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G.R. No. 97764 August 10, 1992

EVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, petitioner,s.

HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OFPARAAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE, respondents.

MEDIALDEA, J .:

This is a petition for certiorariunder Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court of Maka

Branch 62, which granted the writ of preliminary injunction applied for by respondents Municipality of Paraaque and Palanyag Kilusang Bayor Service (Palanyag for brevity) against petitioner herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. CrBayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea markethereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing andegulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/orending 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 municipalityubject 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 theestablishment 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 oboth 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 anddonated by the Public Estate Authority.

On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter into con

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 perate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the municipaovernment of Paraaque. 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 destructiond 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 discontinueea 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 wamages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of prelimin

njunction.

On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16, 19ending 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 Paraaque anjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag.

Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to lack orxcess of jurisdiction on the part of the trial judge in issuing the assailed order.

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The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Paraaque authorizhe lease and use of public streets or thoroughfares as sites for flea markets is valid.

The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public properties; ths such, they cannot be subject to private appropriation or private contract by any person, even by the respondent Municipality of Paraaqu

Petitioner submits that a property already dedicated to public use cannot be used for another public purpose and that absent a clear showinghat the Municipality of Paraaque has been granted by the legislature specific authority to convert a property already in public use to anotheublic use, respondent municipality is, therefore, bereft of any authority to close municipal roads for the establishment of a flea market. Petitlso submits that assuming that the respondent municipality is authorized to close streets, it failed to comply with the conditions set forth by t

Metropolitan Manila Authority for the approval of the ordinance providing for the establishment of flea markets on public streets. Lastly, petiti

ontends that by allowing the municipal streets to be used by market vendors the municipal council of respondent municipality violated its dunder the Local Government Code to promote the general welfare of the residents of the municipality.

n upholding the legality of the disputed ordinance, the trial court ruled:

. . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government unitsMunicipality of Paraaque as such, is empowered under that law to close its roads, streets or alley subject to limitations sttherein (i.e., that it is in accordance with existing laws and the provisions of this code).

xxx xxx xxx

The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an encroachmentpower legally vested to the municipality, precisely because when the municipality enacted the ordinance in questiontheauthority of the respondent as Police Superintendent ceases to be operative on the ground that the streets covered by the

ordinance ceases to be a public thoroughfare. (pp. 33-34, Rollo)

We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on the pubtreets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 3therwise known as Local Government Code, in connection with established principles embodied in the Civil Code an property and settled

urisprudence on the matter.

The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As twhat 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, thsquares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities ormunicipalities.

All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to theprovisions of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service anre therefore considered public properties of respondent municipality. Properties of the local government which are devoted to public serviceeemed public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-24440, March 28968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless speuthority is vested upon them by Congress. One such example of this authority given by Congress to the local governments is the power tolose roads as provided in Section 10, Chapter II of the Local Government Code, which states:

Sec. 10. Closure of roads.A local government unit may likewise, through its head acting pursuant to a resolution of itssangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city orprovincial road, street, alley, park or square. No such way or place or any part of thereof shall be close without indemnifyin

any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for wother real property belonging to the local unit concerned might be lawfully used or conveyed. (Emphasis ours).

However, the aforestated legal provision which gives authority to local government units to close roads and other similar pub lic places shoulead and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting suchuthority of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic principhat properties of public dominion devoted to public use and made available to the public in general are outside the commerce of man andannot be disposed of or leased by the local government unit to private persons. Aside from the requirement of due process which should beomplied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other public properrom public use when circumstances show that such property is no longer intended or necessary for public use or public service. When it islready withdrawn from public use, the property then becomes patrimonial property of the local government unit concerned (Art icle 422, Civi

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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 respondentmunicipality can "use or convey them for any purpose for which other real property belonging to the local unit concerned might be lawfully usr conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as Local Government Code. In one case, the

Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same neing included in the City Development Plan. Thereafter, the City Council passes another resolution authorizing the sale of the said abandonoad 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 froublic use. Such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract (Cebu Oxygen and Acetyle

Co., Inc. v. Bercilles, et al., G.R. No.-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily usedehicular traffic are still considered public property devoted to public use. In such case, the local government has no power to use it for anoturpose or to dispose of or lease it to private persons. This limitation on the authority of the local government over public properties has bee

iscussed and settled by this Court en bancin "Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R. No.3654, May 6, 1992." This Court ruled:

There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are pstreets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence outside thecommerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease orothers contract (Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30SCRA 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860).

As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Governmecontrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contralaw. The right of the public to use the city streets may not be bargained away through contract. The interests of a few shounot prevail over the good of the greater number in the community whose health, peace, safety, good order and generalwelfare, 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 forstallholders who were granted licenses by the city government contravenes the general law that reserves city streets androads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streetsthe purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

Even assuming,in gratia argumenti,that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validmplemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent municipf the conditions imposed by the former for the approval of the ordinance, to wit:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not oppose thestablishment 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 oboth 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 anddonated by the Public Estate Authority. (p. 38, Rollo)

Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of therdinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of theesidents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will show tha t this first condas been met. Likewise, the designation by respondents of a time schedule during which the flea market shall operate is absent.

urther, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferaf vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia

Extension and Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the other observations of theSolicitor General when he said:

. . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using the rofor a more direct access to the fire area, have to maneuver and look for other streets which are not occupied by stalls andvendors thereby losing valuable time which could, otherwise, have been spent in saving properties and lives.

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Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their patients the hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine the tragedy of loa life just because of a few seconds delay brought about by the inaccessibility of the streets leading to the hospital.

The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is disrupteand school children have to get off at a distance still far from their schools and walk, rain or shine.

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

Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to focus ittention solely on the argument that the use of public spaces for the establishment of a flea market is well within the powers granted by law

ocal government which should not be interfered with by the courts.

Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws sucur Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the

members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safnd convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective

ocal government should refrain from acting towards that which might prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls iublic roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city stnd 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 applicaburing its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has alreaeen repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d) of thew Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other souf prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in forcehe time such rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which grantedwrit of preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of matalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE.

SO ORDERED.

