Local Government Digest

Mabelle O.
Nebres | Local Governments Case Digests

Alvarez v. Guingona
Facts: 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
municipalitys 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 imperio
c. 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
Mabelle O. Nebres | Local Governments Case Digests

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 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. PAGCOR
Facts: 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."
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 Manila
Facts: 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 state
2. 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.
McKinleys 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. COMELEC
Facts: 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 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: denied
Issue: 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 peoples
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
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. CSC
Facts: 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
Juans nominees. According to Abella, Almajose was the most

qualified since she was the only CPA among the contenders. DMB
Usec Cabuquit signed Almajoses appointment papers upon Abellas
recommendation. Unaware of Almajoses 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 Almajoses 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 Almajoses
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 Malacaang 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.
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. Aguirre
Facts:
Tan v. COMELEC
Facts:
Ganzon v. CSC
Facts:
Cordillera Broad Coalition v. COA
Facts:

Limbona v. Mangelin
Facts:
Pelaez v. Auditor General

Facts: Pursuant to Sec 68 of the RAC, the President issued EOs 93121, 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, 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
10
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 Presidents 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
11

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 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. Moya
Facts: 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. COMELEC
Facts: 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 newlycreated 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
12

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.
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 Taada 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. CA
13

Facts: 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
Alicias 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 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.Alicias 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
14
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.
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
15
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. COMELEC
Facts: 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.
Padillas 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. Aguirre
Facts: 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
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
16
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. Abalos
Facts: 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 "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
17
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
18
4.
5.
6.
Dela
districts. At any rate, it is not required that all laws

emanating from the legislature must contain all
relevant data considered by Congress in the
enactment of said laws.
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.
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.
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.
Cruz v. Paras
Facts: 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
19

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.
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. CA
Facts: 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 IIIPollution 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:
20

1.
2.
3.
4.
5.
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.
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)
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.
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.
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.
21

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
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 reinspection 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
22
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."
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
23
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 mayors 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.
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."
24
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 tenantfarmer 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 Virac

Facts: Based on complaints received by the residents of barrio Sta.
Elena against the disturbance caused by the operation of the abaca
bailing machine inside Tatels warehouse, Resolution 291 was
enacted by the Municipal Council of Virac declaring Tatels
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 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
25

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. CA
Facts: 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 governments 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,
26

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 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&Rs 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,
27

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
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.
28

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 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
29

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 preemptively 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.
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
30

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. CA
Facts: 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 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
31

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 quasijudicial 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.
32

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) 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.
33

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. Socrates
Facts: 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, 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 Mayors 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.
34

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
2.
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."
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
35
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, 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.
36
37
38
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.
39

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 BAVAs 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 ones 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 Pea,
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." 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
40

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 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
41

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: The 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 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
42

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, Paraaque, 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 Paraaque issued a
resolution authorizing Paraaque 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 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
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
Paraaque 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.
43

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: 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.
44

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 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 publics 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
45

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 crossexamination, 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, 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
46

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-Air
Facts: 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. 96001 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 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.
47

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 "metrowide" basic services affecting the region placed under "a
development authority" referred to as the MMDA.
"Metro-wide services" are those "services which have metrowide 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 metrowide 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 MMDAs 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 "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
48

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,
peoples 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 petitioners 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 MMCs approval.
Moreover, the power to impose taxes and other levies, the
power to appropriate money, and the power to pass
ordinances or resolutions with penal sanctions were vested
exclusively in the MMC. 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 MMAs jurisdiction was limited to
addressing common problems involving basic services that
transcended local boundaries. It did not have legislative
power. Its power was merely to provide the 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 MMDAs functions.
There is no grant of authority to enact ordinances and
regulations for the general welfare of the inhabitants of the
metropolis. It is thus beyond doubt that the MMDA is not a
LGU or a public corporation endowed with legislative power.
It is not even a "special metropolitan political subdivision" as
contemplated in Section 11, Article X of the Constitution.
The creation of a "special metropolitan political subdivision"
49

