petitioner cites sections 2165 and 2196 of the Revised Administrative Code. Section 2165 provides that "Municipalities . . . are endowed with the faculties of municipal corporations to be exercised by and through their respective municipal governments in conformity with law." "It shall be competent for them, in their proper corporate name, . . . to contract and be contracted with, . . . ." The power or authority conferred upon municipal corporations must be exercised in conformity with law, and the law provides that such contracts must be entered into by the district engineer.

The petitioner contends, however, that section 1920 of the Revised Administrative Code must be read in connection with sections 1912 and 1913 of the same Code and concludes that section 1920 does not abrogate the general rule that a municipal council may designate an officer of the municipal corporation to execute such a contract in behalf of the municipality. Section 1912 refers to investigations and survey by the district engineer for a proposed construction or repair of public works and submission by him to the mayor to reports and estimates of the cost of such construction or repair with his recommendations, and to the preparation of plans and specifications for such public works and supervision of the construction or repair of the same. The provisions of sections 1912 and 1913 of the Revised Administrative Code do not refer to contracts entered into by the municipality for the supply of road construction materials.

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If the law requires that before a contract involving the expenditure of P2,000 or more may be entered into or authorized, the municipal treasurer must certify to the officer entering into such contract that funds have been duly appropriated for such purpose and that the amount necessary to cover the proposed contract is available for expenditure on account thereof; 2 and that a purported contract entered into contrary to the requirements just stated is wholly void, the petitioner's claim that there is no longer any question as to the validity of the contract entered into by and between the petitioner and the municipal mayor of Malolos is not correct.

Likewise, if the law provides that the provincial auditor or his representative must check up the deliveries made by a contractor pursuant to a contract lawfully and validly entered into, 3 and there was no such check up, the petitioner's claim that there is no longer an issue as to whether the road construction materials have been actually delivered by the petitioner and received by the respondent is groundless. The Auditor General is not in duty bound to pass and allow in audit the sum claimed by the petitioner if he or his authorized representative did not check up the delivery of the crushed adobe stone and gravel. To say that the purpose and aim of this checking requirement is to forestall fraud and collusion is to state what is obvious.

The petitioner enlisted the aid of the Presidential Complaints and Action Committee to request the Auditor General to pass in audit and authorize the payment or the petitioner's claim. The Auditor General had no alternative but to comply with the provisions of the law and as the contract entered into by the municipal mayor of Malolos, Bulacan, was not in accordance with law, the Auditor General was correct in denying the petitioner's claim.

Section 73, Act No. 3992, otherwise known as the Motor Vehicle Law, as amended by section 2, Republic Act No. 314, invoked by the petitioner, merely allocates 10 per cent of the money collected under its provisions to the road and bridge funds of the different municipalities in proportion to population, as shown in the latest available census, for the repair, maintenance, and construction of municipal roads. This alone is not sufficient appropriation and authority to disburse part of the 10 per cent collected under the Motor Vehicle Law for the purpose of paying the claim of the petitioner. And the section cited, as amended by section 5 of Republic Act No. 917, approved on 20 June 1953, provides:

Moneys collected under the provisions of this Act shall be deposited in a special trust account in the National Treasury to constitute the Highway

Special Fund, which shall be apportioned and expended in accordance with the provisions of the Philippine Highway Act of nineteen hundred and fifty-three. Section 608 of the Revised Administrative Code affords the petitioner a remedy.

Rivera v. Maclang

Facts: On August 19, 1949 the municipality of Malolos called for bids for furnishing and delivering materials to be used in the maintenance and repair of barrio roads. Rivera won in the bidding and was asked by the Municipal Treasurer to come to his office for execution of the corresponding contract. On August 31, 1949 the contract was signed by appellant and by Maclang in his capacity as Municipal Mayor of Malolos. Pursuant thereto appellant subsequently delivered to the municipality gravel and adobe stones valued at P19,235.00. On October 16, 1951 the Municipal council of Malolos passed a resolution approving the contract, but in spite of repeated demands by appellant the price of the materials was not paid.In 1954 appellant sought the intervention of the Presidential Complaint and Action Commission, which referred the matter to the General Auditing Office. That office turned down the claim for payment, whereupon appellant filed in this Court a petition for review, docketed as SC-G.R. No. L-8847. In its decision of October 31, 1957 this Court sustained the action of the General Auditing Office and held that the contract in question was void as far as the municipal government of Malolos was concerned on the ground that no money had been appropriated to meet the obligation prior to the execution of the contract, as required by section 607 Revised Administrative Code. However, in the same decision this Court indicated that section 608 of the same Code afforded appellant a remedy. Consequently, he filed the present action against defendant- appellee in his personal capacity pursuant to the said provision. The trial court dismissed the complaint, stating that inasmuch as in the previous case the contract entered into between appellant and the Municipality of Malolos had been declared null and void by this Court, "it cannot produce any legal effect for which thereafter no recovery can be made."

Issue: WON the dismissal is erroneous. Our ruling in the previous case is that the contract was null and void vis-a-

vis the Municipality of Malolos, by reason of noncompliance with the requirement of section 607 of the Revised Administrative Code, which states that "except in the case of a contract for supplies to be carried in stock, no contract involving the expenditure by any province, municipality, chartered city, or municipal district of two thousand pesos or more shall be entered into or authorized until the treasurer of the political division

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concerned shall have certified to the officer entering into such contract that funds have been duly appropriated for such purpose and that the amount necessary to cover the proposed contract is available for expenditure on account thereof."

It should be noted that the present action is against defendant- appellee in his personal capacity on the strength of section 608 of the same code, which provides as follows: SEC. 608.Void contract — Liability of officer. — A purported contract entered into contrary to the requirements of the next preceding section hereof shall be wholly void, and the officer assuming to make such contract shall be liable to the Government or other contracting party for any consequent damage to the same extent as if the transaction had been wholly between private parties."

The position of defendant-appellee, as the officer who signed the contract with appellant in violation of section 607, comes squarely under the provision just quoted. His liability is personal, as if the transaction had been entered into by him as a private party. We take it that the intention of the law in this respect is to ensure that public officers entering into transactions with private individuals calling for the expenditure of public funds observe a high degree of caution so that the government may not be the victim of ill-advised or improvident action by those assuming to represent it.

.Palafox v. Province of Ilocos Norte

Facts: 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.

Issue: WON the employee may be held liable. 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.

Mendoza v. De Leon

Facts: This is an action for damages against the individual members of the municipal council of the municipality of Villasis, Pangasinan, for the revocation of the lease of an exclusive ferry privilege awarded to the plaintiff under the provisions of Act. No.

1634 of the Philippine Commission. After user of a little more than one year, the plaintiff was forcibly ejected under and in pursuance of a resolution adopted by the herein defendants, awarding a franchise for the same ferry to another person.

Issue: WON the municipality may be sued for acts done in the exercise of its corporate functions.

Municipalities of the Philippine Islands organized under the Municipal Code have both governmental and corporate or business functions. Of the first class are the adoption of regulations against fire and disease, preservation of the public peace maintenance of municipal prisons, establishment of primary schools and post-offices, etc. Of the latter class are the establishment of municipal waterworks for the use of the inhabitants, the construction and maintenance of municipal slaughterhouses, markets, stables, bathing establishments, wharves, ferries, and fisheries. Act No. 1634 provides that the use of each fishery, fish-breeding ground, ferry, stable, market, slaughterhouse belonging to any municipality or township shall be let to the highest bidder annually or for such longer period not exceeding five years as may have been previously approved by the provincial board of the province in which the municipality or township is located.

The twofold character of the powers of a municipality, under our Municipal Code (Act No. 82) is so apparent and its private or corporate powers so numerous and important that we find no difficulty in reaching the conclusion that the general principles governing the liability of such entities to private individuals as enunciated in the United States are applicable to it. The distinction between governmental powers on the one hand, and corporate or proprietary or business powers on the other, as the latter class is variously described in the reported cases, has long been recognized in the United States and there is no dissent from the doctrine.

