SECTION 6

ZACARIAS VILLAVICENCIO, ET AL v. JUSTO LUKBAN FACTS:

THUS, DISOBEYING THE WRIT ISSUED BY THE COURT TO PRODUCE THE BODY OF THE WOMEN? HELD: The petition was granted. Respondent Lukban is found in contempt of court for not following the order of the court to produce the body of the women and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100) RATIO: 1. On the first issue, the courts decision is based on the principle of Republicanism wherein Ours is a government of laws and not of men Law defines power. Centuries ago Magna Charta decreed thatNo freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land . No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors 2. On the second issue, the court believed that the true principle should be that, if the respondent (Mayor Lukban) is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. 3. In other words, If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her

birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. NOTE: HABEAS CORPUS as defined by the Black Law Dictionary Literally means- That you have the body It is a writ employed to bring a person before a court, most frequently to ensure that the partys imprisonment or detention is not illegal. In addition to being used to test the legality of the arrest or commitment, the writ maybe used to obtain review of (1) the regularity of the extradition process (2) the right to or amount of bail or (3) the jurisdiction of a court that has imposed a criminal sentence. In other words, it is a writ which compel someone to produce the body of the person under the name of the law. MANOTOC v. CA Facts: Criminal complaints were filed by some clients of the Manotoc Securities, Inc., to which petitioner Ricardo Manotoc, Jr. is a principal stockholder, after the torrens title submitted to and accepted by the same were suspected to be fake. The cases were assigned to different trial courts. In all cases, petitioner has been admitted to bail, with FGU Instance Corporation as Surety. Petitioner then filed motion for permission to leave the country in each trial courts stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities.". His motion was denied thus he elevated his petition to the Court of Appeals. Petitioner contends that having been admitted to bail as a matter of right, the courts which granted him bail could not prevent him from exercising his constitutional right to travel.The same was denied hence this petition for review on certiorari. Issue:

Justo Lukban as Manila City's Mayor together with Anton Hohmann, the city's Chief of Police, took custody of about 170 women at the night of October 25, 1918 beyond the womens consent and knowledge. Said women are inmates of the houses of prostitution situated in Gardenia Street, in the district of Sampaloc, Manila. Thereafter the women were shipped to Mindanao specifically in Davao where they were signed as laborers. The purpose of sending this women to davao is to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years. That when the women, its relative and lawyers filed for habeas corpus, the City of Manila Mayor and police moved to dismiss the case saying that those women were already out of their jurisdiction and that , it should be filed in the city of Davao instead.

ISSUE RELEVANT TO SECTION 1 ARTICLE II of the Constitution 1. WHETHER OR NOT MAYOR LUKBAN WHO IS AN OFFICER OF THE STATE, TO ERADICATE VICES IN ITS CITY HAVE THE RIGHT TO DEPORT SAID WOMEN OF ILL-REPUTE? OTHER ISSUE 2. WHETHER OR NOT THE CITY OF MANILA DOES NOT HAVE A JURISDICTION TO ISSUE A WRIT OF HABEAS CORPUS TO DAVAO CITY TO PRODUCE THE BODY OF THE WOMEN SINCE IT IS OUT OF THEIR JURISDICTION AND

Does a person facing a criminal indictment and provisionally released on bail, has an unrestricted right to travel? Held: Petitioner's contention is untenable. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states that The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. The order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by the said constitutional provision MANOTOC VS. COURT OF APPEALS Facts: Petitioner was charged with estafa. He posted bail. Petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." The prosecution opposed said motion and after due hearing, both trial judges denied the same. Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure. The Court of Appeals denied the petition. Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the

Securities and Exchange Commission which has no jurisdiction over his liberty could prevent him from exercising his constitutional right to travel. Issue: Whether or Not his constitutional right to travel has been violated. Held: A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. Petitioner has not shown the necessity for his travel abroad. There is no indication that the business transactions cannot be undertaken by any other person in his behalf. SILVERIO VS. COURT OF APPEALS Facts: Petitioner was charged with violation of Section 2 (4) of the revised securities act. Respondent filed to cancel the passport of the petitioner and to issue a hold departure order. The RTC ordered the DFA to cancel petitioners passport, based on the finding that the petitioner has not been arraigned and there was evidence to show that the accused has left the country with out the knowledge and the permission of the court. Issue: Whether or Not the right to travel may be impaired by order of the court. Held: The bail bond posted by petitioner has been cancelled and warrant of arrest has been issued by reason that he failed to appear at his arraignments. There is a valid restriction on the right to travel, it is imposed that the accused must make himself available whenever the court requires his presence. A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]). Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the

liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying reconsideration, be set aside. On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his provisional liberty. On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure Order against accused-petitioner on the ground that he had gone abroad several times without the necessary

Court approval resulting in postponements of the arraignment and scheduled hearings. Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission on Immigration to prevent Petitioner from leaving the country. This order was based primarily on the Trial Court's finding that since the filing of the Information on 14 October 1985, "the accused has not yet been arraigned because he has never appeared in Court on the dates scheduled for his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988. Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence, this Petition for Review filed on 30 July 1990. After the respective pleadings required by the Court were filed, we resolved to give due course and to decide the case. Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the scheduled arraignments could not be held because there was a pending Motion to Quash the Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." We perceive no reversible error. 1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that it was filed long after the filing of the Information in 1985 and only after several arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is the concurrence of the following circumstances:

1. The records will show that the information was filed on October 14, 1985. Until this date (28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio's failure to appear had invariably been because he is abroad in the United States of America; 2. Since the information was filed, until this date, accused Silverio had never appeared in person before the Court; 3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been issued against him all for the same reason failure to appear at scheduled arraignments. In all candidness, the Court makes the observation that it has given accused Silverio more than enough consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73). Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a Motion to Quash came about only after several settings for arraignment had been scheduled and cancelled by reason of Petitioner's non-appearance. 2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times whenever the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]). Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable impairment of the right to travel only on grounds of interest of national security, public safety or public health, as compared to the provisions on freedom of movement in the 1935 and 1973 Constitutions. Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision. Article III, Section 1(4) thereof reads: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired. The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus: The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when necessary in the interest of national security, public safety, or public health (Article IV, Section 5). The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to wit: Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of "national security, public safety, or public health." The submission is not well taken. Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court). Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that the condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction on the right to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935). Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an

accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio. SO ORDERED.

development, shall be afforded the citizen, subject to such stations as may be provided by law. These constitutional provisions are self-executing. They supply the rules by means of which the right to information may be enjoyed by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature. What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest. However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such as this one. Government agencies are without discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of the reasonable regulations which may be imposed by said agencies in custody of public records on the manner in which the right to information may be exercised by the public. The authority to regulate the manner of examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured. Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be

SECTION 7
Legaspi v. CSC Facts: Petitioner Valentin L. Legaspi against the Civil Service Commission. The respondent had earlier denied Legaspis request for information on the civil service eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service eligibles who passed the civil service examinations for sanitarians. Issue: whether or not Legaspis request for information on the civil service eligibilities of certain persons employed must be granted on the basis of his right to information Held: Yes. Article III, Section 7 of the 1987 Constitution reads: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis. for policy

discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. The constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any and all information. Under the Constitution, access to official records, papers, etc., are subject to limitations as may be provided by law (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information from public scrutiny, such as those affecting national security. It follows that, in every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not being exempted by law from the operation of the constitutional guarantee. Issue: whether or not petitioner has legal personality to bring the mandamus suit Held: Yes. The petitioner has firmly anchored his case upon the right of the people to information on matters of public concern, which, by its very nature, is a public right. When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws. When a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right. The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. Issue:

whether or not the information sought is of public interest or public concern Held: The above question is first addressed to the government agency having custody of the desired information. However, as already discussed, this does not give the agency concerned any discretion to grant or deny access. In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee. To safeguard the constitutional right, every denial of access by the government agency concerned is subject to review by the courts, and in the proper case, access may be compelled by a writ of Mandamus. The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil service eligibles for the positions to which they were appointed. The Constitution expressly declares as a State policy that: Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination. (Art. IX, B, Sec. 2.[2]). But then, it is not enough that the information sought is of public interest. For mandamus to lie in a given case, the information must not be among the species exempted by law from the operation of the constitutional guarantee. In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any provision in the Civil Service Law which would limit the petitioners right to know who are, and who are not, civil service eligibles. The names of those who pass the civil service examinations, as in bar examinations and licensure examinations for various professions, are released to the public. Hence, there is nothing secret about ones civil service eligibility, if actually possessed. Petitioners request is, therefore, neither unusual nor unreasonable. And when, as in this case, the government employees concerned claim to be civil service eligibles, the public, through any citizen,

has a right to verify their professed eligibilities from the Civil Service Commission. LEGASPI VS. CIVIL SERVICE COMMISSION (May 29, 1987 ) Facts: -Civil Service Commission denied Valentin Legaspis (petitioner) request for information on the civil service eligibilities of 2 people employed as sanitarians, Julian Sibonghanoy and Mariano Agas, in the Health Department in Cebu. -Petitioner claims that his right to information is guaranteed by the Constitution prays for the issuance of the extraordinary writ of mandamus to compel the respondent Commission to disclose said information. -the Solicitor General challenges the petitioners standing to sue upon the ground that the latter does not possess any legal right to be informed of the civil services eligibilities of the government employees concerned. -SolGen further argues that there is no ministerial duty on the part of the Commission to furnish the petitioner with the information he seeks. Issue: WON the petitioner has legal to access government records to validate the civil service eligibilities of the Health Department employees. Held: Civil Service Commission is ordered to open its register of eligible for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi. Ratio: The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the present suit.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter expressly mandate the duty of the State and its agents to afford access to official records, documents, papers and in addition, government research data used as basis for policy development, subject to such limitations as may be provided by law.while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case. But the constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any and all information. Under the Constitution, access to official records, papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information from public scrutiny, such as those affecting national security. It follows that, in every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not being exempted by law from the operation of the constitutional guarantee. case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee VALMONTE VS BALMONTE Facts:Ricardo Valmonte wrote Feliciano Belmonte Jr. on 4 June 1986, requesting to be "furnished with the list of names of theopposition members of (the) BatasangPambansa who were able to secure a clean loan of P2 million each on guaranty (sic)of Mrs.Imelda Marcos" and also to "be furnished with the certified true copies of the documents evidencing their loan. Expenses inconnection herewith shall be borne by" Valmonte, et. al. Due to serious legal implications, President & General Manager

FelicianoBelmonte, Jr. referred the letter to the Deputy General Counsel of the GSIS, Meynardo A. Tiro. Tiro replied that it is his opinion"that a confidential relationship exists between the GSIS and all those who borrow from it, whoever they may be; that the GSIShas a duty to its customers to preserve this confidentiality; and that it would not be proper for the GSIS to breach thisconfidentiality unless so ordered by the courts." On 20 June 1986, apparently not having yet received the reply of the GovernmentService and Insurance System (GSIS) Deputy General Counsel, Valmonte wrote Belmonte another letter, saying that for failure toreceive a reply "(W)e are now considering ourselves free to do whatever action necessary within the premises to pursue our desiredobjective in pursuance of public interest." On 26 June 198 6, Ricardo Valmonte,Oswaldo Carbonell, Doy Del Castillo, Roland o Bartolome, LeoObligar, Jun Gutierrez, Reynaldo Bagatsing, Jun "Ninoy" Alba,Percy Lapid, Rommel Corro, and Rolando Fadul filed a special civil action for mandamus with preliminary injunction invoke theirright to information and pray that Belmonte be directed: (a) to furnish Valmonte, et. al. the list of the names of the BatasangPambansa membersbelonging to the UNIDO and PDP Laban who were able to secure clean loans immediately before the February7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or (b) to furnish petitioners with certifiedtrue copies of the documents evidencing their respective loans; and/or (c) to allow petitioners access to the public records for thesubject information. Issue:Whether Valmonte, et. al. are entitled as citizens and taxpayers to inquire upon GSIS records on behest loans given by the formerFirst Lady Imelda Marcos toBatasang Pambansa members belonging to the UNIDO and PDP-Laban politicalparties Held:The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programsfor the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46of PD 1146, asamended (the Revised Government Service Insurance Act of 1977),provide for annual appropriations to pay the contributions,premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which theRepublic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage itsresources with utmost prudence and in strict

compliance with the pertinent laws or rules and regulations. Thus, one of the reasonsthat prompted the revision of the old GSIS law(CA 186, as amended) was the necessity "to preserve at all times the actuaria lsolvency of the funds administered by the Systems [Second Whereas Clause, PD1146.] Consequently, as Feliciano Belmontehimself admits, the GSIS "is not supposed to grant 'clean loans.'" It is therefore the legitimate concern of the public to ensure thatthese funds are managed properly with the end in view of maximizing the benefits that accrue to the insured governmentemployees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriatedfunds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degreeof fidelity and that all its transactions were above board. In sum, the public nature of the loanable funds of the GSIS and the publicoffice held by the alleged borrowers make the information sought clearly a matter of public interest and concern. Still, Belmontemaintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of confidentialityrestricts the indiscriminate dissemination of information. Yet, Belmonte has failed to cite any law granting the GSIS the privilegeof confidentiality as regards the documents subject of the present petition. His position is apparently based merely onconsiderations of policy. The judiciary does not settle policy issues. The Court can only declare what the law is, and not what thelaw should be. Under our system of government, policy issues are within the domain of the political branches of the government,and of the people themselves as the repository of all State power AKBAYAN vs. AQUINO Facts: Petitioners seek to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto.The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which includes trade in goods, rules of origin, customs procedures, paperless trading, trade in services,

investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions. Issues: a. Whether or not the claim of the petitioners is covered by the right to information. b. Whether the executive privilege claimed by the respondents applies only at certain stages of the negotiation process. c. Whether there is sufficient public interest to overcome the claim of privilege. d. Whether the Respondents failed to claim executive privilege on time. Decision: Supreme Court dismissed the petition, on the following reasons: 1.To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern.In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to

information and the policy of full public disclosure. Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decisionmaking. 2.Supreme Court stated that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. 3.The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees. In the case at hand, Petitioners have failed to present the strong and sufficient showing of need. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard stated in the decided cases. There is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. Further, the text of the JPEPA having been published, petitioners

have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published. 4.When the respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. What respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. The House Committee refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials out of respect for their office until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. AKBAYAN vs. AQUINO Facts: Petitioners, as non-government orgs, congresspersons, citizens and taxpayers, filed a petition for mandamus and prohibition seeking to compel respondents, Department of Trade Industry (DTI) Undersecretary Thomas Aquino, et al., to furnish petitioners the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which includes trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy,

mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions. Petitioners emphasize that the refusal of the government to disclose the said agreement violates their right to information on matters of public concern and of public interest. That the nondisclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political and economic decision making. Respondent herein invoke executive privilege. They relied on the ground that the matter sought involves a diplomatic negotiation then in progress, thus constituting an exception to the right to information and the policy of full disclosure of matters that are of public concern like the JPEPA - that diplomatic negotiations are covered by the doctrine of executive privilege. Substantive Issues: 1. Whether the claim of the petitioners is covered by the right to information. 2. Are the documents and information being requested in relation to the JPEPA exempted from the general rules on transparency and full public disclosure such that the Philippine government is justified in denying access thereto (whether they are covered by the doctrine of executive privilege). 3. Whether the executive privilege claimed by the respondents applies only at certain stages of the negotiation process. 4. Whether there is sufficient public interest to overcome the claim of privilege. 5. Whether the Respondents failed to claim executive privilege on time. 1. YES. To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern. In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern and public interest both embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because

such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making. Ruling:substantive 2. YES. The Supreme Court Ruled that Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. The court adopted also the doctrine in PMPF v. Manglapus, wherein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court held that applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be

ample opportunity for discussion before [a treaty] is approved the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japenese representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. The Court also stressed that secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations would discourage future Philippine representatives from frankly expressing their views during negotiations. The Highest Tribunal recognized that treaty negotiations normally involve a process of quid pro quo, where negotiators would willingly grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. The Court also addressed the dissent of Chief Justice Reynato S. Puno by saying: We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavour to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. 3. NO. Supreme Court stated that the constitutional right to information includes official information on on-going negotiations before a final contract. However,the information must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. 4. NO. The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. [E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the

competing interests, taking into account factors such as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees. In the case at hand, Petitioners have failed to present the strong and sufficient showing of need. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard stated in the decided cases. There is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. Further, the text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published. 5. NO. When the respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. What respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. The House Committee refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials out of respect for their office until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege

FACTS: Petitioner is a union of supervisory employees. It appears that on March 20, 1995 the union filed a petition for certification election on behalf of the route managers at Pepsi-Cola Products Philippines, Inc. However, its petition was denied by the medarbiter and, on appeal, by the Secretary of Labor and Employment, on the ground that the route managers are managerial employees and, therefore, ineligible for union membership under the first sentence of Art. 245 of the Labor Code, which provides: Ineligibility of managerial employees to join any labor organization; right of supervisory employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own. Petitioner brought this suit challenging the validity of the order, dismissed. Hence, this petition. Pressing for resolution its contention that the first sentence of Art. 245 of the Labor Code, so far as it declares managerial employees to be ineligible to form, assist or join unions, contravenes Art. III, 8 of the Constitution which provides: The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. ISSUES: (1) whether the route managers at Pepsi-Cola Products Philippines, Inc. are managerial employees and (2) whether Art. 245, insofar as it prohibits managerial employees from forming, joining or assisting labor unions, violates Art. III, 8 of the Constitution. HELD: YES and NO

FIRST-LINE MANAGERS The lowest level in an organization at which individuals are responsible for the work of others is called first-line or first-level management. First-line managers direct operating employees only; they do not supervise other managers. Examples of first-line managers are the foreman or production supervisor in a manufacturing plant, the technical supervisor in a research department, and the clerical supervisor in a large office. First-level managers are often called supervisors. MIDDLE MANAGERS The term middle management can refer to more than one level in an organization. Middle managers direct the activities of other managers and sometimes also those of operating employees. Middle managers principal responsibilities are to direct the activities that implement their organizations policies and to balance the demands of their superiors with the capacities of their subordinates. A plant manager in an electronics firm is an example of a middle manager. TOP MANAGERS Composed of a comparatively small group of executives, top management is responsible for the overall management of the organization. It establishes operating policies and guides the organizations interactions with its environment. Typical titles of top managers are chief executive officer, president, and senior vice-president. Actual titles vary from one organization to another and are not always a reliable guide to membership in the highest management classification. A distinction exists between those who have the authority to devise, implement and control strategic and operational policies (top and middle managers) and those whose task is simply to ensure that such policies are carried out by the rank-and-file employees of an organization (first-level managers/supervisors). What distinguishes them from the rank-and-file employees is that they act in the interest of the employer in supervising such rankand-file employees. Managerial employees may therefore be said to fall into two distinct categories: the managers per se, who compose the former group described above, and the supervisors who form the latter group. #1: It appears that this question was the subject of two previous determinations by the Secretary of Labor and Employment, in accordance with which this case was decided by the med-arbiter.

SECTION 8
UNITED PEPSI-COLA VS. LAGUESMA

As a class, managers constitute three levels of a pyramid: (1) Top management; (2) Middle Management; and (3) First-line Management [also called supervisors].