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-
50

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.
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 force
at 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 the
municipality to exercise this right since the Sangguniang
Panlalawigan
disapproved 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 the
sangguniang panlalawigan shall find that any municipal
ordinance, resolution or executive order is beyond the power
conferred upon the sangguniang bayan or the mayor, it shall
declare such ordinance, resolution or executive order invalid
in whole or in part, entering its actions upon the minutes
and advising the proper municipal authorities thereof. The
effect of such an action shall be to annul the ordinance,
resolution or executive order in question in whole or in part.
The action of the sangguniang panlalawigan shall be final.
The Sangguniang Panlalawigan's disapproval of Municipal
R 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.
51

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 the
use 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 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 for
the same purpose." The accusations of political reprisal are
likewise
unsupported 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
52

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
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. 1415; 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
53

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
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
54

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 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
55

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 BacolodTomonton 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
56

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 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 Bian 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
57

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 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
58

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
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
59

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 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
60
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.
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
61

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.
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
62

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.
63
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.
64

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
65

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)
Municipality of Paranaque v. V.M. Realty Corporation
Facts: Pursuant to Sangguniang Bayan Resolution No. 93-95, Series
of 1993, the Municipality of Paraaque 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.
66

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 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
67
2.
3.
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."
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.
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.
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
68

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 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
69

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 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.
70

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 Assn 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 petitioners 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
petitioners 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 petitioners
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 Taada 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 petitioners 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
71

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 nonworking 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)espondents 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 timebarred in the filing of the (p)etition, the same was filed with
the Court of Appeals as is.
CA erred in dismissing petitioners 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
72
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.
Petitioners bold assertion that there was no public
hearing conducted prior to the passage of Kautusan
Blg. 28 is belied by its own evidence. In petitioners
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 Sangguniang Bayans 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, petitioners 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
73

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 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
74
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 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 nonpayment, 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.
75
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 nonessential 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 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
76
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 mayors 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, mayors 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.
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
77
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 A73 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
78
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.
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 manufacturers and exporters 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.
Floros defense: not liable since the plaintiffs 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 manufacturers
and exporters 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
79
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 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
municipalitys jurisdiction to help finance the construction of the
municipalitys 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 mayors permit. Jurado sent his agent to the
Treasurers office to pay the license fee for thresher operators.
Mapagu refused to accept payment and required Jurado to first
secure a mayors 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 mayors 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 Jurados 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
donationobligatory and a condition precedent to
the issuance of a mayors 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
80

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 Manilas 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 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
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.
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
81
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 noncompliance 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 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, M1, 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
82

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
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.
83
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 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
84
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 governmentowned 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. In the first place, the petitioner's claim
that it is an instrumentality of the Government is
85
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 governmentowned 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 governmentowned 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
86

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 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 twentyfour 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
87

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 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 wellencrusted 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, 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
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 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,"
88

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 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
89
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 crossexamining 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.
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
90

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 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
91

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 the case NDC vs. Jose Yulo
Tobias, 7 SCRA 692, it was held that . . . plaintiff is
neither the Government of the Republic nor a
92
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
93
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 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.
94

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.
TEs 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 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,
95
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.
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 kindon 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
96
Casio v. CA
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.
Facts: The Sangguniang Panglungsod of Gingoog passed Resolution

49 which classified certain areas, including Casios coliseum which
was licensed as a cockpit. The classification led to the cancellation
of Casios 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 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
97

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 Casio 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 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
98
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 respondentappellant, a condition precedent before a grant of
mayors permit or license to conduct cockfighting.
Therefore, the mayor's permits issued to private
respondent are null and void. Obviously, the PGC did
not grant the private respondent-appellant the
proper registration certificate to operate his cockpit
because the same was not constructed within the
appropriate areas as prescribed in zoning laws or
ordinances of Gingoog City pursuant to Section 6 of
Rules and Regulation of the PGC.
Gamboa v. Aguirre
Facts: In the 1995 elections, Coscolluela, Gamboa, Jr. and Aguirre,
Jr., and Araneta were elected Negros Occidental Governor, ViceGovernor 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. 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
99