The municipality is not liable for the acts of its officers or agents in the performance in the performance of its governmental functions. Governmental affairs do not lose their governmental character by being delegated to the municipal government. Nor does the fact that such duties are performed by such officers of the municipality which, for convenience, the state allows the municipality to select, change their character. To preserve the peace, protect the morals and health of the community and so on is to administer government, whether it be done by the central government itself or is shifted to a local organization. And the state being immune for injuries suffered by private individuals in the administration of strictly governmental functions, like immunity is enjoyed by the

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municipality in the performance of the same duties, unless it is expressly made liable by statute.

"The state cannot, without its consent expressed through legislation, be sued for injuries resulting from an act done in the exercise of its lawful governmental powers and pertaining to the administration of government. . . . Municipal corporations are agents of the state in the exercise of certain governmental powers. The preservation of the health and peace of its inhabitants and fire protections afforded the property owner, are governmental functions."

A municipality is not exempt from liability for the negligent performance of its corporate or proprietary or business functions. In the administration of its patrimonial property, it is to be regarded as a private corporation or individual 153113-13 so far as its liability to third persons on contract or in tort is concerned. Its contracts, valid entered into, may be enforced and damages may be collected from it for the torts of its officers or agents within the scope of their employment in precisely the same manner and to the same extent as those of private corporations or individuals. As to such matters the principles respondeat superior applies. It is for these purposes that the municipality is made liable to suits in the courts.

"Municipal corporations are subject to be sued upon contracts and in tort. In a previous chapter we have considered at length the authority of such corporations to make contracts, the mode of exercising, and the effect of transcending the power. This leaves but little to add in this place respecting their liability in actions ex contractu. Upon an authorized contract ---- that is, upon a contract within the scope of the charter or legislative powers of the corporation and duly made by the proper officers or agents ---- they are liable in the same manner and to the same extent as private corporations or natural persons."

The same author says in section 1647:"The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of his agent or servant in the course or line 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 coexist. To create such liability, it is fundamentally necessary that the act done which is injurious to others must be within the scope of the corporate powers as prescribed by charter or positive enactment (the extent of which powers all persons are bound, at their peril, to know); in other words, it must not be ultra vires in the sense that it is not within the power or authority of the corporation to act

in reference to it under any circumstances. If the act complained of necessarily lies wholly outside of the general or special powers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act or whether it be done by its officers without its express command; for a corporation cannot of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action."

It often happens that the same agent or agency has both a governmental and a corporate character. Such, for instance, are a municipal water system designed both for protection against fire (a governmental function) and to supply water to the inhabitants for profit (a corporate function) a municipal light plant both for lighting the streets (a governmental function) and for furnishing light to the inhabitants at a profit (a corporate function); an agent who is at the same time a police officer and a caretaker of a municipal toll bridge. It is, also, sometimes the case that considerable difficulty is experienced in determining whether a particular municipal duty is governmental or corporate.

But questions such as these do not arise in the case at bar. Here it is clear that the leasing of a municipal ferry to the highest bidder for a specified period of time is not a governmental but corporate function. Such a lease, when validly entered into, constitutes a contract with the lessee which the municipality is bound to respect. The matter is thus summed up by Dillon on Municipal Corporations:"Ordinances made by municipalities under charter or legislative authority, containing grants to water and light companies and other public service corporations of the right to use the street pipes, mains, etc., upon the condition of the performance of service by the grantee, are, after acceptance and performance by the grantee, contracts protected by the prohibition of the Federal Constitution against the enactment of any State Law impairing the obligation of contracts."

It seems clear, therefore, that under the provisions of the Municipal Code and Act No. 1634, above referred to, the plaintiff had a vested right to the exclusive operation of the ferry in question for the period of his lease. Were the municipality a party to this action, it would be patent that a judgment for damages against it for the rescission of the contract would be proper. This, be it said, is the usual method of exacting damages, either ex contractu or ex delicto arising from the exercise of corporate powers of municipalities. But the present action is against the members of the municipal council personally, and the question arise: Are they liable? In administering the patrimonial property of municipalities, the municipal

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council occupies, for most purposes, the position of a board of directors of a private corporation. In disposing of the local public utilities, if the term may be used, such as the fishing and ferry rights, etc., they must exercise considerable judgment. It requires some considerable amount of business acumen to compel performance on the part of lessees of these privileges in accordance with the terms of their leases and in a manner in which will not cause the property to deteriorate. Questions must continually arise which are not expressly provided for in the contracts and which must be settled, if possible, in a manner that will preserve the just claims of the municipality. Indeed, it is not at all improbable that on occasion the councilors may have reason to believe that a particular contract has been rescinded by the other party or has never been legally entered into, in both of which cases, decisive steps must be taken to safeguard the interest of the municipality. Thus, in Municipality of Moncada vs. Cajuigan (21 Phil. Rep., 184), the lessee of a municipal fishery was evicted for failing to pay his quarterly rents. The municipal authorities rightly held that the contract was rescinded but forcibly evicted the lessee instead of resorting to the courts. Hence, in an action by the municipality against the lessee and his bondsmen to recover rent arrears, damages were allowed the lessee on his counterclaim for the loss caused by the forcible eviction. Nevertheless, we do not think the councilors could have been personally held liable for their error in resorting to forcible eviction of the lessee. Theirs was an error of judgment, and honest mistake on their part as to the rights of the municipality in the premises. We think the rule of personal liability should be with municipal councilors in such matters as it is with the directors or managers of an ordinary private corporation.

"Under the rule that directors are not liable for mistakes of judgment, it follows naturally that they are not liable for the mismanagement of the corporate affairs where such mismanagement is a mistake of judgment. The wisdom of this rule is not only approved by common experience but by law writers and all courts. A rule so rigid as to hold directors personally liable for honest mistakes in corporate management would deter all prudent business men from accepting such positions. The remedy of stockholders in all such cases is by a change in the directory. . . . The rule is that the courts will not interfere even in doubtful cases. But directors and managing directors may be liable for mismanagement to warrant the interposition of a court either as against the contemplated action of the directors, or a majority of the stockholders, or to give relief by way of damages after the action has been taken; a case must be made out which plainly shows that such action is so far opposed to the true interests of the

corporation itself as to lead to the clear inference that no thus acting could have been influenced by any honest desire to secure such interests, but that he must have acted with an intent to subserve some outside purpose, regardless of the consequences to the corporation, and in a manner inconsistent with its interests."

In the case at bar, there is not a scintilla of evidence that there was any justifiable reason for forcibly evicting the plaintiff from the ferry which he had leased. On the contrary, the defendant councilors attempted to justify their action on the ground that the ferry which he was operating was not the one leased to him; this in spite of the fact the vice-president had personally placed him in possession of it more than a year before, and the fact that he had operated this ferry for over a year, evidently with the knowledge of the defendants. The evidence is so clear that the ferry of which the plaintiff was dispossessed was the one which he had leased that no reasonable man would entertain any doubt whatever upon the question. Hence, we cannot say that in rescinding the contract with the plaintiff, thereby making the municipality liable to an action for damages for no valid reason at all, the defendant councilors were honestly acting for the interests of the municipality. We are, therefore, of the opinion that the defendants are liable jointly and severally for the damages sustained by the plaintiff from the rescission of his contract of lease of the ferry privilege in question. In reaching this conclusion, we have not failed to take into consideration the rule enunciated in Dennison vs. The Moro Province nor the distinction made by the courts in the United States between the liability of a municipal corporation, made such by acceptance of a village or city charter, and the involuntary quasi corporations known as counties, towns, schools districts, and especially the townships of New England. Upon the question of the amount of damages sustained, we accept the findings of the lower court.