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G.R. No. 129093 August 30, 2001

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON. CALIXTO CATAQUIZ,petitioners,s.

HON. FRANCISCO DIZON PAO and TONY CALVENTO,respondents.

QUISUMBING, J.:

or our resolution is a petition for review on certiorari seeking the reversal of the decision 1 dated February 10, 1997 of the Regional Trial Court of San Peaguna, Branch 93, enjoining petitioners from implementing or enforcingKapasiyahan Bilang 508, Taon 1995, of the Sangguniang Panlalawiganof Lagu

nd its subsequent Order 2 dated April 21, 1997 denying petitioners' motion for reconsideration.

On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine Charity Sweepstakes Office (PCSO) to install Terminal OM 20 he operation of lotto. He asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open the lotto outlet. This was denied by M

Cataquiz in a letter dated February 19, 1996. The ground for said denial was an ordinance passed by the Sangguniang Panlalawiganof Laguna entitledKapasiyahan Blg. 508, T. 1995which was issued on September 18, 1995. The ordinance reads:

ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG LOTTO SA LALAWIGAN NG LAGUN

SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;

SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa mga kabataan;

KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd.Meliton C. Larano at buong pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;

IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lo

IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng Philippine National Police (PNP) Col. [illegible] na mahna pag-ibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna lalo na ang "Jueteng".3

As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory relief with prayer for preliminary injunction and temporaryestraining order. In the said complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna, Branch 93, for the following reliefs: (1)

reliminary injunction or temporary restraining order, ordering the defendants to refrain from implementing or enforcingKapasiyahan Blg. 508, T. 1995; rder requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business permit for the operation of a lotto outlet; and (3) an order annulling or declars invalidKapasiyahan Blg. 508, T. 1995.

On February 10, 1997, the respondent judge, Francisco Dizon Pao, promulgated his decision enjoining the petitioners from implementing or enforcingesolution orKapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads:

WHEREFORE, premises considered, defendants, their agents and representatives are hereby enjoined from implementing or enforcing resolutiokapasiyahan blg. 508, T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the operation of the lotto in the province of Laguna.

SO ORDERED.4

etitioners filed a motion for reconsideration which was subsequently denied in an Order dated April 21, 1997, which reads:

Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the Sangguniang Panlalawigan of Laguna, thru counsel, withopposition filed by plaintiff's counsel and the comment thereto filed by counsel for the defendants which were duly noted, the Court hereby deni

the motion for lack of merit.

SO ORDERED.5

On May 23, 1997, petitioners filed this petition alleging that the following errors were committed by the respondent trial court:

I

THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THESANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUN

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II

THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE PETITIONERS THAT BEFORE ANYGOVERNMENT PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES, PRIOR

CONSULTATION AND APPROVAL BY THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER CONCERNED SECTORS ISREQUIRED.

etitioners contend that the assailed resolution is a valid policy declaration of the Provincial Government of Laguna of its vehement objection to the operaf lotto and all forms of gambling. It is likewise a valid exercise of the provincial government's police power under the General Welfare Clause of Republ

Act 7160, otherwise known as the Local Government Code of 1991.6They also maintain that respondent's lotto operation is illegal because no prior

onsultations and approval by the local government were sought before it was implemented contrary to the express provisions of Sections 2 (c) and 27 of R160.7

or his part, respondent Calvento argues that the questioned resolution is, in effect, a curtailment of the power of the state since in this case the national

egislature itself had already declared lotto as legal and permitted its operations around the country.8As for the allegation that no prior consultations andpproval were sought from thesangguniang panlalawiganof Laguna, respondent Calvento contends this is not mandatory since such a requirement is mertated as a declaration of policy and not a self-executing provision of the Local Government Code of 1991.9He also states that his operation of the lotto sys legal because of the authority given to him by the PCSO, which in turn had been granted a franchise to operate the lotto by Congress.10

he Office of the Solicitor General (OSG), for the State, contends that the Provincial Government of Laguna has no power to p rohibit a form of gambling

which has been authorized by the national government.11He argues that this is based on the principle that ordinances should not contravene statutes asmunicipal governments are merely agents of the national government. The local councils exercise only delegated legislative powers which have been confn them by Congress. This being the case, these councils, as delegates, cannot be superior to the principal or exercise powers higher than those of the lattehe OSG also adds that the question of whether gambling should be permitted is for Congress to determine, taking into account national and local interest

ince Congress has allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to its legislative grant of authority, the provinangguniang Panlalawigancannot nullify the exercise of said authority by preventing something already allowed by Congress.

he issues to be resolved now are the following: (1) whetherKapasiyahan Blg. 508, T. 1995 of the Sangguniang Panlalawiganof Laguna and the denial omayor's permit based thereon are valid; and (2) whether prior consultations and approval by the concerned Sanggunianare needed before a lotto system caperated in a given local government unit.

he entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's permit for the operation of a lotto outlet in favor o f private respondAccording to the mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in the province of Laguna. The ordinance, howev

merely states the "objection" of the council to the said game. It is but a mere policy statement on the part of the local council, which is not self-executing. Nould it serve as a valid ground to prohibit the operation of the lotto system in the province of Laguna. Even petitioners admit as much when they stated inetition that:

5.7. The terms of the Resolution and the validity thereof are express and clear. The Resolution is a policy declaration of the Provincial Governm

of Laguna of its vehement opposition and/or objection to the operation of and/or all forms of gambling including the Lotto operation in the Provof Laguna.12

As a policy statement expressing the local government's objection to the lotto, such resolution is valid. This is part of the local government's autonomy to a

iews which may be contrary to that of the national government's. However, this freedom to exercise contrary views does not mean that local governmentsctually enact ordinances that go against laws duly enacted by Congress. Given this premise, the assailed resolution in this case could not and should not bnterpreted as a measure or ordinance prohibiting the operation of lotto.

he game of lotto is a game of chance duly authorized by the national government through an Act of Congress. Republic Act 1169, as amended byBatasPambansa Blg. 42, is the law which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent provision reads:

SECTION 1. The Philippine Charity Sweepstakes Office.The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shallthe principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of nationa

character, and as such shall have the general powers conferred in section thirteen of Act Numbered One thousand four hundred fifty-nine, asamended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries, and other similar activities, in such frequency and manner, as shall be determined, asubject to such rules and regulations as shall be promulgated by the Board of Directors.

his statute remains valid today. While lotto is clearly a game of chance, the national government deems it wise and proper to permit it. Hence, theangguniang Panlalawiganof Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek to prohibit permits. Stated other

what the national legislature expressly allows by law, such as lotto, a provincial board may not disallow by ordinance or resolution.