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 quasiGovernor. 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
100
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 nonintermingling 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 ViceMayor should discharge the duties of the mayor
during the latter's absence. This doctrine 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 ViceGovernor.
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
101

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, 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.."
102
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 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
103

(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 contradistinguished 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.
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
104
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 lawmaking 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 lawmaking 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 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
105
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:
106

"The yeas and nays shall be taken upon the passage
of all ordinances and on all propositions to create
any liability 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
107

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 MTDCs 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.
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
108
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 ErmitaMalate 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 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
109
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 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
110
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 abovequoted Section. The Ordinance now vainly attempts
to lump these establishments with houses of illrepute 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 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
111

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 vicemayor, 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. Seria: 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 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 vicemayor; and the amendatory provisions of Republic
Act 2259 making the vice-mayor the presiding
112
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.
Petitioners 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
113

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, 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 coterminous 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
114
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.
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
115

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.
116
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 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
117

cases exclusively cognizable by the inferior courts is to lose
sight of this objective. Worse, it would make the law a selfdefeating 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.
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.
118

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 noncompliance 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.
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
119

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 nonobservance 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 assuming that the law applies insofar as Atayde is
concerned, she has substantially complied with it.
120

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.
121

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 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 noncompliance 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.
122

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 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
123
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.
124
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 was prevented to do so because of the strict and extremely
tight cordon sanitaire of the latter. He then inquired from the
respondents 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 respondents 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 Courts 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.
Respondents 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
125

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. Respondents
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 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.
126

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 judges 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 JulianSulat, 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 affidavitcomplaint 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 JulianSulat, 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. Quiloa 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.
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
127

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.
Elepao, 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 (respondents) 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 judges 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 they may
make in the performance of their duties and functions; and
it is sound rule, which must be recognized independently of
128

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 judges 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
129

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 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
130

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 Pangilinans 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 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 preproclamation 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.
131

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.
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
132

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
(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
133

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 365day 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 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
134

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 Committees 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
Committees 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 Courts 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 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
135

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
2.
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 coequal, coordinate and independent branches of government.
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 Comelecs 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
136
3.
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.
WON the exclusion of persons 18-21 from the SK was
unconstitutional. NO.
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
137
5.
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 youths
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 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.
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. Ario
Facts: Mayor Irisari of Loreto, Agusan del Sur summoned to his
office herein complainant Apolinario S. Muez for conference
respecting a land dispute which Muez 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 Ario
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 Ario 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 Ario reconsidered his previous order and dismissed
138

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 Muez 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 Muez sent two
letters dated July 5 and 12, 1933 to the Presidential Anti-Crime
Commission charging respondent Judge Ciriaco C. Ario 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 Muez 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 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 Muez. 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.
139

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 Muez 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 Ario 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)
140
141

Bistros application for a business license, as well as the work
permit applications of Bistros staff, for the year 1993. TC: issued
first assailed TRO, after hearing, court granted Bistros application
for a writ of prohibitory preliminary injunction. Despite the trial
courts order, Lim still issued a closure order on Bistros operations,
even sending policemen to carry out his closure order. Bistro filed
an "Urgent Motion for Contempt" against Lim and the policemen
who stopped Bistros operations. At the hearing of the motion for
contempt, Bistro withdrew its motion on condition that Lim would
respect the courts injunction. Lim, acting through his agents and
policemen, again disrupted Bistros 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.
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 Lims instructions inspected and
investigated Bistros license as well as the work permits and health
certificates of its staff. This caused the stoppage of work in Bistros
night club and restaurant operations. Lim also refused to accept
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
142

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 Bistros 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 Lims exercise of this power
violated Bistros 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 Bistros operations even before the expiration of its
business license on December 31, 1992. Lim also refused to
accept Bistros license application for 1993, in effect
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
143