Municipality of San Fernando, La Union v. Firme

Facts: At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano Baniña Sr. died as a result of the injuries they sustained and four (4) others suffered varying degrees of physical injuries. On December 11, 1966, the private respondents instituted a complaint for damages against the Estate

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of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the driver of a dump truck of petitioner. Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the private respondents amended the complaint wherein the petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed its answer and raised affirmative defenses such as lack of cause of action, non-suability of the State, prescription of cause of action and the negligence of the owner and driver of the passenger jeepney as the proximate cause of the collision. In the course of the proceedings, the respondent judge issued the following questioned orders: (1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot; (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only with respect to the supposed lack of jurisdiction; (3) Order dated August 23, 1976 deferring the resolution of the grounds for the Motion to Dismiss until the trial; (4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July 13, 1976 filed by the Municipality and Bislig for having been filed out of time; (5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the order of July 13, 1976; (6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing that parties have not yet submitted their respective memoranda despite the court's direction; and (7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration and or order to recall prosecution witnesses for cross examination. TC: defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay jointly and severally, plaintiffs Juana Rimando-Baniña, Mrs. Priscilla B. Surell, Laureano Baniña, Jr., Sor Marietta Baniña, Mrs. Fe B. Soriano, Montano Baniña, Orja Baniña and Lydia B. Baniña the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of the late Laureano Baniña Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees. Costs against said defendants.The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo Balagot. MR, MNT. MR denied. Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants municipality and Bislig further wish to pursue the matter disposed of in the order of July 26, 1979, such should be elevated to a higher court in accordance with the Rules of Court. Hence, this petition.

Issue: 1. WON the respondent court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss.

In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such defense, proceeded with the trial and thereafter rendered a decision against the municipality and its driver. The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality. However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its regular employee.

The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Constitution, to wit: "the State may not be sued without its consent." Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent to be sued. Consent takes the form of express or implied consent. Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi-delict, as in Merritt v. Government of the Philippine Islands. Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim.

Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued.

A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable."

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2. WON the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions.

Torio v. Fontanilla: the 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.

City of Kokomo v. Loy: "Municipal corporations exist in a dual capacity, and their functions are twofold. 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 them, 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 individual capacity, and not for the state or sovereign power.

It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover.

In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office.

Palafox, et. al. v. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer: that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities." After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality

cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation.

Fernando et al v. CA and City of Davao

Facts: On November 7, 1975, Bibiano Morta, market master of the Agdao Public Market filed a requisition request with the Chief of Property of the City Treasurer's Office for the re-emptying of the septic tank in Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and Antonio Suñer, Jr. Bascon won the bid. On November 26, 1975 Bascon was notified and he signed the purchase order. However, before such date, specifically on November 22, 1975, bidder Bertulano with four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found dead inside the septic tank. The bodies were removed by a fireman. One body, that of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional Hospital but he expired there. The City Engineer's office investigated the case and learned that the five victims entered the septic tank without clearance from it nor with the knowledge and consent of the market master. In fact, the septic tank was found to be almost empty and the victims were presumed to be the ones who did the re-emptying. Dr. Juan Abear of the City Health Office autopsied the bodies and in his reports, put the cause of death of all five victims as `asphyxia' caused by the diminution of oxygen supply in the body working below normal conditions. The lungs of the five victims burst, swelled in hemmorrhagic areas and this was due to their intake of toxic gas, which, in this case, was sulfide gas produced from the waste matter inside the septic tank." TC: dismissed. IAC/CA: reversed. MR:reversed.

Issue: 1. WON Davao City guilty of negligence in the case at bar.2. WON such negligence the immediate and proximate cause of deaths of

the victims hereof. Negligence has been defined as the failure to observe for the protection of

the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. Under the law, a person who by his omission causes damage to another, there being negligence, is obliged to pay for the damage done (Article 2176, New Civil Code).

To be entitled to damages for an injury resulting from the negligence of another, a claimant must establish the relation between the omission and the damage. He must drove under Article 2179 of the New Civil Code that

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the defendant's negligence was the immediate and proximate cause of his injury.

Proximate cause has been defined as that cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Proof of such relation of cause and effect is not an arduous one if the claimant did not in any way contribute to the negligence of the defendant. However, where the resulting injury was the product of the negligence of both parties, there exists a difficulty to discern which acts shall be considered the proximate cause of the accident.

Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19 years resulting in an accumulation of hydrogen sulfide gas which killed the laborers. They contend that such failure was compounded by the fact that there was no warning sign of the existing danger and no efforts exerted by the public respondent to neutralize or render harmless the effects of the toxic gas. They submit that the public respondent's gross negligence was the proximate cause of the fatal incident. We do not subscribe to this view. While it may be true that the public respondent has been remiss in its duty to re-empty the septic tank annually, such negligence was not a continuing one. Upon learning from the report of the market master about the need to clean the septic tank of the public toilet in Agdao Public Market, the public respondent immediately responded by issuing invitations to bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano Bascon. The public respondent, therefore, lost no time in taking up remedial measures to meet the situation. It is likewise an undisputed fact that despite the public respondent's failure to re-empty the septic tank since 1956, people in the market have been using the public toilet for their personal necessities but have remained unscathed.

The absence of any accident was due to the public respondent's compliance with the sanitary and plumbing specifications in constructing the toilet and the septic tank. Hence, the toxic gas from the waste matter could not have leaked out because the septic tank was air-tight. The only indication that the septic tank in the case at bar was full and needed emptying was when water came out from it. Yet, even when the septic tank was full, there was no report of any casualty of gas poisoning despite the presence of people living near it or passing on top of it or using the public toilet for their personal necessities. Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the negligence of the city government and presented witnesses to attest on

this lack. However, this strategy backfired on their faces. Their witnesses were not expert witnesses. On the other hand, Engineer Demetrio Alindada of the city government testified and demonstrated by drawings how the safety requirements like emission of gases in the construction of both toilet and septic tank have been complied with. He stated that the ventilation pipe need not be constructed outside the building as it could also be embodied in the hollow blocks as is usually done in residential buildings. The petitioners submitted no competent evidence to corroborate their oral testimonies or rebut the testimony given by Engr. Alindada. We also do not agree with the petitioner's submission that warning signs of noxious gas should have been put up in the toilet in addition to the signs of "MEN" and "WOMEN" already in place in that area. Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil Code which would necessitate warning signs for the protection of the public. While the construction of these public facilities demands utmost compliance with safety and sanitary requirements, the putting up of warning signs is not one of those requirements.

In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the septic tank is unlikely to happen unless one removes its covers. The accident in the case at bar occurred because the victims on their own and without authority from the public respondent opened the septic tank. Considering the nature of the task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the accident. The fatal accident in this case would not have happened but for the victims' negligence. Thus, the appellate court was correct to observe that: ". . . Could the victims have died if they did not open the septic tank which they were not in the first place authorized to open? Who between the passive object (septic tank) and the active subject (the victims herein) who, having no authority therefore, arrogated unto themselves, the task of opening the septic tank which caused their own deaths should be responsible for such deaths. How could the septic tank which has been in existence since the 1950's be the proximate cause of an accident that occurred only on November 22, 1975? The stubborn fact remains that since 1956 up to occurrence of the accident in 1975 no injury nor death was caused by the septic tank. The only reasonable conclusion that could be drawn from the above is that the

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victims death was caused by their own negligence in opening the septic tank . . ."

Petitioners further contend that the failure of the market master to supervise the area where the septic tank is located is a reflection of the negligence of the public respondent. We do not think so. The market master knew that work on the septic tank was still forthcoming. It must be remembered that the bidding had just been conducted. Although the winning bidder was already known, the award to him was still to be made by the Committee on Awards. Upon the other hand, the accident which befell the victims who are not in any way connected with the winning bidder happened before the award could be given. Considering that there was yet no award and order to commence work on the septic tank, the duty of the market master or his security guards to supervise the work could not have started. Also, the victims could not have been seen working in the area because the septic tank was hidden by a garbage storage which is more or less ten (10) meters away from the comfort room itself. The surreptitious way in which the victims did their job without clearance from the market master or any of the security guards goes against their good faith. Even their relatives or family members did not know of their plan to clean the septic tank.