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n our system of government, the power of local government units to legislate and enact ordinances and resolutions is merely a delegated power coming frCongress. As held in Tatel vs. Virac,13ordinances should not contravene an existing statute enacted by Congress. The reasons for this is obvious, as elucidnMagtajas v. Pryce Properties Corp.14

Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred upon th

by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, andnegate 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 constitutionlimitation 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 fromexistence 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 tcorporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature (citing Clinton vs. Ceder Rapids, etc.Railroad Co., 24 Iowa 455).

Nothing in the present constitutional provision enhancing local autonomy dictates a different conclusion.

The 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 con

of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still incluthe power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitulike the direct conferment on the local government units of the power to tax (citing Art. X, Sec. 5, Constitution), which cannot now be withdrawnmere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or mod

or violate it.15

Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited an

onfined within the extent allowed by the central authority. Besides, the principle of local autonomy under the 1987 Constitution simply meansdecentralization". It does not make local governments sovereign within the state or an "imperium in imperio".16

o conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Boardaguna as justification to prohibit lotto in his municipality. For said resolution is nothing but an expression of the local legislative unit concerned. The Boanactment, like spring water, could not rise above its source of power, the national legislature.

As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and 27 of Republic Act 7160, otherwise known as the Local GovernmCode of 1991, apply mandatorily in the setting up of lotto outlets around the country. These provisions state:

SECTION 2.Declaration of Policy.. . .

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local

government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program isimplemented in their respective jurisdictions.

SECTION 27.Prior Consultations Required.No project or program shall be implemented by government authorities unless the consultationsmentioned in Section 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained; Provided, that occupanareas where such projects are to be implemented shall not be evicted unless, appropriate relocation sites have been provided, in accordance with

provisions of the Constitution.

rom a careful reading of said provisions, we find that these apply only to national programs and/or projects which are to be implemented in a particular lo

ommunity. Lotto is neither a program nor a project of the national government, but of a charitable institution, the PCSO. Though sanctioned by the nationovernment, it is far fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code.

ection 27 of the Code should be read in conjunction with Section 26 thereof.17Section 26 reads:

SECTION 26.Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cau

pollution, climatic change, depletion of non-renewable resources, loss of crop land, range-land, or forest cover, and extinction of animal or plantspecies, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objec

of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that be undertaken to prevent or minimize the adverse effects thereof.

http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt13http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt13http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt13http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt14http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt14http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt14http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt15http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt15http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt15http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt16http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt16http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt16http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt17http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt17http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt17http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt17http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt16http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt15http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt14http://www.lawphil.net/judjuris/juri2001/aug2001/gr_129093_2001.html#fnt13

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hus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated ection 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the dep letion of non-renewable resource

may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other proje

r programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Obviously, none of thesffects will be produced by the introduction of lotto in the province of Laguna.

Moreover, the argument regarding lack of consultation raised by petitioners is clearly an afterthought on their part. There is no indication in the letter of MCataquiz that this was one of the reasons for his refusal to issue a permit. That refusal was predicated solely but erroneously on the provisions ofKapasiyaBlg. 508, Taon 1995, of the Sangguniang Panlalawiganof Laguna.

n sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from enforcing or implementing theKapasiyahan Blg. 508, T. 1995, ofangguniang Panlalawiganof Laguna. That resolution expresses merely a policy statement of the Laguna provincial board. It possesses no binding legal for requires any act of implementation. It provides no sufficient legal basis for respondent mayor's refusal to issue the permit sought by private respondentonnection with a legitimate business activity authorized by a law passed by Congress.

WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court of San Pedro, Laguna enjoining the petitioners frommplementing or enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby AFFIRMED. No costs.

O ORDERED.

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G.R. No. 40243 March 11, 1992

CELESTINO TATEL, petitioner,s.

MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his capacity as Mayor of Virac, Catanduanes; GAVINO V. GUERRERO, in hisapacity as Vice-Mayor of Virac, Catanduanes; JOSE T. BUEBOS, in his capacity as Councilor of Virac, Catanduanes; ANGELESABLIZO, in his capacity as Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in his capacity as Councilor of Virac, Catanduanes

MARIANO ALBERTO, in his capacity as Councilor of Virac, Catanduanes; JULIA A. GARCIA, in her capacity as Councilor of Virac,Catanduanes; and PEDRO A. GUERRERO, in his capacity as Councilor of Virac, Catanduanes, respondents.

NOCON, J .:

This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of Catanduanes filed by appellant, Celestino Tateusinessman engaged in the import and export of abaca and other products against the Municipal Council of Virac, Catanduanes and its

municipal officials enjoining them from enforcing Resolution No 291of the Council, declaring the warehouse of petitioner in barrio Sta. Elena

he said municipality a public nuisance within the purview of Article 694 of the Civil Code of the Philippines and directing the petitioner to remnd transfer said warehouse to a more suitable place within two (2) months from receipt of the said resolution.

appears from the records that on the basis of complaints received from the residents of barrio Sta. Elena on March 18, 1966 against theisturbance caused by the operation of the abaca bailing machine inside the warehouse of petitioner which affected the peace and tranquilithe neighborhood due to the smoke, obnoxious odor and dust emitted by the machine, a committee was appointed by the municipal council

Virac to investigate the matter. The committee noted the crowded nature of the neighborhood with narrow roads and the surrounding residenouses, so much so that an accidental fire within the warehouse of the petitioner occasioned by the continuance of the activity inside the

warehouse and the storing of inflammable materials created a danger to the lives and properties of the people within the neighborhood.

Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966 declaring the warehouse owned and operateetitioner a public nuisance within the purview of Article 694 of the New Civil Code.

2

His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner instituted the present petition for prohibition wreliminary injunction.

Respondent municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance No. 13, series of 1952, prohibithe construction of warehouses near a block of houses 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.

On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due process and equal protection clause of theConstitution and null and void for not having been passed in accordance with law.

The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of Article 694 of the Civil Code and whetherOrdinance No. 13, S. 1952 of the Municipality of Virac is unconstitutional and void.

n a decision dated September 18, 1969, the court a quo ruled as follows:

1. The warehouse in question was legally constructed under a valid permit issued by the municipality of Virac in accordancwith existing regulations and may not be destroyed or removed from its present location;

2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police power by the Municipal Council of Virac is (sic) unconstitutional and void as claimed by the petitioner;

3. The storage by the petitioner of abaca and copra in the warehouse is not only in violation of the provisions of the ordina

but poses a grave danger to the safety of the lives and properties of the residents of the neighborhood due to accidental fiand constitutes a public nuisance under the provisions of Article 694 of the New Civil code of the Philippines and may beabated;

4. Accordingly, the petitioner is hereby directed to remove from the said warehouse all abaca and copra and other inflammarticles stored therein which are prohibited under the provisions of Ordinance No. 13, within a period of two (2) months frothe time this decision becomes final and that henceforth, the petitioner is enjoined from storing such prohibited articles in twarehouse. With costs against petitioner.

Seeking appellate review, petitioner raised as errors of the court a quo:

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1. In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac, Catanduanes, is a legitimate and validexercise of police power of the Municipal Council, and therefore, constitutional;

2. In giving the ordinance a meaning other than and different from what itprovided by declaring that petitioner violated thesame by using the warehouse for storage of abaca and copra when what is prohibited and penalized by the ordinance is tconstruction of warehouses.

3. In refusing to take judicial notice of the fact that in the municipality, there are numerous establishments similarly situatedappellants' warehouses but which are not prosecuted.

We find no merit in the Petition.

Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of hat municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowedhe police powers in order to effectively accomplish and carry out the declared objects of their creation.

3Its authority emanates from the gen

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 necessarycarry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and propto provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenieof the municipality and the inhabitants thereof, and for the protection of property therein.

4

or 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

he procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. Thesrinciples require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) ot be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) muot be unreasonable.

5Ordinance No. 13, Series of 1952, meets these criteria.

As to the petitioner's second assignment of error, the trial court did not give the ordinance in question a meaning other than what it says.Ordinance No. 13 passed by the Municipal Council of Virac on December 29, 1952,

6reads:

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A BLOCK OHOUSES EITHER IN POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES OFPROPERTY AND LIVES BY FIRE ACCIDENT.

Section 1 provides:

It is strictly prohibited to construct warehouses in any form to any person, persons, entity, corporation or merchants, wherekeep or store copra, hemp, gasoline, petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if notwithin the distance of 200 meters from a block of houses either in the poblacion or barrios to avoid great losses of propertiinclusive lives by fire accident.

Section 2 provides:7

Owners of warehouses in any form, are hereby given advice to remove their said warehouses this ordinance by the MunicCouncil,provided however, that if those warehouses now in existence should no longer be utilized as such warehouse for above-described products in Section 1 of this ordinance after a lapse of the time given for the removal of the said warehounow in existence, same warehouses shall be exempted from the spirit of the provision of section 1 of this ordinance,providfurther, that these warehouses now in existence, shall in the future be converted into non-inflammable products and materwarehouses.

n spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of warehouses wherein inf lammable materialtored where such warehouses are located at a distance of 200 meters from a block of houses and not the constructionper seof a warehou

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.

This was also the observation of the trial court:

A casual glance of the ordinance at once reveals a manifest disregard of the elemental rules of syntax. Experience, howevwill show that this is not uncommon in law making bodies in small towns where local authorities and in particular the persocharged with the drafting and preparation of municipal resolutions and ordinances lack sufficient education and training anare not well grounded even on the basic and fundamental elements of the English language commonly used throughout th

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country in such matters. Nevertheless, if one scrutinizes the terms of the ordinance, it is clear that what is prohibited is theconstruction of warehouses by any person, entity or corporation wherein copra, hemp, gasoline and other inflammableproducts mentioned in Section 1 may be stored unless at a distance of not less than 200 meters from a block of houses eiin the poblacion or barrios in order to avoid loss of property and life due to fire. Under Section 2, existing warehouses for tstorage of the prohibited articles were given one year after the approval of the ordinance within which to remove them butwere allowed to remain in operation if they had ceased to store such prohibited articles.

The ambiguity therefore is more apparent than real and springs from simple error in grammatical construction but otherwisthe meaning and intent is clear that what is prohibited is the construction or maintenance of warehouses for the storage ofinflammable articles at a distance within 200 meters from a block of houses either in the poblacion or in the barrios. And th

purpose of the ordinance is to avoid loss of life and property in case of accidental fire which is one of the primordial and baobligation of any government. 8

Clearly, the lower court did NOT add meaning other than or differrent from what wasprovidedin the ordinance in question. It merely stated turpose of the ordinance and what it intends to prohibit to accomplish its purpose.

As to the third assignment of error, that warehouses similarly situated as that of the petitioner were not prosecuted, suffice it to say that the mact that the municipal authorities of Virac have not proceeded against other warehouses in the municipality allegedly violating Ordinance Nos no reason to claim that the ordinance is discriminatory. A distinction must be made between the law itself and the manner in which said lawmplemented by the agencies in charge with its administration and enforcement. There is no valid reason for the petitioner to complain, in thebsence of proof that the other bodegas mentioned by him are operating in violation of the ordinance and that the complaints have been lodgainst the bodegas concerned without the municipal authorities doing anything about it.

The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectiv

f sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibit ion from storinnflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far aublic policy is concerned, there can be no better policy than what has been conceived by the municipal government.

As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same. The case is a simple civil suit for abatemenuisance, the original jurisdiction of which falls under the then Court of First Instance.

WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

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G.R. No. 155746 October 13, 2004

DIOSDADO LAGCAO, DOROTEO LAGCAO and URSULA LAGCAO,petitioners,s.UDGE GENEROSA G. LABRA, Branch 23, Regional Trial Court, Cebu, and the CITY OF CEBU, respondent.

D E C I S I O N

CORONA, J.:

Before us is a petition for review of the decision dated July 1, 2002 of the Regional Trial Court, Branch 23, Cebu City1upholding the validity of the City oCebus Ordinance No. 1843, as well as the lower courts order dated August 26, 2002 denying petitioners motion for reconsideration.

n 1964, the Province of Cebu donated 210 lots to the City of Cebu. One of these lots was Lot 1029, situated in Capitol Hills, Cebu City, with an area of 4,

quare meters. In 1965, petitioners purchased Lot 1029 on installment basis. But then, in late 1965, the 210 lots, including Lot 1029, reverted to the ProvinCebu.2Consequently, the province tried to annul the sale of Lot 1029 by the City of Cebu to the petitioners. This prompted the latter to sue the province fopecific performance and damages in the then Court of First Instance.

On July 9, 1986, the court a quoruled in favor of petitioners and ordered the Province of Cebu to execute the final deed of sale in favor of petitioners. On J

1, 1992, the Court of Appeals affirmed the decision of the trial court. Pursuant to the ruling of the appellate court, the Province of Cebu executed on June994 a deed of absolute sale over Lot 1029 in favor of petitioners. Thereafter, Transfer Certificate of Title (TCT) No. 129306 was issued in the name ofetitioners and Crispina Lagcao.3

After acquiring title, petitioners tried to take possession of the lot only to discover that it was already occupied by squatters. Thus, on June 15, 1997, petitinstituted ejectment proceedings against the squatters. The Municipal Trial Court in Cities (MTCC), Branch 1, Cebu City, rendered a decision on April 1, rdering the squatters to vacate the lot. On appeal, the RTC affirmed the MTCCs decision and issued a writ of execution and order of demolition.1avvphi

However, when the demolition order was about to be implemented, Cebu City Mayor Alvin Garcia wrote two letters4to the MTCC, requesting the defermf the demolition on the ground that the City was still looking for a relocation site for the squatters. Acting on the mayors request, the MTCC issued tworders suspending the demolition for a period of 120 days from February 22, 1999. Unfortunately for petitioners, during the suspension period, the

angguniang Panlungsod(SP) of Cebu City passed a resolution which identified Lot 1029 as a socialized housing site pursuant to RA 7279.5Then, on Jun999, the SP of Cebu City passed Ordinance No. 17726which included Lot 1029 among the identified sites for socialized housing. On July, 19, 2000,

Ordinance No. 18437was enacted by the SP of Cebu City authorizing the mayor of Cebu City to initiate expropriation proceedings for the acquisition of L029 which was registered in the name of petitioners. The intended acquisition was to be used for the benefit of the homeless after its subdivision and sale

he actual occupants thereof. For this purpose, the ordinance appropriated the amount of P6,881,600 for the payment of the subject lot. This ordinance waspproved by Mayor Garcia on August 2, 2000.

On August 29, 2000, petitioners filed with the RTC an action for declaration of nullity of Ordinance No. 1843 for being unconstitutional. The trial courtendered its decision on July 1, 2002 dismissing the complaint filed by petitioners whose subsequent motion for reconsideration was likewise denied on Au6, 2002.

n this appeal, petitioners argue that Ordinance No. 1843 is unconstitutional as it sanctions the expropriation of their property for the purpose of selling it tquatters, an endeavor contrary to the concept of "public use" contemplated in the Constitution.8They allege that it will benefit only a handful of people. Trdinance, according to petitioners, was obviously passed for politicking, the squatters undeniably being a big source of vot es.1avvphi1

n sum, this Court is being asked to resolve whether or not the intended expropriation by the City of Cebu of a 4,048-square-meter parcel of land owned byetitioners contravenes the Constitution and applicable laws.

Under Section 48 of RA 7160,9otherwise known as the Local Government Code of 1991,10local legislative power shall be exercised by the SangguniangPanlungsodof the city. The legislative acts of the Sangguniang Panlungsodin the exercise of its lawmaking authority are denominated ordinances.

ocal government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature.11By virtue of RA160, Congress conferred upon local government units the power to expropriate. Ordinance No. 1843 was enacted pursuant to Sec tion 19 of RA 7160:

SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power oeminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation,pursuant the provisions of the Constitution and pertinent lawsxxx. (italics supplied).

Ordinance No. 1843 which authorized the expropriation of petitioners lot was enacted by the SP of Cebu City to provide socialized housing for the homelnd low-income residents of the City.

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However, while we recognize that housing is one of the most serious social problems of the country, local government units do not possess unbridled autho exercise their power of eminent domain in seeking solutions to this problem.

here are two legal provisions which limit the exercise of this power: (1) no person shall be deprived of life, liberty, or p roperty without due process of law

or shall any person be denied the equal protection of the laws;12and (2) private property shall not be taken for public use without just compensation.13Th

he exercise by local government units of the power of eminent domain is not absolute. In fact, Section 19 of RA 7160 itself explicitly states that such exermust comply with the provisions of the Constitution and pertinent laws.

he exercise of the power of eminent domain drastically affects a landowners right to private property, which is as much a constitutionally-protected righecessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and liberty.14Whether directly exercise

he State or by its authorized agents, the exercise of eminent domain is necessarily in derogation of private rights.15

For this reason, the need for a painstakcrutiny cannot be overemphasized.

he due process clause cannot be trampled upon each time an ordinance orders the expropriation of a private individuals property. The courts cannot even

dopt a hands-off policy simply because public use or public purpose is invoked by an ordinance, or just compensation has been fixed and determined. In DKnecht vs. Bautista,16we said:

It is obvious then that a land-owner is covered by the mantle of protection due process affords. It is a mandate of reason. It frowns on arbitrarineis the antithesis of any governmental act that smacks of whim or caprice. It negates state power to act in an oppressive manner. It is, as had been

stressed so often, the embodiment of the sporting idea of fair play. In that sense, it stands as a guaranty of justice. That is the standard that must b

met by any governmental agency in the exercise of whatever competence is entrusted to it. As was so emphatically stressed by the present ChiefJustice, "Acts of Congress, as well as those of the Executive, can deny due process only under pain of nullity. xxx.

he foundation of the right to exercise eminent domain is genuine necessity and that necessity must be of public character.17Government may not capricio

r arbitrarily choose which private property should be expropriated. In this case, there was no showing at all why petitionersproperty was singled out forxpropriation by the city ordinance or what necessity impelled the particular choice or selection. Ordinance No. 1843 stated no reason for the choice ofetitioners property as the site of a socialized housing project.