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
2.
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 SubDistrict 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 DPWHARMM 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, 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.
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
144
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 selfdetermination 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
145
Philippines." Regional autonomy is the degree of selfdetermination exercised by the local government unit vis-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 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 formsdeconcentration 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-determinationa 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 selfexpression 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
146

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.
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. 6734the 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
147

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. 6734which
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 Engineering District of the DPWHARMM 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 powerthe 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
148

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
3.
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 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.
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
149
4.
5.
wisdom of the law. This the Court cannot do without doing

violence to the separation of governmental powers.
WON other non-Muslim areas in Mindanao should likewise be
covered.
He argues that since the Organic Act covers several nonMuslim 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.
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
6.
7.
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.
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 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.
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.
150

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-inCharge 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 IPHOAPGH, 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 Pandis
designation as Officer-in-Charge of the IPHO-APGH, Lanao del Sur,

as well as Sanis detail to the Regional Office of the DOH-ARMM in
Cotabato City . CA: Saber is the lawfully designated Officer-inCharge 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.
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.
151

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
Fourth
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.
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
152

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 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 latters
salary comes from provincial funds. If the provincial health
officers 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 IPHOAPGH, 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-inCharge 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 Mutilans 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
153
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 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-inCharge 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 Officerin-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.
154

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 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
155

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.
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."
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.
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
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
156

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, nongovernmental organizations and the private sector for the
3.
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.
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. 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 nongovernmental 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.
157
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 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 Presidents 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
158

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 laws 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 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.
159

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 refiled 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
5.
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.
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.
160

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;
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
161

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: "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,"
2.
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.
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
162

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.
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 nonretroactive 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-
163

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 Up
Majoritys 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."
(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
164

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 Badoys
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.
Miguels 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.
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
182
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
2.
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.'
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).
183

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
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. 95089 (disqualification case).
184

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 (Blacks 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.
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
185

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 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
186

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 Antifencing Law) in a Decision dated June 1, 1990. Respondent
appealed the said conviction with the Regional Trial Court , which
however, affirmed respondents conviction in a Decision dated
November 14,1990. Respondents conviction became final on
January 18,1991. The second assailed resolution, dated August 28,
1995, denied petitioners 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 Blacks 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 clearcut 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 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
187

of ones 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 ones 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. Petitioners 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, petitioners theory has no merit.
Magno v. COMELEC
Facts: 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.
(Blacks 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 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.
188

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. Petitioners 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. COMELEC
Facts: 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
189

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 Sulongs motion for reconsideration and/or notice of
appeal; that the said complainant had not yet complied therewith
and his (respondent Sulongs) motion had consequently 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 COMELECs 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 Sulongs motion for
reconsideration and/or notice of appeal had not been given due
course by the Sangguniang Panlalawigan; and that respondent
Sulongs 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 respondents disqualification. On August 30, 2001, the
COMELECs First Division denied petitioners 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 reelected 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
officers 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
190

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
respondents motion. The filing of his motion for
reconsideration prevented the decision of Sangguniang
Panlalawigan from becoming final.
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 respondents 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 petitioners
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
191

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. IXB, 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
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 governmentowned 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
192

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 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
193

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 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
194

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 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.
195

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 dulyelected 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.
196

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
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
Capcos 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.
197

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 threeterm 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 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 latters 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,
198

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 threeterm 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 latters 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
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 vicemayor 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
199

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.
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
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
200

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 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
201
2.
3.
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.
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.
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 elected does
not signify that his disqualification is deemed condoned and
may no longer be the subject of a separate investigation .
Adormeo v. COMELEC
202

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 Talagas 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 Tagaraos 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.
203

COMELECs 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.
Patently untenable is petitioners 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 respondents 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
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 peoples 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
Princesas 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.
204

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 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
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
205

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 Hagedorns service as mayor, not because of
his voluntary renunciation, but because of a legal
prohibition. Hagedorns three consecutive terms ended on
June 30, 2001. Hagedorns 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 Hagedorns 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 Hagedorns
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 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 peoples 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 Hagedorns 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
officials 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 Talagas
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. Talagas 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 officials terms
in office. Hagedorns recall term does not retroact to include
206