Finally, petitioners insistence on the applicability of Article 24 of the New Civil Code cannot be sustained. Said law states: "Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection." We approve of the appellate court's ruling that "(w)hile one of the victims was invited to bid for said project, he did not win the bid, therefore, there is a total absence of contractual relations between the victims and the City Government of Davao City that could give rise to any contractual obligation, much less, any liability on the part of Davao City." The accident was indeed tragic and We empathize with the petitioners. However, the herein circumstances lead Us to no other conclusion than that the proximate and immediate cause of the death of the victims was due to their own negligence. Consequently, the petitioners cannot demand damages from the public respondent.

Tuzon and Mapagu v. CA and Jurado (supra, see p. )

Torio v. Fintanilla

Facts: 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 subcommittee 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". The "zarzuela" entitled "Midas Extravanganza" 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. Fontanilla was taken to the San Carlos General Hospital where he died in the afternoon of the following day. The heirs of Vicente Fontanilla filed a complaint with the Court of First Instance of Manila on September 11, 1959 to recover damages. TC: 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. CA reversed.

Issue: Is the celebration of a town fiesta an undertaking in the exercise of a municipality's governmental or public function or is it of a private or proprietary character?

Holding of the town fiesta in 1959 by the municipality of Malasiqui Pangasinan, was an exercise of a private or proprietary function of the municipality.

Chapter on Municipal Law of the Revised Administrative Code provides: Section 2282. Celebration of fiesta. A fiesta may be held in each municipality not oftener than once a year upon a date fixed by the municipal council. A fiesta shall not be held upon any other date than that lawfully fixed therefor, except when, for weighty reasons, such as typhoons, inundations, earthquakes, epidemics, or other public calamities, the fiesta cannot be held in the date fixed, in which case it may be held at a later date in the same year, by resolution of the council."

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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 town, nonetheless it is private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. 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 governmental or public policy of the state is involved in the celebration of a town fiesta.

2. WON under the doctrine of respondent superior, petitioner-municipality is to be held liable for damages for the death of Vicente Fontanilla if that was attributable to the negligence of the municipality's officers, employees, or agents. YES.

"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 used 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. 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 unsupported. Moreover, if that did happen, there was indeed negligence as there was lack of supervision 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 so. 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 stage 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." 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 posts 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 failed 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 nonparticipants or spectators from mounting and accumulating on the stage which was not constructed to meet the additional weight, the defendants-appellees were negligent and are liable for the death of Vicente Fontanilla."

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. 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."

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

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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. We agree.

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's duty.

We can say that the deceased Vicente Fontanilla was similarly situated as Sanders. 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 responsibility and/or liability under the claim 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.

". . . 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 them, can hold them responsible f or the manner in which they discharge their trust, and if those duties relate to the exercise of corporate powers, and are for the peculiar 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."

3. WON municipality councilors who enacted the ordinance and created the fiesta committee are liable.

The Court of Appeals held the councilors jointly and solidarily liable with the municipality for damages under Article 27 of the Civil Code which provides that "any person suffering 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 against the latter."

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.

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code against them, for this particular article covers a case of non-feasance 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 plain error committed by respondent court which however is not invoked in petitioners' brief.

Miguel v. CA: 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 this is authorized under Sec. 7, Rule 51 of the Rules of Court. 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 and the latter are not as a rule co-responsible in an action for damages for tort or negligence (culpa aquiliana) committed by the corporation's

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employees or agents unless there is a showing of bad faith or gross or wanton negligence on their part.

"The ordinary doctrine is that a Director, merely by reason of his office, is not personally liable for the torts of his corporation; he must be shown to have personally voted for or otherwise participated in them."

"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." "Directors who merely employ one to give n fireworks exhibition on the corporate grounds are not personally liable for the negligent acts of the exhibitor."

On these principles We absolve the 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.

Teotico v. City of Manila

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

subsequently, amended — for damages against the City of Manila, its mayor, city engineer, city health officer, city treasurer and chief of police. As stated in the decision of the trial court, and quoted with approval by the Court of Appeals,"At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the University of the East. He held responsible positions in various business firms like the Philippine Merchandising Co., the A. U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere Packing Corporation. He was also associated with several civic organizations such as the Wack Wack Golf Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knight's of Rizal. As a result of the incident, plaintiff was prevented from engaging in his customary occupation for twenty days. Plaintiff has lost a daily income of about P50.00 during his incapacity to work. Because of the incident, he was subjected to humiliation and ridicule by his business associates and friends. During the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of P2,000.00. "On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered on the same day; that again the iron cover of the same catchbasin was reported missing on January 30, 1958, but the said cover was replaced the next day; that the Office of the City Engineer never received any report to the effect that the catchbasin in question was not covered between January 25 and 29, 1958; that it has always been a policy of the said office, which is charged with the duty of installation, repair and care of storm drains in the City of Manila, that whenever a report is received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by immediately replacing the missing cover or covering the catchbasin with steel matting; that because of the lucrative scrap iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office of the City Engineer has filed complaints in court resulting from theft of said iron covers; that in order to prevent such thefts, the city government has changed the position and layout of catch basins in the City by constructing them under the sidewalk with concrete cement covers and openings on the sides of the gutter; and that these changes had been undertaken by the city from time to time whenever funds were available." After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining the theory of the defendants and dismissing the amended complaint, without costs.On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is concerned, which was sentenced to pay

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damages in the aggregate sum of P6,750.00. Hence, this appeal by the City of Manila.

Issue: 1. Is the case is governed by Section 4 of RA 409 (Charter of the City of Manila) or Article 2189, CC.

Sec 4, RA 409: "The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." 2189: "Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision."

Manila maintains that the former provision should prevail over the latter, because Republic Act 409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject- matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by, any person by reason" — specifically — "of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets, "in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.

2. Won the City cannot be held liable for damages because the incident involving him took place in a national highway and because the it has not been negligent in connection therewith.

Such is based upon an allegation of fact not made in the answer of the City. Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the defective condition of a street which is "under the supervision and control" of the City. In its answer to the amended complaint, the City, in turn, alleged that "the streets aforementioned were and have been constantly kept in good condition and regularly inspected and the storm drains and manholes thereof covered, by the defendant City and its officers concerned" who "have been ever vigilant and zealous in the performance of their respective functions and duties as imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and is under its control and supervision. Moreover, the assertion to the effect that said avenue is a national highway was made, for the first time, in its motion for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of fact, which had not been put in issue in the trial court, and can not be set up, for the first time, on appeal, much less after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road. Even if P. Burgos avenue were, therefore, a national highway, this circumstance would not necessarily detract from its "control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides: Legislative powers. — The Municipal Board shall have the following legislative powers: (x) Subject to the provisions of existing law to provide for the laying out, construction and improvement, and to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires therein; to provide for and regulate cross-walks, curbs, and gutters therein; . . . to regulate traffic and sales upon the streets and other public places; to provide for the abatement of nuisances in the same and punish the authors or owners thereof; to provide for the construction and maintenance, and regulate the

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use, of bridges, viaducts, and culverts; to prohibit and regulate ball playing, kiteflying, hoop rolling, and other amusements which may annoy persons using the streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all such vehicles, cars, and locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their property, or any part thereof, to provide suitable protection against injury to persons or property, and to construct and repair ditches, drains, sewers, and culverts along and under their tracts, so that the natural drainage of the streets and adjacent property shall not be obstructed."

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113, dated May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway funds and the giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets within their respective boundaries, and Executive Order No. 113 merely implements the provisions of said Republic Act No. 917, concerning the disposition and appropriation of the highway funds. Moreover, it provides that "the construction, maintenance and improvement of national primary, national secondary and national aid provincial and city roads shall be accomplished by the Highway District Engineers and Highway City Engineers under the supervision of the Commissioner of Public Highways and shall be financed from such appropriations as may be authorized by the Republic of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of the City of Manila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were decided by the Court of Appeals in the affirmative, is one of fact, and the findings of said Court, thereon are not subject to our review.