Condemnation of private lands in an irrational or piecemeal fashion or the random expropriation of small lots to accommodate no more than a few tenants

quatters is certainly not the condemnation for public use contemplated by the Constitution. This is depriving a citizen of his property for the convenience ew without perceptible benefit to the public.18

RA 7279 is the law that governs the local expropriation of property for purposes of urban land reform and housing. Sections 9 and 10 thereof provide:

SEC 9.Priorities in the Acquisition of Land. Lands for socialized housing shall be acquired in the following order:

(a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or control

corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas or Priority Development, Zonal Improvement Program sites, and Slum Improvement and ResettleProgram sites which have not yet been acquired;

(e) Bagong Lipunan Improvement of Sites and Services or BLISS which have not yet been acquired; and

(f) Privately-owned lands.

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not appThe local government units shall give budgetary priority to on-site development of government lands. (Emphasis supplied).

SEC. 10.Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include, among others, community mortgageland swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and

expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provfurther, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: xxx(Emphasis supplied).

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n the recent case ofEstate or Heirs of the Late Ex-Justice Jose B.L. Reyes et al. vs. City of Manila,19we ruled that the above-quoted provisions are strictmitations on the exercise of the power of eminent domain by local government units, especially with respect to (1) the orde r of priority in acquiring land ocialized housing and (2) the resort to expropriation proceedings as a means to acquiring it. Private lands rank last in the order of priority for purposes of

ocialized housing. In the same vein, expropriation proceedings may be resorted to only after the other modes of acquisition are exhausted. Compliance wihese conditions is mandatorybecause these are the only safeguards of oftentimes helpless owners of private property against what may be a tyrannicaliolation of due process when their property is forcibly taken from them allegedly for public use.

We have found nothing in the records indicating that the City of Cebu complied strictly with Sections 9 and 10 of RA 7279. Ordinance No. 1843 sought toxpropriate petitioners property without any attempt to first acquire the lands listed in (a) to (e) of Sect ion 9 of RA 7279. Likewise, Cebu City failed to

stablish that the other modes of acquisition in Section 10 of RA 7279 were first exhausted. Moreover, prior to the passage of Ordinance No. 1843, there w

o evidence of a valid and definite offer to buy petitioners property as required by Section 19 of RA 7160.

20

We therefore find Ordinance No. 1843 to beonstitutionally infirm for being violative of the petitioners right to due process.

t should also be noted that, as early as 1998, petitioners had already obtained a favorable judgment of eviction against the illegal occupants of their properhe judgment in this ejectment case had, in fact, already attained finality, with a writ of execution and an order of demolition. But Mayor Garcia requested

rial court to suspend the demolition on the pretext that the City was still searching for a relocation site for the squatters. However, instead of looking for a

elocation site during the suspension period, the city council suddenly enacted Ordinance No. 1843 for the expropriation of petitioners lot. It was trickery ad faith, pure and simple. The unconscionable manner in which the questioned ordinance was passed clearly indicated that respondent City transgressed t

Constitution, RA 7160 and RA 7279.

or an ordinance to be valid, it must not only be within the corporate powers of the city or municipality to enact but must also be passed according to therocedure prescribed by law. It must be in accordance with certain well-established basic principles of a substantive nature. These principles require that a

rdinance (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 norohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable.21

Ordinance No. 1843 failed to comply with the foregoing substantive requirements. A clear case of constitutional infirmity having been thus established, thCourt is constrained to nullify the subject ordinance. We recapitulate:

first, as earlier discussed, the questioned ordinance is repugnant to the pertinent provisions of the Constitution, RA 7279 and RA 7160;

second, the precipitate manner in which it was enacted was plain oppression masquerading as a pro-poor ordinance;

third, the fact that petitioners small property was singled out for expropriation for the purpose of awarding it to no more than a few squattersindicated manifest partiality against petitioners, and

fourth,the ordinance failed to show that there was a reasonable relation between the end sought and the means adopted. While the objective of thCity of Cebu was to provide adequate housing to slum dwellers, the means it employed in pursuit of such objective fell short of what was legal,sensible and called for by the circumstances.

ndeed, experience has shown that the disregard of basic liberties and the use of short-sighted methods in expropriation proceedings have not achieved the

esired results. Over the years, the government has tried to remedy the worsening squatter problem. Far from solving it, however, governments kid-glovepproach has only resulted in the multiplication and proliferation of squatter colonies and blighted areas. A pro-poor program that is well-studied, adequatunded, genuinely sincere and truly respectful of everyones basic rights is what this problem calls for, not the improvidentenactment of politics-basedrdinances targeting small private lots in no rational fashion.

WHEREFORE, the petition is hereby GRANTED. The July 1, 2002 decision of Branch 23 of the Regional Trial Court of Cebu City is REVERSEDandET ASIDE.

O ORDERED.

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G.R. No. 175527 December 8, 2008

HON. GABRIEL LUIS QUISUMBING, HON. ESTRELLA P. YAPHA, HON. VICTORIA G. COROMINAS, HON. RAUL D. BACALTOSMembers of the Sangguniang Panlalawiganof Cebu),petitioners,s.