To qualify as managerial employee, there must be a clear showing of the exercise of managerial attributes under paragraph (m), Article 212 of the Labor Code as amended. Designations or titles of positions are not controlling. As to the route managers and accounting manager, we are convinced that they are managerial employees. Their job descriptions clearly reveal so (Workers Alliance Trade Union (WATU) v. Pepsi-Cola Products Philippines, Inc., Nov. 13, 1991) This finding was reiterated in Case No. OS-A-3-71-92. entitled In Re: Petition for Direct Certification and/or Certification ElectionRoute Managers/Supervisory Employees of Pepsi-Cola Products Phils.Inc. * doctrine of res judicata certainly applies to adversary administrative proceedings Thus, we have in this case an experts view that the employees concerned are managerial employees within the purview of Art. 212. At the very least, the principle of finality of administrative determination compels respect for the finding of the Secretary of Labor that route managers are managerial employees as defined by law in the absence of anything to show that such determination is without substantial evidence to support it. The Court now finds that the job evaluation made by the Secretary of Labor is indeed supported by substantial evidence. The nature of the job of route managers is given in a four-page pamphlet, prepared by the company, called Route Manager Position Description, the pertinent parts of which read: A. BASIC PURPOSE A Manager achieves objectives through others. As a Route Manager, your purpose is to meet the sales plan; and you achieve this objective through the skillful MANAGEMENT OF YOUR JOB AND THE MANAGEMENT OF YOUR PEOPLE. These then are your functions as Pepsi-Cola Route Manager. Within these functions managing your job and managing your people you are accountable to your District Manager for the

execution and completion of various tasks and activities which will make it possible for you to achieve your sales objectives. Xxxx Distinction is evident in the work of the route managers which sets them apart from supervisors in general. Unlike supervisors who basically merely direct operating employees in line with set tasks assigned to them, route managers are responsible for the success of the companys main line of business through management of their respective sales teams. Such management necessarily involves the planning, direction, operation and evaluation of their individual teams and areas which the work of supervisors does not entail. The route managers cannot thus possibly be classified as mere supervisors because their work does not only involve, but goes far beyond, the simple direction or supervision of operating employees to accomplish objectives set by those above them. While route managers do not appear to have the power to hire and fire people (the evidence shows that they only recommended or endorsed the taking of disciplinary action against certain employees), this is because thisis a function of the Human Resources or Personnel Department of the company. # 2: Constitutionality of Art. 245 Art.245 is the result of the amendment of the Labor Code in 1989 by R.A. No. 6715, otherwise known as the Herrera-Veloso Law. Unlike the Industrial Peace Act or the provisions of the Labor Code which it superseded, R.A. No. 6715 provides separate definitions of the terms managerial and supervisory employees, as follows: Art. 212. Definitions. . . . (m) managerial employee is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire transfer, suspend, lay off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above

definitions are considered rank-and-file employees for purposes of this Book. The distinction between top and middle managers, who set management policy, and front-line supervisors, who are merely responsible for ensuring that such policies are carried out by the rank and file, is articulated in the present definition. 30 When read in relation to this definition in Art. 212(m), it will be seen that Art. 245 faithfully carries out the intent of the Constitutional Commission in framing Art. III, 8 of the fundamental law. *Framers Intent: MR. LERUM. My amendment is on Section 7, page 2, line 19, which is to insert between the words people and to the following: WHETHER EMPLOYED BY THE STATE OR PRIVATE ESTABLISHMENTS. In other words, the section will now read as follows: The right of the people WHETHER EMPLOYED BY THE STATE OR PRIVATE ESTABLISHMENTS to form associations, unions, or societies for purposes not contrary to law shall not be abridged. Nor is the guarantee of organizational right in Art. III, 8 infringed by a ban against managerial employees forming a union. The right guaranteed in Art. III, 8 is subject to the condition that its exercise should be for purposes not contrary to law. In the case of Art. 245, there is a rational basis for prohibiting managerial employees from forming or joining labor organizations. PETITION is DISMISSED

SECTION 9
Visayan Refining v. Camus, G.R. No. L-15870 FACTS: Upon the direction of the Governor-General, the Attorney-General filed a complaint with the CFI (Rizal) in the name of the Government of the Philippines for the condemnation of a certain tract of land in Paranaque for military and aviation purposes. The petitioners herein are among the defendants named. Likewise, it was prayed that the court will give the Government the possession of the land to be expropriated after the necessary deposit (provisional) of P600, 000.00 as the total value of the property. Through the order of the public respondent, Judge Camus, the prayer was granted.

During the pendency of the proceedings, the petitioners raised a demurrer questioning the validity of the proceedings on the ground that there is no law authorizing the exercise of the power of eminent domain. Likewise, they moved for the revocation of the order on the same ground stated and with additional allegation that the deposit had been made without authority of law since the money was taken from the unexpended balance of the funds appropriated by previous statutes for the use of the Militia Commission and the authority for the exercise of the power of eminent domain could not be found in those statutes. The demurrer and motion were overruled and denied respectively by Camus. This prompted the petitioners to file this instant petition to stop the proceedings in the CFI. ISSUE: Can the Philippine Government initiate expropriation proceedings in the absence of a statute authorizing the exercise of the power of eminent domain? RULING: Yes, it can. The Philippine Government has the general authority to exercise the power of eminent domain as expressly conferred by Section 63 of the Philippine Bill (Act of Congress of July 1, 1902). It says that the Philippine Government is authorized "to acquire, receive, hold, maintain, and convey title to real and personal property, and may acquire real estate for public uses by the exercise of the right to eminent domain." The same is subject to the limitation of due process of law. In consonance with this, Section 64 of the Administrative Code of the Philippine Islands (Act No. 2711) expressly confers on the Government General the power "to determine when it is necessary or advantageous to exercise the right of eminent domain in behalf of the Government of the Philippine Island; and to direct the Attorney-General, where such at is deemed advisable, to cause the condemnation proceedings to be begun in the court having proper jurisdiction." There is no question as to the Governor General's authority to exercise this power. However, this authority is not absolute. It is subject to two limitations, namely, that the taking shall be for public purpose and there must be just compensation. Apparently, the reason behind the taking of the subject land was for military and aviation purposes. This considered a public purpose given the importance of the military and aviation in the operation of the State.

As to the second requirement, it must be remembered that at that time there was no law requiring that compensation shall actually be paid prior to the judgment of condemnation. The deposit was made, despite the absence of said law, to afford absolute assurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid. This is in conformity with the just compensation requirement. Given these reasons, the proceedings were made in accordance with law. DISPOSITION Petition is denied. Proceedings of the lower court were in all respects regular and within the jurisdiction of the court. NOTE The Supreme Court did not elaborate the reason in upholding the legality of the transfer funds used for the deposit. It only said that "the Insular Auditor was acting within his authority when he let this money out of the Insular Treasury THE CITY OF MANILA,vs. CHINESE COMMUNITY OF MANILA, ET AL., FACTS: The important question presented by this appeal is: In expropriation proceedings by thecity of Manila, may the courts inquire into, and hear proof upon, the necessity of theexpropriation?The City of Manila presented a petition in the Court of First Instance of said city, prayingthat certain lands, therein particularly described, be expropriated for the purpose of constructinga public improvement. The petitioner alleged that for the purpose of constructing an extension of Rizal Avenue, Manila, it is necessary for the plaintiff to acquire ownership of certain parcels of land situated in the district of Binondo. The defendants the Chinese Community of Manila,Ildefonso Tambunting, and Feliza Concepcion de Delgado alleged in their Answer (a) that nonecessity existed for said expropriation and (b) that the land in question was a cemetery, whichhad been used as such for many years, and was covered with sepulchres and monuments, andthat the same should not be converted into a

street for public purposes. One of the defendants,Ildefonso Tampbunting, offered to grant aright of way for the said extension over other land,without cost to the plaintiff, in order that the sepulchers, chapels and graves of his ancestors maynot be disturbed.The Honorable Simplicio del Rosario, decided that there was no necessity for theexpropriation of the particular strip of land in question, and absolved each and all of thedefendants from all liability under the complaint, without any finding as to costs. On appeal, the plaintiff contended that the city of Manila has authority to expropriate private lands for public purposes. Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city(Manila) . . . may condemn private property for public use ISSUE: Whether or not the City of Manila can condemn private property for public use HELD No. It is true that Section 2429 of Act No. 2711, or the Charter of the City of Manilastates that "the city (Manila) . . . may condemn Private property for public use." But when thestatute does not designate the property to be taken nor how it may be taken, the necessity of taking particular property is a question for the courts. When the application to condemn or appropriate property is made directly to the court, the question of necessity should be raised(Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co.[72 Ohio St., 368]).The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain isadmittedly 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 generalauthority, is a question which the courts have the right to inquire into.The impossibility of measuring the damage and inadequacy of a remedy at law is tooapparent to admit of argument. To disturb the mortal remains of those endeared to us in lifesometimes becomes the sad duty of the living; but, except in cases of necessity , or for laudable purposes, the sanctity of the grave, the last resting place of our friends, should be maintained,and the preventative aid of the courts should be invoked for that object Whether or not the cemetery is public or private property, its appropriation for the uses of a public street, especially during the lifetime of those specially interested in its maintenance as acemetery, should be a question of great concern, and its appropriation should not be made for such purposes until it is fully

established that the greatest necessity exists therefor. In the presentcase, even granting that a necessity exists for the opening of the street in question, the recordcontains no proof of the necessity of opening the same through the cemetery. The record showsthat adjoining and adjacent lands have been offered by Tambunting to the city free of charge,which will answer every purpose of the plaintiff.The judgment of the lower court was affirmed. RATIO/DOCTRINE[1] The taking of private property for any use, which is not required by the necessities or convenience of the inhabitants of the state, is an unreasonable exercise of the right of eminentdomain, and beyond the power of the legislature to delegate To justify the exercise of this extreme power (eminent domain) where thelegislature has left it to depend upon the necessity that may be found to exist, in order toaccomplish the purpose of the incorporation, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise The general power to exercise the right of eminent domain must not be confused withthe right to exercise it in aparticular caseThe power of the legislature to confer, uponmunicipal corporations and other entities within the State, general authority to exercise the rightof eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances.The moment the municipal corporation or entity attempts to exercise the authority conferred, itmust comply with the conditions accompanying the authority.[3] 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 thecourts come to determine the question, they must 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 uponthe authority conceded to the City of Manila:

First the land must be private; and, second , the purpose must be public. If the court, upon trial , finds that neither of these conditions exists or that either one of them fails, certainly it cannot be contended that the right is being exercised inaccordance with law.[4] The exercise of the right of eminent domain, whether directly by the State, or by itsauthorized agents, is necessarily in derogation of private rights, and the rule in that case is thatthe authority must be strictly construed. No species of property is held by individuals withgreater tenacity, and none is guarded by the constitution and laws more sedulously, than the rightto 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 doubtly interpretation. Republic vs. de Knecht [GR 87335, 12 February 1990] First Division, Gancayco (J): 3 concur Facts: On 20 February 1979 the Republic of the Philippines filed in the Court of First Instance (CFI) of Rizal in Pasay City an expropriation proceedings against the owners of the houses standing along Fernando ReinDel Pan streets among them Cristina De Knecht together with Concepcion Cabarrus, and some 15 other defendants (Civil Case 7001-P). On 19 March 1979, de Knecht filed a motion to dismiss alleging lack of jurisdiction, pendency of appeal with the President of the Philippines, prematureness of complaint and arbitrary and erroneous valuation of the properties. On 29 March 1979 de Knecht filed an ex parte urgent motion for the issuance by the trial court of a restraining order to restrain the Republic from proceeding with the taking of immediate possession and control of the property sought to be condemned. In June 1979, the Republic filed a motion for the issuance of a writ of possession of the property to be expropriated on the ground that it had made the required deposit with the Philippine National Bank (PNB) of 10% of the amount of compensation stated in the complaint. In an order dated 14 June 1979 the lower court issued a writ of possession authorizing the Republic to enter into and take possession of the properties sought to be condemned, and created a Committee of three to determine the just compensation for the lands involved in the proceedings. On 16 July 1979, de Knecht filed with this Court a petition for certiorari and prohibition (GR No. L-51078) and directed against the order of the lower court dated 14 June 1979

praying that the Republic be commanded to desist from further proceeding in the expropriation action and from implementing said order. On 30 October 1980, the Supreme Court rendered a decision, granting the petition for certiorari and prohibition and setting aside the 14 June 1979 order of the Judge Bautista On 8 August 1981, Maria Del Carmen Roxas Vda. de Elizalde, Francisco Elizalde and Antonio Roxas moved to dismiss the expropriation action in compliance with the dispositive portion of the aforesaid decision of the Supreme Court which had become final and in order to avoid further damage to latter who were denied possession of their properties. The Republic filed a manifestation on 7 September 1981 stating, among others, that it had no objection to the said motion to dismiss as it was in accordance with the aforestated decision. However, on 2 September 1983, the Republic filed a motion to dismiss said case due to the enactment of the Batas Pambansa 340 expropriating the same properties and for the same purpose. The lower court in an order of 2 September 1983 dismissed the case by reason of the enactment of the said law. The motion for reconsideration thereof was denied in the order of the lower court dated 18 December 1986. De Knecht appealed from said order to the Court of Appeals wherein in due course a decision was rendered on 28 December 1988, setting aside the order appealed from and dismissing the expropriation proceedings. The Republic filed the petition for review with the Supreme Court. Issue: Whether an expropriation proceeding that was determined by a final judgment of the Supreme Court may be the subject of a subsequent legislation for expropriation. Held: While it is true that said final judgment of the Supreme Court on the subject becomes the law of the case between the parties, it is equally true that the right of the Republic to take private properties for public use upon the payment of the just compensation is so provided in the Constitution and our laws. Such expropriation proceedings may be undertaken by the Republic not only by voluntary negotiation with the land owners but also by taking appropriate court action or by legislation. When on 17 February 1983 the Batasang Pambansa passed BP 340 expropriating the very properties subject of the present proceedings, and for the same purpose, it appears that it was based on supervening events that occurred after the decision of the Supreme Court was rendered in De Knecht in 1980 justifying the expropriation through the Fernando ReinDel Pan Streets. The

social impact factor which persuaded the Court to consider this extension to be arbitrary had disappeared. All residents in the area have been relocated and duly compensated. 80% of the EDSA outfall and 30% of the EDSA extension had been completed. Only De Knecht remains as the solitary obstacle to this project that will solve not only the drainage and flood control problem but also minimize the traffic bottleneck in the area. Moreover, the decision, is no obstacle to the legislative arm of the Government in thereafter making its own independent assessment of the circumstances then prevailing as to the propriety of undertaking the expropriation of the properties in question and thereafter by enacting the corresponding legislation as it did in this case. The Court agrees in the wisdom and necessity of enacting BP 340. Thus the anterior decision of this Court must yield to this subsequent legislative fiat. City of Baguio vs. National Waterworks and Sewerage Authority [GR L-12032, 31 August 1959] Facts: The City of Baguio filed on 25 April 1956, in the Court of First Instance of Baguio, a complaint for declaratory relief against the National Waterworks and Sewerage Authority (NAWASA), a public corporationcreated by Republic Act 1383, contending that said Act does not include within its purview the BaguioWaterworks System; that assuming that it does, said Act is unconstitutional because it has the effect of depriving the City of the ownership, control and operation of said waterworks system without compensation andwithout due process of law, and that it is oppressive, unreasonable and unjust to plaintiff and other cities,municipalities and municipal districts similarly situated. On 22 May 1956, NAWASA filed a motion to dismiss.On 21 June 1956, the Court, acting on the motion to dismiss as well as on the answer and rejoinder filed by both parties, denied the motion and ordered NAWASA to file its answer to the complaint. On 6 July 1956, NAWASA filed its answer reiterating and amplifying the grounds already advanced in its motion to dismiss. On14 August 1956, the parties submitted a written stipulation of facts and filed written memoranda. And after allowing the City to file a supplementary complaint, the Court on 5 November 1956, rendered decision holdingthat the waterworks system of the City of Baguio falls within the category of private property, ascontemplated by our Constitution and may not be expropriated

without just compensation. NAWASA filed amotion for reconsideration, and upon its denial, it took the present appeal. Issue: Whether the Baguio Waterworks partakes of the nature of public property or private/patrimonial propertyof the City. Held: The Baguio Waterworks System is not like any public road, park, street or other public property held intrust by a municipal corporation for the benefit of the public but it is rather a property owned by the City in its proprietary character. While the cases may differ as to the public or private character of waterworks, the weightof authority as far as the legislature is concerned classes them as private affairs. (sec. 239, Vol. I, Revised,McQuillin Municipal Corporations, p. 239; Shrik vs. City of Lancaster, 313 Pa. 158, 169 Atl. 557). And in this jurisdiction, this Court has already expressed the view that a waterworks system is patrimonial property of thecity that has established it. (Mendoza vs. De Leon, 33 Phil. 509). And being owned by a municipal corporationin a proprietary character, waterworks cannot be taken away without observing the safeguards set by our Constitution for the protection of private property. 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 justcompensation. Unless the City is given its due compensation, the City cannot be deprived of its property even if NAWASA desires to take over its administration in line with the spirit of the law (Republic Act 1383). The law,insofar as it expropriates the waterworks in question without providing for an effective payment of justcompensation, violates our Constitution. CITY OF BAGUIO V. NAWASA Facts: Plaintiff a municipal corporation filed a complaint against defendant a public corporation, created under Act.1383.It contends that the said act does not include within its purview the Baguio Water Works system, assuming that itdoes, is unconstitutional because it deprives the plaintiff ownership,

control and operation of said water workswithout just compensation and due process of law. The defendant filed a motion to dismiss ion the ground that itis not a proper exercise of police power and eminent domain. The court denied the motion and ordered thedefendants to file an answer. The court holds that the water works system of Baguio belongs to private propertyand cannot be expropriated without just compensation. Sec. 8 of R.A.1383 provides for the exchange of theNAWASA assets for the value of the water works system of Baguio is unconstitutional for this is not justcompensation. Defendants motion for reconsideration was denied hence this appeal. Issue: Whether or Not there is a valid exercise of police power of eminent domain. Held: R.A. 1383 does not constitute a valid exercise of police power. The act does not confiscate, destroy orappropriate property belonging to a municipal corporation. It merely directs that all water works belonging to cities,municipalities and municipal districts in the Philippines to be transferred to the NAWASA. The purpose is placingthem under the control and supervision of an agency with a view to promoting their efficient management, but inso doing does not confiscate them because it directs that they be paid with equal value of the assets of NAWASA.The Baguio water works system is not like a public road, the park, street other public property held in trust by amunicipal corporation for the benefit of the public. But it is a property of a municipal corporation, water workscannot be taken away except for public use and upon payment of just compensation. Judgment affirmed THE CITY OF MANILA, plaintiff-appellant, vs. BALBINA ESTRADA Y SARMIENTO, minor and only heiress of Concepcion Sarmiento, deceased, and ARISTON ESTRADA, personally, and as administrator, defendants-appellants. After a careful examination of the entire record in this case and the law applicable to the questions raised therein, we are of the opinion that P10 per square meter is a just compensation for the land taken. Without prejudice to filing a more extended opinion in which our reasons will be set forth in full, judgment will be entered accordingly, without costs. So ordered.