Abella v. City of Naga

Facts: The municipality of Naga by resolution ordered the closing of that part of a municipal street which ran between the public market and the plaintiff's property, and used the closed thoroughfare to expand the market. As a consequence of this resolution, and immediately after the passage of the same, - says the agreement -

permanent, semi-permanent, as well as temporary constructions were allowed by the defendant municipality of Naga along the sidewalk of Plaintiff's property and abutting to said property, facing P. Prieto Street, and extending out in the middle of the same street, hence depriving the plaintiff's property of access to said street, and consequently retarding her reconstructions. "It was further stipulated "that if all the damages is to be awarded the plaintiff, the same should not exceed the sum of Three hundred pesos (P300)." Naga: "it acted and exercised its police power" "prompted to preserve the peace and good order of the community and promote the general welfare;" and this being the case, it believes that it is not liable for damages.

Issue: WON Naga is liable. The municipality or city of Naga was not charged with any unlawful act, or

with acting without authority, or with invasion of plaintiff's property rights; the basis of the lower court's decision in Section 2246 of the Revised Administrative Code copied in appellant's brief, which provides that no municipal road, street, etc. or any part thereof "shall be closed without indemnifying any person prejudiced thereby."

The question then for determination by the court below was reduced to whether the plaintiff was prejudiced by defendant municipality's action. That she was economically damaged, the stipulation of facts admits; and that the indemnity assessed is within the bounds of the damages suffered, there is no dispute. As a matter of fact, the damages awarded seem to be nominal judged by the description of the plaintiff's interests adversely affected by the conversion of P. Prieto Street into a market. The appeal is absolutely without merit, and the appealed decision will be affirmed, with costs against the appellant.

Tan Toco v. Municipal Council of Iloilo

Facts: The widow of Tan Toco sued the municipal council of Iloilo for the amount of P42,966.40, being the purchase price of two strips of land, one on Calle J. M. Basa consisting of 592 square meters, and the other on Calle Aldiguer consisting of 59 square meters, which the municipality of Iloilo had appropriated for widening said street. The Court of First Instance of Iloilo sentenced the said municipality to pay the plaintiff the amount so claimed, plus the interest, and the said judgment was on appeal affirmed by this court. On account of lack of funds the municipality of Iloilo was unable to pay the said judgment, wherefore plaintiff had a writ of execution issue against the property of the said municipality, by virtue of which the sheriff attached two auto trucks used for street sprinkling, one police patrol automobile,

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the police stations on Mabini street, and in Molo and Mandurriao and the concrete structures, with the corresponding lots, used as markets by Iloilo, Molo, and Mandurriao. After notice of the sale of said property had been made, and a few days before the sale, the provincial fiscal of Iloilo filed a motion which the Court of First Instance praying that the attachment on the said property be dissolved, that the said attachment be declared null and void as being illegal and violative of the rights of the defendant municipality. Plaintiffs counsel objected o the fiscal's motion but the court, by order of August 12, 1925, declared the attachment levied upon the aforementioned property of the defendant municipality null and void, thereby dissolving the said attachment.

Issue: WON the property levied upon is exempt from execution. The municipal law, section 2165 of the Administrative Code, provides that:

Municipalities are political bodies corporate, and as such are endowed with the faculties of municipal corporations, to be exercised by and through their respective municipal government in conformity with law.It shall be competent for them, in their proper corporate name, to sue and be sued, to contract and be contracted with, to acquire and hold real and personal property for municipal purposes, and generally to exercise the powers hereinafter specified or otherwise conferred upon them by law.

For the purposes of the matter here in question, the Administrative Code does not specify the kind of property that a municipality may acquire. However, article 343 of the Civil Code divides the property of provinces and towns (municipalities) into property for public use and patrimonial property. According to article 344 of the same Code, provincial roads and foot-path, squares, streets, fountains and public waters, drives and public improvements of general benefit built at the expense of the said towns or provinces, are property for public use. All other property possessed by the said towns and provinces is patrimonial and shall be subject to the provisions of the Civil Code except as provided by special laws.

It is generally held that property owned by a municipality, where not used for a public purpose but for quasi private purposes, is subject to execution on a judgment against the municipality, and may be sold. This rule applies to shares of stock owned by a municipal corporation, and the like. But the mere fact that corporate property held for public uses is being temporarily used for private purposes does not make it subject execution.

If municipal property exempt from execution is destroyed, the insurance money stands in lieu thereof and is also exempt. The members or inhabitants of a municipal corporation proper are not personally liable for

the debts of the municipality, except that in the New England States the individual liability of the inhabitant is generally maintained.

The special concession of the right of usufruct in a public market cannot be attached like any ordinary right, because that would be to permit a person who has contracted with the state or with the administrative officials thereof to conduct and manage a service of a public character, to be substituted, without the knowledge and consent of the administrative authorities, by one who took no part in the contract, thus giving rise to the possibility of the regular course of a public service being disturbed by the more or less legal action of a grantee, to the prejudice of the state and the public interests.

The privilege or franchise granted to a private person to enjoy the usufruct of a public market cannot lawfully be attached and sold, and a creditor of such person can recover his debt only out of the income or revenue obtained by the debtor from the enjoyment or usufruct of the said privilege, in the same manner that the rights of such creditors of a railroad company can be exercised and their credit collected only out of the gross receipts remaining after deduction has been made therefrom of the operating expenses of the road. For the reasons contained in the authorities above quoted we believe that this court would have reached the same conclusion if the debtor had been municipality of Guinobatan and the public market had been levied upon by virtue of the execution.

It is evident that the movable and immovable property of a municipality, necessary for governmental purpose, may not be attached and sold for the payment of a judgment against the municipality. The supreme reason for this rule is the character of the public use to which such kind of property is devoted. The necessity for government service justifies that the property of public of the municipality be exempt from execution just as it is necessary to exempt certain property of private individuals in accordance with section 452 of the Code of Civil Procedure.

Even the municipal income, according to the above quoted authorities, is exempt from levy and execution. In volume 1, page 467, Municipal Corporations by Dillon we find that: Municipal corporations are instituted by the supreme authority of a state for the public good. They exercise, by delegation from the legislature, a portion of the sovereign power. The main object of their creation is to act as administrative agencies for the state, and to provide for the police and local government of certain designated civil divisions of its territory. To this end they are invested with certain governmental powers and charged with civil, political, and municipal duties. To enable them beneficially to exercise these powers and

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discharge these duties, they are clothed with the authority to raise revenues, chiefly by taxation, and subordinately by other modes as by licenses, fines, and penalties. The revenue of the public corporation is the essential means by which it is enabled to perform its appointed work. Deprived of its regular and adequate supply of revenue, such a corporation is practically destroyed and the ends of its erection thwarted. Based upon considerations of this character, it is the settled doctrine of the law that only the public property but also the taxes and public revenues of such corporations cannot be seized under execution against them, either in the treasury or when in transit to it. Judgments rendered for taxes, and the proceeds of such judgments in the hands of officers of the law, are not subject to execution unless so declared by statute. The doctrine of the inviolability of the public revenues by the creditor is maintained, although the corporation is in debt, and has no means of payment but the taxes which it is authorized to collect.

Another error assigned by counsel for appellant is the holding of the court a quo that the proper remedy for collecting the judgment in favor of the plaintiff was by way or mandamus. While this question is not necessarily included in the one which is the subject of this appeal, yet we believe that the holding of the court, assigned as error by appellant's counsel, is true when, after a judgment is rendered against a municipality, it has no property subject to execution. This doctrine is maintained by Dillon (Municipal Corporations, vol. 4, par. 1507, 5th ed.) based upon the decisions of several States of the Union upholding the same principle and which are cited on page 2679 of the aforesaid work. In this sense this assignment of error, we believe, is groundless.