HON. GWENDOLYN F. GARCIA (In her capacity as Governor of the Province of Cebu), HON. DELFIN P. AGUILAR (in his capacity as DirecV (Cluster Director) of COA), Cluster IV Visayas Local Government Sector, HON. HELEN S. HILAYO (In her capacity as Regional Cluster

Director of COA), and HON. ROY L. URSAL (In his capacity as Regional Legal and Adjudication Director of COA),respondents

TINGA, J.:

Gabriel Luis Quisumbing (Quisumbing), Estrella P. Yapha, Victoria G. Corominas, and Raul D. Bacaltos (Bacaltos), collectively petitioners, assail theDecision1of the Regional Trial Court (RTC) of Cebu City, Branch 9, in Civil Case No. CEB-31560, dated July 11, 2006, which declared that under theertinent provisions of Republic Act No. 7160 (R.A. No. 7160), or the Local Government Code, and Republic Act No. 9184 (R.A. No. 9184), or the

Government Procurement Reform Act, respondent Cebu Provincial Governor Gwendolyn F. Garcia (Gov. Garcia), need not secure the prior authorizationhe Sangguniang Panlalawiganbefore entering into contracts committing the province to monetary obligations.

he undisputed facts gathered from the assailed Decision and the pleadings submitted by the parties are as follows:

he Commission on Audit (COA) conducted a financial audit on the Province of Cebu for the period ending December 2004. Its audit team rendered a repart II of which states: "Several contracts in the total amount of P102,092,841.47 were not supported with a Sangguniang Panlalawiganresolution authori

he Provincial Governor to enter into a contract, as required under Section 22 of R.A. No. 7160."2The audit team then recommended that, "Henceforth, the

ocal chief executive must secure asanggunianresolution authorizing the former to enter into a contract as provided under Section 22 of R.A. No. 7160."

3

Gov. Garcia, in her capacity as the Provincial Governor of Cebu, sought the reconsideration of the findings and recommendation of the COA. However,without waiting for the resolution of the reconsideration sought, she instituted an action for Declaratory Relief before the RTC of Cebu City, Branch 9.

mpleaded as respondents were Delfin P. Aguilar, Helen S. Hilayo and Roy L. Ursal in their official capacities as Cluster Director IV, Regional ClusterDirector and Regional Legal and Adjudication Director of the COA, respectively. The Sangguniang Panlalawiganof the Province of Cebu, represented byVice-Governor Gregorio Sanchez, Jr., was also impleaded as respondent.

Alleging that the infrastructure contracts4subject of the audit report complied with the bidding procedures provided under R.A. No. 9184 and were enteredursuant to the general and/or supplemental appropriation ordinances passed by the Sangguniang Panlalawigan, Gov. Garcia alleged that a separate authoo enter into such contracts was no longer necessary.

On the basis of the parties respective memoranda, the trial court rendered the assailed Decision dated July 11, 2006, declaring that Gov. Garcia need notecure prior authorization from the Sangguniang Panlalawiganof Cebu before entering into the questioned contracts. The dispositive portion of the Decis

rovides:

WHEREFORE, premises considered, this court hereby renders judgment in favor of Petitioner and against the Respondent COA officials anddeclares that pursuant to Sections 22 paragraph in relation to Sections 306 and 346 of the Local Government Code and Section 37 of theGovernment Procurement Reform Act, the Petitioner Governor of Cebu need not secure prior authorization by way of a resolution from theSangguniang Panlalawiganof the Province of Cebu before she enters into a contract involving monetary obligations on the part of the Province Cebu when there is a prior appropriation ordinance enacted.

Insofar as Respondent Sangguniang Panlalawigan, this case is hereby dismissed.5

n brief, the trial court declared that the Sangguniang Panlalawigandoes not have juridical personality nor is it vested by R.A. No. 7160 with authority to

nd be sued. The trial court accordingly dismissed the case against respondent members of the Sangguniang Panlalawigan. On the question of the remedyeclaratory relief being improper because a breach had already been committed, the trial court held that the case would ripen into and be treated as an ordi

ivil action. The trial court further ruled that it is only when the contract (entered into by the local chief executive) involves obligations which are not back

y prior ordinances that the prior authority of thesanggunianconcerned is required. In this case, the Sangguniang Panlalawiganof Cebu had already giverior authorization when it passed the appropriation ordinances which authorized the expenditures in the questioned contracts.

he trial court denied the motion for reconsideration6filed by Quisumbing, Bacaltos, Carmiano Kintanar, Jose Ma. Gastardo, and Agnes Magpale, in theirapacities as members of the Sangguniang Panlalawiganof Cebu, in an Order7dated October 25, 2006.

n the Petition for Review8dated November 22, 2006, petitioners insisted that the RTC committed reversible error in granting due course to Gov. Garciasetition for declaratory relief despite a breach of the law subject of the petition having already been committed. This breach was allegedly already the subjf a pending investigation by the Deputy Ombudsman for the Visayas. Petitioners further maintained that prior authorization from the Sangguniang

Panlalawiganshould be secured before Gov. Garcia could validly enter into contracts involving monetary obligations on the part of the province.

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Gov. Garcia, in her Comment9dated April 10, 2007, notes that the RTC had already dismissed the case against the members of the Sangguniang Panlalawf Cebu on the ground that they did not have legal personality to sue and be sued. Since the COA officials also named as respondents in the petition foreclaratory relief neither filed a motion for reconsideration nor appealed the RTC Decision, the said Decision became final and executory. Moreover, only

f the members of the Sangguniang Panlalawigan, namely, petitioners Quisumbing and Bacaltos, originally named as respondents in the petition foreclaratory relief, filed the instant petition before the Court.

Respondent Governor insists that at the time of the filing of the petition for declaratory relief, there was not yet any breach of R.A. No. 7160. She furtherrgues that the questioned contracts were executed after a public bidding in implementation of specific items in the regular or supplemental appropriationrdinances passed by the Sangguniang Panlalawigan. These ordinances allegedly serve as the authorization required under R.A. No. 7160, such that thebtention of another authorization becomes not only redundant but also detrimental to the speedy delivery of basic services.