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 Hagedorns 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 Hagedorns 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. Hagedorns 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. Hagedorns 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; and
4. 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
Osmea 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 Authorizing Appropriations Therefor)
was enacted. Suit was instituted by Governor Osmea, 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
207

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 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
208
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 VicePresident 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
1.
2.
"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:
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.
Section 8, Article X of the 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. 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.
209

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 coexistence; to cause to agree in time.
210

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 ViceGovernor 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 vicegovernor 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
211

another letter to Acting-Governor Petilla, reiterating his earlier
request. Despite these several letters of request, the Acting
Governor and 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 ViceGovernor 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
2.
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 ViceGovernor. 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.
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. Menzons 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
212
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 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.
213

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 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
214
3.
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.
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 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 Ramas 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 petitioners 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
215

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 appointees 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 CSCs 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 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 agencys Merit
Promotion Plan; (b) Failure to pass through the agencys
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 socalled 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
216

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 petitioners 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.
Petitioners 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 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
217
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
218

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 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 Davids 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
219

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 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
220
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 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, mayors 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.
221

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.
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
222

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 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
223

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
3.
4.
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.
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 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.
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
224

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 making payments pursuant to said
225

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
226

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 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
2.
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.
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.
227

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 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
228

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.
229

Ganzon v. CA (November 1991)
Ganzon v. CA (August 1991, supra, see p. 9)
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 CAs
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-
230

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
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
231
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 60day 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 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
232

"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 60day 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 1988. Shortly
after December 1989 coup d'etat was crushed, respondent
Secretary of Local Government sent a telegram and a letter, both
233

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 Aguinaldos reelection.
A public official can not be removed for administrative
misconduct committed during a prior term, since his 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. 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
234
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 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
235

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 dulyelected 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 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
236
2.
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.
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 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.
237

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 Caete 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 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
238

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 its 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
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.
239

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
240

third and final term. Once again, he beat the odds by emerging
sixth in a battle for six councilor seats. As in 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
241
4.
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
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.
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
242
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 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 wellknown 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
243

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 coexistence. 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 lettercomplaint 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 (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
244

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 lettercomplaint 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 lettercomplaint 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
245
2.
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.
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 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.
246

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
3.
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 lettercomplaint 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.
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
247
4.
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 they
are innocent, also expeditiously if guilty, so that the
business of government will not be prejudiced.
WON the DILG erred in recommending to the Disciplining
Authority his preventive suspension during the investigation
in view of Josons 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.
5.
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.
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
248

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 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 crossexamine 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.
249

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
Maghirangs 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-inlaw 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 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 [Maghirangs] 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. L34636, 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 AntiGraft 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
250

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 AntiGraft 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 officers 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
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
251

decision of the Sangguniang Panlalawigan of Palawan. Pending
respondents 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 respondents 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 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.
252
Evardone v. COMELEC
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.
253

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
2.
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.
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
254

the theory that the 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
255
2.
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 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.
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
256
4.
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.
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 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 petitioners 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 OSGls 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 officials 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 petitioners
257
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 officials replacement in the said election who
certainly has a longer tenure in office than a successor
elected through a 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
258
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 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
259

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 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
260
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
261

"period of repose" during which "[his] attention should not
be distracted by any impediment, especially by 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
2.
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.
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.
Ps 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
262
3.
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.
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. 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
263

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
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
264
2.
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-INCHARGE 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.
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, 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
265

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. 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.
Petitioners 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
266
2.
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.
WON Garcias 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 ones 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 Pajaros
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] Petitioners 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 90on 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.
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
267

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
268
2.
designated 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.
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)
269

Ganzon v. CA (supra, see p. 9)
City of Cebu v. National Waterworks and Sewerage
Authority
Facts: The Osmea 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 Osmea 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 Osmea
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 governmentowned 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.
270

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 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 Osmea
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
Osmea 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 (Osmea 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
271
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.
Similarly, we cannot uphold appellant's theory that the
transfer of ownership of the Osmea 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 Osmea 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
272