Municipality of Makati v. CA

Facts: The Municipality of Makati initiatied expropriation proceedings against Admiral Finance Creditors Consortium, Inc., Home Building System & Realty Corporation and one Arceli P. Jo. Attached to Makati’s complaint was a certification that a bank account had been opened with the PNB Buendia Branch under petitioner's name containing the sum of P417,510.00, made pursuant to the provisions of PD 42. RTC appraised property at P5,291,666.00 and ordered petitioner to pay amount minus the advanced payment of P338,160.00 which was earlier released to Admiral. Admiral moved for the issuance of a writ of execution. RTC granted and issued writ. A Notice of Garnishment dated January 14, 1988 was served by sheriff Pastrana upon the manager of the PNB Buendia Branch. However, he was informed that a "hold code" was placed on the account of petitioner.

Admiral filed motion, praying that an order be issued directing the bank to deliver to sheriff the amount equivalent to the unpaid balance due under the RTC decision. Petitioner filed a motion to lift the garnishment, on the ground that the manner of payment of the expropriation amount should be done in installments which the respondent RTC judge failed to state in his decision. Admiral filed its opposition to the motion. Pending resolution of the above motions, petitioner filed on July 20, 1988 a "Manifestation" informing the court that private respondent was no longer the true and lawful owner of the subject property because a new title over the property had been registered in the name of Philippine Savings Bank, Inc. (PSB) RTC issued an order requiring PSB to make available the documents pertaining to its transactions over the subject property, and the PNB Buendia Branch to reveal the amount in petitioner's account which was garnished by respondent sheriff. In compliance with this order, PSB filed a manifestation informing the court that it had consolidated its ownership over the property as mortgagee/purchaser at an extrajudicial foreclosure sale held on April 20, 1987. After several conferences, PSB and private respondent entered into a compromise agreement whereby they agreed to divide between themselves the compensation due from the expropriation proceedings. RTC approved the compromise agreement and ordered PNB Buendia to release to PSB the sum of P4,953,506.45 which corresponds to the balance of the appraised value of the subject property. Petitioner's motion to lift the garnishment was denied. Petitioner filed MR, which was duly opposed by private respondent. On the other hand, for failure of the manager of PNB Buendia to comply with the order dated September 8, 1988, Admiral filed two succeeding motions to require the bank manager to show cause why he should not be held in contempt of court. During the hearings conducted for the above motions, the general manager of the PNB Buendia Branch, a Mr. Antonio Bautista, informed the court that he was still waiting for proper authorization from the PNB head office enabling him to make a disbursement for the amount so ordered. For its part, petitioner contended that its funds at the PNB Buendia Branch could neither be garnished nor levied upon execution, for to do so would result in the disbursement of public funds without the proper appropriation required under the law, citing the case of Republic of the Philippines v. Palacio. Respondent trial judge issued an order dated December 21, 1988 denying petitioner's motion for reconsideration on the ground that the doctrine enunciated in Republic v. Palacio did not apply to the case because petitioner's PNB Account No. S/A 265-537154-3 was an account specifically opened for the expropriation proceedings of the subject property pursuant to Pres. Decree No. 42. Respondent RTC judge likewise declared Mr. Antonio Bautista guilty of contempt of court for his inexcusable refusal to obey the order dated September 8, 1988, and thus ordered his arrest and detention until his compliance with the said order. Petitioner and the bank manager of PNB Buendia Branch then filed separate

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petitions for certiorari with the Court of Appeals, which were eventually consolidated. In a decision promulgated on June 28, 1989, the Court of Appeals dismissed both petitions for lack of merit, sustained the jurisdiction of respondent RTC judge over the funds contained in petitioner's PNB Account No. 265-537154-3, and affirmed his authority to levy on such funds. Its motion for reconsideration having been denied by the Court of Appeals, petitioner now files the present petition for review with prayer for preliminary injunction. On November 20, 1989, the Court resolved to issue a temporary restraining order enjoining respondent RTC judge, respondent sheriff, and their representatives, from enforcing and/or carrying out the RTC order dated December 21, 1988 and the writ of garnishment issued pursuant thereto. Private respondent then filed its comment to the petition, while petitioner filed its reply. Petitioner not only reiterates the arguments adduced in its petition before the Court of Appeals, but also alleges for the first time that it has actually two accounts with the PNB Buendia Branch, to wit: (1) Account No. S/A 265-537154-3 — exclusively for the expropriation of the subject property, with an outstanding balance of P99,743.94.(2) Account No. S/A 263-530850-7 — for statutory obligations and other purposes of the municipal government, with a balance of P170,098,421.72, as of July 12, 1989. Because the petitioner has belatedly alleged only in this Court the existence of two bank accounts, it may fairly be asked whether the second account was opened only for the purpose of undermining the legal basis of the assailed orders of respondent RTC judge and the decision of the Court of Appeals, and strengthening its reliance on the doctrine that public funds are exempted from garnishment or execution as enunciated in Republic v. Palacio. At any rate, the Court will give petitioner the benefit of the doubt, and proceed to resolve the principal issues presented based on the factual circumstances thus alleged by petitioner. Admitting that its PNB Account No. S/A 265-537154-3 was specifically opened for expropriation proceedings it had initiated over the subject property, petitioner poses no objection to the garnishment or the levy under execution of the funds deposited therein amounting to P99,743.94. However, it is petitioner's main contention that inasmuch as the assailed orders of respondent RTC judge involved the net amount of P4,965,506.45, the funds garnished by respondent sheriff in excess of P99,743.94, which are public funds earmarked for the municipal government's other statutory obligations, are exempted from execution without the proper appropriation required under the law. There is merit in this contention. The funds deposited in the second PNB Account No. S/A 263-530850-7 are public funds of the municipal government.

Issue: WON the funds deposited may be levied. In this jurisdiction, well-settled is the rule that public funds are not subject

to levy and execution, unless otherwise provided for by statute. More

particularly, the properties of a municipality, whether real or personal, which are necessary for public use cannot be attached and sold at execution sale to satisfy a money judgment against the municipality. Municipal revenues derived from taxes, licenses and market fees, and which are intended primarily and exclusively for the purpose of financing the governmental activities and functions of the municipality, are exempt from execution. The foregoing rule finds application in the case at bar. Absent a showing that the municipal council of Makati has passed an ordinance appropriating from its public funds an amount corresponding to the balance due under the RTC decision dated June 4, 1987, less the sum of P99,743.94 deposited in Account No. S/A 265-537154-3, no levy under execution may be validly effected on the public funds of petitioner deposited in Account No. S/A 263-530850-7.

Nevertheless, this is not to say that private respondent and PSB are left with no legal recourse. Where a municipality fails or refuses, without justifiable reason, to effect payment of a final money judgment rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary appropriation ordinance, and the corresponding disbursement of municipal funds therefor

In the case at bar, the validity of the RTC decision dated June 4, 1987 is not disputed by petitioner. No appeal was taken therefrom. For three years now, petitioner has enjoyed possession and use of the subject property notwithstanding its inexcusable failure to comply with its legal obligation to pay just compensation. Petitioner has benefited from its possession of the property since the same has been the site of Makati West High School since the school year 1986-1987. This Court will not condone petitioner's blatant refusal to settle its legal obligation arising from expropriation proceedings it had in fact initiated. It cannot be over-emphasized that, within the context of the State's inherent power of eminent domain, just compensation means not only the correct determination of the amount to be paid to the owner of the land but also the payment of the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered "just" for the property owner is made to suffer the consequence of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss.

The State's power of eminent domain should be exercised within the bounds of fair play and justice. In the case at bar, considering that valuable property has been taken, the compensation to be paid fixed and the

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municipality is in full possession and utilizing the property for public purpose, for three (3) years, the Court finds that the municipality has had more than reasonable time to pay full compensation.

Court Resolved to ORDER petitioner Municipality of Makati to immediately pay Philippine Savings Bank, Inc. and private respondent the amount of P4,953,506.45. Petitioner is hereby required to submit to this Court a report of its compliance with the foregoing order within a non-extendible period of SIXTY (60) DAYS from the date of receipt of this resolution.