Gov. Garcia also claims that in its Comment to the petition for declaratory relief, the Office of the Solicitor General (OSG) took a stand supportive of theovernors arguments. The OSGs official position allegedly binds the COA.

xpressing gratitude for having been allowed by this Court to file a comment on the petition, respondent COA officials in their Comment10dated March 8007, maintain that Sections 306 and 346 of R.A. No. 7160 cannot be considered exceptions to Sec. 22(c) of R.A. No. 7160. Sec. 346 a llegedly refers toisbursements which must be made in accordance with an appropriation ordinance without need of approval from the sanggunianconcerned. Sec. 306, onther hand, refers to the authorization for the effectivity of the budget and should not be mistaken for the specific authorization by the Sangguniang

Panlalawiganfor the local chief executive to enter into contracts under Sec. 22(c) of R.A. No. 7160.

he question that must be resolved by the Court should allegedly be whether the appropriation ordinance referred to in Sec. 346 in relation to Sec. 306 of RNo. 7160 is the same prior authorization required under Sec. 22(c) of the same law. To uphold the assailed Decision would allegedly give the local chiefxecutive unbridled authority to enter into any contract as long as an appropriation ordinance or budget has been passed by t hesanggunianconcerned.

Respondent COA officials also claim that the petition for declaratory relief should have been dismissed for the failure of Gov. Garcia to exhaust administremedies, rendering the petition not ripe for judicial determination.

he OSG filed a Comment11dated March 12, 2007, pointing out that the instant petition raises factual issues warranting its denial. For instance, petitionerne hand, claim that there was no appropriation ordinance passed for 2004 but only a reenacted appropriations ordinance and that the unauthorized contrac

id not proceed from a public bidding pursuant to R.A. No. 9184. Gov. Garcia, on the other hand, claims that the contracts were entered into in compliancwith the bidding procedures in R.A. No. 9184 and pursuant to the general and/or supplemental appropriations ordinances passed by the SangguniangPanlalawigan. She further asserts that there were ordinances allowing the expenditures made.

On the propriety of the action for declaratory relief filed by Gov. Garcia, the OSG states in very general terms that such an action must be brought before a

reach or violation of the statute has been committed and may be treated as an ordinary action only if the breach occurs after the filing of the action but behe termination thereof. However, it does not say in this case whether such recourse is proper.

Nonetheless, the OSG goes on to discuss that Sec. 323 of R.A. No. 7160 allows disbursements for salaries and wages of existing positions, statutory and

ontractual obligations and essential operating expenses authorized in the annual and supplemental budgets of the preceding year (which are deemed reenan case thesanggunianconcerned fails to pass the ordinance authorizing the annual appropriations at the beginning of the ensuing fiscal year). Contractualbligations not included in the preceding years annual and supplemental budgets allegedly require the prior approval or authorization of the localsanggun

n their Consolidated Reply12dated August 8, 2007, petitioners insist that the instant petition raises only questions of law not only because the parties havegreed during the proceedings before the trial court that the case involves purely legal questions, but also because there is no dispute that the Province of C

was operating under a reenacted budget in 2004.

hey further defend their standing to bring suit not only as members of the sanggunianwhose powers Gov. Garcia has allegedly usurped, but also as taxpa

whose taxes have been illegally spent. Petitioners plead leniency in the Courts ruling regarding their legal standing, as this case involves a matter of publiolicy.

etitioners finally draw attention to the OSGs seeming change of heart and adoption of their argument that Gov. Garcia has violated R.A. No. 7160.

t should be mentioned at the outset that a reading of the OSGs Comment13on the petition for declaratory relief indeed reveals its view that Sec. 22(c) of RNo. 7160 admits of exceptions. It maintains, however, that the said law is clear and leaves no room for interpretation, only application. Its Comment on thnstant petition does not reflect a change of heart but merely an amplification of its original position.

Although we agree with the OSG that there are factual matters that have yet to be settled in this case, the records disclose enough facts for the Court to be o make a definitive ruling on the basic legal arguments of the parties.

he trial courts pronouncement that "the parties in this case all agree that the contracts referred to in the above findings are contracts entered into pursuanhe bidding procedures allowed in Republic Act No. 9184 or the Government Procurement Reform Acti.e., public bidding, and negotiated bid. The bidd

were made pursuant to the general and/or supplemental appropriation ordinances passed by the Sangguniang Panlalawiganof Cebu x x x"14is clearly beli

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he Answer15filed by petitioners herein. Petitioners herein actually argue in their Answer that the contracts subject of the COAs findings did not proceed public bidding. Further, there was no budget passed in 2004. What was allegedly in force was the reenacted 2003 budget.16

Gov. Garcias contention that the questioned contracts complied with the bidding procedure in R.A. No. 9184 and were entered into pursuant to the genera

upplemental appropriation ordinances allowing these expenditures is diametrically at odds with the facts as presented by pet itioners in this case. It is nota

owever, that while Gov. Garcia insists on the existence of appropriation ordinances which allegedly authorized her to enter into the questioned contracts,oes not squarely deny that these ordinances pertain to the previous years budget which was reenacted in 2004.

hus, contrary to the trial courts finding, there was no agreement among the parties with regard to the operative facts under which the case was to be resoNonetheless, we can gather from Gov. Garcias silence on the matter and the OSGs own discussion on the effect of a reenactedbudget on the local chief

xecutives ability to enter into contracts, that during the year in question, the Province of Cebu was indeed operating under a reenacted budget.

Note should be taken of the fact that Gov. Garcia, both in her petition for declaratory relief and in her Comment on the instant petition, has failed to point he specific provisions in the general and supplemental appropriation ordinances copiously mentioned in her pleadings which supposedly authorized her tonter into the questioned contracts.

Based on the foregoing discussion, there appear two basic premises from which the Court can proceed to discuss the question of whether prior approval byangguniang Panlalawiganwas required before Gov. Garcia could have validly entered into the questioned contracts. First, the Province of Cebu wasperating under a reenacted budget in 2004. Second, Gov. Garcia entered into contracts on behalf of the province while this reenacted budget wasorce.

ec. 22(c) of R.A. No. 7160 provides:

Sec. 22. Corporate Powers.(a) Every local government unit, as a corporation, shall have the following powers:

x x x

(c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unitwithout prior authori