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
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
273

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 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
274
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 abovementioned, 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.
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.
275

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
276

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 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.
277
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 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 drivers 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
278

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 the
Metropolitan 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 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
279
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 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
280

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 Compaia 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 viceversa without extra charge, although this privilege is not extended
to zone fare passengers.
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,
281
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
282

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 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
283
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 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 km lake surface water, the
eight (8) major river tributaries and several other smaller
rivers that drain into the lake, the 2,920 km 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 intergenerational 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 km 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
284

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
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
285

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.
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
286

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 vicemayor, 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.
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
287

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.'
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
288
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
289

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 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
290

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 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.
291

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 reorganizational
meeting, there being a quorum." The rule specifically
provides that it is the incumbent FABC President or VicePresident 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
292

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
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
293

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 RAs
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.
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 DirectorGeneral 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
294

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-inChief 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 and a diminution of, the President's
power of control over all executive departments, bureaus
and offices."
295

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.
Bito-Onon v. Fernandez
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. 97193 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.
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
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
Drilon v. Lim (supra, see p. 76)
296

submitted to the National Liga Headquarters within twentyfour (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
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
297

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
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 LigaCaloocan 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
Davids 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 Presidents 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 Presidents
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 Presidents 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
298

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 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 DILGs 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 Ligas 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,
299

although petitioner Davids 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 DILGs 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 Ligas
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 Ligas 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 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
300

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 Committees 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 Presidents 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 selfreliant 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 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
301

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 wellintentioned 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 Committees 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
302

Committee would direct the DBM to release the funds for
the projects.
To the Courts 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 Committees work was
supposed to be done a year from the approval of the Code,
or on October 10, 1992.[30] The Oversight Committees
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
303
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 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
304

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 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 COAs 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 petitioners 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. Gangans Resolution
dated 3 January 2000 denying his requests. Petitioner filed a
motion for reconsideration on 31 March 2000, which COA denied on
305

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 COAs 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 COAs audit jurisdiction extends not only to government
agencies or instrumentalities, but also to governmentowned 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 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.
Petitioners contention that the Sangguniang Bayan
resolution creates the LWDs assumes that the Sangguniang
306

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 COAs audit jurisdiction. The
resolution of the Sangguniang Bayan would constitute an
LWDs special charter, making the LWD a governmentowned 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.
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. Petitioners rationale
is that only private corporations may be deemed quasipublic 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
307
can only apply to private corporations. Petitioners

argument is inconsequential.
Petitioner forgets that the constitutional criterion on the
exercise of COAs audit jurisdiction depends on the
governments 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 postaudit. 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 COAs audit
jurisdiction. Neither is the manner of creation of a
corporation, whether under a general or special law.
The determining factor of COAs 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 coowners 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 antigraft 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 COAs 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 Districts 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 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
308
Local Water Utilities Administration can require LWDs to

merge or consolidate their facilities or operations.[31] This
element of government control subjects LWDs to COAs
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 COAs
3.
audit jurisdiction. Section 3, Article IX-C of the Constitution

outlaws any scheme or devise to escape COAs 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.
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 latters 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
309

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 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 formers 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 COAs actual audit cost. Neither has
petitioner alleged that the auditing fees are paid by LWDs
directly to individual COA auditors. Thus, petitioners
contention must fail.
310
San Diego v. Municipality of Naujan, Oriental Mindoro

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 bagus 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
311

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 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
312

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 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
313

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.
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
314

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 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
315

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 illadvised 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 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
316

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
317

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 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 vicepresident 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
318

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 Bania 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 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-Bania, Mrs. Priscilla B. Surell, Laureano
Bania, Jr., Sor Marietta Bania, Mrs. Fe B. Soriano, Montano
Bania, Orja Bania and Lydia B. Bania the sums of P1,500.00 as
funeral expenses and P24,744.24 as the lost expected earnings of
the late Laureano Bania 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 nonsuability of the State amounting to lack of jurisdiction in a motion
to dismiss.
319