Pasay City Government v. CFI of Manila

Facts: V.D. Isip, Sons & Associates represented by Vicente David Isip entered into a contract with the City of Pasay represented by the then Mayor Pablo Cuneta. Pursuant to the aforesaid contract, the respondent-appellee proceeded with the construction of the new Pasay City Hall building as per duly approved plans and specifications. The respondent-appellee accomplished under various stages of construction the amount of work (including supplies and materials) equivalent to an estimated value of P1,713,096.00 of the total contract price of P4,914,500.80. The appellants paid only the total amount of P1,100,000.00 to the respondent-appellee leaving an amount of P613,096.00 immediately due from the petitioner-appellants to the respondent-appellee. Pasay failed to pay. Action for specific performance with damages against herein petitioners-appellants before the respondent Court. The parties arrived at a draft of amicable agreement which was submitted to the Municipal Board of Pasay City for its consideration. Protracted pre-trial hearings and conferences were held where the respondent Court suggested and advised that "under the principle of quantum meruit, the plaintiff is forthwith entitled to at least that which is due to him for defendants under the contract and that public interest must perforce require the continuity of construction of a public work project, instead of delaying its immediate completion by litigating upon technical grounds which would undoubtedly redound to public detriment". The Municipal Board of Pasay then enacted Ordinance No. 1012 which approved the Compromise Agreement and also authorized and empowered the incumbent City Mayor Claudio to represent the appellant Pasay City Government, subject to the final approval of the respondent Court herein. Court approved the said Compromise Agreement including a Manifestation and Addendum thereto. On April 10, 1969, the appellants filed an urgent motion seeking a declaration of legality of the original contract and agreement dated August 4, 1964 from the respondent Court. Court issued an order declaring that the original contract is legal and valid. Court granted an order of execution pursuant to which a writ of execution was issued. Application for and notice of garnishment were made and effected upon the funds of appellant Pasay

City Government with the PNB. Pasay: premature, the 90-day stipulation has not expired; the obligations were reciprocal, the contractor has not set up a new performance bond; and Sheriff cannot garnish trust funds of the city. TC: Contractor complied substantially, garnishment must proceed.

Issue: WON the CFI erred in refusing to quash the writ of execution it issued. YES. The two purposes of a compromise agreement are enunciated in Article

2028 of the New Civil Code, to wit: "A. 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced." The first purpose - "to avoid a litigation" - occurs when there is a threat of an impending litigation. At this point, no case has yet reached the courts. The moment a case has been filed in court then the second purpose - "to put an end to one already commenced" - applies. In the herein case, We are concerned with the second purpose. The latter purpose is given effect in Article 2037 of the New Civil Code which reads: "Article 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise."

A compromise agreement not contrary to law, public order, public policy, morals or good customs is a valid contract which is the law between the parties themselves. A judgment on a compromise is a final and executor. It is immediately executor in the absence of a motion to set the same aside on the ground of fraud, mistake or duress.

In fact in the herein case before Us, execution has already been issued. Considering this in the light of Article 2041 of the New Civil Code, to wit: "Art. 2041. If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand."

it is obvious that the respondent-appellee did not only succeed in enforcing the compromise but said plaintiff-appellee likewise wants to rescind the said compromise. It is clear from the language of the law, specifically Article 2041 of the New Civil Code that one of the parties to a compromise has two options: 1) to enforce the compromise; or 2) to rescind the same and insist upon his original demand. The respondent-appellee in the case herein before Us wants to avail of both of these options. This can not be done. The respondent-appellee cannot ask for rescission of the compromise agreement after it has already enjoyed the first option of enforcing the compromise by asking for a writ of execution resulting thereby in the garnishment of the Pasay City funds deposited

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with the Philippine National Bank which eventually was delivered to the respondent-appellee.

Upon the issuance of the writ of execution, the petitioner-appellants moved for its quashal alleging among other things the exemption of the government from execution. This move on the part of the petitioner-appellant is at first glance laudable for "all government funds deposited with the Philippine National Bank by any agency or instrumentality of the government, whether by way of general or special deposit, remain government funds and may not be subject to garnishment or levy (Commissioner of Public Highways vs. San Diego, L-30098, 31 SCRA 616 [Feb. 18, 1970]). But, inasmuch as an ordinance has already been enacted expressly appropriating the amount of P613,096.00 of payment to the respondent-appellee, then the herein case is covered by the exception to the general rule stated in the case of Republic vs. Palacio: "Judgments against a State in cases where it has consented to be sued, generally operate merely to liquidate and establish plaintiff's claim in the absence of express provision; otherwise they cannot be enforced by processes of the law; and it is for the legislature to provide for the payment in such manner as sees fit."

Having established that the compromise agreement was final and immediately executory, and in fact as already enforced, the respondent court was in error where it still entertained the supplemental complaint filed by the respondent-appellee for by then the respondent Court had no more jurisdiction over the subject matter. When a decision has become final and executory, the court no longer has the power and jurisdiction to alter, amend or revoke, and its only power thereof is to order its execution. After the perfection of an appeal, the trial court loses jurisdiction over its judgment and cannot vacate the same.

WE find no error in the order of the respondent Court dated July 23, 1969. From the reading of the premises and provisions of the contract and agreement which was "formally confirmed and officially approved by the parties" in the compromise agreement later entered into by the same parties, subject only to the enumerated changes and/or modifications, it is obvious that the contracting parties envisioned a stage by stage construction (on the part of the respondent-appellee) and payment (on the part of the defendant-appellant).

Sub-paragraph B of paragraph 1 of the Compromise Agreement, to wit: "B. That immediately upon final approval hereof by this Honorable Court, the plaintiff contractor will submit and file in favor of Pasay City Government a new performance bond in the amount required by pertinent law, rules and

regulations, in proportion to the remaining value or cost of the unfinished work of the construction as per approved plans and specifications . . ."

Read together with the stage-by-stage construction and payment approach, would inevitably lead to the conclusion that the parties to the compromise contemplated a divisible obligation necessitating therefore a performance bond "in proportion to" the uncompleted work.

What is crucial in sub-paragraph B of paragraph 1 of the compromise agreement are the words "in proportion." If the parties really intended the legal rate of 20% performance bond to refer to the whole unfinished work, then the provision should have required the plaintiff contractor to submit and file a new performance bond to cover the remaining value/cost of the unfinished work of the construction. Using the words in proportion then significantly changed the meaning of the paragraph to ultimately mean a performance bond equal to 20% of the next stage of work to be done.

And, We note that in the Contract and Agreement, the respondent-appellee was allowed to file a performance bond of P222,250.00 which is but 5% of the total bid of P4,914,500.80. A security bond was likewise filed with an amount of P97,290.00. The sum total of bond then filed was P320,540.00 which is just 6.5% of the total bid. It is rather curious why all of a sudden the petitioners-appellants are insisting on a 20% performance bond of the entire unfinished work when they were quite content with a bond just 5% of the entire work. For Us to allow the petitioners-appellants to adamantly stick to the 20% performance bond would be tantamount to allowing them to evade their obligation in the compromise agreement. This cannot be allowed. The bond of a contractor for a public work should not be extended beyond the reasonable intent as gathered from the purpose and language of the instrument construed in connection with the proposals, plans and specifications, and contract.

The premium of the bond will be sizeable and will eat up the profit of the contractor, who is faced with the fluctuation of prices of materials due to inflation and devaluation. Right now, many contractors cannot proceed with the implementation of their contracts because of the extraordinary rise in cost of materials and labor. No contractor would be willing to bid for public works contracts under the oppressive interpretation by petitioners-appellants.