A short opinion was handed down in this case on February 18, 1913, and in accordance with the reservation made therein, the court now proceeds to write an extended opinion setting forth the reasons for its judgment in the case. The city of Manila sought to expropriate an entire parcel of land with its improvements for use in connection with a new market at that time being erected in the district of Paco. A complaint was filed setting forth the necessary allegations, answer joined, and commissioners were appointed, who, after viewing the premises and receiving evidence, and being unable to agree, submitted two reports to the court. The court duly rendered its decision, confirming the majority report as to the improvements, but reducing the price of the land from P20 per square meter, as fixed by the majority report, to P15 per square meter. Motions for a new trial having been made by both parties and denied by the court, both parties appealed from that part of the decision fixing the value of the land at P15 per square meter. The record was therefore elevated to this court for a review of the evidence and assigned errors of the parties. This court held that P10 per square meter was just compensation for the land, and rendered its decision accordingly. The court justifies such action, first, upon the ground that the great preponderance of the evidence submitted to the commissioners showed that P10 per square meter was just compensation for the land taken, and, second, upon the power of the court to revise the report of the commissioners when the amount awarded is grossly inadequate or grossly excessive. A brief resume of the evidence in regard to the value of the land will first be made. The land was bounded by Calle Herran, the Paco Estero, the market site, and Calle Looban. The several sessions of the commissioners at which evidence was heard took place between September 19 and October 3, 1911. George C. Sellner, a real estate agent, testified that he was familiar with real estate values in the city of Manila. He stated that the land in question, fronting as it did on Calles Herran and Looban and the Paco Estero, was worth 60 per cent more than other land near by, and placed its value at P10 per square meter. He stated that he had carried on negotiations with regard to a parcel of land situated on the opposite side of the estero and

fronting Herran; that he was offering this land for sale at P5.50 per square meter, but that the owner succeeded in obtaining P6 per square meter, and that the sale had been consummated only about thirty days prior to the date of the hearing. The witness stated that this land was of about the same elevation as the parcel sought to be expropriated, but that it had no improvements, being used for the storage of coal. Enrique Brias, another real estate man, testified that P10 was a good price for the land. He stated that he was the owner of the land on the opposite side of the estero which had been sold for P6 per square meter about one month prior to the hearing, but that this land was not in such a good commercial location. Mr. Powell, of the Internal Revenue Bureau, testified that the Estrada land was appraised for taxation at P6 per square meter; that prior to 1911 it had been appraised at about P4 per square meter. The president of the Municipal Board of the city of Manila testified that a parcel of land on the opposite side of Calle Herran but on the same side of the Paco Estero, owned by one Clarke, had been expropriated by the city in 1908. He stated that commissioners were appointed who duly rendered their report to the court, but as it was accepted by both parties, no further litigation was necessary. In this case it seems that the land desired by the city was part of a parcel fronting on Calle Herran, whose other boundaries were the Paco Estero, some private property, and a small callejon. The portion desired by the city compromised the entire Herran frontage of the owner. The commissioners appraised the total area, consisting of 1,399.03 square meters at P6.50 per square meter. The city desired only 353.21 square meters facing on Calle Herran, and the commissioners therefore found consequential damages to the remained, due to depriving it of its Herran frontage, to be P4.50 per square meter. These consequential damages were included in the price paid by the city for the land taken, making the apparent price of the 353.21 square meters P7,002.05, or P19.85 per square meter. To the same effect was the testimony of Judge Camus of the municipal court, who at the time of the Clarke transaction was city attorney Ariston Estrada, one of the defendants, testified as follows:

As to the market value of the land (the subject of the present case), whatever may be its price on the market, in my opinion, by comparing previous sales of land in the same or similar conditions and circumstances, and having in mind the only sale which has been made in twenty years of land equally or similarly situated to this, I believe that it is all that can serve as a standard to ascertain the value in the market of the land in question. xxx xxx xxx

With reference to the land, I believe I am as well as informed as the witnesses for the plaintiff who have testified, and I estimate that the land in question should be worth on the market at this time P25 per square meter for the reason that about P19.85 per square was paid for Mr. Clarke's land and this was three years ago; and, on the one hand, property values have increased in the last three years, and, on other hand, with the opening of the market, property values along Calles Herran and Looban have increased. From the record it appears that the improvements on the land consisted of a camarin in fairly good condition, appraised at P4,500; a dwelling house in very bad condition, appraised at P1,500; the former being occupied by tenants and the latter by the defendants Estrada and his family. The remaining improvements consisted of a stone wall surrounding the lot, appraised at P1,020, and some trees, appraised at P150. The majority report of the committee, fixing the value of the land at P20 per square meter, states: And lastly, with respect to the value of the land, the evidence is very contradictory. While the evidence of the plaintiff tends to show that the value of the land does not exceed P10 per square meter, that of the defendants, on the contrary, maintains that the value of the land is more than P19.85 per square meter, and it is contended by the defendants that the true market value of the land in question is P25 per square meter. The lower court, in arriving at its decision to reduce the price of the land to P15, discussed the Clarke transaction at some length and concluded as follows: The court therefore understands that the price which the plaintiff accepted three years ago for a piece of land less suited for

commercial purposes than that in question, without proof that since then the price of land in the place where the tract here considered is situated has fallen, ought to serve as criterion for fixing the value of the land that is the subject matter of the present expropriation. xxx xxx xxx

test is logically and legally correct, but it cannot be applied to land with the accuracy with which it can be applied to stocks, bonds, and personal property generally. Still, it is this test which admittedly must be applied, even when the value of the land and the damges are found in separate sums. It is a very difficult matter to limit the scope of the inquiry as to what the market value of condemned property is. The market value of a piece of land is attained by a consideration of all those facts which make it commercial valuable. Whether evidence considered by those whose duty it is to appraise the land is of that nature is often a very difficult matter to decide. The Supreme Court of the United States, in a carefully worded statement, marks out the scope of the inquiry as follows: In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at that time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses? . . . As a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. (98 U.S. 403; 25 L. ed., 206.) This passage is quoted with approval in the late case of St. Louis I. M. & S. R. Co. vs. Theodore Maxfield Co. (94 Ark., 135; 26 L.R.A. (N. S.), 111; 126 S. W., 83) a very well considered case. The supreme court of Missouri has also formulated an exceedingly clear statement of the matter in the Stock Yards case (120 Mo., 541): The market value of the property means its actual value, independent of the location of plaintiff's road thereon, that is, the fair value of the property as between one who wants to purchase and one who wants to sell it; not what could be obtained for it in peculiar circumstances when greater than its fair price could be obtained; not its speculative value; not the value obtained through the necessities of another. Nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer. The question is, if the defendant

wanted to sell its property, what could be obtained for it upon the market from the parties who wanted to buy and would give its full value. (Approved in Met. Street Ry. Co. vs. Walsh, 197 Mo., 392, 418; 94 S. W., 860.) These views are practically in accord with Lewis on Eminent Domain (2d ed.), paragraph 478, who state the rule as follows: The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged to sell it, and is brought by one who is under no necessity of having it. In estimating its value all the capabilities of the property, and all the uses to which it may be applied or for which it is adapted, are to be considered, and not merely the condition is it an at the time and the use to which it is then applied by the owner. It is not a question of the value of the property to the owner. Nor can the damages be enhanced by his unwillingness to sell. On the other hand, the damages cannot be measured by the value of the property to the party condemning it, nor by its need of the particular property. All the facts as to the condition of the property and its surrounding, its improvements and capabilities, may be shown and considered in estimating its value. (Approved in Seaboard Air Line vs. Chamblin, 108 Va., 42. In the practical application of this doctrine, the courts have been obliged to reject various kinds of evidence which the partisan zeal of the one side has attempted to introduce in order to swell the measure of damages, and to approve evidence which the other side has attempted to discredit in order to reduce the amount to be realized. Three such questions present themselves in this case. First, testimony as to mere offers for the property desired or for contiguous property is not admissible. Upon this point we quote from the case of Keller vs. Paine (34 Hun, 167): Its value depends upon too many circumstances. If evidence of offers is to be received it will be important to know whether the offer was made in good faith, by a man of good judgment, acquainted with the value of the article and of sufficient ability to pay; also whether the offer was cash, for credit, in exchange, and whether made with reference to the market value of the article; or to supply a particular need or to gratify a fancy. Private offers can be multiplied to any extent for the purposes of a cause, and the bad faith in which they were made would be difficult to prove. The

So, the court holds it just and equitable to take as a compromise between the two conflicting majority and minority opinions of the three commissioners the average of the two prices they have fixed per square meter for the land in question, P20 and P10, respectively, fixing upon P15 per square meter. From this review of the evidence it appears that two disinterested witnesses for the plaintiff corporation testified that the land was worth P10 per square meter, their statements being based upon the prices obtained for land in the open market in the vicinity. The defendant Estrada testified that it was worth P25 per square meter, basing his statement on the price obtained three years previously by the owner of the parcel on the opposite side of Calle Herran of P19.85 per square meter. It also clearly appears that the price fixed in the majority report of the commissioners was based principally upon this same transaction, and that the compromise price fixed by the court was based upon the evidence of this sale and the testimony of the two witnesses for the plaintiff who fixed the price of P10 per square meter. Attorney for the plaintiff corporation objected to the introduction of all evidence with reference to the Clarke transaction, and so much depending upon it, it is proper to inquire as to its competency and relevancy. The general rule that the market value of the land taken is the just compensation to which the owner of condemned property is entitled under the law meets with our unqualified approval. Such was our holding in Manila R. Co. vs. Fabie (17 Phil. Rep., 206). But as stated in Packard vs. Bergen Neck Ry. Co. (54 N. J. L., 553; 25 A., 506): The difficulty is not with the rule, but with its application. For the determination of the market value of land, which is that sum of money which a person, desirous but not compelled to buy and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore, is beyond doubt difficult. The

reception of evidence of private offers to sell or purchase stands upon an entirely different footing from evidence of actual sales between individuals or by public auction, and also upon a different footing from bids made at auction sales. The reception of this class of evidence would multiply the issues upon questions of damages to an extent not to be tolerated by court aiming to practically administer justice between litigants. (As quoted with approval in Yellowstone Park R. R. Co. vs. Bridger Coal Co., 34 Mont., 545.)

character, and situated in the vicinity, if the transactions are not so remote in point of time that a fair comparison practically is impossible. In Hewitt vs. Price (204 Mo., 31) it was said:

In the present case, the defendant Estrada testified that upon learning that the property which was the subject of the present litigation was to be condemned, he offered to pay a real estate agent P15 per square meter for a piece of land situated in the locality with relatively similar commercial location. This was improper evidence and should not have been considered by the commissioners. (See also Sherlock vs. Chicago B & Q. R. Co., 130 Ill., 403; 22 N. E., 844; Winnisimmet Co. vs. Grueby, 111 Mass., 543; Montclair Ry Co. vs. Benson, 36 N. J. L., 557.) The second point raised by the evidence taken in the present case is the admission of testimony relative to real estate transaction in the vicinity of the land desired. The rule which admits such evidence meets with universal approval, but with certain reservations. In Aledo Terminal Ry. Co. vs. Butler (246 Ill., 406; 92 N. E., 909) the court said: Evidence of voluntary sales of other lands in the vicinity and similarly situated is admissible in evidence to aid in estimating the value of the tract sought to be condemned, but the value of such testimony depends upon the similarity of the land to that in question and the time when such sales were made and the distance such lands are from those the value of which is the subject of inquiry. The supreme court of Massachusetts, in Fourth National Bank vs. Com. (212 Mass., 66; 98 N.E., 86), affirms the rule as follows: It long has been settled, that in the assessment of damages where lands are acquired by eminent domain evidence is admissible of the price received from sale of land similar in

It is sufficient to say upon this proposition that the law is well settled in this State upon that subject, and while the value of selling price of similar property may be taken into consideration in determining the value of the piece of property in litigation, it is equally true that the location and character of such property should be similar and the sales of such other property should at least be reasonably near in point of time to the at which the inquiry of the value of the property in dispute is directed. In Laing vs. United New Jersey R. R. & C. Co. (54 N. J. L., 576; 33 Am. St. Rep., 682; 25 A., 409) it was said: Generally in this and other States evidence of sale of land in the neighborhood is competent on an inquiry as to the value of land, and if the purchases or sales were made by the party against whom the evidence was offered it might stand as an admission. But such testimony is received only upon the idea that there is substantial similarity between the properties. The practice does not extend, and the rule should not be applied, to cases where the conditions are so dissimilar as not easily to admit of reasonable comparison, and much must be left to the discretion of the trial judge in the determination of the preliminary question conditions are fairly comparable. In an early case, and which will be referred to again upon another question, the supreme court of Illinois stated the rule as follows: The theory upon which evidence of sale of other similar property in the neighborhood at about the same time, is held to be admissible is that it tends to show the fair market value of the property sought to be condemned. And it cannot be doubted that such sales, when made in a free and open market, where a fair opportunity for competition has existed, become material and often very important factors in determining the value of the particular property in question. (Peoria Gas Light Co. vs. Peoria Term. Ry. Co., 146 Ill., 372; 21 L. R. A., 373; 34 N. E., 550.)

Even in those States where direct evidence of particular sales is not allowed, such questions may be directed to witnesses on cross-examination to test their credibility. This is the position taken by the supreme court of Pennsylvania in the late cases of Rea vs. Pittsburg, etc., R. R. Co. (229 Pa., 106) and Brown vs. City of Scranton (231 Pa., 593; 80 A., 113). See also Oregon R. & N. Co. vs. Eastlack (54 Ore., 196; 102 Pac., 1011) where this somewhat technical differences is set forth. Evidence of other sales is competent if the character of such parcels as sites for business purposes, dwellings, or for whatever other use which enhances the pecuniary value of the condemned land is sufficiently similar to the latter that it may be reasonably assumed that the price of the condemned land would be approximately near the price brought by the parcels sold. The value of such evidence, of course, diminishes as the differences between the property sold and the condemned land increase. The property must be in the immediate neighborhood, that is, in the zone of commercial activity with which the condemned property is identified, and the sales must be sufficiently coeval with the date of the condemnation proceedings as to exclude general increases or decreases in property values due to changed commercial conditions in the vicinity. No two estates are ever exactly alike, and as the differences between parcels sold and the land condemned must necessarily be taken into consideration in comparing values, we think it much better that those differences should be shown as part of the evidence of such sales, as is the practice in Iowa. (Town of Cherokee vs. S. C. & I. F. Town Lot and Land Co., 52 Iowa, 279, 3 N. W., 42.) And where these differences are so great that the sales in question can form no reliable standard for comparison, such evidence should not be admitted. (Presbrey vs. Old Colony & Newport R. Co., 103 Mass., 1.) The testimony as to the sale of a parcel of land on the opposite side of the stereo from the condemned land at P6 per square meter we think was properly admitted, and should have been given much greater weight by the commissioners and the court below. This was a sale in the open market, just one month prior to the time of the hearing before the commissioners. It was located on the same street, Calle Herran, and on the same estero. The differences between the two parcels as to location was that the condemned property also had a frontage on Calle Looban and was on the same side of the estero and immediately in front of the

market site. It is true that the condemned land had improvements upon it while the parcel was vacant land. But it is also true that the values of these improvements were estimated as separate and distinct items, and the value of the land was estimated without regard to the improvements upon it. A sale of vacant land is evidence of the value of neighboring land. (O'Malley vs. Com., 182 Mass., 196; 65 N.E., 30.) Basing their estimate of the value of the condemned land upon the price obtained for the parcel mentioned, and estimating the more favored location of the condemned land as being worth 60 per cent more than the land on the opposite side of the estero, Sellner and Brias arrived at the conclusion that P10 per square meter (a difference of more than 66 per cent) was a fair price for the land condemned. These witnesses were professional real estate agents, both had been active in the vicinity at about the time they testified before the commissioners, and were therefore peculiarly qualified to appraise the land in question. We are inclined to agree with the opinion expressed in the case of I. I. & M. R. Co. vs. Humiston (208 Ill., 100; 69 N. E., 880), where it is said: The fact of salaries is not always the only factor in determining the weight of the testimony of a witness as to value. A witness may, in forming his opinion, consider the uses and capabilities of the property, as well as the prices at which like property in the neighborhood has been sold. He may also base his opinion of value upon his knowledge or observation of the growth and development of towns and cities, a general knowledge of trade and business, rental value, the interests which the land would pay upon an investment, its productiveness, ease of cultivation, its situation in a particular community, and other elements. These parcels were in the same neighborhood and their respective locations and surroundings were, with the differences above named, practically the same. The price which the parcel sold by Brias brought was therefore of great importance as a basis for estimating the value of the condemned land. The next question of evidence, and the most important to this case, is the admissibility of evidence showing prices paid for neighboring land under eminent domain proceedings. Is this class of evidence admissible? The authorities almost with one accord reply emphatically, No. The rule is so universal that it seems sufficient to quote from only one or two authorities. Lewis on Eminent Domain (par. 447) says:

What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. . . . The fear of one party or the other to take the risk of legal; proceedings ordinarily results in the one party paying more or the other party taking less than is considered to be the fair market value of the property. For these reasons, such sales would not seem to be competent evidence of value in any case, whether in a proceeding by the same condemning party or otherwise. In the case of Peoria Gas Light Co. vs. Peoria Term. Ry Co. (146 Ill., 372), from which we quoted above sustaining the rule that sales of property in the vicinity are admissible as evidence, it was said But it seems very clear that to have that tendency, they (sales of adjacent land) must have been made under circumstances where they are not compulsory, and where the vendor is not compelled to sell at all events, but is at liberty to invite competition among those desiring to become purchasers. Accordingly among the various decisions in this and other States to which our attention has been called or which our own researches have discovered, we find none in which the price paid at a forced or compulsory sale has been admitted as competent evidence of value. This case is particularly valuable for its review of the authorities upon this point. Other late cases sustaining the rule are: U.S. vs. Beaty (198 Fed. Rep., 284); City of San Luis Obispo vs. Brizzolara (100 Cal., 434; 34 P. 1083); C.& W. I. R. R. Co. vs. Heidenreich (254 Ill., 231; 98 N.E., 567); Howe vs. Howard (158 Mass., 278); Seaboard Air Line vs. Chamblin (108 Va., 42); O'Day vs.Meyers (147 Wis., 549; 133 N.W., 605). It is to be observed that this rule excluding evidence of prices obtained for neighboring land under eminent domain proceedings is in the nature of an exception to the rule that sales of such land may be offered in evidence, and that, speaking briefly, the underlying reason is that they are not prices obtained "by one who desires but is not obliged to sell it, and is bought by one who is under no necessity for having it." The objection of the plaintiff to the introduction of evidence showing that Clarke had obtained for his land condemned by the city on 1908 was well taken. The testimony of Estrada, based, as he himself admits (see except of his testimony above), upon that

transaction, was valueless, and the commissioners and the lower court erred in issuing it as a basis for estimating the value of the condemned land. But, carrying this discussion perhaps one step further than is really necessary, we desire to say that even were evidence of the Clarke transaction admissible in the present case, the use made of the facts of that case by the witness Estrada, the commissioners, and the court itself, was clearly erroneous. As was stated above, the apparent price of P19.85 for the land taken by the city was in reality made up of P6.50 per square meter for the land itself and consequential damages to the remaining portion of Clarke's and at the rate of P4.50 per square meter.

The damage or injury to the remainder of the land on account of the construction of the railroad is in effect the actual taking of that much of the remainder of the land, for the diminished market value of which the owner is entitled to full compensation. (St. Louis I. M. & S. R. Co. vs. Theodore Maxfield Co., 94 Ark., 135; 26 L. R. A. (N. S.), 1111; 126 S. W., 83.) The value of the property taken and the damages to the remainder of the property are two distinct and separate things. (Louisiana Ry. & Nav. Co. vs. Morere, 116 La., 997; 41 So., 236.) There were no consequential damages to the defendant in the present case for the reason that his entire holding was taken. The market value of the land taken from Clarke did not include the consequential damages to the remainder. The deed of transfer (Exhibit 1) was obviously ambiguous when it stated "that in consideration of the sum of P7,002.05 which the city of Manila has offered to pay me for the said parcel of land for a sewer pumping station." This sum included the market value of the land taken and something more the consequential damages to 1,045.82 square meters of land remaining at P4.50 per square meter. The deed so read merely for convenience and brevity. It was written for the purpose or transferring the land taken and was not intended to be a record of the expropriation proceedings which culminated in its execution. It was satisfactorily proven in the present case that the figures shown in the deed were made up in the manner we have already described, and manifestly P19,85 is merely a fictitious value for the land taken, far beyond its true value.