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 nonsuability 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.
2.
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."
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
320

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 Suer, 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 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
321

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
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
322

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
323
2.
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."
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.
WON under the doctrine of respondent superior, petitionermunicipality 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
324

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 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
325
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 nonperformance 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 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
326

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 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
327

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 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
328

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.
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.
Abella v. City of Naga
Tan Toco v. Municipal Council of Iloilo
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.
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, 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
Issue: WON Naga is liable.
329

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
330

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 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 Makatis 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
331

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 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 265537154-3 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
332
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 19861987. 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 overemphasized 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 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 respondentappellee. 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
333

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 plaintiffappellee 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 with the Philippine National Bank
which eventually was delivered to the respondent-appellee.
Upon the issuance of the writ of execution, the petitionerappellants 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.
334

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 petitionersappellants 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 petitionersappellants.
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 petitionerappellants of the amount of P613,096.00 was dependent
upon 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 petitionersappellants 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
335

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 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
336

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
337

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.
338

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Mabelle O.

Nebres | Local Governments Case Digests

broaden its own source of revenue; (2) the right to be

Mabelle O. Nebres | Local Governments Case Digests

it." Its "power to tax" therefore must always yield to a

Mabelle O. Nebres | Local Governments Case Digests

WON the Local Autonomy Clause of the Constitution will be

Issue: WON notwithstanding the cession of the PI to the US followed

Mabelle O. Nebres | Local Governments Case Digests

important as the creation of a municipality. And yet, the

Mabelle O. Nebres | Local Governments Case Digests

Proprietary functions are those that seek to obtain

Mabelle O. Nebres | Local Governments Case Digests

issue is not merely about validity of appointment of

Where a law is capable of two interpretations, one in

McKinley's Instructions: establishment of municipal

1935 Constitution: limited the executive power over

Tecson v. Salas: presidential competence is not

Mabelle O. Nebres | Local Governments Case Digests

process involves a sharing of power between the two levels of

Mabelle O. Nebres | Local Governments Case Digests

Mabelle O. Nebres | Local Governments Case Digests

Mabelle O. Nebres | Local Governments Case Digests

Pelaez v. Auditor General

RA 2370 had already impliedly repealed Sec 68. RA 2370, Sec

The statutory denial of the presidential authority to

While the power to fix such common boundary, in

Although Congress may delegate to another branch

Mabelle O. Nebres | Local Governments Case Digests

the Revised Administrative Code does not meet

which it is the special duty and privilege of this

the executive orders in question were issued after

The power of control under this provision implies the

LGUs: fundamental law permits him to wield no

Upon the other hand if the President could create a

Then, also, the power of control of the President

Mabelle O. Nebres | Local Governments Case Digests

In short, even if it did entail an undue delegation of

As ruled in the Pelaez case, the President has no

law may be parties in a civil action.

Criteria for the creation of a city:

Mabelle O. Nebres | Local Governments Case Digests

Petitioner's constricted reading of Section 450(a) of

The creation of an entirely new LGU through a

Petitioner contends that R.A. No. 8806 actually

Contrary to petitioner's assertion, there is only one

Province of Sorsogon, and Appropriating Funds

The law was first published in the August 25, 2000

the plebiscite shall be conducted within 120 days

Consequently, the word "approval" in Section 54 of

Mabelle O. Nebres | Local Governments Case Digests

4. CA: there is an equiponderance of evidence When the

Candijay commenced its collateral attack on the

Mabelle O. Nebres | Local Governments Case Digests

an undue delegation of legislative powers to the

Constitution, the Municipality of San Andres has

Mabelle O. Nebres | Local Governments Case Digests

of Alicia is one of twenty municipalities comprising

Vilas v. City of Manila (supra, see p.3)

Padillas contention that the Tan ruling has been

Concom debates: Davide asked for deletion of

Political units directly affected: residents of the

dislocated by the separation of a portion thereof =

Rule: constitutionality of law can be challenged by