Again, the respondent Court was correct in ruling that the submission of the bond was not a condition precedent to the payment of P613,096.00 to the plaintiff. Nowhere in the Contact and Agreement nor in the Compromise Agreement could be found the fact that payment by the petitioner-appellants of the amount of P613,096.00 was dependent upon

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the submission by the respondent-appellee of the performance bond. It cannot be argued that reciprocal obligation was created in the Compromise Agreement, for the obligation to pay on the part of the petitioners-appellants was established several years ago when the respondents-appellee finished some of the stages of construction. And, this argument is already moot and academic, for the amount of P613,096.00 has already been collected through execution and garnishment upon the funds of Pasay City with the Philippine National Bank. Inasmuch as the parties in the herein case have agreed in the Compromise Agreement, to wit: "3. That within a similar period the defendant Pasay City Government shall pay and remit to plaintiff contractor an amount equivalent to three (3%) percent of the above mentioned amount of SIX HUNDRED THIRTEEN NINETY-SIX PESOS (P613,096.00), for and as adverse attorney's fees in this case; . . . "

Municipality of Paoay, Ilocos Norte v. Manaois

Facts: Teodoro Manaois having obtained a judgment against the municipality of Paoay, Ilocos Norte in civil case No. 8026 of the Court of First Instance of Pangasinan, Judge De Guzman of said province issued a writ of execution against the defendant municipality. In compliance with said writ the Provincial Sheriff of Ilocos Norte levied upon and attached certain properties. On July 26, 1949, the Provincial Fiscal of Ilocos Norte in representation of the municipality of Paoay, filed a petition in the Court of First Instance of Pangasinan asking for the dissolution of that attachment of levy. Judge De Guzman in his order of October 6, 1949, denied the petition for the dissolution of the attachment; a MR also denied. Instead of appealing from that order the municipality of Paoay has filed the present petition for certiorari with the writ of preliminary injunction, asking that the order of respondent Judge dated October 6, 1946, be reversed and that the attachment of the properties of the municipality be dissolved.

Issue: WON properties may be levied. There can be no question that properties for public use held by municipal

corporation are not subject to levy and execution. The authorities are unanimous on this point. This Court in the case of Viuda de Tantoco vs. Municipal Council of Iloilo (49 Phil., 52) after citing Manresa, the works of McQuillin and Dillon on Municipal Corporations, and Corpus Juris, held that properties for public use like trucks used for sprinkling the streets, police patrol wagons, police stations, public markets, together with the land on which they stand are exempt from execution. Even public revenues of

municipal corporations destined for the expenses of the municipality are also exempt from the execution. The reason behind this exemption extended to properties for public use, and public municipal revenues is that they are held in trust for the people, intended and used for the accomplishment of the purposes for which municipal corporations are created, and that to subject said properties and public funds to execution would materially impede, even defeat and in some instances destroy said purpose.

Property however, which is patrimonial and which is held by municipality in its proprietary capacity is treated by great weight of authority as the private asset of the town and may be levied upon and sold under an ordinary execution. The same rule applies to municipal funds derived from patrimonial properties, for instance, it has been held that shares of stocks held by municipal corporations are subject to execution. If this is true, with more reason should income or revenue coming from these shares of stock, in the form of interest or dividends, be subject to execution?

The fishery or municipal waters of the town of Paoay, Ilocos Norte, which had been parceled out or divided into lots and later let out to private persons for fishing purposes at an annual rental are clearly not subject to execution. In the first place, they do not belong to the municipality. They may well be regarded as property of State. What the municipality of Paoay hold is merely what may be considered the usufruct or the right to use said municipal waters, granted to it by section 2321 of the Revised Administrative Code. Grant of fishery. — A municipal council shall have authority, for purposes of profit, to grant the exclusive privileges of fishery or right to conduct a fish-breeding ground within any definite portion, or area, of the municipal waters. "Municipal waters", as herein used, include not only streams, lakes, and tidal waters, include within the municipality, not being the subject of private ownership, but also marine waters include between two lines drawn perpendicular to the general coast line from points where the boundary lines of the municipality touch the sea at high tide, and third line parallel with the general coast line and distant from it three marine leagues. Where two municipalities are so situated on opposite shores that there is less than six marine leagues of marine waters between them the third line shall be a line equally distant from the opposite shores of the respective municipalities.

Now, is this particular usufruct of the municipality of Paoay over its municipal waters, subject to execution to enforce a judgment against the town? We are not prepared to answer this question in the affirmative because there are powerful reasons against its propriety and legality. In

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the first place, it is not a usufruct based on or derived from an inherent right of the town. It is based merely on a grant, more or less temporary, made by the Legislature. Take the right of fishery over the sea or marine waters bordering a certain municipality. These marine waters are ordinarily for public use, open to navigation and fishing by the people. The Legislature thru section 2321 of the Administrative Code, as already stated, saw fit to grant the usufruct of said marine waters for fishery purpose, to the towns bordering said waters. Said towns have no visited right over said marine waters. The Legislature, for reasons it may deem valid or as a matter of public policy, may at any time, repeal or modify said section 2321 and revoke this grant to coastal towns and open these marine waters to the public. Or the Legislature may grant the usufruct or right of fishery to the provinces concerned so that said provinces may operate or administer them by leasing them to private parties.

All this only goes to prove that the municipality of Paoay is not holding this usufruct or right of fishery in a permanent or absolute manner so as to enable it to dispose of it or to allow it to be taken away from it as its property through execution.

Another reason against subjecting this usufruct or right of fishery over municipal waters, to execution, is that, if this were to be allowed and this right sold on execution, the buyer would immediately step into the shoes of the judgment-debtor municipality. Such buyer presumably buys only the right of the municipality. He does not buy the fishery itself nor the municipal waters because that belongs to the State. All that the buyer might do would be to let out or rent to private individuals the fishery rights over the lots into which the municipal waters had been parceled out or divided, and that is, after public bidding. This, he must do because that is the only right granted to the municipality by the Legislature, a right to be exercised in the manner provided by law, namely, to rent said fishery lots after public bidding. (See sec. 2323 of the Administrative Code in connection with sec. 2319 of the same Code.) Then, we shall have a situation rather anomalous to be sure, of a private individual conducting public bidding, renting to the highest bidders fishery lots over municipal waters which are property of the State, and appropriating the results to his own private use. The impropriety, if not illegality, of such a contingency is readily apparent. But that is not all. The situation imagined implies the deprivation of the municipal corporation of a source of a substantial income, expressly provide by law. Because of all this, we hold that the right or usufruct of the town of Paoay over its municipal waters, particularly, the

forty odd fishery lots included in the attachment by the Sheriff, is not subject to execution.

But we hold that the revenue or income coming from the renting of these fishery lots is certainly subject to execution. It may be profitable, if not necessary, to distinguish this kind of revenue from that derived from taxes, municipal licenses and market fees are provided for and imposed by the law, they are intended primarily and exclusively for the purpose of financing the governmental activities and functions of municipal corporations. In fact, the real estate taxes collected by a municipality do not all go to it. A portion thereof goes to the province, in the proportion provided for by law. For the same reason, municipal markets are established not only to provide a place where the people may sell and buy commodities but also to provide public revenues for the municipality. To many towns, market fees constitute the bulk of their assets and incomes. These revenues are fixed and definite, so much so that the annual appropriations for the expenses of the municipalities are based on these revenues. Not so with the income derived form fisheries. In the first place, the usufruct over municipal waters was granted by the Legislature merely to help or bolster up the economy of municipal government. There are many towns in the Philippines, specially in the interior, which do not have municipal waters for fishery purpose and yet without much source of revenue, they can function, which goes to prove that this kind of revenue is not indispensable for the performance of governmental functions. In the second place, the amount of this income is far from definite or fixed. It depends upon the amounts which prospective bidders or lessees are willing to pay. If fishing on these marine water, lakes and rivers in the municipality is good, the bids would be high and the income would be substantial. If the fish in these waters is depleted or, if for some reasons or another, fishing is not profitable, then the income would be greatly reduced. In other words, to many municipalities engaged in this business of letting out municipal waters for fishing purposes, it is a sort of sideline, so that even for fishing purposes, it is sort of sideline, so that even without it the municipality may still continue functioning and perform its essential duties as such municipal corporations.

We call this activity of municipalities in renting municipal waters for fishing purposes as a business for the reasons that the law itself (Sec. 2321, Administrative Code already mentioned and quoted) allowed said municipalities to engage in it for profit. And it is but just that a town so engaged should pay and liquidate obligations contracted in connection with said fishing business, with the income derived therefrom.

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