We have now eliminated the testimony of the defendant Estrada of his offer to pay P15 per square meter for other land as well situated as that condemned; and all evidence of the Clarke transaction in 1908. This leaves as the only evidence of record as to the value of the condemned land the testimony of Sellner and Brias, based upon the sale of an adjacent parcel of land, which evidence we have approved as being relevant, and the testimony of Mr. Powell to the effect that the land was appraised for taxation at P6 per square meter, which was also relevant.

Doubtless, in a proceeding of this kind, the commissioners may act upon their own judgment, disregarding oral testimony. (Waterford E. Light, Heat & Power Co. vs. Reed, 94 N. Y. S., 551.) All of these statements, while made in cases where there was a conflict of evidence, and wherein the commissioners or jury found damages within the estimates made by witnesses, if taken at their face value would allow commissioners or special juries to assess damages at any sum they pleased. The true rule, as laid down in the more recent cases is that the view of the premises is made for the purpose of better enabling the appraisers to understand the evidence presented by the parties, and giving it its proper weight. The supreme court of Colorado is substance supports this principle inDenver Co. vs. Howe (49 Colo., 256;112 P., 779): The jury viewed the premises and were better able to judge of the number of acres in each, as well as other conditions affecting the land. The facts ascertained by the view of the premises are not in the record, whether they were regarded as so much additional evidence, or were used to better understand and apply the evidence adduced at the trial. Keeping in view the evidence relating to the special value of the building site, the value of improvements and of the ground, it will be found that the verdict is within and supported by the values as testified to, and these values, as fixed by the several witnesses, represented to each the market value, as conceded by appellants. The verdict is supported by the evidence of market value and on that ground would have to be sustained if the matter complained of in the instruction had been entirely omitted. In a clear statement of the rule, the supreme court of Pennsylvania says (Gorgas vs. Railroad Co., 144 Pa., 1;22 A., 715): "A view may sometimes be of the highest importance, where there is a conflict of testimony. It may enable the jurors to see on which side the truth lies. And if the witnesses on the one side of the other have testified to a state of facts which exists only in their imagination, as to the location of the property, the manner in which it is cut by the road, the character of the improvements, or any other physical fact bearing upon the case, they surely cannot be expected to ignore the evidence of their senses, and give weight to testimony which their view shows to be false. . . . The true rule, in such cases, is believed to be that the jury in estimating the damages shall consider the testimony as given by

the witnesses, in connection with the facts as they appear upon the view; and upon the whole case, as thus presented, ascertain the difference between the market value of the property immediately before and immediately after the land was taken. This difference is the proper measure of the damages. In Close vs. Samm (27 Iowa, 503) it was said: "The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehended the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party. If they are thus permitted to include their personal examination, how could a court ever properly set side their verdict as being against the evidence, or even refuse to set aside without knowing the facts ascertained by such personal examination by the jury? It is a general rule, certainly, if not universal, that the jury must base their verdict upon the evidence delivered to them in open court, and they may not take into consideration facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of the facts known to a juror, he must have him sworn and examined as other witnesses." (Approved in the late case of Guinn vs. Railway Co., 131 Iowa, 680; 109 N. W., 209.) The doctrine finds favor in Kansas. In C. K. & W. R. Co. vs. Mouriquand (45 Kan., 170), the court approved of the practice of instructing the jury that their view of the premises was to be sued in determining the value of conflicting testimony, saying: "Had the jury disregarded all the sworn evidence, and returned a verdict upon their own view of the premises, then it might be said that the evidence which the jurors acquired from making the view had been elevated to the character of exclusive and predominating evidence. This is not allowable. The evidence of the witnesses introduced in the court on the part of the landowner supports fully the verdict. If the verdict was not supported by substantial testimony given by witnesses sworn upon the trial, we would set aside, but as the jury only took into consideration the result of their view of the premises, in connection with the sworn evidence produced before the to connection with the sworn evidence

The next question which it is necessary to consider is the view of the premises made by the commissioners. What is the purpose of this view? An exhaustive search of the authorities has been made upon this point, and we have come to the conclusion that some of the statements made in the earlier decisions upon the subject are not sound law. They view the premises, and are supposed to exercise their own judgment to some extent, irrespective of evidence. (Virginia and Truckee R. Co. vs. Henry, 8 Nev., 165.) The testimony of witnesses as to value . . . although entitled to due consideration, is not controlling. (City of St. Louis vs. Lanigan, 97 Mo., 175; 10 S. W., 475.) They are to be guided largely by their own judgment as they view the premises. (City of Kingston vs. Terry, 53 N. Y. S., 652.) They may go and view the premises and upon the knowledge thus acquired base their award. (Stevens vs. Railroad Co., 8 N. Y. S., 707.) That the commissioners had a right to act upon information derived in part from a personal view of the premises cannot be questioned. (In re certain lands in the Twelfth Ward, 68 N. Y. S., 965.) They are not bound by the testimony of their of these experts, and may act upon their own personal view. (In re opening Trinity Ave., 71 N. Y. S., 24.)

produced before them, to determine between conflicting evidence, the instruction was not so erroneous as to require a new trial." A very clear statement of it is made by Dyer, J., charging a jury, in Laflin vs. Chicago W. & N. R. Co. (33 Fed. Rep., 415): "You have been permitted to view the premises in question. The object of this view was to acquaint you with the physical situation, condition, and surroundings of the premises, and to enable you better to understand the evidence on the trial. The knowledge which you acquired by the view may be used by you in determining the weight of conflicting testimony respecting value and damage, but no farther. Your final conclusion must rest on the evidence here adduced." In Postal Telegraph-Cable Co. vs. Peyton (124 Ga., 746; 52 S. E., 803; 3 L. R. A. (N. S.), 333) it was said: "A jury cannot be left to roam without any evidence in the ascertainment and assessment of damages. The damages which the law allows to be assessed in favor of landowners whose property has been taken or damaged under the right of eminent domain are purely compensatory. The land actually appropriated by the telegraph company amounted to only a fraction of an acre; and while it appeared that the construction and maintenance of the telegraph line would cause consequential damages to the plaintiff, no proof was offered from which any fair and reasonable estimate of the amount of damages thereby sustained could be made. The jury should have been supplied with the data necessary in arriving at such an estimate in the absence of this essential proof, a verdict many times in excess of the highest proved value of the land actually taken must necessarily be deemed excessive." The question has often been up in the State of Illinois, and the rule has been clearly stated there in number of cases. In Sexton vs. Union Stock Yard Co. (200 Ill., 244;65 N. E., 638), a leading case, it was said: "The evidence consisted most largely of opinions of values entertained by the different witnesses. Their judgment varied widely and their opinions were likewise variant. The amount allowed, though much less than the estimates of the witnesses produced in appellant's behalf, is larger than that of the witnesses produced by the appellate company. We cannot know the effect which was produced on the minds of the jurors by the actual inspection of the premises. The rule in such cases as not to disturb a verdict, if it is within the range of the testimony, unless

we can clearly see that injustice has been done and that passion and prejudice influenced the action of the jury." In the very recent case of South Park Comrs. vs. Ayer (245 Ill., 402; 92 N. E., 274) it was said: "The jury view the premises, and the law is well settled in this State that in a condemnation proceeding, where the jury have viewed the premises and where the evidence is conflicting, and where the amount is within the range of value as testified to on the trial, and does not appear to have been the result of prejudice, passion, undue influence, or other improper cause, the verdict will not be disturbed. (Citing cases.) It is clear the amount fixed by the jury in this case was well within the range of the evidence, which was conflicting, and the verdict should not be set aside unless it appears it was brought about by some improper ruling of the court upon the trial." The rule is also stated in Lanquist vs. City of Chicago (200 Ill., 69; 65 N. E., 681); in I. I. & M. R. Co. vs. Humiston (208 Ill., 100; 69 N. E., 880); and in G. & S. R. R. R. Co. vs. Herman (206 Ill., 34; 69 N. E., 36). In New York, where the question has doubtless been raised more often than anywhere else, the late cases illustrate the rule perhaps the most clearly The appellate division, supreme court, In re Titus Street in City of New York (123 N. Y. S., 10018), where it appeared that the city's witnesses testified that the property was worth $9,531 and the commissioners awarded $2,000 less said: "We do not think this is meeting the requirements of the law; we do not believe that it is within the province of the commissioners to arbitrarily set up their own opinion against that of the witnesses called by the city, and to award damages largely below the figure at which the moving party is committed, without something appearing in the record to justify such action. When a party comes into court and makes an admission against his interest, no court or judicial tribunal is justified in assuming that the admission is not true, without at least pointing out the reason for discrediting it; it carries within the presumption of truth, and this presumption is not to be overcome by the mere fact that the commissioners might themselves have reached a different conclusion upon the viewing of the premises. . . . This view of the commissioners, it seems to us, is for the purpose of enabling the commissioners to give proper weight and effect to the evidence before them, and it might justify them in giving larger damages than some of the witnesses thought

proper; or even less than some of them declared to be sustained. But where the evidence produced by the moving party in a proceeding for taking property for public purposes fixes a sum, without any disagreement in the testimony on that side, we are of the opinion that the cases do not justify a holding that the commissioners are authorized to ignore such testimony and to substitute their own opinion in such manner as to preclude the supreme court from reviewing the determination. That is not in harmony with that due process of law which is always demanded where rights of property are involved, and would make it possible for a corrupt commission to entirely disregard the rights of the individual to the undisturbed enjoyment of his property or its equivalent." From these authorizes, and keeping in mind the local law on the subject, we think the correct rule to be that, if the testimony of value and damages is conflicting, the commissioners may resort to their knowledge of the elements which affect the assessment and which were obtained from a view of the premises, in order to determine the relative weight of conflicting testimony, but their award must be supported by the evidence adduced at their hearings and made of record or it cannot stand; or, in other words, the view is intended solely for the purposes of better understanding the evidence submitted. To allow the commissioners to make up their judgment on their own individual knowledge of disputed facts material to the case, or upon their private opinions, would be most dangerous and unjust. It would deprive the losing party of the right of cross-examination and the benefit of all the tests of credibility which the law affords. It would make each commissioners the absolute judge of the accuracy and value of his own knowledge or opinions and compel the court to affirm the report on the facts when all of such facts were not before it. The evidence of such knowledge or of the grounds of such opinions could not be preserved on a bill of exceptions or questioned upon appeal. It those cases where the testimony as to value and damages is conflicting, the commissioners should always set forth in full their reasons for accepting the testimony of certain witnesses and rejecting that of others, especially in those cases where a view of the premises has been made. The commissioners, being disinterested landowners of the province, selected by the court for their ability to arrive at a

judicious decision in the assessment of damages, their report is entitled to greater weight than that of an ordinary trier of facts. A mere numerical superiority of the witnesses on the one side or the other should not be sufficient to overturn the decision arrived at by the commissioners, as such witnesses are not required to be either landowners on judicious and disinterested parties, as are the commissioners. The weight to be given to the testimony of a witness might be considerable or it might be almost negligible, according to his standing in the community and his ability and experience in real estate values. But where experts fixed the value of the property, the lowest estimate being $5,533 and the highest $16,000, and the commissioners allowed only $750, the court held that the award was inadequate. (In re Metropolitan El. Ry. Co., 27 N. Y. S., 756.) And where a lessee of a building was allowed damages in an extravagant sum for his unexpired lease, when compared with the allowance made to the owner of the property, the award was set aside. (In reManhattan Loop No. 1, 135 N. Y. S., 153). In Palmer vs. Harris Country (29 Tex. Civ. App., 340, 69S. W., 229) the court said It may be that jury were influenced by the idea that it might not have been necessary to use all of the tract sought to be condemned for the construction of the ditch, but the proceeding was to condemn the entire tract, and so far as presented by the record the value of the land might be so affected by the construction of the ditch as to destroy its use by the appellant for any purpose. . . . The verdict is so manifestly against the great preponderance of the evidence that we deem it our duty to set it aside. Calor Oil & Gas Co. vs. Withers (141 Ky., 489; 133 S. W., 210) was an action to condemn a strip of land 27 feet wide and 434 feet long for a pipe line, the said strip lying wholly within a railroad right of way. The commissioners appointed to assess the damages fixed them at $16.51. Upon appeal, the damages were assessed at $750, which was held aside. In Mutual Union Telegraph Co. vs. Katkamp (103 Ill., 420) it appeared that telegraph poles were to be set along the line of a railroad right way, 1 foot from such right of way line, so that there would be eleven poles on defendant's land. The defendant himself testified that his land was worth $60 per acre, and that the damage done would be about $10 per pole. Two other witnesses testified that $10 per pole would be the amount of defendant's damage. Of three witnesses for the plaintiff, one testified that the damage

would be 50 cents and two that it would be $1 per pole. As only a very small fraction of an acre of defendant's land would be taken, a verdict of $38.50 was held to be manifestly against the weight of evidence and the judgment was reversed. The report of the commissioners has also been set a side because a wrong principle of assessing the damages was used. Thus, in Waterford E. Light, Heat & Power Co. vs. Reed (94 N. Y. S., 551), the award was set aside because counsel for the plaintiff had presented to the commissioners that the plaintiff was only acquiring the right of flowage in respect to the property in question and that the defendants, by reason of the execution of a deed, had lost all but a nominal interest in the question of damages, both of which theories were untrue, and which resulted in only nominal damages being awarded to the defendants. In the matter of Gilroy (85 Hun, 424; 32 N. Y. S., 891) it appeared that the commissioners erroneously refused to take into consideration the fact that the property was available for use in connection with the water supply of the city of New York, in estimating the value of the property, and the report was for that reason set aside as allowing insufficient damages. No allowances having been made for consequential damages, the report of the commissioners was set aside. (Williamson vs. Read, 106 Va., 453; 56 S. E., 174.) And where a deed was so construed as embracing more land than it actually did embrace, resulting in excessive damages being awarded, the report was set aside. (Morris & Essex R. Co. vs. Bonnell, 34 N. J. L., 474.) The report has also been set aside for refusal to consider competent evidence. (State vs. Shuffield & Thompsonville Bridge Co., 82 Conn., 460; 74 A., 775.) We come now to a consideration of the amount fixed upon by this court of P10 per square meter for the condemned lane. We have already referred to the testimony of the two real estate agents, Brias and Sellner, which was based upon a sale of similarly situated land made only thirty days previous to the date of the hearing; and the assessment of the property for taxation, at P6 per square meter. This was the evidence upon which the dissenting commissioner predicated his appraisement of the land, arriving at the same figure as did this Supreme Court of P10 per square meter. There is a considerable difference between this valuation and P25 per square meter, as fixed by Estrada, or of the price fixed by the majority report of the commissioners of P20 per square meter. It is to be noted that no witnesses other than Estrada were called who could confirm the higher valuation or

even testify to an intermediate price. The price of P10 per square meter is 66 per cent greater than that obtained for land on the opposite side of the estero, and this difference would seem amply sufficient to compensate for the more favored location of the condemned land. That P10 per square meter is a just compensation is shown by a great preponderance of the evidence. "Compensation" means an equivalent for the value of the land (property) taken. Anything beyond that is more and anything short of that is less than compensation. To compensate is to render something which is equal to that taken or received. The word "just" is used to intensify the meaning of the word "compensation;" to convey the idea that the equivalent to be rendered for the property taken shall be real, substantial, full, ample. "Just compensation," therefore, as used in section 246 of the Code of Civil Procedure , means a fair and full equivalent for the loss sustained." The exercise of the power being necessary for the public good, and all property being held subject to its exercise when, and as the public good requires it, it would be unjust to the public that it should be required to pay the owner more than a fair indemnity for such loss. To arrive at this fair indemnity, the interests of the public and of the owner and all the circumstance of the particular appropriation should be taken into consideration. (2 Lewis on Em. Do., 562.) The compensation must be just to the public as well as to the owners. (Searl vs. School District, 133 U.S., 553; 33 L. ed., 740.) Section 244 of our code says that: The commissioners shall assess the value of property taken and used, and shall also assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owners. "To assess" is to perform a judicial act. The commissioners' power is limited to assessing the value and to determining the amount of the damages. There it stops; they can go no further. The value and damages awarded must be a just compensation and no more and no less. But in fixing these amounts, the commissioners are not to act ad libitum. They are to discharge the trust reposed in them according to well established rules and form their judgment upon correct legal principles. To deny this is to

place them where no one else in this country is placed: Above the law and beyond accountability. This court, after an examination of the evidence, found that the awards as fixed by the majority of the commissioners and the trial court were grossly excessive; that a just compensation for the land taken was P10 per square meter, and, in a short opinion, rendered judgment accordingly. It was insisted that to so decide this case would be an conflict with former adjudicated cases by this court. It now becomes necessary to review these cases. In City of Manila vs. Tuason, et al. (R. G. No. 3367), decided March 23, 1907 (unreported), the court of First Instance modified the report of the commissioners as to some to the items and confirmed it as to others. On appeal, the Supreme Court remanded the cause, apparently for the reason that the evidence taken by the commissioners and the lower court was not before it, and perhaps also because the commissioners adopted a wrong principle of assessing damages. In Manila Railroad Co. vs. Fabie (17 Phil. Rep., 206) the majority report of the commissioners appraised the land at P56,337.18, while a dissenting commissioner estimated it at P27,415.92. The Court of First Instance, after taking additional evidence upon the consequential benefits to the remainder of defendant's land by the construction of the railroad, and also as to the rental value of various pieces of land in the locality, fixed the value of the land at the sum estimated by the dissenting commissioner. The defendants appealed to this court. This court remarked that the only evidence tending to support the majority report of the commissioners consisted of deeds of transfer of real estate between parties in that community showing the prices paid by the vendees in such conveyances. It was held that without its being shown that such transfer had been made in the ordinary course of business and competition, and that the prices therein stated were not fictitious, such deeds were incompetent as evidence of the value of the condemned land. As to the action of the court in fixing the price of the land at P27,415.92, the court said: Conceding, without deciding, that he also had the right to formulate an opinion his own as to the value of the land in question, nevertheless, if he formulate such an opinion, he must be base it upon competent evidence. The difficulty with the case is that it affirmatively appears from the record on appeal that there is an entire absence of competent evidence to support the finding

either of the commissioners or of the court, even if the court had a right to make a finding of his own at all under the circumstances. In Manila Railroad Co. vs. Attorney-General (22 Phil. Rep., 192) the only question raised was the value of certain improvements on the condemned portion of an hacienda, such improvements consisting mainly of plants and trees and belonging to a lessee of the premises. The total damages claimed were P24,126.50. The majority report of the commission allowed P19,478, which amount was reduced by the Court of First Instance to P16,778. The plaintiff company, upon appeal to this court, alleged that the damages allowed were grossly excessive and that the amount allowed by the commissioners should have been reduced by at least P17,000; while the defendant urged that the damages as shown by the record were much greater than those allowed, either by the commissioners or by the court. The only ground upon which the plaintiff company bases its contention that the valuations are excessive is the minority report of one of the commissioners. The values assigned to some of the improvements may be excessive but we are not prepared to say that such is the case. Certainly there is no evidence in the record which would justify us in holding these values to be grossly excessive. The commissioners in their report go into rather minute detail as to the reasons for the conclusions reached and the valuations fixed for the various items included therein. There was sufficient evidence before the commissioners to support the valuations fixed by them except only those later modified by the court below. The trial court was of opinion that the price of P2 each which was fixed for the orange trees (naranjitos) was excessive, and this was reduced to P1.50 for each tree; this on the ground that the evidence discloses that these trees were comparatively young at the time of the expropriation, and that the value fixed by the majority report of the commissioners was that of full-grown or nearly full-grown trees. We are of opinion that this reduction was just and reasonable. Aside from the evidence taken into consideration by the trial judge we find no evidence in the record in support of the contention of the railroad plaintiff that the valuations fixed in the majority report of the commissioners and by the trial court are grossly excessive, and plaintiff company having wholly failed to offer evidence in support of its allegations in this regard when the opportunity so to do was provided in accordance with law, it has no standing in this court to demand a new trial based on its unsupported allegations of grossly

excessive valuation of the property by the commissioners and the court below. This court affirmed the findings of damages made by the trial court with the exception of an item for damages caused by fire to improvements on lands adjoining those condemned, which was held not to be a proper matter to be considered in condemnation proceedings. The court here approved of the action of the Court of First Instance in reducing the amount of damages fixed by the commissioners as to the value of the young orange trees on the strength of the evidence of record. In Manila Railroad Company vs. Caligsihan (R.G. No. 7932), decided March 25, 1913 (unreported), it appears that the lower court approved in toto the report of the commissioners. On appeal, this Supreme Court reversed the lower court and remanded the case with orders to appoint new commissioners, saying: Under the evidence in this case the award is excessive. Section 246 of the Code of Civil Procedure giving to the court the power to "make such final order and judgment as shall secure to the party the property essential to the exercise of his rights under the law, and to the defendant just compensation for the land so take", we exercise that right in this case for the purpose of preventing the defendants from obtaining that which would be more than "just compensation" under all the evidence of the case. The judgment is reversed and the cause remanded, with instructions to the lower court to appoint a new commission and to proceed from that point de novo. We will know examine the case (Philippine Railway Co. vs. Solon, 13 Phil. Rep., 34) relied upon to support the proposition that the courts should not interfere with the report of the commissioners to correct the amount of damages except in cases of gross error, showing prejudice or corruption. In that case the property belonging to the appellant which the company sought to appropriate was his interest as tenant in a tract of land belonging to the Government, together with a house standing thereon and other property belonging to him. He asked that he be awarded for all the property taken P19,398.42. The commissioners allowed him P10,745.25. At the hearing had upon the report, the court reduced this amount and allowed the

appellant P9,637.75. The commissioners took a large amount of evidence relative to the amount of damages. The testimony was conflicting as to the value of the house, two witnesses fixing it at over P12,000; another at over P14,000.00; one at P8,750; another at P6,250; and another at P7,050.95. The commissioners fixed the value of the house alone at P9,500, and the court at P8,792.50. This court said: Nor do we decide, whether, in a case where the damages awarded by the commissioners are grossly excessive or grossly insufficient, the court can, upon the same evidence presented before the commissioners, itself change the award. We restrict ourselves to deciding the precise question presented by this case, in which it is apparent that, in the opinion of the court below, the damages were not grossly excessive, for its own allowance was only P10,000 less than the amount allowed by the commissioners, and the question is whether in such a case the court can substitute its own opinion upon the evidence presented before the commissioners for the opinion which the commissioners themselves formed, not only from the evidence but also from a view of the premises which by law they were required to make. Referring to the manner in which the trial court arrived at its valuation of the various items, including the house, this court said: Without considering the correctness of the rule adopted by the court for determining the value of the property, it is sufficient to say that the evidence before the commissioners as to the value of the property taken was contradictory and that their award was not palpably excessive or inadequate. Under such circumstances, we are of the opinion of the court had no right to interfere with it. From the foregoing it is clear that (1) the testimony was conflicting; (2) that the award as allowed by the commissioners was well within the amounts fixed by the witnesses; (3) that the award was not grossly excessive. That it was not grossly excessive is shown by the difference between the amount fixed by the commissioners and that fixed by the court, this difference being P1,117.50, a reduction of a little over 10 per cent. From the above review of the cases, it will be seen that this court has not only not decided that the courts cannot interfere with the report of the commissioners unless prejudice or fraud has been shown, but the decisions tend to show the contrary; that is, an

award which is grossly excessive or grossly insufficient cannot stand, although there be nothing which even tends to indicate prejudice or fraud on the part of the commissioners. The case at bar is the first one wherein the court changed the award and rendered a final judgment upon the record. Had the court the power to thus dispose of the case? Section 246 of the Code of Civil Procedure reads as follows: "Upon the filing of such report in court, the court shall, upon hearing, accept the same and render judgment in accordance therewith; or for cause shown, it may recommit the report to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part, and may make such final order and judgment as shall secure to the plaintiff the property essential to the exercise of his rights under the law, and to the defendant just compensation for the land so taken; and the judgment shall require payment of the sum awarded as provided in the next section before the plaintiff can enter upon the ground and appropriate it to the public use." From this section it clearly appears that the report of the commissioners is not final. The judgment of the court is necessary to give to the proceedings. Nor is the report of the commissioners conclusive, under any circumstance, so that the judgment of the court is a mere detail or formality requisite to the proceedings. The judgment of the court is rendered after a consideration of the commissioners' report and the exceptions thereto submitted upon the hearing of the report. By this judgment the court may accept the commissioners' report unreservedly; it may return the report for additional facts or it may set the report aside and appoint new commissioners; or it may accept the report in part and reject it in part, and "make such final order and judgment as shall secure to the plaintiff the property essential to the exercise of his rights under the law, and to the defendant just compensation for the land so taken." Any one of these methods of disposing of the report is available to and may be adopted by the court according as they are deemed suited to secure to the plaintiff the necessary property and to the defendant just compensation therefor. But can the latter method produce a different result in reference to any part of the report from that recommended by the commissioners? The purpose of this discussion is solely to determine this question.

Section 246 expressly authorizes the court to "accept the report in part and reject it in part." If this phrase stood alone, it might be said that the court is only empowered to accept as a whole certain parts of the report and reject as a whole other parts. That is, if the commissioners fixed the value of the land taken at P5,000, the improvements at P1,000, and the consequential damages at P500, the court could accept the report in full as to any one item and reject it as to any other item, but could not accept or reject a part of the report in such a way as to change any one of the amounts. But the court is also empowered "to make such final order and judgment as shall secure to the plaintiff the property essential to the exercise of his rights under the law, and to the defendant just compensation for the land so taken." The court is here expressly authorizes to issue such orders and render such judgment as will produce these results. If individual items which make up the total amount of the award in the commissioners' report could only be accepted or rejected in their entirety, it would be necessary to return to the case, so far as the rejected portions of the report were concerned, for further consideration before the same or new commissioners, and the court could not make a "final order and judgment" in the cause until the rejected portions of the report had been re-reported to it. Thus, in order to give the italicized quotation from section 246 any meaning at all, it is obvious that the court may, in its discretion, correct the commissioners' report in any manner deemed suitable to the occasion so that final judgment may be rendered and thus end the litigation. The "final order and judgment" are reviewable by this court by means of a bill of exceptions in the same way as any ordinary action. Section 496 provides that the Supreme Court may, in the exercise of its appellate jurisdiction, affirm, reverse, or modify any final judgment, order, or decree of the Court of First Instance, and section 497, as amended by Act No. 1596 , provides that if the excepting party filed a motion in the Court of First Instance for a new trial upon the ground that the evidence was insufficient to justify the decision and the judge overruled said motion and due exception was taken to his ruling, the Supreme Court may review the evidence and make such findings upon the facts by a preponderance of the evidence and render such final judgment as justice and equity may require. So it is clear from these provisions that this court, in those cases where the right of eminent domain has been exercised and where the provisions of the above section have been complied with, may examine the testimony and decide the case by a preponderance of the evidence; or, in other words, retry the case upon the merits and

render such order or judgment as justice and equity may require. The result is that, in our opinion, there is ample authority in the statute to authorize the courts to change or modify the report of the commissioners by increasing or decreasing the amount of the award, if the facts of the case will justify such change or modification. The question now arises, when may the court, with propriety, overrule the award of the commissioners in whole or in part and substitute its own valuation of the condemned property? From a mere reading of section 246 and the remarks just made, it should be clear that the court is permitted to act upon the commissioners' report in one of several ways, at its own discretion. The whole duty of the court in considering the commissioners' report is to satisfy itself that just compensation will be made to the defendant by its final judgment in the matter, and in order to fulfill its duty in this respect the court will be obliged to exercise its discretion in dealing with the report as the particular circumstances of the case may require. But generally speaking, when the commissioners' report cannot with justice be approved by the court, one of three or four circumstances will usually present itself, each of which has for its antidote one of the methods of dealing with the report placed at the disposal of the court by section 246. Thus, if it be successfully established that the commissioners refused to hear competent evidence, then all the evidence in the case would not be before the court; the court could not, with reason, attempt to either approve or change the report, as it stood, for the reason that all the evidence of the case would not be before it; and the remedy in this case would be to "recommit the report to the commissioners for further report of facts." Again, if improper conduct, fraud, or prejudice be charged against the commissioners, and this charge be sustained, it would be safer to set aside the award thus vitiated and "appoint new commissioners" who could render a report not tainted by these things. But it is to be observed again that this discussion is confined to a case were no competent evidence was refused by the commissioners and no suspicion rests upon the motives of the commissioners in making the award. When the only error of the commissioners is that they have applied illegal principles to the evidence submitted to them; or that they have disregarded a clear preponderance of the evidence; or that they have used an improper rule of assessment in arriving at the amount of the award, then, in such a case, if the evidence be clear and convincing, the court should be able, by the use of those correct

legal principles which govern the case, to determine upon the amount which should be awarded without remanding the cause. When the matter stands in this light, it becomes the duty of the court to make "final order and judgment" in which the proper award will be made and thus end the litigation between the parties. In Louisiana, where the procedural law on this point is similar to our own, the supreme court has used its powers in this respect quite frequently. And in this connection, we think it proper to quote from a case which, in some respects, is similar to the one at bar: On the question of the value of the land, 8.34 acres, the commissioners have allowed $2,500 or $300 per acre. The defendant has put in the record the testimony of witnesses claimed to support the allowance. Without disregarding this testimony, it is sufficient to say that the opinions of the witnesses do not seem to be based on any fact calculated to show the value of the land. . . . On the other hand the plaintiff has placed before us the titles of defendant of recent date showing the price paid by him (the defendant) for the entire body of land of which the 8 acres are a part; the acts of sale of land in the same neighborhood, and of the same quality; the assessment of defendant's property, and other testimony on this issue of value. . . . Giving all possible weight, or rather restricting the testimony of the plaintiff's witnesses to its due influence and giving, we think, necessary effect to the acts by which defendant purchased, the acts of sale of other land, the assessment of value, with due allowance for underassessment, and the other testimony of record, we reach the conclusion that the award gives two-thirds more than the value of the land. We fix the value of the land at $833.33. (Morgan's Louisiana & Texas R. R. Co. vs. Barton, 51 La. Ann., 1338.) See also T. & P. R. R. Co. vs. Southern Develop. Co. (52 La. Ann., 53), where the court held that appraisement made by the jury too low and after discussing the evidence, increased the amount of the award accordingly. A similar case is Abney vs. Railroad Company (105 La., 446). See also T. & P. R. R. Co. vs. Wilson (108 La., 1; 32 So., 173); and Louisiana Western R. Co. vs.Crossman's Heirs (111 La., 611; 35 So., 784), where the points is touched upon. In Missouri the statute (1 Mo. Ann. Stat., 1268) directs that "the court shall make such order therein as right and justice may

require, and may order a new appraisement, upon good cause shown." Owing to a constitutional restriction, this provision has been construed to apply only to damages and benefits resulting to landowners in consequence of proposed improvements, the cash value of property expropriated being an issue triable, at the instance of either party, by a jury subsequent to the findings of the commissioners. Subject to this restriction, however, it has been held that the above provisions of law gives the court the right to increase or decrees the amount awarded by the commissioners. In the late case of Tarkio Drainage District vs. Richardson (237 Mo., 49) the court presents a lengthy review of its decisions on this subject. We are clearly of the opinion that our holding on this branch of the case is supported not only by reason but by the interpretation of similar provisions of law in other jurisdictions, so far as we have had the opportunity to examine the question. This opinion will be substitute for the short opinion rendered in the cause near the close of last term EPZA VS DULAY Facts: The four parcels of land which are the subject of this case is where the Mactan Export Processing Zone Authorityin Cebu (EPZA) is to be constructed. Private respondent San Antonio Development Corporation (San Antonio, forbrevity), in which these lands are registered under, claimed that the lands were expropriated to the governmentwithout them reaching the agreement as to the compensation. Respondent Judge Dulay then issued an order forthe appointment of the commissioners to determine the just compensation. It was later found out that thepayment of the government to San Antonio would be P15 per square meter, which was objected to by the lattercontending that under PD 1533, the basis of just compensation shall be fair and according to the fair marketvalue declared by the owner of the property sought to be expropriated, or by the assessor, whichever is lower.Such objection and the subsequent Motion for Reconsideration were denied and hearing was set for the reception of the commissioners report. EPZA then filed this petition for certiorari and mandamus enjoining the respondent

from further hearing the case. Issue: Whether or Not the exclusive and mandatory mode of determining just compensation in PD 1533 isunconstitutional. Held: The Supreme Court ruled that the mode of determination of just compensation in PD 1533 is unconstitutional.The method of ascertaining just compensation constitutes impermissible encroachment to judicial prerogatives. Ittends to render the courts inutile in a matter in which under the Constitution is reserved to it for financialdetermination. The valuation in the decree may only serve as guiding principle or one of the factors in determining just compensation, but it may not substitute the courts own judgment as to what amount should be awarded and how to arrive at such amount. The determination of just compensation is a judicial function. Theexecutive department or the legislature may make the initial determination but when a party claims a violation of the guarantee in the Bill of Rights that the private party may not be taken for public use without justcompensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the courts findings. Much less can the courts be precluded from looking into the justness of the decreed compensation.

EXPORT PROCESSING CEFERINO E. DULAY

ZONE

AUTHORITY

vs.HON.

landpursuant to PD No. 66(empowers the petitioner to acquire bycondemnation proceedings any property for theestablishment of export processing zones, in relation toProclamation No. 1811, for the purpose of establishing theMactan Export Processing Zone)The judge authorized PEZA to to take immediate possessionof the premises. As per decision of the judge, EPZA shouldpay the private owners a just compensation for theproperties and order certain persons as commissioners toascertain and report to the court the just compensation for the properties sought to be expropriated.Three commissioners submitted their consolidated report atP 15 per sqm as the fair and reasonable value of justcompensation.EPZA filed for Motion for Reconsideration for the court order and Objection to Commissioners Report on the grounds thatPD No 1533 has superseded Sections 5 to 8 of Rule 67 of the Rules of the Court on the ascertainment of justcompensation; and such compensation should not exceedthe maximum stated in set by PD 1533. The trial courtdenied the petition. The case is for certiorari and mandamus.Grounds is excess for sjurisdiction and with grave abuse of the discretion of the judge.ISSUE:The question raised in this petition is whether or notPresidential Decrees Numbered 76, 464, 794 and 1533 haverepealed and superseded Sections 5 to 8 of Rule 67 of theRevised Rules of Court, such that in determining the justcompensation of property in an expropriation case, the onlybasis should be its market value as declared by the owner or as determined by the assessor, whichever is lower.HELD:The court still have the power and authority to determine justcompensation, independent of what is stated by the decreeand to this effect, to appoint commissioners for suchpurpose.The trial court correctly stated the valuation in the decreemay only serve as a guiding principle or one of the factors indetermining just compensation but it may not substitute thecourt's own judgment as to what amount should be awardedand how to arrive at such amount. The determination of "just compensation" in eminentdomain cases is a judicial function. The executivedepartment or the legislature may make the initialdeterminations but when a party claims a violation of theguarantee in the Bill of Rights

that private property maynot be taken for public use without just compensation, nostatute, decree, or executive order can mandate that its owndetermination shag prevail over the court's findings. Muchless can the courts be precluded from looking into the"just-ness" of the decreed compensation. Elimination of the court's discretion, under PD No. 1533, toappoint commissioners pursuant to Rule 67 of the Rules of Court, is unconstitutional and void EXPORT PROCESSING CEFERINO E. DULAY, FACTS: On January 15, 1979, the President of the Philippines, issuedProclamation No. 1811, reserving a certain parcel of land of the public domainsituated in the City of Lapu-Lapu, Island of Mactan, Cebu for the establishmentof an export processing zone by petitioner Export Processing Zone Authority(EPZA).Not all the reserved area, however, was public land. The proclamationincluded, among others, four (4) parcels of owned and registered in the name of the San Antponio Development COrporation. EPZA, therefore, offered topurchase the parcels of land in acccordance with the valuation set forth inSection 92, Presidential Decree (P.D.) No. 464, as amended. The parties failed toreach an agreement regarding the sale of the property.EPZA then filed with Court of First Instance a complaint for expropriation,through which, a writ of possession authorizing the petitioner to take immediatepossession of the premises was issued.At the pre-trial conference, parties have agreed that the only issue to beresolved is the just compensation for the properties. Hearing on the merits wasthen set. Thereafter, the court issued an orders, declaring EPZA as having thelawful right to take the properties sought to be condemned upon the paymentof just compensation to be determined as of the filing of the complaint andappointing commissioners to ascertain and report to the court the justcompensation for the properties sought to be expropriated. The consolidated report of the three commissioners recommended theamount of P15.00 per square meter as the fair and reasonable value of justcompensation for the properties.EPZA filed an Objection to Commissioner's Report on the grounds thatP.D. No. 1533 has superseded Sections 5 to 8 of Rule 67 of the Rules of Court onthe ascertainment of just ZONE AUTHORITY, vs.HON.

FACTS:Under Proclamation No. 1811, four parcel of land with anaggregate area of 22,328 sqm owned and registered in thename of private individuals were included for theestablishment of an export processing zone by petitioner Export Processing Zone Authority (EPZA). The EPZAoffered to purchase the land from the private owners inaccordance wit the valuation set forth in Section 22 of PD464. Failure to agreed regarding the sale, EPZA filed withthe Court of First Instance of Cebu to expropriate the

compensation through commissioners; and that thecompensation must not exceed the maximum amount set by P.D. No. 1533 The trial court denied the motion, as a result of which, the petitioner fliedthis present petition enjoining the trial court from enforcing the order and fromfurther proceeding with the hearing of the expropriation case. ISSUE: Whether or not the there is still a need to appoint commissioners evenafter the effectivity of P.D. No. 1533 which already provided for a mode indetermining just compensation. HELD: Yes. The Court declares the provision of the P.D. 1533 on just compensationunconstitutional and void as the method of ascertaining just compensationunder the said decree constitutes impermissible encroachment on judicialprerogatives. It tends to render the Court inutile on a matter which, under theConstitution, is reserved to it for final determination. Thus, although in an expropriation proceeding, the court technicallywould still have the power to determine the just compensation for the property,following the applicable decree, its task would be relegated to simply stating thelower value of the property as declared either by the owner or the assessor. Thestrict application of the decree during proceedings would be nothing short of amere formality or charade as the court has only to choose between thevaluation of the owner and that of the assessor, and its choice is always limitedto the lower of the two. The court cannot exercise its discretion orindependence in determining what is just or fair. The trial court correctly stated that the valuation in the decree may onlyserve as a guiding principle or one of the factors in determining justcompensation but it may not substitute the court's own judgment as to whatamount should be awarded and how to arrive at such amount. A return to theearlier well-established doctrine is more in keeping with the principle that the judiciary should live up to its mission "by vitalizing and not denigratingconstitutional rights." The basic unfairness of the decree is readily apparent. Just compensation means the value of the property at the time of thetaking. It means a fair and full equivalent for the loss sustained.In this particular case, the tax declarations presented by EPZA as basisfor just compensation were made by the city assessor long before martial law,when land

was not only much cheaper but when assessed values of propertieswere stated in figures constituting only a fraction of their true market value. Theprivate respondent was not even the owner of the properties at the time. To pegthe value of the lots on the basis of documents which are out of date and atprices below the acquisition cost of present owners would be arbitrary andconfiscatory To say that the owners are estopped to question the valuations made byassessors since they had the opportunity to protest is illusory. Theoverwhelming mass of land owners accept unquestioningly what is found in thetax declarations prepared by local assessors or municipal clerks for them. Theydo not even look at, much less analyze, the statements.It is violative of due process to deny to the owner the opportunity toprove that the valuation in the tax documents is unfair or wrong. The determination of "just compensation" in eminent domain cases is a judicial function. The executive department or the legislature may make theinitial determinations but when a party claims a violation of the guarantee in theBill of Rights that private property may not be taken for pubhc use without justcompensation, no statute, decree, or executive order can mandate that its owndetermination shag prevail over the court's findings. In view of the foregoing, P.D. No. 1533, which eliminates the court'sdiscretion to appoint commissioners pursuant to Rule 67 of the Rules of Court, was therefore held unconstitutional and void REPUBLIC vs. LIM FACTS: In 1938, the Republic instituted a special civil action for expropriation of a land in Lahug, Cebu City forthe purpose of establishing a military reservation for the Philippine Army. The said lots were registered in the name of Gervasia and Eulalia Denzon. The Republic deposited P9,500 in the PNB then took possession of the lots. Thereafter, onMay 1940, the CFI rendered its Decision ordering the Republic to pay the Denzons the sum of P4,062.10 as justcompensation. The Denzons appealled to the CA but it was dismissed on March 11, 1948. An entry of judgment wasmade on April 5, 1948. In 1950, one of the heirs of the Denzons, filed with the National Airports Corporation a claim for rentals for thetwo lots, but it

"denied knowledge of the matter." On September 6, 1961, Lt. Cabal rejected the claim but expressedwillingness to pay the appraised value of the lots within a reasonable time.For failure of the Republic to pay for the lots, on September 20, 1961, the Denzons successors-in-interest,Valdehueza and Panerio, filed with the same CFI an action for recovery of possession with damages against the Republicand AFP officers in possession of the property.On November 1961, Titles of the said lots were issued in the names of Valdehueza and Panerio with theannotation "subject to the priority of the National Airports Corporation to acquire said parcels of land, Lots 932 and939 upon previous payment of a reasonable market value".On July 1962, the CFI promulgated its Decision in favor of Valdehueza and Panerio, holding that they are theowners and have retained their right as such over lots because of the Republics failure to pay the amount of P4,062.10,adjudged in the expropriation proceedings. However, in view of the annotation on their land titles, they were orderedto execute a deed of sale in favor of the Republic.They appealed the CFIs decision to the SC. The latter held that Valdehueza and Panerio are still the registeredowners of Lots 932 and 939, there having been no payment of just compensation by the Republic. SC still ruled that theyare not entitled to recover possession of the lots but may only demand the payment of their fair market value.Meanwhile, in 1964, Valdehueza and Panerio mortgaged Lot 932 to Vicente Lim herein respondent, assecurity for their loans. For their failure to pay Lim despite demand, he had the mortgage foreclosed in 1976. The lottitle was issued in his name.On 1992, respondent Lim filed a complaint for quieting of title with the RTC against the petitioners herein.On 2001, the RTC rendered a decision in favor of Lim, declaring that he is the absolute and exclusive owner of the lotwith all the rights of an absolute owner including the right to possession. Petitioners elevated the case to the CA. In itsDecision dated September 18, 2003, it sustained the RTC Decision saying: ... This is contrary to the rules of fair play becausethe concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land,but also the payment for the land within a reasonable time from its taking. Without prompt payment, compensation cannot beconsidered " just"...Petitioner, through the OSG, filed with the SC a petition for review alleging that they remain as the owner of Lot 932.

ISSUE: Whether the Republic has retained ownership of Lot 932 despite its failure to pay respondentspredecessors-in-interest the just compensation therefor pursuant to the judgment of the CFI rendered as early asMay 14, 1940 HELD: One of the basic principles enshrined in our Constitution is that no person shall be deprived of hisprivate property without due process of law; and in expropriation cases, an essential element of due process is thatthere must be just compensation whenever private property is taken for public use. 7Accordingly, Section 9, Article III,of our Constitution mandates: " Private property shall not be taken for public use without just compensation." The Republicdisregarded the foregoing provision when it failed and refused to pay respondents predecessors-in-interest the justcompensation for Lots 932 and 939.The Court of Appeals is correct in saying that Republics delay is contrary to the rules of fair play. In jurisdictions similar to ours, where an entry to the expropriated property precedes the payment of compensation, ithas been held that if the compensation is not paid in a reasonable time , the party may be treated as a trespasser ab initio. As early as May 19, 1966, in Valdehueza , this Court mandated the Republic to pay respondents predecessors-ininterest the sum of P16,248.40 as "reasonable market value of the two lots in question." Unfortunately, it did not complyand allowed several decades to pass without obeying this Courts mandate. It is tantamount to confiscation of privateproperty. While it is true that all private properties are subject to the need of government, and the government maytake them whenever the necessity or the exigency of the occasion demands, however from the taking of privateproperty by the government under the power of eminent domain, there arises an implied promise to compensate theowner for his loss.There is a recognized rule that title to the property expropriated shall pass from the owner to theexpropriator only upon full payment of the just compensation. So, how could the Republic acquire ownership over Lot932 when it has not paid its owner the just compensation, required by law, for more than 50 years? Clearly, without fullpayment of just compensation, there can be no transfer of title from the landowner to the expropriator.SC ruled in earlier cases that expropriation of lands consists of two stages.

First is concerned with thedetermination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise.The second is concerned with the determination by the court of "the just compensation for the property sought to betaken." It is only upon the completion of these two stages that expropriation is said to have been completed In Republic v. Salem Investment Corporation, we ruled that, "the process is not completed until payment of just compensation." Thus,here, the failure of the Republic to pay respondent and his predecessors-ininterest for a period of 57 years renderedthe expropriation process incomplete.Thus, SC ruled that the special circumstances prevailing in this case entitle respondent to recover possession of the expropriated lot from the Republic.While the prevailing doctrine is that "the non-payment of just compensation does not entitle the privatelandowner to recover possession of the expropriated lots, however, in cases where the government failed to pay justcompensation within five (5) years fr om the finality of the judgment in the expropriation proceedings, theowners concerned shall have the right to recover possession of their property. After all, it is the duty of thegovernment, whenever it takes property from private persons against their will, to facilitate the payment of justcompensation. In Cosculluela v. Court of Appeals, we defined just compensation as not only the correct determination of the amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be considered "just." UNITED STATES v. CAUSBY, 328 U.S. 256 (1946) Military airplanes are subject to rules of Civil Aeronautics Board where there are no army or navy regulations to the contrary. This is a case of first impression. The problem presented is whether respondents' property was taken within the meaning of the Fifth Amendment by frequent and regular flights of army and navy aircraft over respondents' land at low altitudes. The Court of Claims held that there was a taking and entered judgment for respondent, one judge dissenting. 60 F.Supp. 751. The case is here on a petition for a writ of certiorari which we granted becuase of the importance of the question presented. Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It has on it a dwelling house, and also various outbuildings which were mainly used for raising

chickens. The end of the airport's northwest-southeast runway is 2,220 feet from respondents' barn and 2,275 feet from their house. The path of glide to this runway passes directly over the property-which is 100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle1 approved by the Civil Aeronautics Authority2 passes over this property at 83 feet, which is 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. 3 The use by the United States of this airport is pursuant to a lease executed in May, 1942, for a term commencing June 1, 1942 and ending June 30, 1942, with a provision for renewals until June 30, 1967, or six [328 U.S. 256, 259] months after the end of the national emergency, whichever is the earlier. Various aircraft of the United States use this airport-bombers, transports and fighters. The direction of the prevailing wind determines when a particular runway is used. The north-westsoutheast runway in question is used about four per cent of the time in taking off and about seven per cent of the time in landing. Since the United States began operations in May, 1942, its fourmotored heavy bombers, other planes of the heavier type, and its fighter planes have frequently passed over respondents' land buildings in considerable numbers and rather close together. They come close enough at times to appear barely to miss the tops of the trees and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling. And at night the glare from the planes brightly lights up the place. As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm. Respondents are frequently deprived of their sleep and the family has become nervous and frightened. Although there have been no airplane accidents on respondents' property, there have been several accidents near the airport and close to respondents' place. These are the essential facts found by the Court of Claims. On the basis of these facts, it found that respondents' property had depreciated in value. It held that the United States had taken an easement over the property on June 1, 1942, and that the value of the property destroyed and the easement taken was $2,000. [328 U.S. 256, 260] I. The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C. 171 et seq., 49 U.S.C.A. 171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. 401 et seq., 49 U. S.C.A. 401 et

seq. Under those statutes the United States has 'complete and exclusive national sovereignty in the air space' over this country. 49 U.S.C. 176(a), 49 U.S.C.A. 176(a). They grant any citizen of the United States 'a public right of freedom of transit in air commerce4 through the navigable air space of the United States.' 49 U.S.C. 403, 49 U.S.C.A. 403. And 'navigable air space' is defined as 'airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.' 49 U.S.C. 180, 49 U.S.C.A. 180. And it is provided that 'such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation.' Id. It is, therefore, argued that since these flights were within the minimum safe altitudes of flight which had been prescribed, they were an exercise of the declared right of travel through the airspace. The United States concludes that when flights are made within the navigable airspace without any physical invasion of the property of the landowners, there has been no taking of property. It says that at most there was merely incidental damage occurring as a consequence of authorized air navigation. It also argues that the landowner does not own superadjacent airspace which he has not subjected to possession by the erection of structures or other occupancy. Moreover, it is argued that even if the United States took airspace owned by respondents, no compensable damage was shown. Any damages are said to be merely consequential for which no compensation may be obtained under the Fifth Amendment. It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe-Cujus[328 U.S. 256, 261] est solum ejus est usque ad coelum. 5 But that doctrine has no place in the modern world. The ai is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. But that general principle does not control the present case. For the United States conceded on oral argument that if the flights over respondents' property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken. United States v. Miller, 317 U.S. 369 ,

63 S.Ct. 276, 147 A.L. R. 55. Market value fairly determined is the normal measure of the recovery. Id. And that value may reflect the use to which the land could readily be converted, as well as the existing use. United States v. Powelson, 319 U.S. 266, 275 , 63 S.Ct. 1047, 1053, and cases cited. If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. 6 It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it. We agree that in those circumstances there would be a taking. Though it would be only an easement of flight [328 U.S. 256, 262] which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner's right to possess and exploit the land-that is to say, his beneficial ownership of it-would be destroyed. It would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co., 233 U.S. 546 , 34 S.Ct. 654, L.R.A.1915A, 887. In that case property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. 7 That was the philosophy of Portsmouth Harbor Land & Hotel Co. v. [328 U.S. 256, 263] United States, 260 U.S. 327 , 43 S.Ct. 135. In that case the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner's land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims which

dismissed the petition on a demurrer, olding that 'the specific facts set forth would warrant a finding that a servitude has been imposed.' 8 260 U.S. at page 330, 43 S.Ct. at page 137. And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352. Cf. United States v. 357.25 Acres of Land, D.C., 55 F.Supp. 461. The fact that the path of glide taken by the planes was that approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain is 'airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.' 49 U.S.C. 180, 49 U.S.C.A. 180. If that agency prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation. But nothing of the sort has been done. The path of glide governs the method of operating- of landing or taking off. The altitude required for that operation is not the minimum safe altitude of flight which is the downward reach of the navigable airspace. The minimum prescribed by the authority is 500 feet during the day and 1000 feet at night for air carriers (Civil Air Regulations, Pt. 61, 61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet for [328 U.S. 256, 264] other aircraft depending on the type of plane and the character of the terrain. Id., Pt. 60, 60.350-60.3505, Fed.Reg.Cum.Supp., supra. Hence, the flights in question were not within the navigable airspace which Congress placed within the public domain. If any airspace needed for landing or taking off were included, flights which were so close to the land as to render it uninhabitable would be immune. But the United States concedes, as we have said, that in that event there would be a taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of flight within the meaning of the statute. The Civil Aeronautics Authority has, of course, the power to prescribe air traffic rules. But Congress has defined navigable airspace only in terms of one of them-the minimum safe altitudes of flight. We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land.9 The

landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 9 Cir., 84 F.2d 755. The fact that he does not occupy it in a physical sense-by the erection of buildings and the like-is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. We would not doub that if the United States erected [328 U.S. 256, 265] an elevated railway over respondents' land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. 10 The reason is that there would be an intrusion so immediate and direct as to subtract from the owner's full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface. 11 In this case, as in Portsmouth Harbor Land & Hotel Co. v. United States, supra, the damages were not merely consequential. They were the product of a direct invasion of respondents' do- [328 U.S. 256, 266] main. As stated in United States v. Cress, 243 U.S. 316, 328 , 37 S.Ct. 380, 385, '... it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.' We said in United States v. Powelson, supra, 319 U.S. at page 279, 63 S.Ct. at page 1054, that while the meaning of 'property' as used in the Fifth Amendment was a federal question, 'it will normally obtain its content by reference to local law.' If we look to North Carolina law, we reach the same result. Sovereignty in the airspace rests in the State 'except where granted to and assumed by the United States.' Gen.Stats. 1943, 63-11. The flight of aircraft is lawful 'unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land

or water beneath.' Id., 63-13. Subject to that right of flight, 'ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath.' Id. 63-12. Our holding that there was an invasion of respondents' property is thus not inconsistent with the local law governing a landowner's claim to the immediate reaches of the superadjacent airspace. The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court [328 U.S. 256, 267] of Claims plainly establish that there was a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land. II. By 145(1) of the Judicial Code, 28 U.S.C. 250(1), 28 U.S.C.A . 250(1), the Court of Claims has jurisdiction to hear and determine 'All claims (except for pensions) founded upon the Constitution of the United States or ... upon any contract, express or implied, with the Government of the United States.' We need not decide whether repeated trespasses might give rise to an implied contract. Cf. Portsmouth Harbor Land & Hotel Co. v. United States, supra. If there is a taking, the claim is 'founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine. See Hollister v. Benedict & Burnham Mfg. Co., 113 U.S. 59, 67 , 5 S.Ct. 717, 721; Hurley v. Kincaid, 285 U.S. 95, 104 , 52 S.Ct. 267, 269; Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 21 , 60 S.Ct. 413, 415. Thus, the jurisdiction of the Court of Claims in this case is clear. III. The Court of Claims held, as we have noted, that an easement was taken. But the findings of fact contain no precise description as to its nature. It is not described in terms of frequency of flight, permissible altitude, or type of airplane. Nor is there a finding as to whether the easement taken was temporary or permanent. Yet an accurate description of the property taken is essential, since that interest vests in the United States. United States v. Cress,

supra, 243 U.S. 328, 329 , 37 S.Ct. 385, 386, and cases cited. It is true that the Court of Claims stated in its opinion that the easement taken was permanent. But the deficiency in findings cannot be rectified by statements in the opinion. United States v. Esnault-Pelterie, 299 U.S. 201, 205 , 206 S., 57 S.Ct. 159, 161, 162; United States v. Seminole Nation, 299 U.S. 417, 422 , 57 S.Ct. 283, 287. Findings of fact on every 'material issue' are a statutory [328 U.S. 256, 268] requirement. 53 Stat. 752, 28 U.S.C. 288, 28 U.S.C.A. 288. The importance of findings of fact based on evidence is emphasized here by the Court of Claims' treatment of the nature of the easement. It stated in its opinion that the easement was permanent because the United States 'no doubt intended to make some sort of arrangement whereby it could use the airport for its military planes whenever it had occasion to do so.' (60 F. Supp. 758.) That sounds more like conjecture rather than a conclusion from evidence; and if so, it would not be a proper foundation for liability of the United States. We do not stop to examine the evidence to determine whether it would support such a finding, if made. For that is not our function. United States v. Esnault-Pelterie, supra, 299 U.S. at page 206, 57 S.Ct. at page 162. Since on this record it is not clear whether the easement taken is a permanent or a temporary one, it would be premature for us to consider whether the amount of the award made by the Court of Claims was proper. The judgment is reversed and the cause is remanded to the Court of Claims so that it may make the necessary findings in conformity with this opin on. REVERSED. Mr. Justice JACKSON took no part in the consideration or decision of this case. Mr. Justice BLACK, dissenting. The Fifth Amendment provides that 'private property' shall not 'be taken for public use, without just compensation.' The Court holds today that the Government has 'taken' respondents' property by repeatedly flying Army bombers directly above respondents' land at a height of eighty-three feet where the light and noise from these planes caused respondents to lose sleep and their chickens to be killed. Since the effect of the Court's decision is [328 U.S.

256, 269] to limit, by the imposition of relatively absolute Constitutional barriers, possible future adjustments through legislation and regulation which might become necessary with the growth of air transportation, and since in my view the Constitution does not contain such barriers, I dissent. The following is a brief statement of the background and of the events that the Court's opinion terms a 'taking' within the meaning of the Fifth Amendment: Since 1928 there has been an airfield some eight miles from Greensboro, North Carolina. In April, 1942, this airport was taken over by the Greensboro-High Point Municipal Airport Authority and it has since then operated as a municipal airport. In 1942 the Government, by contract, obtained the right to use the field 'concurrently, jointly, and in common' with other users. Years before, in 1934, respondents had bought their property, located more than one-third of a mile from the airport. Private planes from the airport flew over their land and farm buildings from 1934 to 1942 and are still doing so. But though these planes disturbed respondents to some extent, Army bombers, which started to fly over the land in 1942 at a height of eighty-three feet, disturbed them more because they were larger, came over more frequently, made a louder noise, and at night a greater glare was caused by their lights. This noise and glare disturbed respondents' sleep, frightened them, and made them nervous. The noise and light also frightened respondents' chickens so much that many of them flew against buildings and were killed. The Court's opinion seems to indicate that the mere flying of planes through the column of air directly above respondents' land does not constitute a 'taking'. Consequently, it appears to be noise and glare, to the extent and under the circumstances shown here, which make the government a seizer of private property. But the allegation[328 U.S. 256, 270] of noise and glare resulting in damages, constitutes at best an action in tort where there might be recovery if the noise and light constituted a nuisance, a violation of a statute,1 or were the result of negligence. 2 But the Government has not consented to be sued in the Court of Claims except in actions based on express or implied contract. And there is no implied contract here, unless by reason of the noise and glare caused by the bombers the Government can be said to have 'taken' respondents' property in a Constitutional sense. The concept of taking property as used in the Constitution has heretofore never been given so sweeping a meaning. The Court's

opinion presents no case where a man who makes noise or shines light onto his neighbor's property has been ejected from that property for wrongfully taking possession of it. Nor would anyone take seriously a claim that noisy automobiles passing on a highway are taking wrongful possession of the homes located thereon, or that a city elevated train which greatly interferes with the sleep of those who live next to it wrongfully takes their property. Even the one case in this Court which in considering the sufficiency of a complaint gave the most elastic meaning to the phrase 'private property be taken' as used in the Fifth Amendment, did not go so far. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. [328 U.S. 256, 271] 327, 43 S.Ct. 135. I am not willing, nor do I think the Constitution and the decisions authorize me to extend that phrase so as to guarantee an absolute Constitutional right to relief not subject to legislative change, which is based on averments that at best show mere torts committed by Government agents while flying over land. The future adjustment of the rights and remedies of property owners, which might be found necessary because of the flight of planes at safe altitudes, should, especially in view of the imminent expansion of air navigation, be left where I think the Constitution left it, with Congress. Nor do I reach a different conclusion because of the fact that the particular circumstance which under the Court's opinion makes the tort here absolutely actionable, is the passing of planes through a column of air at an elevation of eighty-three feet directly over respondents' property. It is inconceivable to me that the Constitution guarantees that the airspace of this Nation needed for air navigation, is owned by the particular persons who happen to own the land beneath to the same degree as they own the surface below. 3 No rigid Constitutional rule, in my judgment, commands that the air must be considered as marked off into separate compartments by imaginary metes and bounds in order to synchronize air ownership with land ownership. I think that the Constitution entrusts Congress with full power to control all navigable airspace. Congress has already acted under that power. It has by statute, 44 Stat. 568, 52 Stat. 973, provided that 'the United States of America is ... to possess and exercise complete and exclusive national sovereignty in the [328 U.S. 256, 272] air space (over) the United States.' This was done under the assumption that the Commerce Clause of the Constitution gave Congress the same plenary power to control navigable airspace as its plenary power over navigable waters. H. Rep. No.

572, 69th Cong., 1st Sess., p. 10; H. Rep. No. 1162, 69th Cong., 1st Sess., p. 14; United States v. Commodore Park, Inc., 324 U.S. 386 , 65 S.Ct. 803. To make sure that the airspace used for air navigation would remain free, Congress further declared that 'navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation,' and finally stated emphatically that there exists 'a public right of freedom of transit ... through the navigable airspace of the United States.' Congress thus declared that the air is free, not subject to private ownership, and not subject to delimitation by the courts. Congress and those acting under its authority were the only ones who had power to control and regulate the flight of planes. 'Navigable air-space' was defined as 'airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.' 49 U.S.C. 180, 49 U.S.C.A. 180. Thus, Congress has given the Civil Aeronautics Authority exclusive power to determine what is navigable airspace subject to its exclusive control. This power derives specifically from the Section which authorizes the Authority to prescribe 'air traffic rules governing the flight of, and for the navigation, protection, and identification of, aircraft, including rules as to safe altitudes of flight and rules for the prevention of collisions between aircraft, and between aircraft and land or water vehicles.' 49 U.S.C.A. 551. Here there was no showing that the bombers flying over respondents' land violated any rule or regulation of the Civil Aeronautics Authority. Yet, unless we hold the Act unconstitutional, at least such a showing would be necessary before the courts could act without interfering with the exclusive authority which Congress gave to the administrative agency. Not even a [328 U.S. 256, 273] showing that the Authority has not acted at all would be sufficient. For in that event, were the courts to have any authority to act in this case at all, they should stay their hand till the Authority has acted. The broad provisions of the Congressional statute cannot properly be circumscribed by making a distinction as the Court's opinion does between rules of safe altitude of flight while on the level of cross-country flight and rules of safe altitude during landing and taking off. First, such a distinction can not be maintained from the practical standpoint. It is unlikely that Congress intended that the Authority prescribe safe altitudes for planes making cross-country flights, while at the same time it left the more hazardous landing and take-off operations unregulated. The legislative history, moreover, clearly shows that the Authority's power to prescribe air traffic rules includes the power to make rules governing landing

and take-off. Nor is the Court justified in ignoring that history by labeling rules of safe altitude while on the level of cross-country flight as rules prescribing the safe altitude proper and rules governing take-off and landing as rules of operation. For the Conference Report explicitly states that such distinctions were purposely eliminated from the original House Bill in order that the Section on air traffic rules 'might be given the broadest construction by the ... ( Civil Aeronautics Authority) ... and the courts.' 4 In construing the statute narrowly the Court [328 U.S. 256, 274] thwarts the intent of Congress. A proper broad construction, such as Congress commanded, would not permit the Court to decide what it has today without declaring the Act of Congress unconstitutional. I think the Act given the broad construction intended is constitutional. No greater confusion could be brought about in the coming age of air transportation than that which would result were courts by Constitutional interpretation to hamper Congress in its efforts to keep the air free. Old concepts of private ownership of land should not be introduced into the field of air regulation. I have no doubt that Congress will, if not handicapped by judicial interpretations of the Constitution, preserve the freedom of the air, and at the same time, satisfy the just claims of aggrieved persons. The noise of newer, larger, and more powerful planes may grow louder and louder and disturb people more and more. But the solution of the problems precipitated by these technological advances and new ways of living cannot come about through the application of rigid Constitutional restraints formulated and enforced by the courts. What adjustments may have to be made, only the future can reveal. It seems certain, however, [328 U.S. 256, 275] the courts do not possess the techniques or the personnel to consider and act upon the complex combinations of factors entering into the problems. The contribution of courts must be made through the awarding of damages for injuries suffered from the flying of planes, or by the granting of injunctions to prohibit their flying. When these two simple remedial devices are elevated to a Constitutional level under the Fifth Amendment, as the Court today seems to have done, they can stand as obstacles to better adapted techniques that might be offered by experienced experts and accepted by Congress. Today's opinion is, I fear, an opening wedge for an unwarranted judicial interference with the power of Congress to develop solutions for new and vital and national problems. In my opinion this case should be reversed on

the ground that there has been no 'taking' in the Constitutional sense.

HELD: 1. The "taking" of Catellvi's property for purposes of eminent domain cannot be considered to have taken place in 1947 when the Republic commenced to occupy the property as lessee. Elements B & E were not present when Republic entered the properties in 1947.

Republic vs. Vda. de Castellvi FACTS: 1 July 1947 - Petitioner Republic of the Philippines (Philippine Air Force) occupied the land situated in Floridablanca, Pampanga of Carmen M. vda. de Castellvi, the judicial administratrix of the estate of the late Alfonso de Castellvi since by virtue of a contract of lease. 30 June 1956 - Before the expiration of the contract of lease, the Republic sought to renew the same but Castellvi refused, intending to subdivide the lots for sale to the general public; filed civil case for ejectment of AFP. 26 June 1959 In view of the difficulty for the army to vacate the premises due to permanent installations and other facilities, AFP filed expropriation proceedings and was placed in possession of the lands on 10 August 1959. In its complaint, the Republic alleged, among other things, that the fair market value of the above-mentioned lands, according to the Committee on Appraisal for the Province of Pampanga, was not more than P2,000 per hectare (P.20/sqm), or a total market value of P259,669.10 when AFP first had the taking of the said property by virtue of the special lease agreement. Respondents allege that their lands are residential with a fair market value of not less than P15/sqm. The trial court rendered its decision, finding that the unanimous recommendation of the commissioners of P10.00 per square meter for the 3 lots subject of the action is fair and just compensation ISSUE: 1. WON the taking of the properties under expropriation commenced with the filing of the action WON the P10/sqm is fair and just compensation.

Elements/Requisites of taking of property for purposes of eminent domain: A. B. Expropriator must enter a private property. Entrance into private property must be for more than a momentary period. Entry into the property should be under warrant or color of legal authority. Property must be devoted to a public use or otherwise informally appropriated or injuriously affected. Utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. Under Section 4 of Rule 67 of the Rules of Court, the just compensation is to be determined as of the date of the filing of the complaint.

C.

D.

E.

2.

This Court has ruled that when the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint. Herein, it is undisputed that the Republic was placed in possession of the Castellvi property, by authority of the court, on 10 August 1959. The taking of the Castellvi property for the purposes of determining the just compensation to be paid should not be paid based on 1947 fair market value amount. Basic guidelines in determining the value of the land to be expropriated:

2.

Same considerations are to be regarded as in a sale of property between private parties. Estimated by reference to the use for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.

In expropriation proceedings, therefore, the owner of the land has the right to its value for the use for which it would bring the most in the market. We have arrived at the conclusion that the price of P10/sqm is quite high. The price of P5/sqm would be a fair valuation and would constitute a just compensation. We considered the resolution of the Provincial Committee on Appraisal of the province of Pampanga informing, that in the year 1959 the lands could be sold for from P2.50- P4/sqm, and the Court arrived at a happy medium between the price as recommended by the commissioners and approved by the court, and the price advocated by the Republic. REPUBLIC VS. CASTELVI Facts: In 1947, the republic, through the Armed Forces of the Philippines (AFP), entered into a lease agreement with Castelvi on a year-to-year basis. When Castelvi gave notice to terminate the lease in 1956, the AFP refused. She then instituted an ejectment proceeding against the AFP. In 1959, however, the republic commenced the expropriation proceedings for the land in question. Issue: Whether or Not the compensation should be determined as of 1947 or 1959 Held: The Supreme Court ruled that the taking should not be reckoned as of 1947, and that just compensation should not be determined on the basis of the value of the property as of that year. The requisites for taking are: 1) the expropriator must enter a private property, 2) the entry must be for more than a momentary period, 3) it must be under warrant or color of authorities, 4) the property must be devoted for public use or otherwise informally appropriated or injuriously affected, and 5) the utilization of the

property for public use must be such a way as to oust the owner and deprive him of beneficial enjoyment of the property. Under Sec. 4 Rule 67 of the Rules of Court, just compensation is to be determined as of the date of the filing of the complaint. The Supreme Court has ruled that when the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint. In the instant case, it is undisputed that the Republic was placed in possession of the Castelvi property, by authority of court, on August 10, 1959. The taking of the Castelvi property for the purposes of determining the just compensation to be paid must, therefore, be reckoned as of June 26, 1959 when the complaint for eminent domain was filed. There is no basis to the contention of the Republic that a lease on a year-to-year basis can give rise to permanent right to occupy since by express provision a lease made for a determinate time, as was the lease of Castelvi land in the instant case, ceases upon the day fixed, without need of a demand (Art. 1669, New Civil Code). The Supreme Court, however, did not apply Art. 1250 of the New Civil Code for the adjustment of the peso rate in times of extraordinary inflation or deflation because in eminent domain cases the obligation to pay arises from law independent of contract CIR v. Central Luzon Drug Corp. Facts: Central Luzon Drug Corp. (CLDC) is a domestic corporation primarily engaged in retailing of medicines and other pharmaceutical products. From January to December 1996, CLDC granted 20% sales discount to qualified senior citizens on their purchases of medicines pursuant to RA 7432 and its IRR. For the said period, the amount allegedly representing the 20% sales discount granted by CLDC to qualified senior citizens amounted to P904,769. CLDC filed its Annual Income Tax Return for taxable year 1996 declaring therein that it incurred net losses. It later filed with the CIR a claim for tax refund/credit in the amount of P904,769. Unable to obtain affirmative response from CIR, CLDC elevated its claim to the CTA. The CTA initially ruled against CLDC. It held that if no tax has been paid to the government, erroneously or illegally, or if no amount is due and collectible from the taxpayer, tax refund or tax credit is unavailing. CLDC lodged a MR wherein the CTA ordered

the CIR to issue a Tax Credit Certificate in favor of CLDC. It held that tax refunds or credits do not exclusively pertain to illegally collected or erroneously paid taxes as they may be other circumstances where a refund is warranted. On appeal, the CA affirmed the CTA resolution ordering the CIR to issue a tax credit certificate in favor of CLDC. It reasoned that RA 7432 required neither a tax liability nor a payment of taxes by private establishments prior to the availment of a tax credit. Moreover, such credit is not tantamount to an unintended benefit from the law, but rather a just compensation for the taking of private property for public use. Issues: (1) Whether CLDC, despite incurring a net loss, may still claim the 20% sales discount as a tax credit. (2) What is the nature of the tax credit granted to the establishments. Held: (Please read the original for a more detailed discussion on the tax issues) (1) YES. Although the term is not specifically defined in the Tax Code, tax credit generally refers to an amount that is subtracted directly from ones total tax liability. It is an allowance against the tax itself or a deduction from what is owed by a taxpayer to the government. Examples of tax credits are withheld taxes, payments of estimated tax, and investment tax credits. While a tax liability is essential to the availment or use of any tax credit, prior tax payments are not. On the contrary, for the existence or grant solely of such credit, neither a tax liability nor a prior tax payment is needed. The Tax Code is in factfull of provisions granting or allowing tax credits, even though no taxes have been previously paid. The 20% discount required by the law to be given to senior citizens is a tax credit, not merely a tax deduction from the gross income or gross sale of the establishment concerned. A tax credit is used by a private establishment only AFTER the tax has been computed; a tax deduction, BEFORE the tax is computed. RA 7432 unconditionally grants a tax credit to all covered entities. Thus, the provisions of the revenue regulation that withdraw or modify such

grant are void. Basic is the rule that administrative regulations cannot amend or revoke the law. (2) The revenue regulation of RA 7432 is unconstitutional insofar as it denies the exercise by the State of its power of eminent domain. The privilege enjoyed by senior citizens does not come directly from the State, but rather from the private establishments concerned. Accordingly, the tax credit benefit granted to these establishments can be deemed as their JUST COMPENSATION for private property taken by the State for public use. The concept of public use is no longer confined to the traditional notion of use by the public, but held synonymous with public interest, public benefit, public welfare, and public convenience. The discount privilege to which our senior citizens are entitled is actually a benefit enjoyed by the general public to which these citizens belong. The discounts given would have entered the coffers and formed part of the gross sales of the private establishments concerned, were it not for RA 7432. The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of private property for public use or benefit. As a result of the 20% discount imposed by RA 7432, CLDC becomes entitled to a just compensation. This term refers not only to the issuance of a tax credit certificate indicating the correct amount of the discounts given, but also to the promptness in its release. When not done within a reasonable time from the grant of the discounts it cannot be considered as just compensation. In effect, CLDC is made to suffer the consequences of being immediately deprived of its revenues while awaiting actual receipt, through the tax credit certificate, of the equivalent amount it needs to cope with the reduction in its revenues. The taxation power can also be used as an implement for the exercise of the power of eminent domain. Tax measures are but enforced contributions exacted on pain of penal sanctions and clearly imposed for a public purpose. In recent years, the power to tax has indeed become a most effective tool to realize social justice, public welfare, and the equitable distribution of wealth. Social justice cannot be invoked to trample on the rights of property owners who under our Constitution are also entitled to protection. It is not intended to take away rights from a person and give them to another. For this reason, just

compensation for income that is taken away from CLDC becomes necessary. It is in the tax credit that our legislators find support to realize social justice, and no administrative body can alter that fact. COMMISSIONER OF INTERNAL REVENUE, petitioner vs. CENTRAL LUZON DRUG CORPORATION, respondent G.R. No. 148512, June 26, 2006, Just like the first case herein discussed, this case delves on the 20% discount granted to senior citizens. The respondent filed a claim for refund on the unutilized portion for the discount which it claimed as a tax credit. The CTA ruled that the tax credit benefit is only to the extent of respondents tax liability during the year, hence the claim for refund is not allowed. The CA modified that decision and ruled that the unutilized portion can be carried over to the next taxable period if there is no current tax liability. This ruling by the CA was affirmed by the SC. In bringing the case to the SC, the CIR maintains that the discount should only be allowed as a deduction from gross income and not a reduction from the tax liability. The law (R.A. No. 7432) provides that the discount is available as a tax credit. However, the implementing regulations (RR No. 2-94) treat it as a deduction from gross income following the customary treatment of a sales discount. On this apparent conflict between the law and its implementing rules, the SC said that when the law says that the cost of the discount may be claimed as a tax credit, it means that the amount when claimed shall be treated as reduction from any tax liability. The law cannot be amended by a mere regulation. The administrative agencies issuing these regulations may not enlarge, alter or restrict the provisions of the law they administer. In fact, a regulation that operates to create a rule out of harmony with the statute is a mere nullity. (CIR vs. Vda. De Prieto, 109 Phil. 592) The SC also touched on the nature of the benefit granted to the establishment selling to senior citizens. It emphasized that the tax credit benefit granted to the establishment can be deemed as their just compensation for private property taken by the State for public use. The privilege enjoyed by the senior citizens does not come directly from the State, but rather from the private establishments concerned. To deprive the taxpayer of their right to apply the tax credit against future tax liability will be to deny them the just compensation for the property taken

City of Manila v. Judge Laguio Facts: Malate Tourist Development Corp. (MTDC) is engaged in the business of operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the Department of Tourism as a hotel. The City Council enacted an Ordinance prohibiting the establishment or operation of businesses providing certain forms of entertainment in the Ermita-Malate area. MTDC is seeking that the Ordinance be declared unconstitutional, insofar as it includes motels and inns among its prohibited establishments. MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments, motels and inns such as MTDCs Victoria Court considering that these were not establishments for amusement or entertainment and they were not services or facilities for entertainment, nor did they use women as tools for entertainment, and neither did they disturb the community, annoy the inhabitants or adversely affect the social and moral welfare of the community. Issue: Whether or not the Ordinance is unconstitutional. Held: UNCONSTITUTIONAL. The police power of the City Council, however broad and far-reaching, is subordinate to constitutional limitations. The enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. Among others,[1] it violates Art. III, 9 which states that private property shall not be taken for public use without just compensation. The Ordinance is unreasonable and oppressive as it substantially divests MTDC of the beneficial use of its property. An ordinance which permanently restricts the use of property that it can not 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. Art. III, 9 is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. It ensures that the government does not confiscate the property of some to give it to others. If the government takes away a persons property to benefit society,

then society should pay. The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. There are 2 types of taking that can be identified. A possessory taking occurs when the government confiscates or physically occupies property. A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property. The issue of when regulation constitutes a taking is a matter of considering the facts in each case. A restriction on use of property may also constitute a taking if not reasonably necessary to effect a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner. The Ordinance gives the owners and operators of the prohibited establishments 3 months from its approval within which to: (1) wind up business operations or (2) to transfer to any place outside of the Ermita-Malate area or (3) convert said businesses to other kinds of business allowable within the area. Option (1) amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to accommodate an allowed business, the structure which housed the previous business will be left unused. Suppose he transfers, he will likewise leave the entire establishment idle. Consideration must be given to the substantial amount of money invested to build the edifices which the owner reasonably expects to be returned within a period of time. It is apparent that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. Options (2) and (3) are confiscatory as well. The penalty of permanent closure in cases of subsequent violations is also equivalent to a taking of private property. Option (2) qualifies as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. Not only is this impractical, it is unreasonable, onerous and oppressive. Option (3) is just as ridiculous. How may MTDC convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation.

OSG v. Ayala Land G.R. No. 177056, 18 September 2009 Facts: Ayala Land, Robinsons, and Shangri-la maintain and operate shopping malls in Metro Manila. SM Prime constructs, operates, and leases out buildings for commercial use. Ayala Land et al. have parking facilities for all kinds of motor vehicles. Ayala Land, Robinsons, and SM Prime spent for the construction of their own parking facilities. Shangri-la is renting its parking facilities. They also expend for the maintenance of their parking facilities. They provide security to protect the vehicles parked and maintain order within the area. In turn, they collect parking fees from the persons making use of their facilities, regardless of whether said persons are mall patrons or not. The parking ticket issued contain the stipulation that they shall not be responsible for any loss or damage to the vehicles parked in their parking facilities. The Senate Committees on Trade and Commerce and on Justice and Human Rights (Committees) conducted a joint investigation. The Committees issued a Report finding that the collection of parking fees by shopping malls is contrary to the National Building Code and the Consumer Act of the Philippines. The Committees, among others, recommended that the Office of the Solicitor General (OSG) should institute the necessary action to enjoin the collection of parking fees as well as to enforce the penal provisions of the National Building Code. The OSG should likewise study how refund can be exacted from mall owners who continue to collect parking fees. Petitions for Declaratory Relief were filed. According to the Makati RTC, the Building Code and its IRR do not impose that parking spaces shall be provided by the mall owners free of charge. Absent such directive, Ayala Land et al. are under no obligation to provide them for free. To compel Ayala Land et al. to provide parking for free can be considered as an unlawful taking of property without just compensation. On appeal, the CA affirmed the RTC decision and declared that the National Building Code and the IRR were clear. The provisions were only intended to control the occupancy or congestion of areas and structures. In the absence of any express and clear provision of law, Ayala Land et al. could not be obliged and expected to provide parking slots free of charge. Issue: Whether or not Ayala Land et al. may be compelled to provide free parking. Held: NO. The OSG limits its citation to the first part of 102 of the National Building Code declaring the policy of the State[2] but totally ignores the second part of said provision.[3] 102 is not an all-encompassing grant of regulatory power to the DPWH Secretary and local building officials in the name of life, health, property, and public welfare. On the contrary, it limits the regulatory power of said officials to ensuring that the minimum standards and requirements for all buildings and structures, as set forth in the National Building Code, are complied with. In City of Ozamis v. Lumapas, the SC authorized the collection by the City of minimal fees for the parking of vehicles along the streets: so why then should the Court now preclude Ayala Land et al. from collecting from the public a fee for the use of the mall parking facilities? Undoubtedly, they also incur expenses in the maintenance and operation of the mall parking facilities, such as electric consumption, compensation for parking attendants and security, and upkeep of the physical structures. Without using the term outright, the OSG is actually invoking police power to justify the regulation by the State of privately owned parking facilities, including the collection of parking fees. In totally prohibiting them from collecting parking fees, the State would be acting beyond the bounds of police power. Police power 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 peace and order and of promoting the general welfare. When there is a taking or confiscation of private property for public use, the State is exercising another of its inherent powers, eminent domain. This enables the State to forcibly acquire private lands intended for public use upon payment of just compensation to the owner. A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts

to a taking of private property, and the owner may recover therefor. Although in the present case, title to the parking facilities remain with Ayala Land et al., the prohibition against their collection of parking fees from the public is already tantamount to a taking or confiscation of their properties. The State is not only requiring them to devote a portion of the latters properties for use as parking spaces, but is also mandating that they give the public access to said parking spaces for free. Such is already an excessive intrusion into their property rights.Not only are they being deprived of the right to use a portion of their properties as they wish, they are further prohibited from profiting from its use or even just recovering therefrom the expenses for the maintenance and operation of the required parking facilities. Heirs of Ardona vs Reyes Facts The Philippine Tourism Authority filed 4 complaints with the CFI of Cebu City for the expropriation of 282 ha of rolling land situated in barangays Malubog and Babag, Cebu City for the development intointegrated resort complexes of selected and well-defined geographic areas with potential tourism value. The PTA will construct a sports complex, club house, golf course, playground and picnic area on said land.An electric power grid will also be established by NPC as well as deep well and drainage system.Complimentary support facilities (malls, coffee shops, etc) will also be created. The defendants alleged that the taking is allegedly not impressed with public use under theConstitution. Also, assuming that PTA has such power, the intended use cannot be paramount to thedetermination of the land as a land reform area; that limiting the amount of compensation by legislativefiat is constitutionally repugnant; and that since the land is under the land reform program, it is the Courtof Agrarian Relations and not the Court of First Instance, that has jurisdiction over the expropriation cases. The Philippine Tourism Authority having deposited with the PNB, an amount equivalent to 10% of the value of the properties pursuant to PD1533, the lower court issued separate orders authorizing PTA totake immediate possession of the premises and directing the issuance of writs of possession. Issue:WON the public use requirement has been complied with

Held:YesRatio: There are three provisions of the Constitution which directly provide for the exercise of the powerof eminent domain. Sec 2, Article IV states that private property shall not be taken for public use without just compensation. Section 6, Article XIV allows the State, in the interest of national welfare or defense andupon payment of just compensation to transfer to public ownership, utilities and other private enterprisesto be operated by the government. Section 13, Article XIV states that the Batasang Pambansa mayauthorize upon payment of just compensation the expropriation of private lands to be subdivided intosmall lots and conveyed at cost to deserving citizens. While not directly mentioning the expropriation of private properties upon payment of just compensation, the provisions on social justice and agrarianreforms which allow the exercise of police power together with the power of eminent domain in theimplementation of constitutional objectives are even more far reaching insofar as taxing of privateproperty is concerned. We cite all the above provisions on the power to expropriate because of thepetitioners' insistence on a restrictive view of the eminent domain provision. The thrust of all constitutionalprovisions on expropriation is in the opposite direction.As early as 1919, this Court in Visayan Refining Co. v. Samus categorized the restrictive view aswholly erroneous and based on a misconception of fundamentals. The petitioners look for the word"tourism" in the Constitution. Understandably the search would be in vain. To freeze specific programs liketourism into express constitutional provisions would make the Constitution more prolix than a bulky codeand require of the framers a prescience beyond Delphic proportions. In said case, this Court emphasizedthat the power of eminent domain is inseparable from sovereignty being essential to the existence of theState and inherent in government even in its most primitive forms. The only purpose of the provision in theBill of Rights is to provide some form of restraint on the sovereign power. It is not a grant of authority . The petitioners ask us to adopt a strict construction and declare that "public use" means literallyuse by the public and that "public use" is not synonymous with "public interest", "public benefit", or "publicwelfare" and much less "public convenience." The petitioners face two major obstacles. First, theircontention which is rather sweeping in its call for a retreat from the public welfare orientation is undulyrestrictive and outmoded. Second, no less than the lawmaker has made a policy determination that thepower of eminent domain may be exercised in the promotion and development of Philippine tourism. The restrictive view of public use may be appropriate for a nation which circumscribes

the scope of government activities and public concerns and which possesses big and correctly located public lands thatobviate the need to take private property for public purposes. Neither circumstance applies to thePhilippines. We have never been a laissez faire State. And the necessities which impel the exertion of sovereign power are all too often found in areas of scarce public land or limited governmentresources.There can be no doubt that expropriation for such traditional purposes as the construction of roads, bridges, ports, waterworks, schools, electric and telecommunications systems, hydroelectric powerplants, markets and slaughterhouses, parks, hospitals, government office buildings, and flood control systems is valid. However, the concept of public use is not limited to traditional purposes. Here aselsewhere the idea that "public use" is strictly limited to clear cases of "use by the public" has beendiscarded.In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the statutory and judicial trend as follows: "The taking to be valid must be for public use. There was a time when it was feltthat a literal meaning should be attached to such a requirement. Whatever project is undertaken must befor the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is notany more. As long as the purpose of the taking is public, then the power of eminent domain comes intoplay. As just noted, the constitution in at least two cases, to remove any doubt, determines what is publicuse. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. Theother is in the transfer, through the exercise of this power, of utilities and other private enterprise to thegovernment. It is accurate to state then that at present whatever may be beneficially employed for thegeneral welfare satisfies the requirement of public use." The petitioners' contention that the promotion of tourism is not "public use" because privateconcessioners would be allowed to maintain various facilities such as restaurants, hotels, stores, etc. insidethe tourist complex is impressed with even less merit. Private bus firms, taxicab fleets, roadsiderestaurants, and other private businesses using public streets and highways do not diminish in the least bitthe public character of expropriations for roads and streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. Airports and pierscatering exclusively to private airlines and shipping companies are still for public use. The expropriation of private land for slum clearance and urban development is for a public purpose even if the developed areais later sold to private

homeowners, commercial firms, entertainment and service companies, and otherprivate concerns. The petitioners have also failed to overcome the deference that is appropriately accorded toformulations of national policy expressed in legislation. The rule in Berman v. Parker (supra) of deferenceto legislative policy even if such policy might mean taking from one private person and conferring onanother private person applies as well as in the Philippines. An examination of the language in the 1919cases of City of Manila v. Chinese Community of Manila and Visayan Refining Co. v. Camus, earlier cited,shows that from the very start of constitutional government in our country judicial deference to legislativepolicy has been clear and manifest in eminent domain proceedings. The expressions of national policy arefound in the revised charter of the Philippine Tourism Authority, PD 564.(Disregard of Land Reform Nature) According to them, assuming that PTA has the right to expropriate, theproperties subject of expropriation may not be taken for the purposes intended since they are within thecoverage of "operation land transfer" under the land reform program; that the agrarian reform programoccupies a higher level in the order of priorities than other State policies like those relating to the healthand physical wellbeing of the people; and that property already taken for public use may not be taken foranother public use. The petitioners, however, have failed to show that the area being developed is indeed a land reformarea and that the affected persons have emancipation patents and certificates of land transfer. The records show that the area being developed into a tourism complex consists of more than 808hectares, almost all of which is not affected by the land reform program. The portion being expropriated is282 hectares of hilly and unproductive land where even subsistence farming of crops other than rice andcorn can hardly survive. And of the 282 disputed hectares, only 8,970 square meters - less than onehectare - is affected by Operation Land Transfer. Of the 40 defendants, only two have emancipationpatents for the less than one hectare of land affected.(Non Impairment Clause) The nonimpairment clause has never been a barrier to the exercise of policepower and likewise eminent domain. As stated in Manigault v. Springs "parties by entering into contractsmay not estop the legislature from enacting laws intended for the public good." The applicable doctrine isexpressed in Arce v. Genato which involved the expropriation of land for a public plaza. The issue of prematurity is also raised by the petitioners. They claim that since the necessity for the taking has notbeen previously established, the issuance of the orders authorizing the PTA to take immediate

possessionof the premises, as well as the corresponding writs of possession was premature.Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the government, itsagency or instrumentality, as plaintiff in an expropriation proceedings is authorized to take immediatepossession, control and disposition of the property and the improvements, with power of demolition,notwithstanding the pendency of the issues before the court, upon deposit with the Philippine NationalBank of an amount equivalent to 10% of the value of the property expropriated. The issue of immediatepossession has been settled in Arce v. Genato. In answer to the issue: ". . . condemnation or expropriation proceedings is in the nature of one that is quasi-inrem, wherein the fact that the owner of the property ismade a party is not essentially indispensable insofar at least as it concerns the immediate taking of possession of the property and the preliminary determination of its value, including the amount to bedeposited."Makasiar: It appearing that the petitioners are not tenants of the parcels of land in question and thereforedo not fall within the purview of the Land Reform Code, the petition should be dismissed on that scorealone. There is no need to decide whether the power of the PTA to expropriate the land in question predicated onthe police power of the State shall take precedence over the social justice guarantee in favor of tenantsand the landless. The welfare of the landless and small land owners should prevail over the right of the PTAto expropriate the lands just to develop tourism industry, which benefit the wealthy only. Such a positionwould increase the disenchanted citizens and drive them to dissidence. The government is institutedprimarily for the welfare of the governed and there are more poor people in this country than the rich. Thetourism industry is not essential to the existence of the government, but the citizens are, and their right tolive in dignity should take precedence over the development of the tourism industry Heirs of Juancho Ardona vs. Reyes Facts: The Philippine Tourism Authority filed 4 complaints with the Court of First Instance of Cebu City for theexpropriation of some 282 hectares of rolling land situated in barangay Alubog and Babag, Cebu City, under PTAsexpress authority to acquire by purchase, by negotiation or by condemnation proceedings any private land withinand without the tourist zones for the purposes indicated in Section 5, paragraph B(2), of its Revised Charter (PD564). The heirs of Juancho Ardona et. Al, ) filed their

oppositions, and had a common allegation in that the taking isallegedly not impressed with public use under the Constitution; alleging that there is no specific constitutional provision authorizing the taking of private property for tourism purposes; that assuming that PTA has such power,the intended use cannot be paramount to the determination of the land as a land reform area; that limiting the amountof compensation by legislative fiat is constitutionally repugnant; and that since the land is under the land reform program, it is the Court of Agrarian Relations and not the Court of First Instance (CFI), that has jurisdiction over theexpropriation cases. The Philippine Tourism Authority having deposited with the Philippine National Bank, CebuCity Branch, an amount equivalent to 10% of the value of the properties pursuant to Presidential Decree No. 1533,the lower court issued separate orders authorizing PTA to take immediate possession of the premises and directingthe issuance of writs of possession. The Heirs of Ardona, et. al. then filed a petition for certiorari with preliminaryinjunction before the Supreme Court .Issue: Whether the expropriation of parcels of land for the purpose of constructing a sports complex by thePhilippine Tourism Authority be considered taking for public use. Held: The states power of eminent domain extends to the expropriation of land for tourism purposes although thisspecific objective is not expressed in the constitution. The policy objectives of the framers can be expressed only ingeneral terms such as social justice, local autonomy, conservation and development of the national patrimony publicinterest, and general welfare, among others. The programs to achieve these objectives vary from time to time andaccording to place. To freeze specific programs like tourism into express provisions would make the constitutionmore prolix than bulky code and require of the framers a prescience beyond Delphic proportions. The particular mention in the constitution of agrarian reform and transfer of utilities and other private enterprises to publicownership merely underscores the magnitude of the problems sought to be remedied by this programs. They do not preclude nor limit the exercise of the power of eminent domain for the purposes like tourism and other development program Manotok v. NHA 150 SCRA 89 (1987) Facts: Petitioners are the owners of two large estates known as the Tambunting Estate and Sunog-Apog in Tondo, Manila, both of

which were declared expropriated in two decrees issued by President Marcos, PD 1669 and PD 1670. The petitioners contend that the decrees violate their constitutional right to due process and equal protection since by their mere passage their properties were automatically expropriated and they were immediately deprived of the ownership and possession thereof without being given the chance to oppose such expropriation. The government on the other hand contends that the power of eminent domain is inherent in the State and when the legislature or the President through his law-making powers exercises this power, the public use and public necessity of the expropriation and the fixing of the just compensation become political in nature and the courts must respect the decision. HELD: The challenged decrees are unfair in the procedures adopted and the powers given to the NHA. The Tambunting subdivision is summarily proclaimed a blighted area and directly expropriated by decree without the slightest semblance of a hearing or any proceeding whatsoever. The expropriation is instant and automatic to take effect immediately upon the signing of the decree. No deposit before the taking is required. There is not provision for any interest to be paid upon unpaid installments. Not only are the owners given absolutely no opportunity to contest the expropriation, or question the amount of payments fixed by the decree, but the decision of the NHA are expressly declared beyond judicial review. PD 1669 and 1670 are declared unconstitutional. Teehankee, CJ, concurring: The judgment at bar now learly overturns the majority ruling in JM Tuason v. LTA that the power of Congress to designate the particular property to be taken adn how much may be condemned thereof must be duly recognized, leaving only as a judicial question whether in the exercise of such competence, the party adversely affected is the victim of partiality and prejudice. The SC now rules that such singling out of properties does not foreclose judicial scrutiny as to whether such expropriation by legislative act transgresses the due process and equal protection and just compensation guarantees of the Constitution. G.R. No. L-31814 January 31, 1973 RAYMUNDO Z. FAMILARA vs. J.M. TUASON & CO., INC., GREGORIO ARANETA, INC., CITY ENGINEER PANTALEON TABORA OF QUEZON CITY, ALL THE JUDGES PRESIDING OVER THE

VARIOUS BRANCHES OF THE COURTS OF FIRST INSTANCE AND CITY COURTS OF QUEZON CITY, and THE SHERIFF OF QUEZON CITY, respondents. An original action by the barrio captain of Barrio Tatalon, in his own behalf and in representation of 1,500 "bona-fide" occupants of the Tatalon Estate in Quezon City, to enjoin the respondent Corporations, J. M. Tuason & Co., Inc. and Gregorio Araneta, Inc., "from bulldozing and fencing any portion" of the Tatalon Estate "and/or from selling" any of the lots therein, "and/or from filing ejectment cases" against the "bona-fide" occupants of the estate, the respondent City Engineer Quezon City from issuing "building and fencing permits" to purchasers of lots within the Tatalon Estate, and respondent City Sheriff of the same city from "implementing writs of execution" or "orders of demolition" issued against that occupants of the estate. The petitioner also seeks for the issuance of an order to compel the presiding judges of the Courts of First Instance and Courts of Quezon City to dismiss the cases of accion publiciana or for ejectment filed by said Corporation again the aforesaid occupants. This action is predicated on the averment that on November 10, 1960, the Land Tenure Administration was directed by the Executive Secretary to initiate proceedings for the expropriation of the Tatalon Estate. Reliance is thus placed by petitioner upon the provisions of Section 4 of Republic Act No. 2616. There is no averment however in the petition that any expropriation proceedings has in fact been actually instituted before the courts. In view of recent developments, since the submission of this case, the parties were required on November 24, 1972, to comment whether or not in their view, the case has been rendered moot. In the comment of respondent Gregorio Araneta, Inc. said party stated that, while a "preliminary conference" has been held between the People's Homesite & Housing Corporation and the respondent, on the unsold lots within the Tatalon Estate, which may still be acquired by the government for distribution to the bona-fide occupants thereof pursuant to Republic Act No. 2616, said party "cannot determine the outcome of the announced desire of the Government to acquire said property pursuant to said law." In the absence of any proceeding for expropriation instituted before the courts, petitioner has clearly no cause of action. It is true that Republic Act No. 2616, insofar as it expropriated singularly a particular private property, had survived the challenge

of being discriminatory, and was declared free from constitutional infirmity. 1 Nevertheless, this Court has also ruled that Section 4 2 thereof, which places a restraint upon the exercise and enjoyment by the owner of certain rights over its property, is justifiable only if the government takes possession of the land and is in a position to make a coetaneous payment of just compensation to its owner. 3 There could not be any other way by which the validity of the provision may be sustained. Definitely, to hold that the mere declaration of an intention to expropriate, without instituting the corresponding proceeding therefor before the courts, with assurance of just compensation, would already preclude the exercise by the owner of his rights of ownership over the land, or bar the enforcement of any final ejectment order that the owner may have obtained against any intruder into the land, is to sanction an act which is indeed confiscatory and therefore offensive to the Constitution. For it must be realized that in a condemnation case, it is from the condemnor's taking possession of the property that the owner is deprived of the benefits of ownership, 4 such as possession, management and disposition thereof. Before that time, the proprietary right of the owner over his property must be recognized. Actually, there should no longer be any doubt, on this matter. In a series of cases previously passed upon by this Court, involving the same private respondents and property, and occasioned by the congressional approval of the same Republic Act No. 2616, it was definitively ruled that until the proceedings for condemnation have been fully instituted and possession of the property is taken over by the condemnor, the enforcement of final decrees of eviction may not be lawfully suspended. 5 Thus: ... the mere filing of the condemnation proceedings for the benefit of tenants can not, by itself alone, lawfully suspend the condemnee's dominical rights, whether of possession, enjoyment or disposition. And this is especially the case where final and executory judgments of ejectment have been obtained against the occupants of the property. (Tuason and Co. Inc. vs. Land Tenure Administration, L-18128, Dec. 26, 1961). As heretofore adverted to nothing has been presented in the case at bar, to show that an action for expropriation of the lots allegedly occupied by the 1,500 persons named in Annex "A" of the petition has actually been instituted and is being pursued by the government, nor is there proof that the supposed appropriated

amount of P10,000,000.00, for the purchase of the Tatalon Estate by the government, has been duly certified as available for that purpose. Under such circumstances no valid ground has really been established to restrict respondents' exercise of their dominical rights over their property. In view of the conclusion thus arrived at, We find it unnecessary to pass upon the other issues raised by the respondents. WHEREFORE, the petition is hereby dismissed, without costs. Footnotes 1 J.M. Tuason and Co., Inc. v. Land Tenure Administration, L21064, Feb. 18, 1970, 31 SCRA 413. 2 "SEC. 4. After the expropriation proceedings mentioned in section two of this Act shall have been initiated and during the pendency of the same, no ejectment proceedings shall be instituted or prosecuted against the present occupant of any lot in said Tatalon Estate, and no ejectment proceedings already commenced shall be continued, and such lot or any portion thereof shall not be sold by the owners of said estate to any person other than the present occupant without the consent of the latter given in a public instrument."